Collins v. United States Penitentiary Beaumont

Filing 25

MEMORANDUM OPINION and ORDER partially adopting 22 Report and Recommendation. Signed by District Judge Michael J. Truncale on 4/26/2021. (bjc, )

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS BEAUMONT DIVISION BENNY LAVERN COLLINS § VS. § UNITED STATES PENITENTIARY § CIVIL ACTION NO. 1:20-CV-470 MEMORANDUM OPINION AND ORDER PARTIALLY ADOPTING REPORT AND RECOMMENDATION Plaintiff, Benny Lavern Collins, an inmate confined at USP Florence, proceeding pro se, filed this civil rights action pursuant to 42 U.S.C. § 1983 against the defendant USP Beaumont. The court referred this matter to the Honorable Keith Giblin, United States Magistrate Judge, at Beaumont, Texas, for consideration pursuant to applicable laws and orders of this court. The Magistrate Judge recommends this action be dismissed without prejudice for want of prosecution pursuant to Federal Rule of Civil Procedure 41(b) as plaintiff failed to pay the initial partial filing fee (docket entry no. 22). The court has received and considered the Report and Recommendation of United States Magistrate Judge filed pursuant to such order, along with the records, and pleadings. Plaintiff filed objections to the Report and Recommendation of United States Magistrate Judge (docket entry no. 24). This requires a de novo review of the objections in relation to the pleadings and applicable law. See FED. R. CIV. P. 72(b). Plaintiff complains he should not have to pay the initial partial filing fee as it was not his intent to file a civil action. Plaintiff states, and the docket reveals, that this case was transferred from the Northern District of Texas. A review of the docket reveals that the Northern District liberally construed correspondence from plaintiff to that court as a new civil action and transferred the civil action to the Eastern District of Texas, Beaumont Division. Plaintiff states it was not his intent to file a new civil action as he knows he has to exhaust his administrative remedies before filing a civil action. This court liberally construes plaintiff’s objections as a Motion to Voluntarily Dismiss pursuant to Federal Rule of Civil Procedure 41(a). ORDER Accordingly, plaintiff’s objections are SUSTAINED. The findings of fact and conclusions of law of the Magistrate Judge are correct, and the report of the Magistrate Judge is PARTIALLY ADOPTED to the extent it recommends dismissal. A Final Judgment will be entered in accordance with the recommendations of the Magistrate Judge. SIGNED this 26th day of April, 2021. ____________________________ Michael J. Truncale United States District Judge 2

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