Moore v. Williams et al

Filing 64

AMENDED ORDER OF DISMISSAL ADOPTING REPORT AND RECOMMENDATIONS for 56 Report and Recommendations. It is accordingly ORDERED Defendant's motion to dismiss (Dkt. #49) is GRANTED. Signed by District Judge Amos L. Mazzant, III on 1/9/2018. (daj, )

United States District Court
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

JIMMY MOORE, # 1771243
Plaintiff
VS.
WILLIAM CHARLES, et. al.
Defendants

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Case No. 4:14CV825

AMENDED ORDER OF DISMISSAL
The above-entitled and numbered civil action was referred to United States Magistrate
Judge Kimberly C. Priest Johnson, who issued a Report and Recommendation concluding that
Defendant Juan Marrono’s (hereinafter, “Defendant”) motion to dismiss (Dkt. #49) be granted and
the claims against him be dismissed with prejudice. 1 The Report and Recommendation, which
contains proposed findings of fact and recommendations for the disposition of such action, has
been presented for consideration, and Plaintiff filed objections.
In his objections, Plaintiff states that Defendant did not timely respond to the Complaint.
See Dkt. #61 at 2. However, Defendant was served on March 3, 2017. Defendant filed an
appropriate answer, his motion to dismiss, on March 24, 2017. See Dkt. ##45, 49; FED R. CIV. P.
12(a)(1)(A)(i).
Additionally, Plaintiff argues that Defendant’s decision-making was arbitrary and
unreasonable because there was a lack of evidence to support the disciplinary decision. See Dkt.

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The Court’s February 28, 2017, amended judgment dismissed Defendant without prejudice because he had not been
properly served. See Dkt. # 44. The judgment also granted Plaintiff an ability to request the civil action be reopened
if Defendant were to be properly served. On March 3, 2017, summons was properly executed as to Defendant. See
Dkt. #45. Although Plaintiff did not request the case be reopened, Plaintiff received due process. The Court, in an
abundance of caution, considered Plaintiff’s filings in resolving Defendant’s motion. The record shows that Plaintiff
filed a response to Defendant’s motion to dismiss, which was considered in the Magistrate Judge’s Report and
Recommendation regarding Defendant’s motion to dismiss. Dkt. #53. Further, Plaintiff filed an objection to the
Report and Recommendation, which the Court considers below. Dkt. #61. Finally, the Court has ruled upon all other
motions Plaintiff filed. See Dkt. #59.

#61 at 3-4. Similarly, Plaintiff also argues that he showed that his disciplinary action was
overturned. See Dkt. #61 at 5. While Plaintiff correctly cites to Judge O’Conner’s Order
overturning his disciplinary action (See Moore v. Stephens, 7:13-cv-046, Dkt. No. 26, 2014 WL
6485865 (N.D.Tex. November 14, 2014), Plaintiff fails to show that the resulting refiling of the
disciplinary action was overturned. Id. at Dkt. #34-1. Therefore, since Plaintiff fails to show the
new disciplinary decision was arbitrary, Plaintiff’s claims fail.
Finally, Plaintiff argues that Defendant is not part of the corporate entity, under the intracorporate conspiracy doctrine, because Defendant acted outside of his corporate duties. See Dkt.
#61 at 6. Movant also alleges that he provided sufficient allegations to sustain his claims.
Plaintiff’s allegations, however, fail to show Defendant acted outside the course of his duties. For
the reasons stated above, after conducting a de novo review of the record, the Court concludes that
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the findings and conclusions of the Magistrate Judge are correct, and adopts same as the findings
and conclusions of the Court.
It is accordingly ORDERED Defendant’s motion to dismiss (Dkt. #49) is GRANTED.
IT IS SO ORDERED.
SIGNED this 9th day of January, 2018.

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AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE