McCurdy v. Seaburns et al

Filing 53

ORDER ADOPTING 47 REPORT AND RECOMMENDATIONS. This civil rights complaint is DISMISSED without prejudice for want of prosecution and failure to obey an order. All motions not previously ruled on are hereby DENIED. Signed by Judge Leonard Davis on 11/04/13. (mll, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION

DARRELL SEABURN MCCURDY, #1787703 §
VS.

§

T. D. HAMMONS, ET AL.

CIVIL ACTION NO. 6:13cv363

§
ORDER OF DISMISSAL

Plaintiff Darrell Seaburn McCurdy, an inmate previously confined at the Skyview psychiatric
facility of the Texas prison system, proceeding pro se and in forma pauperis, filed this lawsuit pursuant
to 42 U.S.C. § 1983. The cause of action was referred to United States Magistrate Judge K. Nicole
Mitchell, who issued a Third Report and Recommendation (docket entry #47) concluding that the case
should be dismissed without prejudice for want of prosecution and failure to obey an order. The
Plaintiff has filed objections.
The Defendants remaining in the lawsuit are Officer McCartney, Dr. Hardy and T.D.C.J. The
Plaintiff was given multiple opportunities to file an amended complaint in order to explain why he was
suing them. In his most recent amended complaint (docket entry #46), a twenty-three page document,
he named President Obama, the Pentagon and Zachary Casstevens as the defendants. Among other
things, he alleged that they used a parapsychological form of metempsychosis, the spiritual medium
and telepathy in order to communicate with him. His list of defendants on pages one and three of the
complaint did not mention Officer McCartney, Dr. Hardy nor T.D.C.J. Since the Plaintiff failed to
comply with multiple orders to explain why he was suing McCartney, Hardy and T.D.C.J., a
recommendation was made to dismiss the lawsuit. In his objections, the Plaintiff asserted that they
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were mentioned in the complaint. However, he made only a passing reference to Dr. Hardy and
T.D.C.J. in paragraph seven as follows: “The other medical evidence being Dr. Hardy, T. Beard, TDCJ
situation to support their exculpative angle, by perpetrating me a paramnesinc {sic}.” Despite
receiving instructions to the contrary, his amended complaint did not focus on Officer McCartney, Dr.
Hardy and T.D.C.J. and why he was suing them. Nonetheless, assuming arguendo that the remainder
of the complaint was properly before the Court, it would best be described as factually frivolous
encompassing claims that are “fanciful,” “fantastic,” and “delusional.” See Denton v. Hernandez, 504
U.S. 25, 32-33 (1992) (citing Neitzke v. William, 490 U.S. 319 (1989)).
The Report of the Magistrate Judge, which contains her proposed findings of fact and
recommendations for the disposition of such action, has been presented for consideration, and having
made a de novo review of the objections raised by the Plaintiff to the Report, the Court is of the
opinion that the findings and conclusions of the Magistrate Judge are correct and the objections of the
Plaintiff are without merit. Therefore the Court hereby adopts the findings and conclusions of the
Magistrate Judge as the findings and conclusions of the Court. It is accordingly
ORDERED that the civil rights complaint is DISMISSED without prejudice for want of
prosecution and failure to obey an order. Fed. R. Civ. P. 41(b). It is further
ORDERED that all motions not previously ruled on are hereby DENIED.
So ORDERED and SIGNED this 4th day of November, 2013.

__________________________________
LEONARD DAVIS
UNITED STATES DISTRICT JUDGE
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