Davis v. Barber

Filing 17

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 15 Report and Recommendations. It is further ORDERED the above-styled civil action is DISMISSED WITHOUT PREJUDICE for failure to state a claim upon which relief may be granted and failure to prosecu te or to obey an order of the Court. It is further ORDERED the statute of limitations is SUSPENDED for a period of 90 days following the date of entry of final judgment. Finally, it is ORDERED that any and all motions which may be pending in this civil action are hereby DENIED. Signed by District Judge Robert W. Schroeder, III on 09/18/19. (lfs, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TEXARKANA DIVISION
BYRON DAVIS,
Plaintiff,
v.
MATT BARBER, ET AL.,
Defendants.

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CIVIL ACTION NO. 5:17-cv-00146-RWS-CMC

ORDER
Byron Davis, 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.
Plaintiff was ordered to pay an initial partial filing fee of $7.00, in accordance with 28
U.S.C. § 1915(b). He did not comply, instead submitting a financial data sheet showing he
had received deposits of $80.00, $40.00, and two deposits of $50.00 in the preceding six months.
The Magistrate Judge reviewed Plaintiff’s amended complaint and the other records in the
case.

Upon such review, the Magistrate Judge issued a Report recommending the lawsuit

be dismissed for failure to state a claim upon which relief may be granted as well as for
failure to prosecute or to obey an order of the Court. The Magistrate Judge also recommended
the statute of limitations be suspended for 90 days after the date of entry of final judgment.
Plaintiff received a copy of the Magistrate Judge’s Report but filed no objections thereto;
accordingly, he is not entitled to de novo review by the District Judge of those findings,
conclusions and recommendations, and except upon grounds of plain error, he is barred from
appellate review of the unobjected-to factual findings and legal conclusions accepted and adopted
by the District Court. 28 U.S.C. § 636(b)(1)(C); Douglass v. United Servs. Auto. Assoc., 79 F.3d
1415, 1430 (5th Cir. 1996) (en banc).

Nonetheless, the Court has reviewed the pleadings in this cause and the Report of the
Magistrate Judge and agrees with the Report of the Magistrate Judge. See United States v.
Raddatz, 447 U.S. 667, 683 (1980) (“[T]he statute permits the district court to give to the
magistrate’s proposed findings of fact and recommendations ‘such weight as [their] merit
commands and the sound discretion of the judge warrants, . . . .’”) (quoting Mathews v. Weber, 23
U.S. 261, 275 (1976)). It is accordingly
ORDERED the Report of the Magistrate Judge (Docket No. 15) is ADOPTED as the opinion

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of the District Court. It is further
ORDERED the above-styled civil action is DISMISSED WITHOUT PREJUDICE for
failure to state a claim upon which relief may be granted and failure to prosecute or to obey an
order of the Court. It is further
ORDERED the statute of limitations is SUSPENDED for a period of 90 days following the
date of entry of final judgment. Finally, it is
ORDERED that any and all motions which may be pending in this civil action are hereby
DENIED.
So ORDERED and SIGNED this 18th day of September, 2019.

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ROBERT W. SCHROEDER III
UNITED STATES DISTRICT JUDGE

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