Radford v. Norwood et al

Filing 100

ORDER ADOPTING REPORT AND RECOMMENDATIONS 96 ; granting 99 MOTION to rectify and list correct name of defendant - Bobby Joe Johnson filed by Tommy Radford; matter is referred back to the Magistrate Judge for an order directing service of the Complaint and Summons on the Defendant whose correct name is Bobby Joe Johnson. Signed by Honorable Harry F. Barnes on April 16, 2010. (cnn)

IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS EL DORADO DIVISION

TOMMY RADFORD

PLAINTIFF

VS.

CASE NO. 08-CV-1008

CAPTAIN DAVID NORWOOD, et al.,

DEFENDANTS

ORDER Before the Court is the Report and Recommendation filed on March 29, 2010, by the Honorable Barry A. Bryant, United States District Judge for the Western District of Arkansas. (Doc. No. 96). In his report, the Magistrate Judge recommends that Bobby Ray Smith be dismissed as a Defendant in this case on the ground that the Plaintiff has failed to provide the Court the actual name or physical description of this Defendant as ordered. The Plaintiff filed objections (Doc. No. 98). to the report stating that he did provide the Court with this Defendant's actual name, Bobby Joe Johnson, and his physical description in a pleading attached to his Motion to Supplement Complaint (Doc. No. 93) filed with the Court on December 4, 2009. On review of the documents filed on December 4, 2010, the Court finds that Plaintiff did file with these documents a "Motion to Rectify and or List Correct Name of Defendant ÷ `Bobby Joe Johnson' ". In this motion, Plaintiff states that he finally discovered that the Defendant's correct name is Bobby Joe Johnson, not Bobby Ray Smith. Johnson is employed and working at the Ouachita County Sheriff's office as a Jail or Sanitation/Trash Supervisor and Transportation Officer. Defendant also described Johnson as a Black Male, about 5'4" tall, and weighing close

to 335 pounds. After reviewing the record de novo, the Court finds that the Plaintiff did comply with the Court's order directing him to advise the Court, on or before December 4, 2009, of the correct name or place of employment or physical description of this individual. See Doc. 93-1, pgs. 4344. Accordingly, the Court finds that the Magistrate's recommendation to dismiss from this case the Defendant named in the Complaint as Bobby Ray Smith should be and hereby is rejected. The matter is referred back to the Magistrate Judge for an order directing service of the Complaint and Summons on the Defendant whose correct name is Bobby Joe Johnson. IT IS SO ORDERED, this 16th day of April, 2010.

/s/Harry F. Barnes Hon. Harry F. Barnes United States District Judge