Davis v. Phillips et al

Filing 86

ORDER ADOPTING 81 REPORT AND RECOMMENDATIONS ORDERING 84 Request for Voluntary Dismissal of claims against Officer Phillips is GRANTED and last remaining claims are Dismissed Without Prejudice and FURTHER ORDERED ORDERED the above-styled civil a ction is DISMISSED without prejudice as to Officer Phillips and DISMISSED with prejudice for purposes of proceeding in forma pauperis for failure to state a claim upon which relief may be granted as to the Defendants Warden Calfee and Dr. Stanley, as stated in the Courts previous order of partial dismissal (docket no. 73). Finally, it isORDERED any and all motions which may be pending in this civil action are herebyDENIED.. Signed by Judge Rodney Gilstrap on 10/16/2017. (sm, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TEXARKANA DIVISION
FIDEL DAVIS

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v.

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C. PHILLIPS, ET AL.

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CIVIL ACTION NO. 5:15cv48

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
AND ENTERING FINAL JUDGMENT
The Plaintiff Fidel Davis, 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 referred the case 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.
Plaintiff originally filed his lawsuit in the Beaumont Division of the Eastern District of Texas
and named as Defendants Officer C. Phillips, Warden Jeff Calfee, Dr. Reginald Stanley, and the
Texas Department of Criminal Justice, Correctional Institutions Division. The Court severed the
claims against Officer Phillips, Warden Calfee, and Dr. Stanley and transferred those claims into the
present lawsuit in the Texarkana Division. Warden Calfee and Dr. Stanley have previously been
dismissed.
Officer Phillips filed a motion to dismiss, and the Magistrate Judge issued a Report
recommending the motion be granted. In response, Plaintiff filed a motion asking permission to
withdraw Officer Phillips from the complaint. This is in effect a motion for voluntary dismissal of
the claims against Officer Phillips.
The Court has reviewed the pleadings and the Report of the Magistrate Judge and has
determined this Report is correct. Nonetheless, Plaintiff’s request for voluntary dismissal of Officer
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Phillips should be granted. See Carter v. United States, 547 F.2d 258, 259 (5th Cir. 1977) (plaintiff
has absolute right to dismiss his complaint under Rule 41(a), Fed. R. Civ. P., prior to the filing of
an answer or motion for summary judgment); Thomas v. Phillips, 83 F.App’x 661, 2003 WL
22965565 (5th Cir., December 17, 2003) (citing Carter). It is accordingly
ORDERED the Plaintiff’s request for voluntary dismissal of his claims against Officer
Phillips (docket no. 84) is GRANTED. It is further
ORDERED the claims against Officer Phillips are DISMISSED WITHOUT PREJUDICE

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on the Plaintiff’s motion. Because these are the last remaining claims in the lawsuit, it is further
ORDERED the above-styled civil action is DISMISSED without prejudice as to Officer
Phillips and DISMISSED with prejudice for purposes of proceeding in forma pauperis for failure
to state a claim upon which relief may be granted as to the Defendants Warden Calfee and Dr.
Stanley, as stated in the Court’s previous order of partial dismissal (docket no. 73). Finally, it is
ORDERED any and all motions which may be pending in this civil action are hereby
DENIED.

SIGNED this 19th day of December, 2011.
So ORDERED and SIGNED this 16th day of October, 2017.

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RODNEY GILSTRAP
UNITED STATES DISTRICT JUDGE

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