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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

TERRY MELVIN ELLIS, §

 §

Plaintiff, §

 §

v. § Civil Action No. 3:06-CV-283-K

 §

LESLIE COTTEN, §

 §

Defendant. §

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

Pursuant to the District Court’s Order, entered February 13, 2006, this case has been referred

to the United States Magistrate Judge for pretrial management. Before the Court is Defendant’s

First Motion for Summary Judgment (doc. 21) and Defendant’s Motion for Summary Judgment

(doc. 23). Because Defendant’s Motion for Summary Judgment supercedes Defendant’s First

Motion for Summary Judgment, the Court recommends that Defendant’s First Motion for Summary

Judgment (doc. 21) be DENIED as moot.

Plaintiff filed a response to Defendant’s Motion for Summary Judgment on May 28, 2008

(doc. 36) and Defendant replied on June 9, 2008 (doc. 42). After considering the arguments, the

Court finds that Defendant’s Motion for Summary Judgment (doc. 23) should be GRANTED.

BACKGROUND

On February 13, 2006, Plaintiff brought this action pursuant to 42 U.S.C. § 1983 (2006),

claiming that Defendant violated his civil rights when Defendant ordered medical personnel to

obtain Plaintiff’s blood and urine specimens without Plaintiff’s consent and in a forcible manner.

(Pl.’s Compl. at 2.) He also alleges that certain property was wrongly confiscated. (Id.) These
1. Plaintiff has not provided any description of the events leading up to the arrest.

Defendants, on the other hand, provided several affidavits from police officers involved in Plaintiff

arrest, describing what occurred. Because Plaintiff has not attempted to contradict these affidavits,

there is no genuine issue of material fact regarding what happened prior to the arrest.

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allegations stem from an incident that occurred on September 30, 2004. On that day, Plaintiff was

arrested for evading arrest. (Id.)

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 Officer Scott Wiley (“Officer Wiley”) observed Plaintiff driving

a red Ford pickup (“pickup”) seventy-seven miles per hour, exceeding the posted speed limit of

fifty-five miles per hour. (Def.’s Mot. Summ. J. at App. 1–2.) Officer Wiley activated the

emergency lights on his patrol car and attempted to overtake Plaintiff’s pickup. (Id.) Plaintiff failed

to yield, and instead accelerated to approximately 100 miles per hour. (Id.) Officer Wiley then

turned on the siren in the patrol car and informed dispatch of the pursuit. (Id.) Plaintiff continued

driving at a high rate of speed, drove across the center line into oncoming traffic, and forced two

cars to pull off the road and into a ditch. (Id. at App. 2.) The Coriscana Police Department set up

a spike strip, which Plaintiff’s pickup crossed, puncturing both front tires. (Id.) Plaintiff continued

driving at a high rate of speed, ran a stop sign, and ran a red light. (Id.) Plaintiff continued driving

after the pickup’s left front tire disintegrated and its rim came off. (Id.) He then changed directions

by driving across a yard. (Id.) Plaintiff eventually turned onto a dead-end street. (Id.) At this point,

Plaintiff attempted to cross a cow pasture, but Plaintiff ran into a ditch and the pickup was disabled.

(Id.)

Several police officers, including Officer Wiley drew their weapons and ordered Plaintiff out

of the pickup. (Id. at App. 3.) Plaintiff did not comply with this order and refused to unlock the

doors to the pickup. (Id.) Corsicana Police Officer Kelly Paul used his baton to break the driver’s

side window and unlock the door. (Id.) Plaintiff was removed from his vehicle and arrested for
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Evading Arrest with a Vehicle and Reckless Driving. (Id.) Officer Jeff Harbuck (“Officer

Harbuck”) and Officer Wiley searched the pickup for weapons and narcotics. (Id. at App. 8–9.)

Plaintiff’s pickup was later impounded. (Id. at App. 3.)

Officer Wiley stated that Plaintiff was “dazed and disoriented and began screaming at the

officers.” (Id. at App. 3.) The officers called a Corsicana Fire Department ambulance to examine

Plaintiff for his own safety. (Id.) The paramedics brought Plaintiff to Navarro Regional Hospital

to be examined by a doctor. (Id.) Officer Wiley read Plaintiff the Miranda warning. (Id.) Both

Officer Wiley and Officer Clint Andrews (“Officer Andrews”) accompanied Plaintiff to the hospital.

(Id. at App. 3, 6) Officer Andrews helped the paramedics put Plaintiff onto the gurney. (Id. at App.

6.) At that point, Plaintiff spoke loudly and tried to hit and kick the paramedics. (Id.) Officer

Andrews then put black nylon leg restraints on Plaintiff for the safety of the officers, paramedics,

and Plaintiff. (Id.) Plaintiff attempted to kick free from Officer Andrew. (Id.) 

While at the hospital, Officer Andrews removed the nylon leg restraints and replaced them

with leg cuffs. (Id.) Plaintiffs hands were cuffed to the gurney. (Id.) Plaintiff cursed at the medical

staff while they treated him. (Id. at App. 6–7.) At the hospital, Officer Wiley heard Plaintiff tell

Officer Harbuck that Plaintiff had “shot up” methamphetamine three times since leaving Bosque

County en route to Navarro County. (Id. at App. 3, 8–9.) Officer Andrews heard Plaintiff tell the

medical staff that they would have to insert a needle in another location because he had “collapsed

most of his veins by shooting up narcotics for so long.” (Id. at App. 6–7.) Officer Andrews also

heard Plaintiff say that he had not urinated in several days, at which point, the medical staff inserted

a catheter into Plaintiff. (Id.) 

Plaintiff claims that when he refused to consent to giving blood and urine specimens, he was
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handcuffed to a “gurney” and restrained by several officers. (Pl.’s Resp. Magistrate Judge’s Supp.

Questionnaire to Pl. at 3.) After being restrained, a catheter was inserted into his penis and he was

given two shots to calm him down. (Id.) Plaintiff then claims that he “passed out” and blood was

drawn and urine was extracted. (Id.) Plaintiff alleges that these actions were taken at the direction

of the Deputy Sheriffs. (Id.)

Plaintiff does not know why his blood and urine specimens were taken. (Id.) He does not

know the results of any testing done on Plaintiff’s blood and urine specimens. (Pl.’s Resp.

Magistrate Judge’s Questionnaire at 2.) No results of any such testing were used against Plaintiff

at any point during his criminal trial. (Id.) Plaintiff claims that he was “very disoriented at that time

due to the ‘mace’ spray” used by the Sheriff’s Deputies. (Id. at 4.) 

Plaintiff claims that over $900 worth of merchandise was confiscated at the time of his arrest.

(Pl.’s Compl. at 3.) The merchandise included: “(1) 25 pairs of wrangler jeans - $19.95 a pair; (2)

10 dress shirts - $12.95 each; (3) 10 designer T-shirts - $8.00 each; (4) 1 camouflage shirt - $24.95

each; (5) 1 pair camouflage pants - $26.95; (6) 10 packs boxer briefs - $6.49 a pack; (7) 20 pairs of

socks - $1.00 a pair; (8) 1 belt - $12.00; (9) 1 belt - $8.00; (10) 1 pair of hush puppies . . . - $24.95;

(11) 1 pair of tennis shoes - $24.95. (Pl.’s Resp. Magistrate Judge’s Supp. Questionnaire to Pl. at

4.) In addition to these items, Plaintiff also claims that the tools in his tool bag were also taken.

(Pl.’s Resp. Mot. Summ. J. at 4.) Plaintiff asserts that this property was lost by Defendant. (Id.)

STANDARD OF REVIEW

The Court should only grant summary judgment if there is “no genuine issue as to any

material fact” and “the moving party is entitled to judgment as a matter of law.” Celotex Corp. v.

Catrett, 477 U.S. 317, 323 (1986). A genuine issue of material fact exists “if the evidence is such
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that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986). In making this determination, the court views the facts in the light

most favorable to the non-moving party. Whittaker v. BellSouth Telecomm., Inc., 206 F.3d 532, 534

(5th Cir. 2000). A party seeking summary judgment bears the initial burden of informing the court

of the basis for its motion, and identifying those portions of the record that it believes demonstrates

the absence of a genuine issue of material fact. Celotex Corp., 477 U.S. at 323. If the non-movant

bears the burden of proof at trial, the summary judgment movant may satisfy his burden by pointing

to the absence of evidence supporting the non-movant’s case. Whittaker, 206 F.3d at 534. At this

point, the non-movant must show that summary judgment is not appropriate by going beyond the

pleadings to demonstrate “specific facts showing that there is a genuine issue for trial.” Id. Mere

conclusory allegations or denials unsupported by specific facts are not enough. Id. There must be

evidence giving rise to reasonable inferences that support the non-moving party’s position. St.

Amant v. Benoit, 806 F.2d 1294, 1297 (5th Cir. 1987). The material facts in this case are not

disputed.

Since Plaintiff in this case is proceeding pro se, the Court must construe the allegations in

the complaint liberally. Hughes v. Rowe, 449 U.S. 5, 9 (1980) (per curiam); Sec. & Exch. Comm’n

v. AMX, Int’l, Inc., 7 F.3d 71, 75 (5th Cir. 1993) (per curiam). The Court has an obligation to

construe a pro se plaintiff’s brief more permissively and to make more allowances. AMX, Int’l, Inc.,

7 F.3d at 75. “[P]ro se litigant[s] [are] subject to less stringent standards than [those] represented

by counsel.” Id. (citing Hughes v. Rowe, 449 U.S. at 9). 

ANALYSIS

Plaintiff argues that Defendant violated 42 U.S.C. § 1983 by personally ordering medical
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staff to forcibly take blood and urine specimens without his consent. He also claims that Defendant

lost over $900 in merchandise, which was confiscated from his pickup truck. Section 1983 provides

a federal cause of action for a violation of an individual’s civil rights. See Gomez v. Toledo, 446

U.S. 635, 638–40 (1980). Section 1983 “‘is not itself a source of substantive rights,’ but merely

provides ‘a method for vindicating federal rights elsewhere conferred.’” Graham v. Connor, 490

U.S. 386, 394 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 (1979)). To establish a § 1983

claim, the plaintiff must show (1) “the deprivation of any rights, privileges, or immunities secured

by the Constitution and laws” (2) by any person acting under the color of state law. Gomez, 446

U.S. at 638. In this case, Plaintiff alleges that Defendant violated his Fourth Amendment right. It

is undisputed that the second part of this test is satisfied. Defendant is the Sheriff of Navarro County

and was acting under the color of state law. 

Supervisory officials cannot be vicariously liable for a § 1983 cause of action under the

doctrine of respondeat superior. Barksdale v. King, 699 F.2d 744, 746 (5th Cir. 1983) (per curiam);

see also Thompkins v. Belt, 828 F.2d 298, 303–04 (5th Cir. 1987). In other words, a supervisor

cannot be liable solely based on the actions of his subordinates. Thompkins, 828 F.2d at 303–04.

In order for a supervisory official to be liable under § 1983, the supervisor must either be personally

involved in the constitutional violation, or there must be a sufficient causal connection between the

supervisor’s wrongful conduct and the constitutional violation. Thompkins, 828 F.2d at 304.

Plaintiff appears to allege that Defendant, by ordering both actions, was personally involved in the

taking of blood and urine specimens and restraining him. Plaintiff does not contend Defendant was

personally involved losing his personal property. 

A. Defendant’s Personal Involvement
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In response to Plaintiff’s allegations that Defendant violated Plaintiff’s rights though his

personal involvement, Defendant argues that he is protected by qualified immunity for his actions.

Qualified immunity protects government officials who are performing discretionary functions from

liability for damages. Anderson v. Creighton, 483 U.S. 635, 638 (1987). The privilege of qualified

immunity shields an officer from suit, rather than providing him with a defense to liability. Saucier

v. Katz, 533 U.S. 194, 201 (2001). Determining whether a defendant is entitled to qualified

immunity is analyzed under a two-part test. Simmons v. City of Paris, Tex., 378 F.3d 476, 479 (5th

Cir. 2004). See also Saucier, 533 U.S. at 201. If the defendant succeeds on either part of the test,

qualified immunity exists. See Simmons, 378 F.3d at 479. The first part of the test considers

whether the facts alleged, viewed in the light most favorable to the plaintiff, violate a constitutional

right. Saucier, 533 U.S. at 201. If a constitutional right was violated, the court determines if that

right was clearly established at the time of defendant’s unlawful conduct. Id.

1. Constitutional Violation

Plaintiff appears to claim that Defendant ordered the violation of his constitutional rights in

two ways. First, Plaintiff claims that he was subject to an unlawful search though the taking of his

blood and urine. Plaintiff next appears to argue that he was subject to excessive force. The Court

considers each of these arguments.

a. Unlawful Search and Seizure

Plaintiff alleges that he was unlawfully seized when he was handcuffed to the gurney and

unlawfully searched through the compulsory taking of blood and urine specimens in violation of the

Fourth Amendment. The Fourth Amendment provides that “[t]he right of the people to be secure

in their persons, houses, papers, and effects, against unreasonable searches and seizures shall not be
2. In support of Plaintiff’s argument that a warrant or consent is required, he relies on Smith

v. State, 557 S.W.2d.299 (Tex. Crim. App. 1997). However, in that case no exigent circumstances

existed to justify an exception to the warrant or consent requirement. Because the Supreme Court

has held that this exception is appropriate when a plaintiff is suspected of committing an intoxication

offense, the Court finds that this case is not applicable. 

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violated . . .” U.S. CONST. amend IV. The Supreme Court held that such compulsory testing is

subject to the constraints of the Fourth Amendment. Schmerber v. California, 384 U.S. 757, 767

(1966) (noting that compulsory blood testing procedures “plainly constitute searches of ‘persons,’

and depend antecedently upon seizures of ‘persons,’ within the meaning of that Amendment”);

United States v. Edmo, 140 F.3d 1289, 1292 (9th Cir. 1998) (applying Schmerber to compulsory

urine testing). The Fourth Amendment, however, does not prohibit all searches and seizures, only

those that are unreasonable. Skinner v. Railway Labor Executives’ Assoc., 489 U.S. 602, 617 (1989).

The Supreme Court has held that reasonableness “depends on all of the circumstances surrounding

the search or seizure and the nature of the search or seizure itself.” Id. Generally, for a search or

seizure to be reasonable, there must be a warrant issued, which is based upon probable cause. Id.

An exception to this general rule exists when an officer is confronted with an emergency

where evidence might be destroyed while a warrant is obtained.2

 In Schmerber, the Supreme Court

found that such an emergency exists when a plaintiff was arrested for an intoxication offense.

Schmerber, 384 U.S. at 770. In that case, a police officer instructed a doctor to extract a blood

specimen from a drunk driving suspect without his consent. Id. at 758, 769. In upholding the

reasonableness of the police officer’s actions, the Supreme Court considered three factors. Id. at

770–72. First, the Supreme Court determined that in circumstances where evidence might be

destroyed while a warrant is obtained, a seizure is reasonable if probable cause exists. Id. at 770.

Probable cause exists when “the facts and circumstances known to the arresting officer are sufficient
3. Plaintiff apparently relies on § 724.012(b) of the Texas Transportation Code in support

of his argument that a person must be arrested in order got an officer to obtain a blood specimen

without a warrant. However, § 724.012(b) is a statutory requirement. McKenna v. State, 671

S.W.2d 138, 139 (Tex. App. - Houston [1st Dist.] 1984). Any violation of that provision does not

result in a violation of Plaintiff’s constitutional rights. See id. Instead, in determining if a plaintiff’s

constitutional rights are violated by the non-consensual, warrantless extraction of blood, the Court

is guided by Schmerber. Id.

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to warrant a prudent person to believe that the person arrested has committed or was committing an

offense.” Beck v. Ohio, 379 U.S. 89, 91 (1964). In Schmerber, the police officer testified that the

plaintiff’s eyes were bloodshot, watery, and glassy in appearance. Schmerber, 384 U.S. at 769. This

was sufficient probable cause to extract blood from the plaintiff without his consent. Id.

The Supreme Court next considered whether the test used to measure the plaintiff’s bloodalcohol level was reasonable. Id. at 771. Not only are blood tests “highly effective means of

determining of the degree to which a person in under the influence . . . , ” but such tests are common

place and routine. Id. Accordingly, the extraction of blood is a reasonable method to obtain

evidence when there is probable cause to believe an intoxication offense was committed. Likewise,

the Supreme Court also considered whether the manner in which the test is performed was

reasonable. Id. In Schmerber, the blood test was taken by a doctor in a hospital in accordance with

proper medical practices. Id. The Ninth Circuit has extended this principle to compulsory urine

testing as well. United States v. Edmo, 140 F.3d 1289, 1292 (9th Cir. 1998) 

Accepting Plaintiff’s allegations as true, this case is remarkably similar to Schmerber.

Plaintiff alleges that Defendant ordered the medical staff to exact blood and urine specimens without

his consent. Plaintiff argues that probable cause did not exist because the police officers did not

charge him with an intoxication offense.3

 However, it is inconsequential that the officers decided

not to charge Plaintiff with an intoxication offense. The seizure of evidence based on exigent
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circumstances does not have to be accompanied by an arrest. U.S. v. Chapel, 55 F.3d 1416 (9th Cir.

1995) (citing Cupp v. Murphy, 412 U.S. 291 (1983)). Instead, the court considers whether the

requirements set forth by the Supreme Court in Schmerber are satisfied. Id. The reasonableness of

the test chosen and the manner in which the test was performed are not disputed, therefore, the Court

need only consider whether probable cause exited to believe that Plaintiff was driving while

intoxicated. 

As discussed above, Plaintiff led police officers on a high speed chase. During this chase

Plaintiff was driving erratically. For example, Plaintiff crossed into oncoming traffic, forcing two

cars of the road. He also ran a stop sign, ran a red light, and drove across a yard before crashing the

pickup into a ditch. The officers noticed that Plaintiff was “dazed and disoriented and began

screaming at the officers.” (Def.’s Mot. Summ. J. at App. 3.) At the hospital, Plaintiff continued

screaming and cursing at the hospital staff. Officer Wiley heard Plaintiff tell Officer Harbuck that

Plaintiff had “shot up” methamphetamine three times since leaving Bosque County en route to

Navarro County. (Id. at App. 3, 8–9.) Officer Andrews also heard Plaintiff tell the medical staff that

they would have to insert a needle in another location because he had “collapsed most of his veins

by shooting up narcotics for so long.” (Id. at App. 6–7.) Clearly, probable cause existed for the

police officers to believe that Plaintiff was driving while intoxicated. 

b. Excessive Force

Plaintiff also claims that during this incident, he was forcefully restrained. He also asserts

that the officers sprayed him with mace. (Pl.’s Resp. Magistrate Judge’s Supp. Questionnaire to Pl.

at 4.) Plaintiff does not clearly allege that the police officers committed excessive force or that

Defendant personally ordered the use of excessive force. However, because the Court construes pro
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se plaintiff’s briefs liberally, the Court considers whether excessive force was used. 

While some use of force is acceptable when extracting a blood and urine specimen, it cannot

be excessive. See Hammer v. Gross, 932 F.2d 842, 845 (9th Cir. 1991). To establish a prima facie

case of excessive force under the Fourth Amendment, the plaintiff must show that he was seized,

and as a result of that seizure he suffered “(1) an injury that (2) resulted directly and only from the

use of force that was excessive to the need and that (3) the force used was objectively unreasonable.”

Flores v. City of Palacios, 381 F.3d 391, 391 (5th Cir. 2004). 

Plaintiff has not alleged that any injury resulted from the officers use of force to restrain him.

Moreover, the amount of force used was objectively reasonable. While the officers and medical

staff were attempting to put Plaintiff on the gurney to be transported to the hospital, Plaintiff

attempted to hit and kick those who were assisting him. Officer Andrews put nylon restraints on

Plaintiff for the safety of the medical staff, officers, and Plaintiff. Upon arriving at the hospital,

Plaintiff was belligerent, cursing and screaming at the hospital staff. Plaintiff was, therefore,

strapped to the gurney with leg cuffs. Given plaintiff’s actions, the use of restraints was reasonable.

Plaintiff provides no support for his allegation that the officers used mace on him. There is

no indication as to when this was used or in what context. The court need not consider conclusory

assertions unsupported by facts. However, even if the Court accepted this as true, the officers use

of mace would be reasonable given Plaintiff’s violent actions of hitting and kicking those who were

assisting him. Moreover, there is no allegation that Plaintiff suffered any injury as a result of the

mace. Therefore, the Court does not find any use of excessive force.

2. Clearly Established Right
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Even if Defendant violated Plaintiff’s Fourth Amendment rights, he would still be immune

from suit. In evaluating the second part of the qualified immunity test, the court looks to see if the

right violated was clearly established at the time of the defendant’s unlawful conduct. Saucier, 533

U.S. at 201. As the Supreme Court recognized in Saucier, “[t]his inquiry, it is vital to note, must

be undertaken in light of the specific context of the case not as a broad general proposition.” Id.

Therefore, for a right to be clearly established, “[t]he contours of that right must be sufficiently clear

that a reasonable official would understand that what he is doing violates that right.” Flores, 381

F.3d at 399–400 (citing Anderson, 483 U.S. at 640). Accordingly, the law must give reasonable

warning that the conduct at issue violates the plaintiff’s constitutional rights. Id. at 400. An officer,

therefore, who reasonably but mistakenly interprets the law is entitled to immunity. Id. 

Plaintiff points to no authority that would put Defendant on notice that his actions in ordering

the taking of a blood and urine sample violate the Fourth Amendment. Instead, as discussed above,

the case law indicates that this is a proper method of seizing evidence for a person suspected of

committing an intoxication offense. Likewise, Plaintiff points to no case law to suggest that the use

of restraints or mace under these circumstances would be unreasonable. Therefore, Defendant, at

most, reasonably, even if mistakenly, interpreted the law. Accordingly, Defendant is entitled to

qualified immunity. 

B. Defendant’s Supervisory Role

Plaintiff makes no allegation that Defendant was personally involved in losing Plaintiff’s

property. Therefore, in order for Defendant to be liable under § 1983, Plaintiff must show that there

is a sufficient causal connection between the supervisor’s wrongful conduct and the constitutional

violation. Thompkins v. Belt, 828 F.2d 298, 304 (5th Cir. 1987). This causal connection exists when
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the supervisory official implements a policy “so deficient that the policy ‘itself is a repudiation of

constitutional rights’ and is ‘the moving force of the constitutional violation.’” Id. (quoting

Grandstaff v. City of Borger, 767 F.2d 161, 169–70 (5th Cir. 1985)). 

Plaintiff asserts that his property was confiscated and lost by the police department. In order

for the deprivation of property to constitute a constitutional violation, the defendant’s conduct must

amount to more than mere negligence. Rivers v. Graybill, No. 3:06-CV-1128-D, 2008 WL 2548118,

*5 (N.D. Tex. June 24, 2008) (Fitzwater, J.) Plaintiff has not alleged any intentional action by the

police department, only the conclusory assertion that his property was lost. Therefore, Plaintiff has

not shown that a constitutional violation has occurred.

Moreover, even if there was a constitutional violation, there is no evidence that an official

policy is responsible for such a violation. The only evidence presented relating to this issue is

Defendant’s affidavit. He states that it is the policy of the Navarro County Sheriff’s Departments

to conduct an inventory of all property in an impounded vehicle. (Def.’s Mot. Summ. J. at App. 12.)

The vehicle is then released to a private tow service. (Id.) There is no allegation that Defendant has

implemented any deficient policy regarding impounding vehicles and inventorying property.

Accordingly, Plaintiff has failed to show any causal connection between any wrongful conduct by

Defendant and any constitutional violation. 

CONCLUSION

Taking the evidence in the light most favorable to Plaintiff, he has failed to show that any

personal action of Defendant caused any constitutional violation. Even if Defendant’s personal

actions did violate Plaintiff’s rights, Defendant is protected by qualified immunity. Plaintiff also

failed to show that Defendant is responsible for implementing a deficient policy that resulted in the
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loss of Plaintiff’s personal property. For these reasons, the Court recommends to the District Court

that Defendant’s Motion for Summary Judgment be GRANTED. 

SO ORDERED. July 23, 2008.

_____________________________________

PAUL D. STICKNEY

UNITED STATES MAGISTRATE JUDGE
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INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

The United States District Clerk shall serve a true copy of these findings, conclusions, and

recommendation on the parties. Pursuant to Title 28, United States Code, Section 636(b)(1), any

party who desires to object to these findings, conclusions, and recommendation must serve and file

written objections within ten days after being served with a copy. A party filing objections must

specifically identify those findings, conclusions, or recommendation to which objections are being

made. The District Court need not consider frivolous, conclusory or general objections. A party's

failure to file such written objections to these proposed findings, conclusions, and recommendation

shall bar that party from a de novo determination by the District Court. See Thomas v. Arn, 474 U.S.

140, 150 (1985). Additionally, any failure to file written objections to the proposed findings,

conclusions, and recommendation within ten days after being served with a copy shall bar the

aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge

that are accepted by the District Court, except upon grounds of plain error. See Douglass v. United

Services Auto. Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc).