Weir v. Everette et al

Filing 23

ORDER: The Court therefore finds that the parties have waived further review of the Magistrate Judge's Report 21 and accepts his recommended disposition. It follows that this action is DISMISSED WITHOUT PREJUDICE. As this order resolves this litigation, a separate judgment. Signed by District Judge Laurie J. Michelson on 9/29/17. (xc:Pro se party by regular mail. ) (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
JAMES WEIR,
Plaintiff,
v.

Case No. 16-cv-3150
Honorable Laurie J. Michelson
Magistrate Judge Jeffrey S. Frensley

OFFICER f/n/u EVERETT,
Defendants.
ORDER REGARDING REPORT AND RECOMMENDATION DISMISSING
ACTION WITHOUT PREJUDICE [21]
This is a pro se prisoner civil rights case alleging violations pursuant to 42 U.S.C. § 1983.
(R. 1.) Presently before the Court is Magistrate Judge Jeffrey S. Frensley’s Report and
Recommendation that this action be dismissed without prejudice because of Plaintiff James Weir’s
failure to comply with the Court’s August 28, 2017 Order (R. 19) requiring Weir to inform the
Court of his current address. (R. 21.) At the conclusion of his September 11, 2017 Report and
Recommendation, Magistrate Judge Frensley notified the parties that they were required to file
any objections within fourteen days of service, as provided in Federal Rule of Civil Procedure
72(b)(2), and that failure to file specific objections “can constitute a waiver of further appeal of
this Recommendation.” (R. 21.) It is now September 29, 2017. As such, the time to file objections
has expired. No objections have been filed.
At the outset of the case, Plaintiff’s application to proceed in forma pauperis was granted.
The court’s order granting the application stated in part, “[Plaintiff] is also forewarned that his
prosecution of this action will be jeopardized should he fail to keep the Clerk’s Office informed of
his current address.” (R. 7.) Subsequently, the Scheduling Order issued by the Magistrate Judge

on April 3, 2017, likewise stated that “[e]ach party is required to keep both the Court and the
opposing party or their counsel informed of [his] current address” and that failure to do so “may
result in a recommendation that his action be dismissed.” (R, 14.) Weir received these Orders. (R.
16.) But he failed to comply as several court mailings to him were returned as undeliverable. Thus,
on August 28, 2017, the Magistrate Judge issued an order directing Plaintiff to “file a written
statement showing good cause for his failure to keep the Clerk’s Office informed of his current
address.” (R. 19.) That show cause order was also returned as undeliverable (R. 20) and so Plaintiff
failed to comply. The same is true for the underlying Report and Recommendation – even though
Plaintiff was on notice that he was required to inform the Court of any address change, and that a
failure to do so could result in dismissal.
The Court thus finds that the parties’ failure to object to the Report and Recommendation
is a procedural default, waiving review of the Magistrate Judge’s findings by this Court. In United
States v. Walters, the Sixth Circuit established a rule of procedural default, holding that “a party
shall file objections with the district court or else waive right to appeal.” 638 F.2d 947, 949–50
(6th Cir. 1981). And in Thomas v. Arn, 474 U.S. 140, 144 (1985), the Supreme Court explained
that the Sixth Circuit’s waiver-of-appellate-review rule rested on the assumption “that the failure
to object may constitute a procedural default waiving review even at the district court level.” 474
U.S. at 149. The Court further held that this rule violates neither the Federal Magistrates Act nor
the Federal Constitution.
The Court therefore finds that the parties have waived further review of the Magistrate
Judge’s Report and accepts his recommended disposition. It follows that this action is
DISMISSED WITHOUT PREJUDICE. As this order resolves this litigation, a separate judgment

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will issue.
SO ORDERED.

Dated: September 29, 2017

s/Laurie J. Michelson
LAURIE J. MICHELSON
U.S. DISTRICT JUDGE

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served upon counsel of record
and any unrepresented parties via the Court=s ECF System to their respective email or First Class
U.S. mail addresses disclosed on the Notice of Electronic Filing on September 29, 2017.
s/Keisha Jackson
Case Manager

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