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Hollie v. City of Bryan

United States District Court, S.D. Texas, Houston Division

June 3, 2019

CLAUDIA HOLLIE, et al, Plaintiffs,
v.
CITY OF BRYAN, etal, Defendants.

          ORDER ADOPTING MEMORANDUM AND ORDER

          ANDREW S. HANEN UNITED STATES DISTRICT JUDGE

         Pending before the Court in the above referenced proceeding is Defendants' Motion to Dismiss or in the Alternative for Summary Judgment (Doc. #15); Judge Stacy's Memorandum and Recommendation (Doc. #46) that the Court grant the Defendants' Motion for Summary Judgment; and Plaintiffs' Objections (Doc. #49) to the Memorandum and Recommendation (M&R).

         The Court has reviewed the case, de novo, and agrees with the Magistrate Judge's conclusion that Plaintiff has not raised a genuine issue of material fact on her discrimination or retaliations claims.

         Plaintiffs complaint that the Magistrate Judge made a credibility finding in the M&R and wrongfully chose to believe Defendants' 'evidence' rather than Plaintiffs'.

"Officer Dusin Seelig knew or highly suspected Johnny Hall Jr. (Johnny) had ingested a well-known poison-cocaine-but did not take Johnny to the hospital which resulted in Johnny's death. Instead of taking as true plaintiffs set of facts, the magistrate relied of defendants' set of facts"

(Doc. #49, p.l emphasis added)

         Later plaintiffs complain that:

The M&R relies almost inclusively upon defendants' recitation of facts and hearsay police reports. Plaintiffs object to defendants' recitation of the facts, all by interested witnesses, in its motion for summary judgment insofar as were in conflict with Plaintiffs' facts asserted and summary judgment evidence provided and the reasonable inferences in a light most favorable to plaintiff. Tolan v. Cotton, 572 U.S. at, 513-551 (2014).
The motion to dismiss must be decided wholly on plaintiffs complaint allegations. FRCP 12(d). In considering facts, this Court may base its decision on "(1) the complaint alone; (2) the complaint supplemented by undisputed facts; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts. Montez v. Dep't of the Navy, 392 F.3d 147, 149(5thCir.2004).

(Doc. 49, pp 5, 7).

         The Plaintiffs apparently still labor under the misconception that the Magistrate Judge was ruling on a motion to dismiss - in which case she would have had to accept all of plaintiffs' factual assertions as being true. This is not the case.

         The Motion to Dismiss was converted to a Motion for Summary Judgment. Notice to this effect was timely given on April 3, 2019. (Doc. #40). That notice was, no doubt, given because the Defendants', in their motion to dismiss, included as exhibits various business records proven up as such by affidavit.[1] Having been converted to a motion for summary judgment, Plaintiffs had the burden to raise issues of material fact by admissible evidence. Celetex Corp. v Catrett. 1066 S.Ct. 2548, 2553 (1986). The Plaintiffs failed in this regard. Instead of providing any appropriate summary judgment evidence that would raise a fact issue, they relied on their assertions in the complaint and unproven exhibits.

         Plaintiffs objections in this regard are frivolous and they totally failed to comply with rules governing summary judgments. To blame the Magistrate Judge for ...


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