Foster v. Avelar

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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
DEANDRE D. FOSTER, #02550541,
Plaintiff,
v.
OFFICER LUIS AVELAR,
Defendant.
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Case No. 6:24-cv-383-JDK-KNM
ORDER ADOPTING REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
Plaintiff Deandre Demarcus Foster, a prisoner confined within the Texas
Department of Criminal Justice (TDCJ) proceeding pro se and in forma pauperis,
filed this civil rights lawsuit complaining of alleged violations of his constitutional
rights. The case was referred to the United States Magistrate Judge K. Nicole
Mitchell for findings of fact, conclusions of law, and recommendations for the
disposition of the case.
On January 21, 2026, Judge Mitchell issued a Report and Recommendation
(Docket No. 32) recommending that Defendant Avelar’s motion for summary
judgment (Docket No. 29) be granted to the extent that Plaintiff’s claims are
dismissed, with prejudice to their being asserted again until the Heck conditions are
met. See Heck v. Humphrey, 512 U.S. 488 (1994). A copy of this Report was mailed
to Plaintiff at his last-known address. To date, however, neither party filed written
objections.
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The Court reviews the findings and conclusions of the Magistrate Judge de
novo only if a party objects within fourteen days of the Report and Recommendation.
28 U.S.C. § 636(b)(1). In conducting a de novo review, the Court examines the entire
record and makes an independent assessment under the law. Douglass v. United
Servs. Auto. Ass’n, 79 F.3d 1415, 1430 (5th Cir. 1996) (en banc), superseded on other
grounds by statute, 28 U.S.C. § 636(b)(1) (extending the time to file objections from
ten days to fourteen days).
Here, the parties have not filed objections. The Court therefore reviews the
Magistrate Judge’s findings for clear error or abuse of discretion and reviews the legal
conclusions to determine whether they are contrary to law. See United States v.
Wilson, 864 F.2d 1219, 1221 (5th Cir. 1989), cert. denied, 492 U.S. 918 (1989) (holding
that, if no objections to a Magistrate Judge’s Report are filed, the standard of review
is “clearly erroneous, abuse of discretion and contrary to law.”).
Having reviewed the Magistrate Judge’s Report and the record in this case,
the Court finds no clear error or abuse of discretion and no conclusions contrary to
law. Accordingly, the Court hereby ADOPTS the Report and Recommendation of the
United States Magistrate Judge (Docket No. 32) as the findings of this Court.
Accordingly, it ORDERED that Defendant Avelar’s motion for summary judgment
(Docket No. 29) is GRANTED. Plaintiff’s claims are DISMISSED with prejudice to
their being asserted again until the Heck conditions are met. All other motions which
may be pending in this case are DENIED as moot.
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So ORDERED and SIGNED this day of
___________________________________
JEREMY D. KERNODLE
UNITED STATES DISTRICT JUDGE
24th	February, 2026.
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