United States District Court, S.D. Texas, Houston Division
ORDER ADOPTING MEMORANDUM AND ORDER
S. HANEN UNITED STATES DISTRICT JUDGE
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
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.
complaint that the Magistrate Judge made a credibility
finding in the M&R and wrongfully chose to believe
Defendants' 'evidence' rather than
"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)
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).
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
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. 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
objections in this regard are frivolous and they totally
failed to comply with rules governing summary judgments. To
blame the Magistrate Judge for ...