Myers v. Broadus et al

Filing 40

MEMORANDUM OPINION ADOPTING REPORT AND RECOMMENDATION OF THE U. S. MAGISTRATE JUDGE. It is ordered that Defendant Aya's motion to dismiss # 22 is granted. Defendant Aya is dismissed as a defendant in this civil rights action. Signed by District Judge Ron Clark on 1/7/19. (mrp, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
KEVIN DENEEN MYERS, #1769501

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VS.

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SANDRA BROADUS, ET AL.

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CIVIL ACTION NO. 6:16cv1130

MEMORANDUM OPINION ADOPTING THE REPORT
OF THE UNITED STATES MAGISTRATE JUDGE
Plaintiff Kevin D. Myers, proceeding pro se and in forma pauperis, filed this civil rights
lawsuit under 42 U.S.C. § 1983 complaining of alleged deprivations to his constitutional rights.
The case was referred to the United States Magistrate Judge, the Honorable John D. Love.
On June 8, 2018, Defendant Aya filed a motion to dismiss, (Dkt. #22). On October 19,
2018, Plaintiff filed a motion to amend—indicating that he erroneously named Defendant Aya as
a defendant, (Dkt. #28).

Plaintiff filed his amended complaint the same day, eliminating

Defendant Aya from his complaint. Subsequently, on November 9, 2018, Judge Love issued a
Report, (Dkt. #33), recommending that Defendant Aya be dismissed as a defendant upon
Plaintiff’s motion to amend. The docket shows that Plaintiff received a copy of this Report on
November 14, 2018, (Dkt. #35). However, to date, no objections to the Report have been filed.
Consequently, Plaintiff 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 Auto. 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.”). Accordingly, it is
ORDERED that the Report of the United States Magistrate Judge, (Dkt. #33), is
ADOPTED as the opinion of the Court. Further, it is
ORDERED that Defendant Aya’s motion to dismiss, (Dkt. #22), is GRANTED.
Defendant Aya is DISMISSED as a defendant in this civil rights action.
So ORDERED and SIGNED January 7, 2019.

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Ron Clark, Senior District Judge

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