Smith v. Kelley et al

Filing 8

MEMORANDUM ORDER ADOPTING 6 REPORT AND RECOMMENDATIONS ORDERING that action is DISMISSED without prejudice for failure to prosecute and FINALLY Ordering all motions pending are hereby DENIED. Signed by Judge Robert W. Schroeder, III on 8/26/2016. (sm, )

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS TEXARKANA DIVISION HAROLD DUANE SMITH § v. § WENDY KELLEY, ET AL. § CIVIL ACTION NO. 5:15cv182 MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND ENTERING FINAL JUDGMENT The Plaintiff Harold Smith, a former inmate of the Bowie County Correctional Center proceeding pro se, filed this civil rights lawsuit under 42 U.S.C. §1983 complaining of alleged violations of his constitutional rights. This Court referred the case 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. The Clerk sent Plaintiff a docket sheet, consent form, and pro se packet after he filed the lawsuit, but the mail was returned as undeliverable. Plaintiff did not notify the Court of any new mailing address or his current whereabouts. The Court thereupon issued a Report recommending the lawsuit be dismissed without prejudice for failure to prosecute. This Report was also returned as undeliverable. Thus, no objections to the Report have been received. To date, Plaintiff has not notified the Court of his present mailing address or current whereabouts. 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 proposed 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). 1 The Court has reviewed the pleadings in this cause and the Report of the Magistrate Judge. Upon such review, the Court has determined the Report of the Magistrate Judge is correct. See United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir.), cert. denied, 492 U.S. 918, 109 S.Ct. 3243 . (1989) (where no objections to a Magistrate Judge’s Report are filed, the standard of review is “clearly erroneous, abuse of discretion and contrary to law”). It is accordingly ORDERED the Report of the Magistrate Judge (docket no. 6) is ADOPTED as the opinion of the District Court. It is further ORDERED the above-styled civil action is DISMISSED without prejudice for failure to prosecute. Finally, it is ORDERED any and all motions which may be pending in this civil action are hereby DENIED. SIGNED this 26th day of August, 2016. ____________________________________ ROBERT W. SCHROEDER III UNITED STATES DISTRICT JUDGE 2

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