Bear v. Ross et al
Filing
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MEMORANDUM ORDER adopting 20 Report and Recommendation. This action is dismissed without prejudice for failure to prosecute or to obey an order of the Court. The statute of limitations on the claims raised in this lawsuit is suspended for a perio d of 90 days following the date of entry of final judgment in this case. This suspension of the limitation period affects only those claims which were not barred by limitations as of the date the original complaint was signed, on December 29, 2015. Any motions which may be pending in this action are denied. Signed by District Judge Ron Clark on 2/4/18. (tkd, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
LANCE BEAR
§
v.
§
PEACHES ROSS, ET AL.
§
CIVIL ACTION NO. 6:16cv4
MEMORANDUM ADOPTING REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
AND ENTERING FINAL JUDGMENT
The Plaintiff Lance Bear, a former inmate of the Texas Department of Criminal Justice,
Correctional Institutions Division, 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.
Bear was ordered to pay an initial partial filing fee of $16.17, pursuant to 28 U.S.C.
§1915(b). He complied with this order, but due to a clerical error, the payment was not recorded
on the docket. As a result, the lawsuit was dismissed without prejudice for failure to prosecute on
March 7, 2017.
Two weeks later, on March 20, 2017, Bear telephoned the Court and stated that he had not
received any case notifications at his new address. Copies of the Magistrate Judge’s Report
recommending dismissal and the final judgment were mailed to him and he was instructed to submit
a notification of change of address.
On March 24, Bear filed a motion to reopen his case and reassess the payment plan. The
Magistrate Judge issued a Report recommending that this motion be granted, but this Report was
returned to the Court as undeliverable.
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The case was reopened, but on September 18, 2017, the copy of the order reopening the case
was returned to the Court. The envelope bears a handwritten notation reading “this person does not
live here!!!” Bear’s last contact with the Court was on April 27, 2017, and his current address or
whereabouts are unknown.
On January 3, 2018, the Magistrate Judge issued a Report recommending that the lawsuit be
dismissed without prejudice for failure to prosecute. The Magistrate Judge also recommended that
the statute of limitations be suspended for a period of ninety days.
A copy of this Report was sent to Bear at his last known address, return receipt requested,
but was returned with a notation reading “Return to sender - Attempted, not known - Unable to
forward.” Because no objections were filed to the Report, Bear 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).
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. 20) is ADOPTED as the
opinion of the District Court. It is further
ORDERED that the above-styled civil action is DISMISSED WITHOUT PREJUDICE
for failure to prosecute or to obey an order of the Court. It is further
ORDERED that the statute of limitations on the claims raised in this lawsuit is
SUSPENDED for a period of ninety days following the date of entry of final judgment in this case.
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This suspension of the limitation period affects only those claims which were not barred by
limitations as of the date the original complaint was signed, on December 29, 2015. Finally, it is
ORDERED that any and all motions which may be pending in this action are hereby
DENIED.
So Ordered and Signed
Feb 4, 2018
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