Davis v. Tyson Foods, Inc. et al

Filing 21

ORDER that the Magistrate Judge's Findings and Recommendation (filing 20 ) are adopted. The plaintiff's complaint is dismissed. A separate judgment will be entered. Ordered by Judge John M. Gerrard. (Copy mailed to pro se party) (LAC) Modified on 12/7/2015 to include copy mailed to pro se party. (LAC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
RAYMON DAVIS,
Plaintiff,

4:15-CV-3031

vs.
ORDER
TYSON FOODS, INC.,
Defendant.
This matter is before the Court on the Magistrate Judge's Findings and
Recommendation (filing 20) recommending that the Court dismiss the
plaintiff's claims. The Court will adopt the Magistrate Judge's Findings and
Recommendation.
Plaintiff's former counsel was granted leave to withdraw on August 14,
2015. Filing 15. The order granting counsel's leave to withdraw stated that
the plaintiff was given until September 14 to "either: (a) obtain the services of
counsel and have that attorney file an appearance in this case; or (b) file a
statement notifying the court of his intent to litigate this case without the
assistance of counsel." Filing 15. And the plaintiff was warned that his
failure to do so could result in a dismissal of his claims without further
notice. Filing 15. The plaintiff failed to comply with the Court's order.
The Magistrate Judge entered an order (filing 17) on October 8, 2015,
directing the plaintiff to show cause why his claims should not be dismissed.
The plaintiff did not respond, so on November 17, the Magistrate Judge
entered her Findings and Recommendation (filing 20). The time for objecting
to the Findings and Recommendation has now passed, and no objection or
other response has been made.
An involuntary dismissal for failure to comply with the Court's order,
or for failure to prosecute, is within the Court's discretion. Fed. R. Civ. P.
41(b); NECivR 41.2; see Schooley v. Kennedy, 712 F.2d 372, 373-74 (8th Cir.
1983). The plaintiff has failed to comply with the Court's orders and generally
failed to prosecute the case. And 28 U.S.C. § 636(b)(1) provides for de novo
review only when a party objected to the magistrate's findings or
recommendations. Peretz v. United States, 501 U.S. 923 (1991). The failure to
file an objection eliminates not only the need for de novo review, but any
review by the Court. Thomas v. Arn, 474 U.S. 140 (1985); Leonard v. Dorsey
& Whitney LLP, 553 F.3d 609 (8th Cir. 2009). Accordingly, the Court deems

any objection to the Magistrate Judge's Findings and Recommendation
waived, and will adopt the Findings and Recommendation.
IT IS ORDERED:
1.

The Magistrate Judge's Findings and Recommendation
(filing 20) are adopted.

2.

The plaintiff's complaint is dismissed.

3.

A separate judgment will be entered.

Dated this 7th day of December, 2015.
BY THE COURT:

John M. Gerrard
United States District Judge

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