Smith v. Smith et al

Filing 11

MEMORANDUM ORDER ADOPTING 9 Report and Recommendations. This civil action is DISMISSED 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 herebyDENIED. Signed by Judge Michael H. Schneider on 04/11/13. cc:pltf 4-12-13(mll, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
LEE DOUGLAS SMITH

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v.

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LEE DOUGLAS SMITH JR.

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CIVIL ACTION NO. 6:12cv964

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
AND ENTERING FINAL JUDGMENT
The Plaintiff Lee Smith, 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.
On January 2, 2013, Smith was ordered to pay the filing fee of $350.00 or to submit an
application for leave to proceed in forma pauperis which was accompanied by a certified inmate
trust account data sheet from an authorized official of the prison. Smith was also directed to file an
amended complaint setting out his claims with more factual specificity. Smith filed a motion for
leave to proceed in forma pauperis on January 11, 2013, but did not attach a data sheet as required.
He did not respond to the order to file an amended complaint.
On February 19, 2013, 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. Smith
received a copy of this Report on February 21, 2013, but 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-

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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. 9) 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. 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 11th day of April, 2013.

____________________________________
MICHAEL H. SCHNEIDER
UNITED STATES DISTRICT JUDGE

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