Ray v. Patterson et al

Filing 44

ORDER Accepting Report and Recommendation for 43 Report and Recommendation to dismiss this matter with prejudice due to Plainitff's failure to respond to Court orders and prosecute this action. Signed by Senior Judge Donald E OBrien on 11/14/2011. (src)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CEDAR RAPIDS DIVISION
DANIEL EZIEL RAY, JR,
Plaintiff,

No. 07-CV-0098-DEO

vs.

ORDER

DANIEL PATTERSON, et al.,
Defendants.
____________________
This matter is before the Court pursuant to, “Report And
Recommendation

Of

Dismissal”

(Docket

No.

43,

10/21/2011)

issued by Chief United States Magistrate Judge Paul A. Zoss.
I.

STANDARD OF REVIEW FOR REPORT AND RECOMMENDATION
The standard of review for a magistrate judge’s Report

and Recommendation is as follows:
A judge of the court shall make a de novo
determination of those portions of the
report or specified proposed findings or
recommendations to which objection is made.
A judge of the court may accept, reject, or
modify, in whole or in part, the findings
or recommendations made by the magistrate

judge. The judge may also receive further
evidence or recommit the matter to the
magistrate judge with instructions.
28 U.S.C. § 636(b)(1).
A district judge is only required to make a de novo
review of “those portions of the report or specified proposed
findings or recommendations to which objection is made.”
U.S.C. § 636(b)(1).

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Therefore, portions of the proposed

findings or recommendations to which no objections are filed
are reviewed only for plain error.

See United States v.

Maxwell, 498 F.3d 799, 801 n.2 (8th Cir. 2007) (reviewing
factual findings for “plain error” where no objections to the
magistrate judge’s report and recommendation were filed).
II.

FACTS
Judge Zoss’s report appropriately sets out the factual

background and references the pertinent hearings held and
pleadings filed in this case.

All facts as set out in the

Report and Recommendation are hereby incorporated as if fully
set out herein.
Judge Zoss’s report and recommendation states in part:
On this record, the court recommends that
this case be dismissed with prejudice. See
Fed.
R.
Civ.
P.
41(b)
(involuntary
dismissal for failure to prosecute or
2

comply with court order); United States v.
Meyer, 439 F.3d 855, 860 n.7 (8th Cir.
2006)(citing Chambers v. NASCO, Inc., 501
U.S. 32, 43-45, 111 S. Ct. 2123, 2132-33
(1991), for the proposition that “federal
courts have the inherent power to . . .
dismiss an action sua sponte for failure to
prosecute.”); Tyler v. Iowa State Trooper
Badge No. 297, 158 F.R.D. 632, 637 (N.D.
Iowa 1994).
Objections to the Report and Recommendation
in accordance with 28 U.S.C. § 636(b)(1)
and Fed. R. Civ. P. 72(b) must be filed
within 14 days of the service of a copy of
this Report and Recommendation.
Docket No. 43.
This

Court

has

reviewed

the

record

and

the

filed

pleadings and acknowledges that there have been no objections
filed

to

persuaded,

the

Report

upon

and

review

of

Recommendation.
Chief

Magistrate

This

Court

Judge

is

Zoss’s

findings and conclusions, that there are no grounds to reject
or modify them.
III.

CONCLUSION
Based upon the facts set out in Judge Zoss’s report and

recommendation which are, as mentioned, adopted herein, this
Court hereby finds that good cause exists to accept the Report
and Recommendation (Docket No. 43).
IT IS THEREFORE HEREBY ORDERED for all the reasons set
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out in the adopted Report and Recommendation, this matter is
dismissed with prejudice due to Plaintiff’s failure to respond
to Court orders and prosecute the action.
IT IS SO ORDERED this 14th day of November, 2011.

__________________________________
Donald E. O’Brien, Senior Judge
United States District Court
Northern District of Iowa

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