Cheatam v. J C Penney Co, Inc et al

Filing 45

ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION. JCPenney's amended motion to dismiss # 25 is granted in accordance with the magistrate judge's report and recommendation. Signed by Judge Marcia A. Crone on 1/12/17. (mrp, )

UNITED STATES DISTRICT COURT
ETHEL CHEATAM,
Plaintiff,
v.
JCPENNEY CO., INC., et al.,
Defendants.

EASTERN DISTRICT OF TEXAS

'
'
'
'
'
'
'
'
'

CIVIL ACTION NO. 1:16-cv-72

ORDER ADOPTING MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
This case was referred to the Honorable Zack Hawthorn, United States Magistrate Judge,
for all pretrial matters pursuant to General Order 05-07. Pending before the court is the
“Amended Motion to Dismiss” (Doc. No. 25) filed by JCPenney Co., Inc. and the individual
defendants (collectively referred to as “JCPenney”). The court has received and considered the
report and recommendation of the magistrate judge, which recommends that the court grant
JCPenney’s amended motion to dismiss on the basis of fraud on the court. Doc. No. 40. The
Plaintiff, Ethel Cheatam, proceeding pro se and in forma pauperis, filed timely objections to the
report and recommendation. Doc. No. 42.
A party who files timely written objections to a magistrate judge’s report and
recommendation is entitled to a de novo determination of those findings or recommendations to
which the party specifically objects. 28 U.S.C. § 636(b)(l)(c); FED. R. CIV. P. 72(b)(2)-(3).
“Parties filing objections must specifically identify those findings [to which they object].
Frivolous, conclusive or general objections need not be considered by the district court.” Nettles

1 of 2

v. Wainwright, 677 F.2d 404, 410 n.8 (5th Cir. 1982) (en banc), overruled on other grounds by
Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415 (5th Cir. 1996) (en banc).
The court has undertaken a de novo determination of the report and recommendation, and
the court concludes that Cheatam’s objections are without merit.

In his report and

recommendation, Judge Hawthorn found by clear and convincing evidence that Cheatam
perpetrated fraud on the court and concluded that dismissal with prejudice was the appropriate
sanction for such conduct. Cheatam’s objections do not call into question Judge Hawthorn’s
credibility determinations, findings or recommendations. The court does not need to hold an
additional evidentiary hearing when relying on the findings of fact by the magistrate judge. U.S.
v. Raddatz, 447 U.S. 667, 673-677 (1980).
It is, therefore, ORDERED that the magistrate judge’s report and recommendation is
ADOPTED. JCPenney’s amended motion to dismiss (Doc. No. 25) is granted in accordance

.
with the magistrate judge’s report and recommendation.
SIGNED at Beaumont, Texas, this 7th day of September, 2004.
SIGNED at Plano, Texas, this 12th day of January, 2017.

________________________________________
MARCIA A. CRONE
UNITED STATES DISTRICT JUDGE

2 of 2