Canales v. Davis et al

Filing 115

ORDER partially adopting 99 Report and Recommendation. Signed by District Judge Marcia A. Crone on 3/11/2020. (bjc, )

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 OPINION AND ORDER
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.1
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 Jherick Campbell be
dismissed for want of prosecution pursuant to Federal Rule of Civil Procedure 41(b) (docket entry
no. 99).
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 objections to the Magistrate Judge’s 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).

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Plaintiff’s claims against defendant Moore were dismissed on January 24, 2020 pursuant to Federal Rule of
Civil Procedure 41(a). Plaintiff’s claims against the remaining defendants were severed from this action on
February 28, 2020 (docket entry no. 113).

After careful consideration, the court finds plaintiff’s objections are without merit.
Ultimately, service of process upon a defendant is the responsibility of the plaintiff. The
Magistrate Judge, through the assistance of the United States Marshal’s Office, attempted service
at the last known address provided by the Office of the Attorney General under seal and at the
Mark Stiles Unit. Both attempts were returned unexecuted. On August 5, 2019, the Magistrate
Judge entered an order requiring plaintiff to provide the Court with an address for service of
process. Plaintiff responded on August 16, 2019 complaining he could not provide an address.
The Report and Recommendation was issued on January 9, 2020 and, yet, plaintiff has still not
provided an address for service of process and complains through his Objections that it is not his
responsibility.
Plaintiff’s Objections are overruled. The Court, however, Partially Adopts the Report and
Recommendation to the extent it recommends dismissal as plaintiff has failed to serve defendant
Campbell within 120 days of filing suit pursuant to Federal Rule of Civil Procedure 4(m).
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. A Final Judgment will be entered in this case in accordance with the
Magistrate Judge’s recommendations.
SIGNED at Beaumont, Texas, this 11th day of March, 2020.

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MARCIA A. CRONE
UNITED STATES DISTRICT JUDGE
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