McCastle v. United States of America et al

Filing 52

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE for 32 Motion to Dismiss/Lack of Jurisdiction, filed by US Army Medical Research Institute, US Army Institute of Surgical Research, Federal Bureau of Investiga tion Grayson Country, United States of America, 47 Report and Recommendations. Therefore, the Court hereby adopts the findings and conclusions of the Magistrate Judge (Dkt. #47) as the findings and conclusions of this Court. It is, therefore, ORDERED that Defendants' motion is GRANTED and the case is DISMISSED as to Defendants United States of America, the U.S. Army, and the Federal Bureau of Investigation. Signed by Judge Amos L. Mazzant, III on 12/30/2016. (daj, )

United States District Court
EASTERN DISTRICT OF TEXAS DIVISION
SHERMAN DIVISION

CORNELIUS JOSEPH MCCASTLE,

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Plaintiff,
v.
UNITED STATES OF AMERICA, ET AL.,
Defendants.

CIVIL ACTION NO. 4:15CV420
JUDGE MAZZANT/JUDGE JOHNSON

MEMORANDUM ADOPTING REPORT AND
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Came on consideration the report of the United States Magistrate Judge in this action, this
matter having been heretofore referred to the United States Magistrate Judge pursuant to 28 U.S.C.
§ 636. On November 15, 2016, the report of the Magistrate Judge (Dkt. #47) was entered
containing proposed findings of fact and recommendations that Defendants United States of
America, 1 the U.S. Army, and the Federal Bureau of Investigation’s Motion to Dismiss for Lack
of Subject-Matter Jurisdiction, for Failure to State a Claim, and for Insufficient Service of Process
(Dkt. #32) should be GRANTED and this case should be DISMISSED as to these Defendants.
The record in this case indicates Defendant received a copy of the Magistrate Judge’s report
and recommendation on November 29, 2016 (see Dkt. #49). Defendant timely filed Objections on
November 30, 2016 (Dkt. #50). Pro se Plaintiff makes similar arguments as made in his Amended
Complaint (Dkt. #5), and fails to address how this Court has subject-matter jurisdiction over
Defendants. Further, Plaintiff fails to show he has stated a claim upon which relief can be granted

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Plaintiff named the “Federal Bureau of Investigation – Grayson County” as a defendant, but there is no such entity.
See Dkt. 32 at 1, n.1. The motions pending before the Court are filed on behalf of the federal defendants for which
summonses have issued and are listed as defendants on the docket sheet, including the United States, the U.S. Army,
and the Federal Bureau of Investigation. See id.

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and has not rebutted Defendants’ argument for insufficient service of process. Additionally,
Plaintiff asserts he has disclosed expert testimony, which is required in a healthcare liability claim.
See Dkt. #50 at 1; see also TEX. CIV. PRAC. & REM. CODE § 74.351(a). Although this was not
addressed in the report and recommendation, not only was Plaintiff’s designation of an expert
untimely, Plaintiff has not designated an expert; he has simply indicated that he submits an MRI,
which does not comply with the requirements of the Texas Civil Practice and Remedies Code (see
Dkt. #45). Finally, Plaintiff states violations under new statutes. 2 Plaintiff has not stated a claim
upon which relief could be granted, he simply lists the statutes. Also, the Court notes these are
federal criminal statutes that are inapplicable in this civil case.
Therefore, the Court hereby adopts the findings and conclusions of the Magistrate Judge
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(Dkt. #47) as the findings and conclusions of this Court. It is, therefore, ORDERED that
Defendants' motion is GRANTED and the case is DISMISSED as to Defendants United States
of America, the U.S. Army, and the Federal Bureau of Investigation.
IT IS SO ORDERED.
SIGNED this 30th day of December, 2016.

___________________________________
AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE

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See Dkt. #50 at 2-4. Plaintiff cites to the following new statutes: 18 U.S.C. § 1801 (Video voyeurism); § 246
(Deprivation of relief benefits); § 1515 (Definitions for certain provisions; general provisions); 1518 (Obstruction of
criminal investigations of health care offenses).

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