Birdow v. Mery, DDS et al

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Case 2:26-cv-00047 Documenti17_ Filed 06/24/26 in TXSD Pagelof3

United States District Court
Southem District of Texas

ENTERED
June 24, 2026

UNITED STATES DISTRICT COURT Nathan Ochener, Clerk

SOUTHERN DISTRICT OF TEXAS

CORPUS CHRISTI DIVISION
AUSTIN D. BIRDOW, §
Plaintiff,
V. CIVIL ACTION NO, 2:26-CV-00047
MARK MERY, DDS, et al.,
Defendants.

ORDER ADOPTING MEMORANDUM & RECOMMENDATION

Before the Court is Magistrate Judge Jason Libby’s Memorandum and Recommendation
(“M&R”). (D.E. 10). The M&R recommends that the Court dismiss without prejudice Plaintiff's
claims for money damages against Defendants in their official capacities and dismiss with
prejudice Plaintiffs claims against Defendants in their individual capacities. Jd. at 1. The M&R
further recommends that dismissal of this case count as a strike for purposes of 28
U.S.C. § 1915(g). Jd. at 1-2.

Plaintiff filed objections to the M&R on May 12, 2026. (D.E. 15). When a party objects to
the findings and recommendations of a magistrate judge, the district judge “shall make a de novo
determination of those portions of the report or specified proposed findings or recommendations
to which objection is made.” 28 U.S.C. § 636(b)(1)(C). A party must point out with particularity
any alleged errors in the magistrate judge’s analysis. Pelko v. Perales, No. 23-CV-00339, 2024
WL 1972896, at *1 (S.D. Tex. May 3, 2024) (Ramos, J.). Objections that merely re-urge arguments
contained in the original briefing are not proper and will not be considered. Edmond v. Collins, 8

F.3d 290, 293 n.7 (Sth Cir. 1993). Moreover, “[f]rivolous, conclusive or general objections need

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Case 2:26-cv-00047 Document17_ Filed 06/24/26 in TXSD Page 2of3

not be considered by the district court.” Battle v. U.S. Parole Comm’n, 842 F.2d 419, 421 (Sth Cir.
1987) (citation and internal quotation marks omitted).

As to any portion for which no objection is filed, a district court reviews for clearly
erroneous factual findings and conclusions of law. United States v. Wilson, 864 F.2d 1219, 1221
(5th Cir. 1989) (per curiam). Furthermore, having previously authorized district courts to
expeditiously adopt a magistrate judge’s recommendation, McGill v. Goff, 17 F.3d 729, 731-32
(5th Cir. 1994) (permitting a district court to adopt a magistrate’s recommendation one day after
receiving it and before objections were filed), the Fifth Circuit has also authorized district courts
to adopt a magistrate judge’s recommendation without providing detailed analysis. See Habets v.
Waste Mgmt., Inc., 363 F.3d 378, 382 (Sth Cir. 2004) (affirming a district court’s two-sentence
order adopting a magistrate’s recommendation for summary judgment).!

After considering Plaintiff's objections and reviewing the M&R de novo, the Court
OVERRULES Plaintiff's objections and ADOPTS the findings and conclusions of the M&R.
(D.E. 10). Accordingly, the Court ORDERS the following:

1. Plaintiff's claims for money damages against Defendants in their official capacity are

DISMISSED without prejudice as barred by the Eleventh Amendment.

2. Plaintiff's claims against Defendants in their individual capacity are DISMISSED with

prejudice for failure to state a claim for relief.

' Specifically, the Fifth Circuit stated that “because the magistrate here made only legal findings on a
summary judgment motion, the district court was permitted to issue an abbreviated order adopting [the
recommendation].” Habets, 363 F.3d at 382. The Court finds that the principles animating the Fifth
Circuit’s decision apply with equal force here: (1) “the record was available to the district court a full 20
days before the court issued its order”; (2) “the magistrate here made no involved findings of fact . . .”; (3)
“the magistrate here provided a thorough analysis to support its recommendation”; and (4) “the district
court had a complete record of the magistrate’s proceedings.” See id. (citations omitted).

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Case 2:26-cv-00047 Documenti17_ Filed 06/24/26 in TXSD Page 3of3

3. Plaintiff will not be granted leave to amend as he was given an opportunity to fully
explain his claims at the Spears hearing, see March 25, 2026 Minute Entry, and further
amendment would be futile.

4. A “strike” is IMPOSED under 28 U.S.C. § 1915(g). The Clerk of Court SHALL send
notice of this dismissal to the Manager of the Three Strikes List for the Southern District
of Texas at Three_Strikes@txs.uscourts.gov.

The Court will enter a final judgment separately. Pa \ [

SO ORDERED.

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DAVIDS: ORALES
UNITED STATES DISTRICT JUDGE

Signed: Corpus Christi, Texas
June 2475-2026

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