Opinion
No. 3:01-CV-1977-R.
April 19, 2002.
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636 (b) and an Order of the Court in implementation thereof, subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge are as follows:
FINDINGS AND CONCLUSIONS
The Court has under consideration Respondent's Motion to Dismiss Cockrell as a Party Respondent filed on January 14, 2002, and a Motion for Contempt of Court filed by petitioner on April 3, 2002. By the first motion, the Texas Attorney General's Office seeks an order dismissing Janie Cockrell as a party to this action and adding the Dallas County Sheriff as a respondent. By the second motion, petitioner seeks to hold respondents in contempt of court for failing to comply with an order of the court.
Although the motion is entitled "Respondent's Motion to Dismiss . . .", the movant is actually the Texas Attorney General's office on behalf of Janie Cockrell. As discussed infra, Janie Cockrell has never been a party to this action.
The Court should deny the first motion as unnecessary. Janie Cockrell has never been a party to this action. There is thus no need to dismiss her as a party. On October 25, 2001, furthermore, petitioner filed an amended petition on the standard form utilized by the Court. He therein names the State of Texas and the Dallas County Sheriff as respondents. Therefore, there is no need to add the Dallas County Sheriff as respondent.
The Court should also deny the motion for contempt. On November 2, 2001, the Court directed respondents to answer and listed the respondents as "State of Texas, et al." The Court further directed that the petition be served upon respondents. Apparently, the Court served Janie Cockrell rather than the Dallas Counts Sheriff or the State of Texas. Such clerical mistake led to the motion to dismiss by Janie Cockrell and the failure of the respondents to answer in accordance with the Order to Show Cause. In view of such clerical error, holding respondents in contempt is unwarranted. Instead the Court should direct the proper respondents to answer in accordance with the original Order to Show Cause and Notice and Instructions to Parties dated November 2, 2001.
RECOMMENDATION
For the foregoing reasons, the undersigned Magistrate Judge RECOMMENDS that the Court DENY Respondent's Motion to Dismiss Cockrell as a Party Respondent filed on January 14, 2002, and the Motion for Contempt of Court filed by petitioner on April 3, 2002. It is further recommended that the Court re-refer this action to the United States Magistrate Judge for further proceedings, up to and including recommended disposition of the action. Upon such re-referral, the Magistrate Judge will direct respondents (State of Texas and the Dallas County Sheriff) to file an answer to the instant action.