Ray v. Wilson et al

Filing 52

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 50 Report and Recommendations. It is ORDERED the Plaintiffs claims against the Defendant Captain Studdard are DISMISSED WITHOUT PREJUDICE for failure to effect service of process. It is further ORDER ED the statute of limitations on the Plaintiffs claims against Captain Studdard is SUSPENDED for a period of 120 days following the date of entry of final judgment in this case. Signed by District Judge Robert W. Schroeder, III on 7/8/2019. (slo, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TEXARKANA DIVISION
JERREMY RAY,
Plaintiff,
v.
WARDEN J. WILSON, ET AL.,
Defendants.

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§ CIVIL ACTION NO. 5:16-CV-00115-RWS§ CMC
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ORDER

The Plaintiff Jerremy Ray, proceeding pro se, filed this civil rights lawsuit under 42 U.S.C.
§ 1983 complaining of violations of his constitutional rights. The case was 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.
Plaintiff originally filed his complaint against numerous Defendants. The claims against
all Defendants except for Captain Studdard have been transferred or dismissed without prejudice.
Docket No. 42. After Captain Studdard was ordered to answer the lawsuit, the Texas Attorney
General advised the Court that Captain Studdard was no longer employed by the Texas Department
of Criminal Justice, and the Attorney General lacked authorization to file responsive pleadings on
her behalf. Docket No. 35. The Court issued process and directed the U.S. Marshal to serve
Captain Studdard at her last known address. Docket No. 38. Service was returned unexecuted
because Captain Studdard no longer resided at that address. Docket No. 40.
On November 14, 2018, the Court issued an order giving Plaintiff until December 21, 2018,
to furnish a valid address for Captain Studdard or to show cause why the claims against Captain
Studdard should not be dismissed for failure to effect service of process. Docket No. 48 (citing

Kersh v. Derozier, 851 F.2d 1509, 1512 (5th Cir. 1988) (responsibility for effecting service
ultimately rests upon the plaintiff)). Plaintiff received the order on November 19, 2018, but has
not responded.
On March 5, 2019, the Magistrate Judge issued a Report recommending dismissal of the
claims against Captain Studdard for failure to effect service of process. Docket No. 50 at 4. The
Magistrate Judge also recommended suspension of the statute of limitations for 120 days following
the entry of final judgment. Id.
Plaintiff received a copy of the Magistrate Judge’s Report but filed no objections thereto;
accordingly, he is not entitled to de novo review by the District Judge of those findings, conclusions
and recommendations, and except upon grounds of plain error, he is barred from appellate review
of the unobjected-to factual findings and legal conclusions accepted and adopted by the District
Court. 28 U.S.C § 636(b)(1)(C); Douglass v. United Services Automobile Association, 79 F.3d
1415, 1430 (5th Cir. 1996) (en banc).
Nonetheless, the Court has reviewed the pleadings in this cause and the Report of the
Magistrate Judge and agrees with the Report of the Magistrate Judge. See United States v. Raddatz,
447 U.S. 667, 683 (1980) (“[T]he statute permits the district court to give to the magistrate’s
proposed findings of fact and recommendations ‘such weight as [their] merit commands and the
sound discretion of the judge warrants.’ ”) (quoting Mathews v. Weber, 23 U.S. 261, 275 (1976)).
It is accordingly
ORDERED the Report of the Magistrate Judge (Docket No. 50) is ADOPTED as the
opinion of the District Court. It is further
ORDERED the Plaintiff’s claims against the Defendant Captain Studdard are
DISMISSED WITHOUT PREJUDICE for failure to effect service of process. It is further

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ORDERED the statute of limitations on the Plaintiff’s claims against Captain Studdard is
SUSPENDED for a period of 120 days following the date of entry of final judgment in this case.
Should Plaintiff ascertain a current and valid address for Captain Studdard within this period, he
may refile his lawsuit or seek the reopening of the present one.
So ORDERED and SIGNED this 8th day of July, 2019.

____________________________________
ROBERT W. SCHROEDER III
UNITED STATES DISTRICT JUDGE

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