Wright v. Davis
Filing
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OPINION AND ORDER DISMISSING ACTION FOR FAILURE TO PROSECUTE.(Signed by Magistrate Judge Brian L Owsley) Parties notified.(dperez, )
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
ANTHONY E. WRIGHT
v.
LORIE DAVIS, ET AL.
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C.A. NO. C-10-375
OPINION AND ORDER DISMISSING ACTION FOR FAILURE TO PROSECUTE
This is a civil rights action brought by a state inmate pursuant to 42 U.S.C. § 1983. (D.E.
1).
I. JURISDICTION
The Court has federal question jurisdiction over this action pursuant to 28 U.S.C. § 1331.
After consent by plaintiff, (D.E. 8), this case was referred to a magistrate judge to conduct all
further proceedings, including entry of final judgment pursuant to Neals v. Norwood, 59 F.3d
530 (5th Cir. 1995). (D.E. 9); see also 28 U.S.C. § 636(c).
II. BACKGROUND
Plaintiff originally filed his complaint on November 22, 2010. (D.E. 1). His complaint
concerns events that occurred in May 2010 when he was briefly held at the Garza West Unit, in
Beeville, Texas. He named as defendants the Garza West Unit warden, Lorie Davis, and an
unidentified correctional officer, Officer John Doe. On December 8, 2010, a telephonic hearing
was held regarding plaintiff’s claims. On December 16, 2010, an order was issued dismissing
plaintiff’s claim against Warden Lorie Davis in her official capacity as barred by Eleventh
Amendment immunity. (D.E. 10, at 8). To the extent plaintiff was suing Officer John Doe in his
official capacity, those claims were also dismissed as barred. Id. However, plaintiff’s Eighth
Amendment claim concerning the conditions of the holding cell against Officer John Doe in his
individual capacity was retained. Id. On December 16, 2010, an order for service of process on
this defendant was issued. (D.E. 11).
On February 1, 2011, the Office of the Attorney General for the State of Texas advised
the Court that it was unable to identify Officer John Doe. (D.E. 14, at 1). There was a list of ten
intake officers working at the Garza West Unit on May 6, 2010. Id. at 1-2. On February 24,
2011, a telephonic hearing was held to address the identification of this defendant. During this
hearing, plaintiff indicated that he could not identify the John Doe officer based on name
recognition, but believed that the defendant’s name would be listed in an incident report.
Consequently, the Office of the Attorney General requested the incident reports to provide them
to plaintiff so that he could identify the defendant.
On March 28, 2011, the Office of the Attorney General advised that there were no
records of incident reports concerning plaintiff at the Garza West Unit in May 2010. (D.E. 18).
Thus, the Office of the Attorney General was ordered to show plaintiff a photograph of each of
the five male intake officers who worked at the Garza West Unit on May 6, 2010. (D.E. 21, at
2). On April 12, 2011, “Plaintiff was shown five colored photographs of the intake officers who
worked at the Garza West Unit on May 6, 2010,” but was unable to identify Officer John Doe
among them. (D.E. 24, at 1). Consequently, plaintiff had until July 21, 2011 to engage in
discovery to determine the name of Officer John Doe. (D.E. 25).
During this discovery, plaintiff indicated that the correct date for the alleged civil rights
violation by Officer John Doe was not May 6, 2010, but May 5, 2010. (D.E. 32). Pursuant to a
July 7, 2011 telephonic hearing, the Office of the Attorney General was ordered to show plaintiff
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a photograph of each of the five male intake officers who worked at the Garza West Unit on May
5, 2010. Again, plaintiff was unable to identify the John Doe defendant. (D.E. 37, at 2).
On July 26, 2011, an order to show cause was issued ordering plaintiff to “identify
Officer John Doe within twenty-five days, or alternatively, show cause as to why this action
should not be dismissed for want of prosecution.” (D.E. 38, at 3). Records indicate that plaintiff
received the order to show cause. (D.E. 40).
III. DISCUSSION
An action may be dismissed if the plaintiff fails to prosecute it, or to comply with any
court order. Fed. R. Civ. P. 41(b); see also Martinez v. Johnson, 104 F.3d 769, 772 (5th Cir.
1997) (holding district courts have the power to sua sponte dismiss a cause of action for failure
to prosecute). “‘The power to invoke this sanction is necessary in order to prevent undue delays
in the disposition of pending cases and to avoid congestion in the calendars of the [d]istrict
[c]ourts.’” Martinez, 104 F.3d at 772 (quoting Link v. Wabash R.R., 370 U.S. 626, 630-31
(1962); McCullough v. Lynaugh, 835 F.2d 1126, 1127 (5th Cir.1988)).
The Federal Rules of Civil Procedure permits dismissal of claims or defendants where
plaintiff fails to serve them:
If a defendant is not served within 120 days after the complaint is
filed, the court–on motion or on its own after notice to the
plaintiff–must dismiss the action without prejudice against that
defendant or order that service be made within a specified time.
But if the plaintiff shows good cause for the failure, the court must
extend the time for service for an appropriate period.
Fed. R. Civ. P. 4(m); accord Millan v. USAA Gen. Indem. Co., 546 F.3d 321, 325 (5th Cir.
2008). To date, plaintiff has not responded or demonstrated any good cause for his failure to
properly effect service on Officer John Doe. Here, the Court with the assistance of the Office of
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the Texas Attorney General has attempted to obtain the name of defendant in order to serve him.
Unfortunately, these efforts have been unsuccessful in identifying defendant. There is nothing in
the record to indicate that plaintiff has engaged in any discovery or made other efforts to
determine defendant’s identity.
IV. CONCLUSION
Accordingly, plaintiff’s action is dismissed without prejudice for failure to prosecute.
ORDERED this 30th day of August 2011.
___________________________________
BRIAN L. OWSLEY
UNITED STATES MAGISTRATE JUDGE
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