Canales v. Davis et al

Filing 108

MEMORANDUM ORDER OVERRULING OBJECTIONS AND PARTIALLY ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION. The Magistrate Judge recommends plaintiff's claims against defendant Sergeant FNU Moore be dismissed pursuant to FRCP 41(a)(2) without prejudice. Signed by District Judge Marcia A. Crone on 1/23/20. (mrp, )

UNITED STATES DISTRICT COURT

RAMIRO CANALES,
Plaintiff,
versus
VIVIAN L. DAVIS, et al.,
Defendants.

EASTERN DISTRICT OF TEXAS

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CIVIL ACTION NO. 1:16-CV-140

MEMORANDUM ORDER OVERRULING OBJECTIONS AND PARTIALLY
ADOPTING THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff, Ramiro Canales, an inmate confined at the Mark Stiles Unit, with the Texas
Department of Criminal Justice, Correctional Institutions Division, proceeding pro se and in forma
pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 against several defendants.
The court referred this matter to the Honorable Keith Giblin, United States Magistrate
Judge, at Beaumont, Texas, for consideration pursuant to applicable laws and orders of this court.
The Magistrate Judge recommends plaintiff’s claims against defendant Sergeant FNU Moore be
dismissed pursuant to Federal Rule of Civil Procedure 41(a)(2) without prejudice.
The court has received and considered the Report and Recommendation of United States
Magistrate Judge filed pursuant to such referral, along with the record, and pleadings. Plaintiff
filed correspondence with the court on September 9, 2019. The court liberally construes the
response as objections to the Report and Recommendation. This requires a de novo review of the
objections in relation to the pleadings and the applicable law. See FED. R. CIV. P. 72(b).
On June 10, 2019, the Magistrate Judge ordered plaintiff to notify the court as to whether
he wished to voluntarily dismiss his claims against defendant Moore or wished to proceed with

his claims against this defendant. If plaintiff wished to proceed with his claims, the Order gave
plaintiff twenty days to provide a current address and full name for defendant Moore. Plaintiff
received a copy of the Report and Recommendation on August 21, 2019 (docket entry no. 84). On
September 9, 2019, plaintiff filed a proposed summons but the summons did not contain an
address to serve defendant Moore nor did it provide defendant Moore’s first name to assist in
identification.
After careful consideration, the court finds plaintiff’s objections are without merit.
Plaintiff has had ample time to provide a full name for defendant Moore and an address for service
of process. Plaintiff has failed to do so and plaintiff’s claims against defendant Moore should be
dismissed for want of prosecution pursuant to Federal Rule of Civil Procedure 41(b).
ORDER
Accordingly, the objections of the plaintiff are OVERRULED. The findings of fact and
conclusions of law of the Magistrate Judge are correct, and the report of the Magistrate Judge is
PARTIALLY ADOPTED to the extent it recommends dismissal. The dismissal is without
prejudice.
SIGNED at Beaumont, Texas, this 23rd day of January, 2020.

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MARCIA A. CRONE
UNITED STATES DISTRICT JUDGE

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