Tanner v. Frenzei, Commissioner et al Filing Restrictions Imposed re: DE 16

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
BRADRICK GERLMAINE TANNER,
Plaintiff,
VS.
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CIVIL ACTION NO. 2:26-CV-00063
DOUGLAS FRENZEI, COMMISSIONER
ET AL, et al.,
Defendants.
ORDER ADOPTING MEMORANDUM AND RECOMMENDATION
On June 3, 2026, United States Magistrate Judge Jason B. Libby issued his
Memorandum and Recommendation (M&R), recommending that the Court dismiss
Plaintiff Bradrick Gerlmaine Tanner’s case with prejudice. D.E. 15. Plaintiff was provided
proper notice of, and opportunity to object to, the Magistrate Judge’s M&R. Fed. R. Civ.
P. 72(b); 28 U.S.C. § 636(b)(1). His objections were received by the Court on June 25,
2026, and are deemed timely.1 D.E. 19.
1 Parties have fourteen days to file objections to an M&R. See Fed. R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1). However,
the M&R was served on Plaintiff by mail, so he had an additional three days to object. See Rangel v. ASLM II, No.
EP-24-CV-00436-DCG, 2025 WL 2731841, at *2 (W.D. Tex. Sept. 25, 2025) (citing Fed. R. Civ. P. 6(d)).
Additionally, under the prison mailbox rule, a pro se prisoner’s objections to an M&R are “deemed filed and served
at the moment they are forwarded to prison officials for delivery to the district court.” See Thompson v. Rasberry, 993
F.2d 513, 515 (5th Cir. 1993) (applying the prison mailbox rule to filing objections to an M&R). When served by
mail, a filing is deemed served on the day it is mailed. Fed. R. Civ. P. 5(b)(2)(C).
The M&R was served on Plaintiff by mail on June 4, 2026. D.E. 17. Seventeen days from June 4, 2026, is June 21,
2026. Because that day was a Sunday, Plaintiff’s objections were due on the next day, June 22, 2026. Fed. R. Civ. P.
6(a)(1)(C). The envelope containing Plaintiff’s objections was postmarked on June 23, 2026. D.E. 19, p. 6. There is
no evidence in the record as to when Plaintiff handed his objections to prison staff for mailing, though he dated his
signature on the objections June 17, 2026. D.E. 19, p. 5. In the interest of justice, the Court will consider Plaintiff’s
objections as though they were timely filed.
United States District Court
Southern District of Texas
ENTERED
July 31, 2026
Nathan Ochsner, Clerk
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STANDARD OF REVIEW
A district court must review de novo any portion of a magistrate judge’s proposed
findings and recommendations on dispositive matters to which the parties have filed
specific, written objections. Fed. R. Civ. P. 72(b). Objections must point out with sufficient
particularity any alleged error in the magistrate judge’s analysis; otherwise, they do not
constitute proper objections and will not be considered. Id. After considering proper
objections, the district court may accept, reject, or modify, in whole or in part, those
portions of the proposed findings and recommendations. Id. 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).
DISCUSSION
First, Plaintiff complains to the Magistrate Judge’s reference to “plain error.” D.E.
19, pp. 1-2. The only reference to “plain error” in the M&R is in the “Notice to Parties”
section where the Magistrate Judge informs Plaintiff that a failure to timely object to the
M&R will bar Plaintiff, except on grounds of “plain error,” “from attacking on appeal the
unobjected-to proposed factual findings and legal conclusions accepted by the District
Court.” D.E. 15, p. 13. This is a correct statement of the law so the objection is
OVERRULED. If Plaintiff’s intent is to object to the legal standards the Magistrate Judge
applied to Plaintiff’s pleading, the objection is OVERRULED as the Magistrate Judge
accurately applied the correct standards.
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Second, Plaintiff claims that Heck v. Humphrey, 512 U.S. 477 (1994), does not
apply to his case, citing Ex parte Tom Tong, 108 U.S. 556 (1855). D.E. 19, p. 2. Tom Tong
addressed jurisdictional issues regarding writs of habeas corpus, and is not applicable here.
The Magistrate Judge correctly concluded that this case is barred by Heck. D.E. 15, pp. 8-
9. The objection is OVERRULED.
Third, Plaintiff objects that the Magistrate Judge improperly construed his § 1981
claims as § 1983 claims. D.E. 19, p. 3. Plaintiff references 42 U.S.C. § 1981 in the
Amended Complaint as a header at the top of pages 2-3, specifically stating “not 1983”.
D.E. 13, pp. 2-3. And he cites the language of the statute. Id., p. 2. However, his allegations
do not state a violation of § 1981. Additionally, with respect to suits for a violation of §
1981 against state actors, a plaintiff must assert a cause of action under § 1983. Escamilla
v. Elliott, 816 F. App’x 919, 922 (5th Cir. 2020). The Magistrate Judge correctly construed
Plaintiff’s claims as raised under § 1983, and correctly determined that Plaintiff failed to
state a claim. D.E. 15, p. 8. The objection is thus OVERRULED.
Fourth, Plaintiff states that the Magistrate Judge engaged in “judicial impropriety”
by dismissing Plaintiff’s complaint. D.E. 19, pp. 3-4. He also requests “reassignment to a
different and qualified judge and venue as necessary for fair and impartial consideration.”
Id. Having reviewed the record, the Court finds that there has been no judicial impropriety,
misconduct, or anything of the like. Plaintiff does not point to any specific improper action
and appears to simply disagree with the Magistrate Judge’s conclusions. Finding no error
in the M&R, nor any impropriety, the objection is OVERRULED.
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CONCLUSION
Having reviewed the findings of fact, conclusions of law, and recommendations set
forth in the Magistrate Judge’s M&R, as well as Plaintiff’s objections and all other relevant
documents in the record, and having made a de novo review of the portions of the
Magistrate Judge’s M&R to which objections were specifically directed, the Court
OVERRULES Plaintiff’s objections and ADOPTS as its own the findings and
conclusions of the Magistrate Judge (D.E. 15). Accordingly, Plaintiff’s claims are
DISMISSED WITH PREJUDICE.
ORDERED on July 31, 2026.
_______________________________
NELVA GONZALES RAMOS
UNITED STATES DISTRICT JUDGE
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