IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

AMARILLO DIVISION

THEOTIS LEE HODGE, §

§

Plaintiff, §

§

v. § 2:22-CV-200-Z-BR

§

D. ZIMMERMAN, et al., §

§

Defendants. §

AMENDED FINDINGS, CONCLUSIONS, AND RECOMMENDATION TO DISMISS

UNSERVED DEFENDANT

Plaintiff Theotis Lee Hodge (“Plaintiff”) brings this civil rights action against several 

Defendants whom he claims were involved in an unconstitutional disciplinary process while he 

was incarcerated in the Clements Unit of the Texas Department of Criminal Justice. (ECF 3). 

Plaintiff has paid the filing fee. On June 29, 2023, the undersigned entered an Order directing 

Plaintiff to show cause as to why he had not either (1) moved for service upon the two Defendants 

not represented by the Attorney General of Texas, or (2) served them himself. (ECF 18). On July 

28, 2023, Plaintiff filed a motion requesting service on these two Defendants by the United States 

Marshal. (ECF 21). Earlier that same day, the undersigned issued Findings, Conclusions, and a 

Recommendation (FRC) to dismiss Plaintiff’s claims against the two unserved Defendants: Shelia 

Briscoe and Kim Massey. (ECF 19). The District Judge granted Plaintiff’s motion requesting 

service and entered an order directing service by the United States Marshal on the Defendants at 

their last known addresses, as provided under seal by the Attorney General. (ECF 24; ECF 15). 

Service was returned unexecuted as to Shelia Briscoe on September 1, 2023. (ECF 27).1 On 

1

 Service was returned executed as to Kim Massey on September 18, 2023. (ECF 35).

Case 2:22-cv-00200-Z-BR Document 36 Filed 09/20/23 Page 1 of 3 PageID 180
2

September 1, 2023, the undersigned allowed Plaintiff an opportunity to provide the Court with an 

address for service on Defendant Briscoe. (ECF 28). For the following reasons, Plaintiff’s claims 

against the lone unserved Defendant—Shelia Briscoe—should be dismissed from this action. 

It is appropriate to dismiss a Defendant from a case when Plaintiff has failed to effectuate 

service within 120 days of filing the Complaint. Millan v. USAA Gen. Indem. Co., 546 F.3d 321, 

326 (5th Cir. 2008). This case exited the screening phase on February 7, 2023, with Plaintiff’s 

payment of the filing fee. To date, Plaintiff still has not served Shelia Briscoe, despite the Court 

not only allowing the USMS to serve Defendant Briscoe on his behalf at her last known address, 

but also giving Plaintiff a chance to locate Defendant Briscoe himself.2 Therefore, she should be 

dismissed from this action. 

RECOMMENDATION

For the reasons discussed herein, it is the RECOMMENDATION of the United States 

Magistrate Judge to the United States District Judge that Defendant Sheila Briscoe be dismissed 

from this action, with prejudice, for want of prosecution.

INSTRUCTIONS FOR SERVICE

The United States District Clerk is directed to send a copy of this Findings, Conclusion and 

Recommendation to each party by the most efficient means available.

IT IS SO RECOMMENDED.

ENTERED on September 20, 2023. 

2

 The Court on September 19, 2023 denied Plaintiff’s motion to appoint counsel or an investigator for the purpose of 

obtaining an address for service on Briscoe. See Daniel v. Harris Methodist, No. MO-18-CV-0155-DC, 2018 WL 

6262950, at *1 (W.D. Tex. Oct. 29. 2018) (“Generally speaking, the discovery of relevant facts and the marshaling 

of evidence in support of a civil claim is the responsibility of the parties. The Federal Rules of Civil Procedure 

govern discovery in federal cases and there is no statute authorizing the appointment of a pro-bono special 

investigator.”) (internal citations and quotations omitted).

Case 2:22-cv-00200-Z-BR Document 36 Filed 09/20/23 Page 2 of 3 PageID 181
3

* NOTICE OF RIGHT TO OBJECT *

Any party may object to these proposed findings, conclusions and recommendation. In the 

event parties wish to object, they are hereby NOTIFIED that the deadline for filing objections is 

fourteen (14) days from the date of filing as indicated by the “entered” date directly above the 

signature line. Service is complete upon mailing, Fed. R. Civ. P. 5(b)(2)(C), or transmission by 

electronic means, Fed. R. Civ. P. 5(b)(2)(E). Any objections must be filed on or before the 

fourteenth (14th) day after this recommendation is filed as indicated by the “entered” date. See

28 U.S.C. § 636(b); Fed. R. Civ. P. 72(b)(2); see also Fed. R. Civ. P. 6(d).

Any such objections shall be made in a written pleading entitled “Objections to the 

Findings, Conclusions and Recommendation.” Objecting parties shall file the written objections 

with the United States District Clerk and serve a copy of such objections on all other parties. A 

party’s failure to timely file written objections shall bar an aggrieved party, except upon grounds 

of plain error, from attacking on appeal the unobjected-to proposed factual findings, legal 

conclusions, and recommendation set forth by the Magistrate Judge and accepted by the district 

court. See Douglass v. United Services Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en 

banc), superseded by statute on other grounds, 28 U.S.C. § 636(b)(1), as recognized in ACS 

Recovery Servs., Inc. v. Griffin, 676 F.3d 512, 521 n.5 (5th Cir. 2012); Rodriguez v. Bowen, 857 

F.2d 275, 276-77 (5th Cir. 1988). 

Case 2:22-cv-00200-Z-BR Document 36 Filed 09/20/23 Page 3 of 3 PageID 182