Millage v. Hawkins et al

Filing 49

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATIONS for 48 Report and Recommendations. This case is dismissed without prejudice for failure to prosecute. Any and all motions which may be pending in this action are denied. Signed by Judge Michael H. Schneider on 2/5/13. (mjc, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
RICHARD MILLAGE

§

v.

§

DEROYCE HAWKINS, ET AL.

§

CIVIL ACTION NO. 6:11cv248

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
AND ENTERING FINAL JUDGMENT
The Plaintiff Richard Millage, proceeding pro se, filed this civil rights lawsuit under 42
U.S.C. §1983 complaining of alleged violations of his constitutional rights in the Texas Department
of Criminal Justice, Correctional Institutions Division. 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.
Millage was released from prison while the lawsuit was on-going, and the Magistrate Judge
issued a revised collection order for the balance of the unpaid filing fee. The Magistrate Judge also
issued a Report recommending that the Defendants’ motion for summary judgment be granted in part
and denied in part. Copies of these documents were sent to Millage at his last known address, but
were returned with the notation “not deliverable as addressed - unable to forward.” The documents
were re-mailed by the Clerk, but were again returned, bearing the notation “moved, left no
forwarding address.” The order granting in forma pauperis status (docket no. 4) placed Millage on
notice that “the Plaintiff shall notify the Court of any changes of address by filing a written notice
of change of address with the Clerk. Failure to file such notice may result in the case being
dismissed for want of prosecution.”

1

After review of the record, the Magistrate Judge issued a Report recommending that the
lawsuit be dismissed without prejudice for failure to prosecute. A copy of this Report was sent to
Millage at his last known address, return receipt requested, but no objections have been received;
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).
The Court has reviewed the pleadings in this cause and the Report of the Magistrate Judge.
Upon such review, the Court has determined that 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 that the Report of the Magistrate Judge (docket no. 48) 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. Finally, it is
ORDERED that any and all motions which may be pending in this action are hereby
DENIED.
It is SO ORDERED.
SIGNED this 5th day of February, 2013.

____________________________________
MICHAEL H. SCHNEIDER
UNITED STATES DISTRICT JUDGE
2