*

Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).

Order – Page 1

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

LINDY RAY MATTHEWS, # 504717, §

§

Plaintiff, §

v. § Civil Action No. 3:05-CV-1408-L

§

WARDEN L.E. FLEMING, et al., §

§

Defendants. §

ORDER

Before the court is Plaintiff’s Civil Rights Complaint, filed October 28, 2005. Pursuant to

the judgment and mandate of the United States Court of Appeals for the Fifth Circuit (“Fifth

Circuit”), this case was reopened on August 21, 2008, and on October 29, 2008, it was recommitted

to United States Magistrate Judge Wm. F. Sanderson, Jr. for hearing, if necessary, and to submit

to the court proposed findings and recommendations for disposition, in accordance with Special

Order 3-251. On January 22, 2009, the Findings, Conclusions, and Recommendation of the United

States Magistrate Judge (“Report”) was filed. No objections to the Report have been filed. 

This is a civil rights action brought by a pro se inmate pursuant to Bivens* and 42 U.S.C. §

1983. Magistrate Judge Sanderson found the following:

1. Plaintiff abandoned all claims related to his fall at the Federal Medical Center in Fort

Worth, Texas (“FMC Fort Worth”), on October 21, 2003;

2. With respect to his medical care claims, Plaintiff alleges no involvement on the part

of Defendants L. Huber, J. Jaacks, H. Solise, John Does 1 and 2 from FMC Fort

Worth, and the unidentified defendants from FCI Seagoville;

 

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Order – Page 2

3. With respect to his medical care claims, Plaintiff pleaded facts that arguably support

Defendant L. E. Fleming’s personal involvement;

4. Plaintiff raises cognizable Bivens claims against Defendants L. E. Fleming, Paul

Celestin, John Mills, Jose Gomez, and J. Capps; and

5. The court lacks jurisdiction over Plaintiff’s negligence claims against Defendants

Jose Gomez and J. Capps in their individual capacities. 

The magistrate judge recommends that all claims related to the October 21, 2003 fall at FMC

Fort Worth, all claims against Defendants L. Huber, J. Jaacks, H. Solise, John Does 1 and 2 from

FMC Fort Worth, and any unidentified defendants from FCI Seagoville be dismissed as frivolous

pursuant to Title 28 U.S.C. §§ 1915A(b) and 1915(e)(2)(B). He also recommends that Plaintiff’s

negligence claims against Defendants Jose Gomez and J. Capps be dismissed for lack of subject

matter jurisdiction. The magistrate judge further recommends that process be issued on Plaintiff’s

medical care claims under Bivens against Defendants L.E. Fleming, Paul Celestin, John Mills, Jose

Gomez, and J. Capps, in their individual capacities. 

Having reviewed the complaint, supplemental questionnaire, record, and the Report in this

case, the court determines that the findings and conclusions are correct. The magistrate judge’s

findings and conclusions are therefore accepted as those of the court. The court therefore (i)

dismisses with prejudice all claims related to the October 21, 2003 fall at FMC Fort Worth, all

claims against Defendants L. Huber, J. Jaacks, H. Solise, John Does 1 and 2 from FMC Fort Worth,

and any unidentified defendants from FCI Seagoville as frivolous pursuant to 28 U.S.C. §§

1915A(b) and 1915(e)(2), (ii) orders service of process to be issued on Plaintiff’s medical care

claims under Bivens against Defendants L.E. Fleming, Paul Celestin, John Mills, Jose Gomez, and

 

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Order – Page 3

J. Capps, in their individual capacities, and (iii) dismisses without prejudice Plaintiff’s negligence

claims against Defendants Jose Gomez and J. Capps for lack of subject matter jurisdiction.

Because Plaintiff was previously granted leave to proceed in forma pauperis, the clerk of the

court is directed to prepare and issue summonses for Defendants L.E. Fleming, Paul Celestin, John

Mills, Jose Gomez, and J. Capps (“Defendants”), and to deliver the summonses to the United States

Marshal for service of process pursuant to Rule 4 of the Federal Rules of Civil Procedure, along with

a copy of the complaint, Plaintiff’s answers to the supplemental questionnaire, and the Report. 

The United States Marshal shall serve the summonses on Defendants, along with a copy of

the complaint, Plaintiff’s answers to the supplemental questionnaire, and the Report, and file a return

of service in the case pursuant to Rule 4(c) of the Federal Rules of Civil Procedure. 

It is so ordered this 18th day of June, 2009.

 _________________________________

 Sam A. Lindsay

 United States District Judge

 

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