Valencia v. Livingston

Full title: YSIDRO VALENCIA v. BRAD LIVINGSTON, et al.

Court: UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS LUFKIN DIVISION

Date published: Feb 17, 2015

CIVIL ACTION NO. 9:13-CV-43 (E.D. Tex. Feb. 17, 2015)

Opinion

CIVIL ACTION NO. 9:13-CV-43

02-17-2015

YSIDRO VALENCIA v. BRAD LIVINGSTON, et al.

MICHAEL H. SCHNEIDER UNITED STATES DISTRICT JUDGE

MEMORANDUM OPINION AND ORDER DENYING PLAINTIFF'S APPEAL OF MAGISTRATE JUDGE'S ORDER

Plaintiff, Ysidro Valencia, a state prisoner currently confined at the Gib Lewis Unit with the Texas Department of Criminal Justice, Correctional Institutions Division, proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983.

On February 27, 2014, the Magistrate Judge to whom this case was referred entered an order denying plaintiff's motion for entry of default judgment as premature. Plaintiff, by way of two motions, requests an appeal of this order. See docket entry nos. 66 & 72.

Analysis

In accordance with 28 U.S.C. § 636(b)(1)(A) and Federal Rule of Civil Procedure 72, a judge of the court may reconsider any pretrial matter referred to a magistrate judge under subparagraph (A) where it has been shown that the magistrate judge's order is clearly erroneous or contrary to law.

Having examined the allegations in plaintiff's appeal of the Magistrate Judge's order, this Court finds no support for plaintiff's objections. In the February 27, 2014 order, the Magistrate Judge explained that the prior order to answer was not properly served on the defendants.¹ In the order denying plaintiff's motion for entry of default judgment as premature, the Magistrate Judge also ordered that the Clerk of Court should electronically serve the order to answer along with the complaint and attachments. The Texas Attorney General received the order electronically on February 27, 2014 and Motions to Dismiss were properly filed on March 28, 2014 and March 31, 2014. There was no default as defendants were not properly served with the order to answer until February 27, 2014.

1 A review of the docket sheet revealed that the Order to Answer entered on September 3, 2013 was not electronically served on the Texas Attorney General as originally ordered.

The Court finds the order of the Magistrate Judge neither clearly erroneous or contrary to law. According, plaintiff's appeal of the Magistrate Judge's order should be denied. It is, therefore,

ORDERED that plaintiff's objections are OVERRULED and plaintiff's appeal of the Magistrate Judge's order is DISMISSED.

SIGNED this 17th day of February, 2015.

/s/_________

MICHAEL H. SCHNEIDER

UNITED STATES DISTRICT JUDGE