Opinion
Civil Action 2:21 -CV-00176
08-08-2022
JABRI J MCCULLOUGH, Plaintiff, v. PATRICK O'DANIEL, et al., Defendants.
ORDER ADOPTING MEMORANDUM & RECOMMENDATION
DAVID S. MORALES, DISTRICT JUDGE
Before the Court is Magistrate Judge Julie Hampton's Memorandum and Recommendation (M&R), (D.E. 19). The M&R recommends that Defendants Patrick O'Daniel, Bryan Collier, and Jerry Sanchez's motion to dismiss (D.E. 17), filed pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), be granted in part and denied in part. (D.E. 19, p. 22). .
The parties were provided proper notice of, and the opportunity to object to, the Magistrate Judge's M&R. See 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b); General Order No. 2002-13. No objection has been filed. When no timely objection has been filed, the district court need only determine whether the Magistrate Judge's M&R is clearly erroneous or contrary to law. United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir. 1989) (per curiam); Powell v. Litton Loan Servicing, LP, No. CIV. A. H-14-2700, 2015 WL 3823141, at *1 (S.D. Tex. June 18, 2015) (Harmon, J.).
Having carefully reviewed the proposed findings and conclusions of the Magistrate Judge, the filings of the parties, the record, and the applicable law, and finding that the M&R is not clearly erroneous or contrary to law, the Court ADOPTS the M&R in its entirety. (D.E. 19).
Accordingly, the Court GRANTS in part and DENIES in part Defendants' Motion to Dismiss (D.E. 17).
(1) Defendants' motion to dismiss (D.E. 17) is GRANTED to the extent that:
a. Plaintiff's claims for money damages against Defendants in their official capacities are DISMISSED without prejudice as barred by the Eleventh Amendment;
b. Plaintiffs § 1983 claims against O'Daniel and Sanchez are DISMISSED without prejudice as barred by the Eleventh Amendment; and
c. Plaintiffs due process claims against Defendants in their individual and official capacities are DISMISSED with prejudice for failure to state a claim for relief and/or on qualified immunity grounds.
(2) Defendants' motion to dismiss (D.E. 17) is DENIED to the extent that:
a. Plaintiffs claims against Collier in his official capacity are not barred.by the Eleventh Amendment; and
b. Defendants rely on the Parratt/Hiidson doctrine as a basis for dismissal of Plaintiffs claims.
(3) Plaintiffs First Amendment claim against Defendants in their individual and official capacities are DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B).
(4) To the extent Plaintiffs response is construed as a motion to amend his complaint by adding state law claims, the Court DENIES such motion to amend as futile.
SO ORDERED.