McClarty v. Livingston et al

Filing 13

ORDER adopting 11 Report and Recommendation. This action is dismissed with prejudice for purposes of proceeding in forma pauperis as frivolous and for failure to state a claim upon which relief may be granted. All motions still pending are denied. Signed by Judge Ron Clark on 3/3/17. (tkd, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
TRIMAINE McCLARTY #1551104

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v.

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BRAD LIVINGSTON, ET AL.

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CIVIL ACTION NO. 6:16cv454

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
AND ENTERING FINAL JUDGMENT
The Plaintiff Trimaine McClarty, a prisoner of the Texas Department of Criminal Justice,
Correctional Institutions Division 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. As Defendants, McClarty named TDCJ Director Brad Livingston, David
Gutierrez of the Texas Board of Pardons and Paroles, and Bobby Lumpkin of Texas Correctional
Industries.
McClarty complained that he is forced to work without compensation and that his good time
and work time should be credited to the term of his sentence. After review of the pleadings, the
Magistrate Judge issued a Report recommending that the lawsuit be dismissed as frivolous and for
failure to state a claim upon which relief may be granted. McClarty 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 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 WITH PREJUDICE for
purposes of proceeding in forma pauperis as frivolous and for failure to state a claim upon which
relief may be granted. It is further
ORDERED that any and all motions which may be pending in this civil action are hereby
DENIED.

So Ordered and Signed
Mar 3, 2017

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