Parrott Jr. v. Sizemore ( 2019 )

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS TYLER DIVISION JIMMIE MARK PARROTT JR., § § Plaintiff, § § v. § Case No. 6:19-CV-214-JDK-JDL § JOHN DOE, HOSPITAL § ADMINISTRATOR, JOHN SEALY § HOSPITAL; JOHN DOE, DEAN OF § UTMB; MICHAEL SIZEMORE; FNU § DELEON; and DENNIS CROWLEY § § Defendants. § ORDER ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE This case was referred to United States Magistrate Judge John D. Love pursuant to 28 U.S.C. § 636. On August 20, 2019, the Magistrate Judge issued a Report and Recommendation (Docket No. 31), recommending that Plaintiff’s federal law claims against Defendant Dennis Crowley be dismissed with prejudice as frivolous and for failure to state a claim for purposes of proceeding in forma pauperis. The Report also recommended that Plaintiff’s state law claims against Defendant Crowley be dismissed with prejudice as to their refiling in federal court, but without prejudice to Plaintiff’s right to bring these claims in the courts of the State of Texas. Id. The Report also recommended that the limitations period for Plaintiff’s state law claims be tolled from the time of the filing of this lawsuit until 30 days after Plaintiff’s claims against Defendant Crowley have been dismissed. Id. A return receipt indicating delivery to Plaintiff was received by the Clerk on August 28, 2019 (Docket No. 35). This Court reviews the findings and conclusions of the Magistrate Judge de novo only if a party objects within fourteen days of service of the Report and Recommendation. 28 U.S.C. § 636(b)(1). In conducting a de novo review, the Court examines the entire record and makes an independent assessment under the law. Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1430 (5th Cir. 1996) (en banc), superseded on other grounds by statute, 28 U.S.C. § 636(b)(1) (extending the time to file objections from ten to fourteen days). Here, Plaintiff did not file objections in the prescribed period. The Court therefore reviews the Magistrate Judge’s findings for clear error or abuse of discretion and reviews his legal conclusions to determine whether they are contrary to law. See United States v. Wilson, 864 F.2d 1219, 1221 (Sth Cir. 1989), cert. denied, 492 U.S. 918 (1989) (holding that, if no objections to a Magistrate Judge’s Report are filed, the standard of review is “clearly erroneous, abuse of discretion and contrary to law’’). Having reviewed the Magistrate Judge’s Report and Recommendation, the Court finds no clear error or abuse of discretion and no conclusions contrary to law. The Court therefore adopts the Report and Recommendation of the United States Magistrate Judge (Docket No. 31) as the findings of thisCourt. Accordingly, it is hereby ORDERED that the Magistrate Judge’s Report (Docket No. 31) be ADOPTED and that the federal claims against Defendant Crowley are DISMISSED WITH PREJUDICE as frivolous and for failure to state a claim under 28 U.S.C. §1915A(b) for purposes of in forma pauperis proceedings. The state law claims against Defendant Crowley are DISMISSED WITH PREJUDICE as to their refiling in federal court, but DISMISSED WITHOUT PREJUDICE to Plaintiff's right to bring these claims in the courts of the State of Texas. The limitations period for Plaintiff’s state law claims shall be tolled from the time of the filing of this lawsuit until 30 days after the issuance of this Order. So ORDERED and SIGNED this 18th day of September, 2019. en DY Konbe JERQMY D RERNODIE UNITED STATES DISTRICT JUDGE