Lindsey v. Choate et al

Filing 13

MEMORANDUM ORDER adopting 11 Report and Recommendation. Ordered that the civil action is dismissed without prejudice for failure to prosecute or to obey an order of the Court. Ordered that any and all motions which may be pending in this action are hereby denied. Signed by Judge Ron Clark on 2/8/2017. (bjc, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
KEMUEL LINDSEY

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v.

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CAPTAIN D. CHOATE, ET AL.

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CIVIL ACTION NO. 6:16cv72

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
AND ENTERING FINAL JUDGMENT
The Plaintiff Kemuel Lindsey, 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.
Lindsey was ordered to pay the statutory filing fee of $400.00 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. By separate order, Lindsey was directed to file
an amended complaint setting out a short and plain statement of his claim.
When Lindsey did not comply with or respond to these orders, 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. Lindsey received a copy of this Report 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-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).
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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. 11) 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. Finally, it is
ORDERED that any and all motions which may be pending in this action are hereby
DENIED.

So Ordered and Signed
Feb 8, 2017

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