Drake

Filing 14

MEMORANDUM ADOPTING THE REPORT AND RECOMMENDATION OF UNTIED STATES MAGISTRATE JUDGE. The Court is of the opinion that the findings and conclusions of the Magistrate Judge are correct and adopts the Magistrate Judge's report (Dkt. #4 ) as the findings and conclusions of the Court. Accordingly, it is ORDERED that Petitioner's Verified Petition to Perpetuate Testimony (Dkt. #1 ), his Amended Verified Petition to Perpetuate Testimony (Dkt. #6 ), and Petitioner's Motion for Reconsideration are DENIED (Dkt. #8 ). Signed by District Judge Amos L. Mazzant, III on 12/11/2017. (baf, )

United States District Court
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

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In re ERIC DRAKE

Cause No. 4:17-MC-00069
(Judge Mazzant

MEMORANDUM ADOPTING THE REPORT AND
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Came on for consideration the report of the United States Magistrate Judge in this action,
this matter having been heretofore referred to the Magistrate Judge pursuant to 28 U.S.C. § 636.
On October 2, 2017, the report of the Magistrate Judge (Dkt. #4) was entered containing proposed
findings of fact and recommendations that Petitioner Eric Drake’s Verified Petition to Perpetuate
Testimony (Dkt. #1) be denied. Having received the report and recommendation of the Magistrate
Judge, having considered Petitioner’s objections (Dkt. #9) as well as Petitioner’s Amended
,
Verified Petition to Perpetuate Testimony (Dkt. #6), Petitioner’s Motion to Reconsider, Motion to
Set Aside Court’s Denial of Rule 27 Proceedings, Motion for New Trial, and Motion to Amend
(“Motion for Reconsideration”) (Dkt. #8), and having conducted a de novo review, the Court is of
the opinion that the findings and conclusions of the Magistrate Judge are correct and adopts the
Magistrate Judge’s report as the findings and conclusions of the Court. Petitioner’s Verified
Petition to Perpetuate Testimony, Amended Verified Petition to Perpetuate Testimony, and his
Motion for Reconsideration are DENIED.
RELEVANT BACKGROUND
As set out in greater detail in the report and recommendation of the Magistrate Judge,
Petitioner seeks permission under Federal Rule of Civil Procedure 27(a) to depose two 7-Eleven
employees, who Petitioner alleges prevented him from purchasing a winning Powerball ticket

(Dkt. #1 at pp. 2–3). Petitioner claims “Mr. Doe” and Rahkee Sherma, employees at a local 7Eleven, gave him conflicting information concerning the “cut-off time to play the
Powerball” (Dkt. #1 at p. 2). Petitioner asserts he “actually picked winning numbers” for the
Powerball, and now seeks to compel testimony under Rule 27(a) to establish Mr. Doe and
Rahkee Sherma’s error (Dkt. #1 at pp. 2–3).
On October 2, 2017, the report and recommendation of the Magistrate Judge was entered,
recommending that the Verified Petition to Perpetuate Testimony be denied because it: (1) failed
to meet the requirements of Rule 27; (2) sought to abuse Rule 27’s purpose; and (3) failed to
demonstrate the necessity of a pre-suit deposition with regard to either Mr. Doe or Rahkee
Sherma (Dkt. #4 at p. 3). On October 11, 2017, Petitioner timely filed his objections to the
report and recommendation (Dkt. #9). On the same day, Petitioner filed his Motion for
Reconsideration, which the Court also treats as objections (Dkt. #8).
PETITIONER’S OBJECTIONS
A party who files timely written objections to a magistrate judge’s report and
recommendation is entitled to a de novo review of those findings or recommendations to which
the party specifically objects. 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P. 72(b)(2)–(3). In their
entirety, Petitioner’s objections state:
1. [Petitioner] comes, filing his formal objections to the magistrate report dated
October 2, 2017. [Petitioner] objects to [sic] Sherman division even having
jurisdiction over the above cause because all evidence appear [sic] to suggest that
one of the deponents reside [sic] in Collin County (Plano) and not Grayson County.
2. [Petitioner] was mistreated by the manager of the clerk’s office, Karen Sessions
on account of his race. Bigotry seems to flow from this division.
3. Otherwise, the [Petitioner] objects to the magistrate report in its entirety. If the
district judge agrees with the magistrate report, [Petitioner] requests that he signs
[sic] a final order for the [Petitioner] to appeal the denial of the [Petitioner’s] Rule
27.
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(Dkt. #9 at p. 1). Petitioner advances these same or substantially similar arguments in his Amended
Verified Petition to Perpetuate Testimony (Dkt. #6) and in his Motion for Reconsideration
(Dkt. #8).1 As such, this Court also treats both the Motion for Reconsideration (Dkt. #8) and the
Amended Verified Petition to Perpetuate Testimony (Dkt. #6) as objections to the Court’s report
and recommendation (Dkt. #4). See, e.g., Davis v. American Nat’l Bank of Texas, 2013 WL
1195695 (E.D. Tex. Mar. 22, 2013) (treating motion to reconsider as objections to report and
recommendation of magistrate judge).
As an initial matter, the Court finds that Petitioner’s objections are neither sufficiently
specific, nor supported by any authority. See Fed. R. Civ. P. 72(b)(2) (objections to the magistrate
judge’s recommended disposition must be specific).

General objections are insufficient.

Petitioner’s status as a pro se litigant does not absolve him of the responsibility to state his
objections with specificity or support his objections with authority. United States v. Pineda,
988 F.2d 22, 23 (5th Cir. 1993) (pro se litigants are still required to provide sufficient facts and
authority in support of their claims). Notwithstanding such failure, the Court has considered
Petitioner’s objections and finds them to be meritless. Regarding Petitioner’s first objection, as
the Court previously explained in its Order denying Petitioner’s Motion and Objection to Transfer
of the Above Cause to the Sherman Division (Dkt. #3), “[t]here is no Plano Division of the Eastern
District of Texas.” (Dkt. #10). Turning next to Petitioner’s allegation that an employee of the
Clerk’s Office discriminated against him, Petitioner’s allegation is wholly unsubstantiated.
Further, Petitioner fails to explain how such alleged mistreatment impacts or pertains in any way to
the report and recommendation of the Magistrate Judge. See Birl v. Estelle, 660 F.2d 592, 593

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The differences between Petitioner’s Amended Verified Petition (Dkt. #6) and his original Petition to Perpetuate
Testimony (Dkt. #1) are insignificant. Petitioner spells Rahkee Sherma’s name slightly different, alleges Rahkee
Sherma may be living with Mr. Doe, and lists a different mailing address, but the two Petitions are otherwise facsimiles
of one another.

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(5th Cir. 1981) (per curiam) (noting that pro se litigants acquire no greater rights than a litigant
represented by counsel, and are equally subject to the established rules of practice and procedure).
Petitioner’s final objection does no more than state that Petitioner disagrees with the entirety of
the Magistrate Judge’s report, but again, fails to dispute any specific conclusion.
Upon independent review, the Court concludes that the Magistrate Judge’s findings and
recommendation are correct. See Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1429
(5th Cir. 1996) (en banc) (noting that a district court may alternatively find the magistrate judge’s
findings and conclusions were correct even though a party did not properly object to the report and
recommendation). Accordingly, the Court adopts the Magistrate Judge’s finding that Petitioner’s
Verified Petition to Perpetuate Testimony should be denied.
CONCLUSION
Having considered Petitioner’s objections (Dkt. #9), Petitioner’s Amended Verified
Petition to Perpetuate Testimony (Dkt. #6), Petitioner’s Motion for Reconsideration (Dkt. #8), and
having conducted a de novo review, the Court is of the opinion that the findings and conclusions
of the Magistrate Judge are correct and adopts the Magistrate Judge’s report (Dkt. #4) as the
findings and conclusions of the Court.
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Accordingly, it is ORDERED that Petitioner’s Verified Petition to Perpetuate Testimony
(Dkt. #1), his Amended Verified Petition to Perpetuate Testimony (Dkt. #6), and Petitioner’s
Motion for Reconsideration are DENIED (Dkt. #8).
IT IS SO ORDERED.
SIGNED this 11th day of December, 2017.

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AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE
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