Barker v. Mitchell et al

Filing 39

ORDER OVERRULING OBJECTIONS AND ADOPTING 23 REPORT AND RECOMMENDATIONS. Plaintiff's motion for default judgment is DENIED. Signed by Judge Ron Clark on 9/20/16. (ljw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
LUFKIN DIVISION
ARTHUR JOYAL BARKER

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VS.

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J. NANCY MITCHELL, ET AL.

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CIVIL ACTION NO. 9:15cv64

ORDER OVERRULING OBJECTIONS AND ADOPTING
THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff Arthur Joyal Barker, an inmate at the Powledge Unit, proceeding pro se, brought
the above-styled lawsuit against J. Nancy Mitchell and Stephen Martin.
The court referred this matter to the Honorable Keith F. Giblin, United States Magistrate
Judge, at Beaumont, Texas, for consideration pursuant to applicable laws and orders of this court.
The Magistrate Judge recommends plaintiff’s motion for default judgment be denied.
The court has received and considered the Report and Recommendation of United States
Magistrate Judge filed pursuant to such referral, along with the record and pleadings. Plaintiff filed
objections to the Magistrate Judge’s Report and Recommendation. This requires a de novo review
of the objections in relation to the pleadings and the applicable law. See FED. R. CIV. P. 72(b).
Plaintiff objects to the Report, asserting the defendants are well beyond the deadlines set
forth in the scheduling order. Further, plaintiff objects that Magistrate Judge has not ordered
sanctions against the defendants. However, as the Magistrate Judge observed, the defendants have
answered the complaint, and they have filed a motion to dismiss. The defendants’ motion to dismiss
had not been finally determined when plaintiff filed his motion. Further, while default judgment may
be permitted as a sanction in certain circumstances, plaintiff has not shown that the defendants’

violation was willful or that lesser sanctions would not substantially achieve the desired deterrent
effect. See United States v. $49,000, 330 F.3d 371, 376 (5th Cir. 2003). After careful consideration,
the court concludes plaintiff’s objections are without merit.
ORDER
Accordingly, plaintiff’s objections are OVERRULED. The findings of fact and conclusions
of law of the Magistrate Judge are correct and the report of the Magistrate Judge is ADOPTED. It
is therefore
ORDERED that plaintiff’s motion for default judgment is DENIED.
So ORDERED and SIGNED this 20 day of September, 2016.

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Ron Clark, United States District Judge