Aguilar v. Texas Department of Criminal Justice et al, No. 5:2022cv00306 - Document 41 (N.D. Tex. 2024)
Court Description: Order Accepting Findings and Recommendations re: 36 Findings and Recommendations on re: 35 Amended Complaint,, filed by Mario Aguilar. The Court ACCEPTS and ADOPTS the Findings, Conclusions, and Recommendation of the United States Ma gistrate Judge. IT IS THEREFORE ORDERED that Plaintiff's claims against Warden Ivey are DISMISSED with prejudice for failure to state a claim. Plaintiff's claims for deliberate indifference against NP Odiaka, John Doe CO #1, Jane Doe CO, and NP Sherrill are DISMISSED with prejudice for failure to state a claim. Plaintiff's claims against Texas Department of Criminal Justice, and his official capacityclaims against all defendants are DISMISSED without prejudice for lack of juris diction. There is no just reason for delay in entering a final judgment and final judgment will be entered as to the above-named Defendants and claims pursuant to Federal Rule of Civil Procedure 54(b). Plaintiff's deliberate- indifference clai ms against Defendants CO Henderson and Nurse Fridlington will proceed with notice and service as follows: The Clerk shall transmit to the Office of the Attorney General (OAG) a copy of this Order, together with a copy of Plaintiff's Amended Comp laint (Doc. 35), Judge Bryant's Order Granting in Part Plaintiff's Request to Amend (Doc. 34), and the Report and Recommendation (Doc. 36). The documents shall be transmitted by email to the appropriate email addresses at the Office of th e Attorney General for the State of Texas. The OAG is ordered to promptly contact Defendants CO Henderson and Nurse Fridlington and inquire whether each named defendant requests OAG representation and whether the defendant agrees to waive service und er Rule 4. The OAG shall-within 30 days of the date it receives this Order-file an answer or other responsive pleading on behalf of each defendant that waives service and requests representation by the OAG. If any defendant is no longer employed by TDCJ and will not be contacted and represented by the Attorney General's Office, the Assistant Attorney General assigned to this case shall provide the Court with each such defendant's last known address, UNDER SEAL WITHOUT A MOTION, on or before the date on which the defendant's answer is otherwise due. The Court GRANTS Plaintiff limited pre- service discovery for the purpose of identifying Defendants John Doe CO #2, John Doe CO #3, and Jane Doe Nurse. The Clerk shall transm it to the OAG a copy of Plaintiff's Notice of Identifying Information (Doc. 40). The OAG must exercise reasonable diligence to identify Defendants John Doe CO #2, John Doe CO #3, and Jane Doe Nurse. The OAG must disclose the identity of each identifiable Doe defendant in an advisory to the Court within 60 days of the date it receives this Order. Emailed documents to OAG's designated email addresses. (Ordered by Senior Judge Sam R Cummings on 5/6/2024) (bdg)
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Aguilar v. Texas Department of Criminal Justice et al Doc. 41 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS LUBBOCKDIVISION MARIO AGUILAR, lnstitutional ID No. 02248696, $ s $ Plaintiff, $ $ $ CIVIL ACTION NO. 5:22-CV-00306-C $ TEXAS DEPARTMENT OF CRIMINAL JUSTICE, et al., $ $ $ Defendants. $ ORDER ACCEPTING REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE The United States Magistrate Judge made findings, conclusions, and a recommendation in this case. No objections were filed. The Court reviewed the Report and Recommendation of the Magistrate Judge for plain error. Finding none, the Court ACCEPTS and ADOPTS the Findings, Conclusions, and Recommendation of the United States Magistrate Judge. IT IS THEREFORE ORDERED that r) Plaintifls claims against Warden Ivey are DISMISSED with prejudice for failure to state a claim. 2) Plaintifls claims for deliberate indifference Jane Doe CO, and NP Sherrill are a against NP Odiaka, John Doe CO #1, DISMISSED with prejudice for failure to state claim. 3) Plaintiff s claims against Texas Department of Criminal Justice, and his officialcapacity claims against all defendants are DISMISSED without prejudice for lack ofjurisdiction. 4) There is no just reason for delay in entering a final judgment and final judgment will be entered as to the above-named Defendants and claims pursuant to Federal Rule of Civil Procedure 54(b). s) Plaintiff s deliberate-indifference claims against Defendants CO Henderson and Nurse Fridlington wilI proceed with notice and service as follows: Dockets.Justia.com The Clerk shall transmit to the Office of the Attomey General (OAG) a copy of this Order, together with a copy of Plaintifls Amended Complaint (Doc. 35), Judge Bryant's Order Granting in Part Ptaintiff s Request to Amend (Doc. 34), and the Report and Recommendation (Doc. 36). The documents shall be transmitted by email to the appropriate email addresses at the Office of the Attomey General for the State of Texas. See Fed. R. Civ. P. 5(bX2XE). The OAG is ordered to promptly contact Defendants CO Henderson and Nurse Fridlington and inquire whether each named defendant requests OAG representation and whether the defendant agrees to waive service under Rule 4. The OAG shall-within 30 days of the date it receives this Order-file an answer or other responsive pleading on behalf of each defendant that waives service and requests representation by the OAG. Ifany defendant is no longer employed by TDCJ and will not be contacted and represented by the Attomey General's Office, the Assistant Attomey General assigned to this case shall provide the Court with each such defendant's last known address, UNDER SEAL WITHOUT A MOTION, on or before the date on which the defendant's answer is otherwise due. 6) The Court GRANTS Plaintiff limited pre-service discovery for the purpose of identifuing Defendants John Doe CO #2, John Doe CO #3, and Jane Doe Nurse. The Clerk shall transmit to the OAG a copy of Plaintiff s Notice of Identifuing Information (Doc. 40). The OAG must exercise reasonable diligence to identifu Defendants John Doe CO #2, John Doe CO #3, and Jane Doe Nurse. The OAG must disclose the identity ofeach identifiable Doe defendant in an advisory to the Court within 60 days of the date it receives this Order. The advisory must include (1) the name and employment status ofeach identified defendant, (2) whether the defendant is an active TDCJ employee, and (3) whether the defendant will waive service and be represented by the OAG. Ifthe OAG is authorized to represent any identified Doe defendant, and that defendant waives service, the OAG must file an answer or other responsive pleading on behalfofthat defendant within 30 days ofthe date of its advisory. If the OAG will not represent an identified defendant, the OAG must provide the defendant's last known address, UNDER SEAL WITHOUT A MOTION, as an attachment to its advisory. Alternatively, ifthe OAG cannot identifu a defendant based on the information provided by Plaintiff, the OAG must, within 60 days of the date it receives this Order, produce relevant records for Plaintiff s inspection and review, so that Plaintiff may attempt to identifo the defendant(s). The relevant records must include any duty rosters for the Montford Unit, 2nd shift, assignments to the A-2 Pod, from October 5, 2022. Additionally, ifmore than one officer or nurse 2 reasonably matches the descriptions and locations provided by Plaintiff, the OAG shall produce photos ofeach potential match for Plaintiffs review. Any produced photographs should be numbered to avoid disclosing unrelated identities. The OAG must file a notice of disclosure indicating its compliance with this discovery order, and shall attach LJNDER SEAL WITHOUT A MOTION, the name conesponding with each numbered photograph, the employment status of each photographed individual, and a last-known address where each photographed individual may be served. The name ofa photographed individual will be disclosed to Plaintiffonly if he informs the Court that the photographed individual is one of the Doe defendants. Plaintiff must review any disclosures or production made by the OAG and provide the Court with the name, or ifthe name is unknown, the photograph number, ofeach remaining Doe defendant within 30 days ofthe date ofservice on the OAG's disclosure or production. Failure to timely identifu a proper defendant may result in the Cou('s sua sponte dismissal of Plaintiff s claims against the unnamed defendant without prejudice. SO ORDERED Dated May [, 2024. 4t4'rv4 C r Uni S 3 GS States District J
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