Mitchell v. Livingston et al

Filing 38

MEMORANDUM ORDER ADOPTING REPORT AND RECOMMENDATIONS. The report of the magistrate judge 37 is ADOPTED as the opinion of the District Court. Plaintiff's claims against the Defendant Bradley Norton are DISMISSED WITHOUT PREJUDICE for failure to effect service of process. The statute of limitations on the Plaintiff's claims against Norton is SUSPENDED for a period of 120 days following the date of entry of final judgment in this case. Should Mitchell discover a current and valid address for Norton within that period of time, he may refile his lawsuit or seek the reopening of the present one. Any and all motions which may be pending in this action are hereby DENIED. Signed by Judge Michael H. Schneider on 04/29/16. (mll, )

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

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v.

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BRAD LIVINGSTON, ET AL.

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CIVIL ACTION NO. 6:14cv468

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
AND ENTERING FINAL JUDGMENT
The Plaintiff Stacy Mitchell, proceeding pro se, filed this civil rights lawsuit under 42 U.S.C.
§1983 complaining of alleged violations of his constitutional rights. 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.
Mitchell’s claims centered around an assault upon him by Sgt. Bradley Norton on April 26,
2012. Norton was ordered to answer the lawsuit and all of the other defendants were dismissed.
The Attorney General for the State of Texas notified the Court that Sgt. Norton was no longer
employed by the Texas Department of Criminal Justice, Correctional Institutions Division and had
not executed a waiver of service permitting the Attorney General to receive service of process on his
behalf. The Court thereupon issued summons upon Norton and directed that service be effected by
the United States Marshal. Service of process was attempted upon Norton but was returned
unexecuted.
The Court directed Mitchell to furnish a current and valid address for Norton at which service
could be effected or to show cause why the claim against Norton should not be dismissed without
prejudice for failure to effect service of process. Systems Signs Supplies v. U.S, Department of
Justice, 903 F.2d 1011, 1013 (5th Cir. 1990); Kersh v. Derozier, 859 F.2d 1509, 1512 (5th Cir.

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1988). In response, Mitchell stated that he cannot locate Norton because he is incarcerated and
requested that the Court use its own resources to do so.
After review of the pleadings, the magistrate judge issued a report recommending that the
lawsuit be dismissed without prejudice, with the statute of limitations suspended for an appropriate
period of time. A copy of this report was sent to Mitchell at his last known address, return receipt
requested, but no objections have been received; accordingly; he is barred from de novo review by
the district judge of those findings, conclusions, and recommendations and, except upon grounds of
plain error, from appellate review of the unobjected-to factual findings and legal conclusions
accepted and adopted by the district court. Douglass v. United Services Automobile Association,
79 F.3d 1415, 1430 (5th Cir. 1996) (en banc).
The Court has reviewed the pleadings in this cause and the report of the magistrate judge.
Upon such review, the Court has determined the report of the magistrate judge is correct. See United
States v. Wilson, 864 F.2d 1219, 1221 (5th Cir.), cert. denied, 492 U.S. 918, 109 S.Ct. 3243 (1989)
(where no objections to a magistrate judge’s report are filed, the standard of review is “clearly
erroneous, abuse of discretion and contrary to law.”). It is accordingly
ORDERED that the report of the magistrate judge (docket no. 37) is ADOPTED as the
opinion of the District Court. It is further
ORDERED that the Plaintiff’s claims against the Defendant Bradley Norton, which are the
last remaining claims in the lawsuit, are DISMISSED WITHOUT PREJUDICE for failure to
effect service of process. Fed. R. Civ. P. Rule 4(m). It is further
ORDERED that the statute of limitations on the Plaintiff’s claims against Norton is
SUSPENDED for a period of 120 days following the date of entry of final judgment in this case.
Should Mitchell discover a current and valid address for Norton within that period of time, he may
refile his lawsuit or seek the reopening of the present one. It is further

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ORDERED that any and all motions which may be pending in this action are hereby
DENIED.

SIGNED this 29th day of April, 2016.

____________________________________
MICHAEL H. SCHNEIDER
UNITED STATES DISTRICT JUDGE

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