Warmsley v. Thaler et al

Filing 33

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 31 Report and Recommendations,. Signed by Judge David Folsom on 4/11/11. (mrm, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TEXARKANA DIVISION
RAY LANDON WARMSLEY

§

v.

§

RICK THALER, ET AL.

§

CIVIL ACTION NO. 5:10cv2

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
AND ENTERING FINAL JUDGMENT
The Plaintiff Ray Warmsley, proceeding pro se, filed this civil rights lawsuit under 42 U.S.C.
§1983 complaining of alleged violations of his constitutional rights. This Court ordered that the case
be referred to the United States Magistrate Judge pursuant to 28 U.S.C. §636(b)(1) and (3) and the
Amended Order for the Adoption of Local Rules for the Assignment of Duties to United States
Magistrate Judges.
Warmsley complains of an incident in which his Bible was confiscated and “a near riot” took
place. He also complains, more generally, of TDCJ Administrative Directive 03.72, governing
inmate property. The Defendants were ordered to answer the lawsuit and filed a motion for summary
judgment, as well as a motion to dismiss part of the lawsuit as frivolous. Warmsley did not file a
response to this motion, although he has filed a motion for a pre-trial conference.
After review of the pleadings, the Magistrate Judge issued a Report recommending that the
lawsuit be dismissed because Warmsley has filed at least three previous lawsuits or appeals which
have been dismissed as frivolous or for failure to state a claim upon which relief may be granted, but
did not pay the full filing fee, nor did he show that he is in imminent danger of serious physical
injury as of the time of the filing of the lawsuit. The Magistrate Judge thus recommended that
Warmsley’s in forma pauperis status be revoked and that Warmsley’s case be dismissed with

1

prejudice as to its refiling in forma pauperis, but without prejudice to its refiling without seeking in
forma pauperis status and upon payment of the full fee.
Warmsley received a copy of the Magistrate Judge’s Report on or before March 7, 2011, but
has filed no objections thereto; accordingly, he is barred from de novo review by the district judge
of those findings, conclusions, and recommendations and, except upon grounds of plain error, from
appellate review of the unobjected-to factual findings and legal conclusions accepted and adopted
by the district court. Douglass v. United Services Automobile Association, 79 F.3d 1415, 1430 (5th
Cir. 1996) (en banc).
The Court has carefully reviewed the pleadings and documents in this case, as well as the
Report of the Magistrate Judge. Upon such review, the Court has concluded that the Report of the
Magistrate Judge is correct. It is accordingly
ORDERED that the Report of the Magistrate Judge (docket no. 31) is hereby ADOPTED as
the opinion of the District Court. It is further
ORDERED that the Plaintiff Ray Warmsley’s in forma pauperis status is hereby REVOKED.
It is further
ORDERED that the above-styled civil action be and hereby is DISMISSED with prejudice
as to the refiling of another in forma pauperis lawsuit raising the same claims as herein presented,
but without prejudice to the refiling of this lawsuit without seeking in forma pauperis status and
upon payment of the statutory $350.00 filing fee. It is further
ORDERED that should the Plaintiff pay the full filing fee within 30 days after the date of
entry of final judgment in this case, he shall be allowed to proceed in the lawsuit as through the full
fee had been paid from the outset. Finally, it is

2

.

ORDERED that any and all motions which may be pending in this action are hereby
DENIED.

SIGNED this 11th day of April, 2011.

____________________________________
DAVID FOLSOM
UNITED STATES DISTRICT JUDGE

3