Durham v. Smith et al

Filing 12

ORDER ADOPTING 11 Report and Recommendations, and dismissing this civil action without prejudice for failure to prosecute or to obey an order of the Court. Any and all motions which may be pending in this action are hereby DENIED. Signed by Judge Leonard Davis on 07/27/09. cc:pltf 7-27-09 (mll, )

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS TYLER DIVISION RICHARD DURHAM v. J.B. SMITH, ET AL. § § § CIVIL ACTION NO. 6:09cv84

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND ENTERING FINAL JUDGMENT The Plaintiff Richard Durham, 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. On March 17, 2009, Durham was ordered to pay the filing fee of $350.00 or to submit a properly certified in forma pauperis data sheet from the institution in which he was confined. Durham received a copy of this order on or before April 6, 2009, but to date has not complied, nor did he respond in any way. On July 1, 2009, the Magistrate Judge issued a Report recommending that the lawsuit be dismissed without prejudice for failure to prosecute or to obey an order of the Court. Copy of this Report was sent to Durham at his last known address, return receipt requested, but no objections have been received; accordingly, Durham 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). 1

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 is hereby ADOPTED as the opinion of the District Court. It is further ORDERED that the above-styled civil action be and hereby is DISMISSED without prejudice for failure to prosecute or to obey an order of the Court. It is further ORDERED that any and all motions which may be pending in this action are hereby DENIED. So ORDERED and SIGNED this 27th day of July, 2009.

__________________________________ LEONARD DAVIS UNITED STATES DISTRICT JUDGE

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