Sanchez v. Calfee et al

Filing 38

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 30 Report and Recommendations, 23 Motion for Entry of Default filed by Eduardo Sanchez, and DENYING 23 MOTION for Entry of Default filed by Eduardo Sanchez. Signed by Judge Michael H. Schneider on 5/17/13. (bas, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TEXARKANA DIVISION
EDUARDO SANCHEZ

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v.

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JEFFREY CALFEE, ET AL.

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CIVIL ACTION NO. 5:12cv112

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
AND DENYING PLAINTIFF’S MOTION FOR DEFAULT JUDGMENT
The Plaintiff Eduardo Sanchez, proceeding pro se, filed this civil rights lawsuit under 42
U.S.C. §1983 complaining of alleged violations of his constitutional rights in the Texas Department
of Criminal Justice, Correctional Institutions Division. This Court ordered that the case be referred
to the United States Magistrate Judge pursuant to 28 U.S.C. §636(b)(1) and (3) and the Amended
Order for the Adoption of Local Rules for the Assignment of Duties to United States Magistrate
Judges.
Sanchez filed a motion asking for a default judgment against two of the Defendants, William
Jones and Terry Cornelious. After review of the pleadings, the Magistrate Judge issued a Report
recommending the motion for default judgment be denied because Jones answered within 30 days
after summons was issued to the U.S. Marshal and nothing in the record showed service had been
effected upon Cornelious.
Sanchez filed objections to the Report on April 18, 2013. In his objections, Sanchez states
that he believed summons were issued on January 23 and the Defendants had 30 days in which to
answer. He states Cornelious was a “prime actor” and asks that Cornelious be held in default, but
does not address the fact that the record does not reveal that Cornelious has been served with
process.

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The docket shows summons was issued for Cornelious at his last known address on January
23, 2013, and delivered to the U.S. Marshal for service. However, the record does not reflect that
service of process was ever effected upon Cornelious. Until Cornelious is properly served, Sanchez
cannot obtain a default judgment. Thompson v. Johnson, 348 Fed.Appx. 919, 2009 WL 3199647
(5th Cir., October 6, 2009), citing Rogers v. Hartford Life & Acc. Ins. Co., 167 F.3d 933, 937 (5th
Cir. 1999). The Magistrate Judge properly recommended that Sanchez’s motion for a default
judgment be denied. Sanchez’s objections are without merit.
The Court has conducted a careful de novo review of the pleadings in this cause, the Report
of the Magistrate Judge, and the Plaintiff’s objections thereto. Upon such de novo review, the Court
has .concluded the Report of the Magistrate Judge is correct and the Plaintiff’s objections are without
merit. It is accordingly
ORDERED that the Plaintiff’s objections are overruled and the Report of the Magistrate
Judge (docket no. 30) is hereby ADOPTED as the opinion of the District Court. It is further
ORDERED that the Plaintiff’s motion for a default judgment (docket no. 23) be and hereby
is DENIED.
It is SO ORDERED.
SIGNED this 17th day of May, 2013.

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MICHAEL H. SCHNEIDER
UNITED STATES DISTRICT JUDGE

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