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Lewis v. Fisher

United States District Court, N.D. Mississippi, Greenville Division

August 20, 2019

WALTER CORNELIUS LEWIS PLAINTIFF
v.
MARSHAL FISHER, et al. DEFENDANTS

          ORDER

          DEBRA M. BROWN UNITED STATES DISTRICT JUDGE

         Before the Court is United States Magistrate Judge David A. Sanders' January 22, 2019, Report and Recommendation, Doc. #71; and May 21, 2019, Report and Recommendation, Doc. #83.

         I

         Relevant Procedural History

         On May 24, 2016, Walter Cornelius Lewis filed a pro se prisoner complaint against “Marshall Fisher, ” “Officer Page, ” “Officer Strickland, ” “Officer Marshall, ” and “Unnamed Officers.” Doc. #1 at 1. Lewis' request to proceed in forma pauperis was granted June 16, 2016. Doc. #7. On November 7, 2018, United States Magistrate Judge David A. Sanders ordered the United States Marshal Service to personally serve Strickland. Doc. #54. Process to Strickland listing a Mississippi Department of Corrections (“MDOC”) facility as his address was returned unexecuted on November 26, 2018, with a remark that “[p]rocess could not be served due to lack of full name ….”[1] Doc. #61 at 2.

         On December 3, 2018, Judge Sanders ordered Lewis to provide by January 2, 2019, a valid address for “Officer Edward Strickland”[2] for service of process since Strickland was no longer employed by MDOC, and warned Lewis that failure to comply may result in Strickland's dismissal. Doc. #62. On or about December 17, 2018, Lewis submitted a motion requesting that MDOC provide a valid address for Strickland. Doc. #67. Judge Sanders denied the motion because “[c]ounsel for MDOC has represented to the court that MDOC cannot determine a current address for service of process for this defendant.” Doc. #72.

         On January 22, 2019, Judge Sanders issued a Report and Recommendation (“Strickland R&R”) recommending that Strickland be dismissed from this case because Lewis failed to provide a valid address for service of process as ordered. Doc. #71 at 1. Judge Sanders explained that “[t]he plaintiff, as the party initiating the suit, is ultimately responsible for providing sufficient information to locate each defendant” and that “[n]either the Marshal Service nor the defendants have been able to locate []Officer Strickland ….” Id. Lewis objected to the Strickland R&R on or about February 11, 2019.[3] Doc. #76.

         On February 21, 2019, Jeremy Page filed a motion for summary judgment, Doc. #77, which Lawardrick Marsher joined, Doc. #88.[4] Lewis responded in opposition to the motion on or about March 20, 2019. Doc. #82. On May 21, 2019, Judge Sanders issued a Report and Recommendation (“Summary Judgment R&R”) recommending that the motion for summary judgment be granted and that this case be dismissed without prejudice for Lewis' failure to exhaust administrative remedies. Doc. #83 at 9. Lewis objected to the Summary Judgment R&R on or about May 31, 2019. Doc. #93.

         II

         Standard of Review

         Under 28 U.S.C § 636(b)(1)(C), “[a] judge of the court shall make a de novo determination of those portions of the report … to which objection is made.” “[W]here there is no objection, the Court need only determine whether the report and recommendation is clearly erroneous or contrary to law.” United States v. Alaniz, 278 F.Supp.3d 944, 948 (S.D. Tex. 2017) (citing United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir. 1989)).

         III

         Strickland R&R

         In his objection to the Strickland R&R, Lewis admits that it is his responsibility to locate Strickland but argues that “[a]s an incarcerated inmate i am limited and if the Marshal Service or defendants couldn't provide a valid address for service of ...


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