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, )

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS LUFKIN DIVISION ARTHUR JOYAL BARKER § VS. § J. NANCY MITCHELL, ET AL. § 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. ___________________________________ Ron Clark, United States District Judge

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