McFerrin v. Barber et al

Filing 22

MEMORANDUM ORDER overruling objections and adopting the magistrate judge's 15 Report and Recommendation. Signed by District Judge Ron Clark on 6/19/2018. (bjc)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
LUFKIN DIVISION
ERVIN LEE MCFERRIN

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VS.

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MARK BARBER, et al.,

CIVIL ACTION NO. 1:17-CV-141

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MEMORANDUM ORDER OVERRULING OBJECTIONS AND
ADOPTING THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff, Ervin Lee McFerrin, an inmate formerly 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 defendants Mark
Barber, Gideon Daniel, Melissa Ballard, Patrick Muldowney, and Gutierrez Ramos.
The Court referred this matter to the Honorable Zack Hawthorn United States Magistrate
Judge, at Beaumont, Texas, for consideration pursuant to applicable laws and orders of this Court.
The Magistrate Judge recommends the civil rights action be dismissed for want of prosecution
pursuant to Federal Rule of Civil Procedure 41(b).
The Court has received and considered the Report and Recommendation of United States
Magistrate Judge filed pursuant to such order, along with the records, and pleadings. Although not
formally filed as objections, plaintiff has filed numerous pieces of correspondence that this Court
construes as objections (docket entry nos. 17, 19 & 20). This requires a de novo review of the
objections in relation to the pleadings and applicable law. See FED. R. CIV. P. 72(b).
On June 6, 2017, the Magistrate Judge ordered plaintiff to replead his cause of action within
twenty (20) days of entry of that order (docket entry no. 10). On June 14, 2017, plaintiff requested
a copy of his complaint which was sent to him on June 16, 2017 (docket entry no. 11). Plaintiff then
filed correspondence on June 21, 2017, requesting a copy of the docket sheet in this case which was
also sent to him on June 21, 2017 (docket entry no. 13). On June 30, 2017, plaintiff filed additional
correspondence indicating he received the order to replead but did not answer the questions asked

of him (docket entry no. 14). The Report and Recommendation was then entered on October 2,
2017, recommending this civil rights action be dismissed for want of prosecution (docket entry no.
15). Plaintiff received a copy of the Report and Recommendation on October 9, 2017 (docket entry
no. 16). Plaintiff then filed additional correspondence on October 12, 2017, essentially requesting
appointment of counsel (docket entry no. 17). The Magistrate Judge then entered an additional order
on October 19, 2017, denying plaintiff’s request for appointment of counsel and explaining plaintiff
merely needed to amend the factual details of his complaint (docket entry no. 18). This order also
gave plaintiff an additional twenty (20) days to amend his pleadings. Id. Plaintiff then filed a
Notice with the Court on November 9, 2017, complaining he was denied the appointment of counsel
but still did not amend his pleadings as ordered (docket entry no. 19). On November 13, 2017,
plaintiff filed another Motion to Appoint Counsel (docket entry no. 20).
Despite having a year to do so, plaintiff has failed to amend the factual details of his
complaint as ordered by the Magistrate Judge. As explained by the Magistrate Judge, this does
not require this assistance of appointed counsel. Plaintiff’s objections are without merit.
ORDER
Accordingly, plaintiff’s objections are OVERRULED. The findings of fact and conclusions
of law of the Magistrate Judge are correct, and the report of the Magistrate Judge is ADOPTED.
A Final Judgment will be entered in this case in accordance with the recommendations of the
Magistrate Judge.
So ORDERED and SIGNED this 19 day of June, 2018.

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Ron Clark, United States District Judge

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