Opinion
CIVIL ACTION NO. 5:19-CV-00228-C
02-22-2021
AMOS LOTT SIMMS, Institutional ID No. 2171652 Plaintiff, v. LIEUTENANT MITZI TIMS, el 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. Plaintiff timely filed objections.
The undersigned Senior United States District Judge has conducted an independent, de novo review of the relevant portions of the record in this case and has examined the findings, conclusions, and recommendations of the Magistrate Judge. Plaintiff's objections are OVERRULED. The Court ACCEPTS and ADOPTS the Findings, Conclusions, and Recommendation of the United States Magistrate Judge.
IT IS THEREFORE ORDERED that:
1. Defendants Dominguez and Tims's Motion to Dismiss (Doc. 17) and Defendant Bakenga's Motion to Dismiss (Doc. 30) are GRANTED. Plaintiff's claims against Defendants in their official capacities are DISMISSED pursuant to Rule 12(b)(1) for lack of jurisdiction.
2. Defendants Bakenga, Dominguez, and Tims's Motion for Judgment on the Pleadings (Doc. 32), is GRANTED. Plaintiff's claims against Defendants Bakenga, Dominguez, and Tims in their individual capacity are DISMISSED with prejudice for failure to state a claim.
3. Plaintiff's claims, if any, against Officer Rubio are dismissed without prejudice.
4. This dismissal shall count as a qualifying dismissal under 28 U.S.C. § 1915(g) and Adepegba v. Hammons, 103 F.3d 383 (5th Cir. 1996).
5. Defendants' Motion for Protective Order (Doc. 21) is DENIED as moot.
Any relief not expressly granted is denied, and any pending motions are denied.
Dismissal of this action does not release Plaintiff or the institution where he is incarcerated from the obligation to pay any filing fee previously imposed. See Williams v. Roberts, 116 F.3d 1126, 1128 (5th Cir. 1997).
Plaintiff is advised that if he appeals this Order, he will be required to pay the appeal fee of $505.00 pursuant to the PLRA, and he must submit an application to proceed in forma pauperis and a 6-month Certificate of Inmate Trust Account at the same time he files his notice of appeal.
Judgment shall be entered accordingly.
SO ORDERED.
Dated February 22, 2021.
/s/_________
SAM R. CUMMINGS
Senior United States District Judge