Ange v. Cash et al, No. 5:2020cv00240 - Document 38 (N.D. Tex. 2022)
Court Description: ORDER ACCEPTING REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE RE: 32 Findings and Recommendations on 1 Complaint. Plaintiff's 34 Objections are OVERRULED, and the Court ACCEPTS AND ADOPTS the Findings, Conclusions, and Recommendation of the United States Magistrate Judge. Judgment pursuant to Rule 54(b) shall be entered accordingly. (Ordered by Senior Judge Sam R. Cummings on 9/19/2022) (krr)
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Ange v. Cash et al Doc. 38 Case 5:20-cv-00240-C Document 38 Filed 09/19/22 Page 1 of 2 PageID 160 IN THE UNITED STATI,S DISTRICT COURT FOR THE NORTHERN DISTRJCT OF TEXAS LUBBOCK DIVISION DANIEL ANGE. i; Institutional ID No. 23263 I 8. s $ P la intiff. $ $ $ DPS TROOPER MICHAE,L SlMS.r er (/.. CIVIL ACTION NO. 5:20-CV-00240-C $ $ $ Dcltndants. $ ATION ORDER ACCEPTING REPO R T AND RECOMME OF'IHE UN ITE,D STATES MAGISTIIAI'E JUD(;E The United States Magistrate Judge made findings, conclusions, and a recommendation in this case. Plaintiff timely filed objections. The District Court made an independent examination of the record in this case and conducted a de novo review ofthe relevant portions ofthe Magistrate Judge's Report and Recommendation. As explained briefly below, Plaintifls objections are OVERRULED, and the Court ACCEPTS and ADOPTS the Findings, Conclusions, and Recommendation of the United States Magistrate Judge. Plaintifls objections focus on the Magistrate Judge's description ofthe events as recorded in the authenticated video records. First, Plaintifftakes issue with the way the Magistrate Judge describes the force incident-when Trooper Sims hit Plaintiff s bike with his patrol vehicle. But the Magistrate Judge recommended that Plaintifls excessive-force claim against Trooper Sims should proceed. Plaintifls objections do not challenge that recommendation or change the analysis of that c la inr I The Court adopts the Magistrate Judge's findings regarding the substitution ofDefendant DPS Trooper Michael Sirns for the originally named Defendant DPS Trooper "Cash," based on the authenticated records and Plaintiffs responses during screening. Doc.32 at 3. The Court changes the caption ofthis case accordingly. The Clerk is directed to change the docket to terminate Trooper Cash as a party and add Trooper Sims' Dockets.Justia.com Case 5:20-cv-00240-C Document 38 Filed 09/19/22 Page 2 of 2 PageID 161 Next, Plaintiff objects to the dismissal of his deliberate indifference claim. He insists that the evidence shows the DPS troopers to be negligent. But negligence-or even gross negligence-is not enough to establish deliberate indifference. Thompson v. Upshur Cty.,245F.3d447,459 (5th Cir. 2001). Plaintifls objections are overruled. lT IS THEREFORE ORDERED that 1) Plaintiff s claims for deliberate indifference to his serious medical needs against all Defendants are DISMISSED with prejudice under 28 U.S.C. $$ l9l5(e)(2)(B) and I 9l 54. 2) Plaintiff s claims against Defendant DPS Special Agent Robert Smith are DISMISSED with prej udice under 28 U.S.C. $$ I 9l 5(e)(2)(B) and I 9 I 5.{. 3) There is no just reason for delay in entering a final judgment and final judgment should be entered as to the above-named Defendants and claims pursuant to Federal Rule of Civil Procedure 54(b). 4) Plaintiff s claim against Defendant Michael Sims for excessive proceed with service of process as follows: use of force will The Clerk shall transmit to the Attorney General a copy of this Order, together with a copy of Plaintifls Complaint (Doc. I ), Questionnaire responses (Doc. 27), and the Report and Recommendation (Doc. 32). The documents shall be transmitted by email to the appropriate email addresses at the Office of the Attorney General for the State ofTexas. See Fed. R. Civ. P.5(bX2XE). Defendant Michael Sims shall file an answer or other responsive pleading within thirty (30) days ofthe date ofservice of this Order. If Defendant Sims is no longer employed by the Texas Department of Public Safety 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. Judgment pursuant to Rule 54(b) shall be entered accordingly SO ORDI]RI]D oated september -/{ . 2ozz. 1 /2-/? .CU SA Un ite 2 7-' CS ta tes District J gc
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