Opinion
2:01-CV-0148.
April 24, 2002
ORDER OF DISMISSAL
Plaintiffs DERRICK A. WALKER and ELIZABETH WALKER, acting pro se and proceeding in forma pauperis, have filed suit pursuant to Title 42, United States Code, Section 1983 complaining against ten named defendants. On March 25, 2002, a Report and Recommendation was filed by the United States Magistrate Judge analyzing plaintiffs' claims under Title 28, United States Code, section 1915(e)(2) and recommending dismissal with prejudice as frivolous because the claims are barred by the statute of limitations.
Although plaintiff Derrick A. Walker is currently incarcerated in the Texas Department of Criminal Justice, Institutional Division, neither he nor Elizabeth Walker were incarcerated at the time this lawsuit was initially filed in this Court.
Plaintiff DERRICK A. WALKER filed his Objections on April 1, 2002, by way of a document entitled "Leave to File Supplemental Response to Show Cause Order and Report and Recommendation Under 636", and on April 18, 2002, by his "Objections to Report and Recommendation".
By his Objections, in relevant part, plaintiff contends his claims are not barred by limitations because his state remedies were not exhausted until April of 2001 when his claim was denied by defendants' "Risk Management." Of course, the exhaustion of administrative remedies requirement contained in Title 42, United States Code, section 1997e(a) did not apply to the instant case as it was as not filed by a prisoner challenging prison conditions. Consequently, the wait for a response by the defendants or an agent of the defendants does not toll limitations.
Plaintiff DERRICK A. WALKER further argues that laches should apply because, he contends, the defendants secured the dismissal of his earlier suit on this matter, cause no. 7:99-CV-0121 in the U.S. District Court for the Northern District of Texas, Wichita Falls Division, by fraud. Nevertheless, plaintiffs remedy was by way of a motion for reconsideration in that cause or by an appeal of that dismissal. Further, plaintiff delayed over a year and a half before filing the instant suit. He has shown no reason for such delay except his own misunderstanding of the exhaustion of administrative remedies requirement.
Lastly, plaintiff argues he should be allowed to cure any defects by amending his complaint; however, no such motion for leave to amend is before the Court and no amendment would cure the limitations problem.
The Court notes no objections have been received from ELIZABETH WALKER regarding the March 25, 2002, Report and Recommendation.
The Court has made an independent examination of the records in this case and has examined the Magistrate Judge's Report and Recommendation, as well as the objections filed by plaintiff DERRICK A. WALKER.
The Court is of the opinion that the objections of plaintiff DERRICK A. WALKER should be OVERRULED and that the Report and Recommendation of the United States Magistrate Judge should be ADOPTED by the United States District Court.
This Court, therefore, does OVERRULE plaintiff DERRICK A. WALKER's objections, and does hereby ADOPT the Report and Recommendation of the United States Magistrate Judge.
IT IS THEREFORE ORDERED that, pursuant to Title 28, United States Code, section 1915(e)(2), the Civil Rights Claims filed pursuant to Title 42, United States Code, Section 1983, by plaintiffs DERRICK A. WALKER and ELIZABETH WALKER IS DISMISSED WITH PREJUDICE AS FRIVOLOUS. The Court declines to exercise pendent jurisdiction of any related state law claims and such claims are DISMISSED WITHOUT PREJUDICE.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Any motions still pending are hereby DENIED.
The Clerk will mail a copy of this Order to each of the plaintiffs and to any attorney of record by first class mail.
IT IS SO ORDERED.