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IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF TEXAS 

TYLER DIVISION 

ABDIAS ROSALES, 

 Plaintiff, 

v. 

CITY OF TYLER, TEXAS, et al., 

 Defendants. 

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Case No. 6:23-cv-245-JDK 

ORDER ADOPTING THE REPORT AND RECOMMENDATION 

OF THE UNITED STATES MAGISTRATE JUDGE 

Before the Court is Defendants the City of Tyler, Chief Jimmy Toler, Officer J. 

Hebert, Officer S. Black, Officer S. McGregor, Officer T. Sipes, Officer J. Utely, and 

Officer A. Thomas’s motion to dismiss pursuant to Federal Rule of Civil 

Procedure 12(b)(6). Docket No. 4. The Court referred the motion to United States 

Magistrate Judge John D. Love for findings of fact, conclusions of law, and a 

recommendation for disposition. Docket No. 15. 

On September 13, 2023, Judge Love issued a Report and Recommendation 

recommending that the Court deny Defendants’ motion in part and deny Defendants’ 

motion in part. Docket No. 16. Specifically, Judge Love recommended denying the 

motion as to Plaintiff’s Fourth Amendment claims against Defendant Thomas and 

granting the motion and dismissing with prejudice any Fourth Amendment claims 

asserted against Defendants Utley, Sipes, and Black. Id. at 8–10. Judge Love also 

recommended dismissing Plaintiff’s failure-to-train claims against Defendants Toler 

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and the City of Tyler but allowing Plaintiff to amend those claims. Id. at 10–13, 16. 

Finally, the Magistrate Judge found Defendants’ assertion of qualified immunity at 

the motion to dismiss stage to be meritless and recommended that the stay of 

discovery in this case be lifted. Id. at 16–17. No objections to the Report were filed 

and the time period for filing objections has passed. 

This Court reviews the findings and conclusions of the Magistrate Judge de 

novo only if a party objects within fourteen days of service 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superseded on other grounds by statute, 28 U.S.C. § 636(b)(1) (extending the time to 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 to fourteen days). 

Here, no party filed objections in the prescribed period. 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. 16) as the findings of this Court. 

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Defendants’ motion (Docket No. 4) is DENIED as to Defendants’ request to 

dismiss Plaintiff’s Fourth Amendment claims against Officer Thomas and 

GRANTED as to any Fourth Amendment claims asserted against Defendants Officer 

Utley, Officer Sipes, and Officer Black. Plaintiff’s Fourth Amendment claims 

asserted against Defendant Officer Utley, Defendant Officer Sipes, and Defendant 

Officer Black are DISMISSED with prejudice. 

Defendants’ motion is GRANTED as to Plaintiff’s failure-to-train claims 

against Defendants Chief Toler and the City of Tyler. However, Plaintiff is 

GRANTED leave to amend his complaint with respect to the failure-to-train claims. 

Plaintiff shall file any amended complaint by October 20, 2023. If Plaintiff timely 

amends his complaint, Defendants shall respond in accordance with the Federal 

Rules of Civil Procedure. 

Finally, the stay of discovery in this case (Docket No. 14) is LIFTED. 

Signed this

Oct 4, 2023

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