Perry v. Dallas Sheriff's Department et al

Filing 15

ORDER: Having reviewed the pleadings, file, record in this case, and Report, the court determines that the 13 findings and conclusions of the magistrate judge are correct and accepts them as those of the court. Accordingly, the court dismisses wit h prejudice as frivolous Plaintiff's claims against Defendants Dallas County Sheriff's Department, Judge Michael Snipes, Magistrate Judge Terrie McVea, and attorneys Sindhu Alexander and G. Thayer Williamson, pursuant to 28 U.S.C. § 19 15(e)(2)(B)(i). The court prospectively certifies that any appeal of this action regarding the matters set forth in this order would not be taken in good faith and denies a certificate of appealability. See 28 U.S.C. § 1915(a)(3). In support of this finding, the court adopts and incorporates by reference the Report. (Ordered by Judge Sam A Lindsay on 12/3/2014) (ctf)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
ROBERT CECIL PERRY, #14011579,
Plaintiff,
v.
DALLAS SHERIFF’S
DEPARTMENT, et al.,
Defendants.

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Civil Action No. 3:14-CV-2140-L

ORDER
Plaintiff Robert Cecil Perry (“Plaintiff”) brought this action, pursuant to 42 U.S.C. § 1983,
against Defendants Dallas County Sheriff’s Department, Judge Michael Snipes, Magistrate Judge
Terrie McVea, attorneys Sindhu Alexander and G. Thayer Williamson, and arresting Garland police
officer J. Kirby, asserting for alleged civil rights violations that occurred in conjunction with his
arrest, detention, and ongoing state court criminal case. The case was referred to Magistrate Judge
David L. Horan, who entered the Findings, Conclusions and Recommendation of the United States
Magistrate Judge (“Report”) on November 6, 2014, recommending that the court dismiss with
prejudice as frivolous Plaintiff’s claims against Defendants Dallas County Sheriff’s Department,
Judge Michael Snipes, Magistrate Judge Terrie McVea, and attorneys Sindhu Alexander and G.
Thayer Williamson, pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). The magistrate judge further
recommended that the court stay, rather than dismiss without prejudice, Plaintiff’s remaining claims
against arresting officer J. Kirby pending resolution of Plaintiff’s criminal case in state court. No
objections to the Report were received as of the date of this order.

Order – Page 1

Having reviewed the pleadings, file, record in this case, and Report, the court determines that
the findings and conclusions of the magistrate judge are correct and accepts them as those of the
court. Accordingly, the court dismisses with prejudice as frivolous Plaintiff’s claims against
Defendants Dallas County Sheriff’s Department, Judge Michael Snipes, Magistrate Judge Terrie
McVea, and attorneys Sindhu Alexander and G. Thayer Williamson, pursuant to 28 U.S.C. §
1915(e)(2)(B)(i). Further, the court expressly determines, pursuant to Federal Rule of Civil
Procedure 54(b), that there is no just reason to delay the entry of final judgment in this case as to
these Defendants and directs the clerk of the court to enter the final judgment as to these Defendants.
Rather than stay Plaintiff’s remaining claims against arresting officer J. Kirby pending
resolution of the state criminal case, the court will administratively close this case so it does not
continue to age. Any case over three years old is considered an “old” case by the Administrative
Office and is put on a national report. The age of a case continues to accrue if it is merely stayed;
however, if it is administratively closed, the time is tolled with the case’s age. Accordingly, the court
administratively closes this case and instructs the United States District Clerk to submit a JS-6
form to the Administrative Office, thereby removing this case from the statistical records. Plaintiff
shall file a motion to reopen the case within 60 days after entry of judgment in his state criminal
court case. Failure to do so will result in dismissal without prejudice of Plaintiff’s remaining claims,
pursuant to Federal Rule of Civil Procedure 41(b), for failure to prosecute or comply with a court
order.
The court prospectively certifies that any appeal of this action regarding the matters set forth
in this order would not be taken in good faith and denies a certificate of appealability. See 28 U.S.C.
§ 1915(a)(3). In support of this finding, the court adopts and incorporates by reference the Report.
Order – Page 2

See Baugh v. Taylor, 117 F.3d 197, 202 n.21 (5th Cir. 1997). Based on the Report, the court finds
that any appeal of this action would present no legal point of arguable merit and would therefore be
frivolous. Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983).
It is so ordered this 3rd day of December, 2014.

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Sam A. Lindsay
United States District Judge

Order – Page 3