Banks v. Gorsuch et al

Filing 11

ORDER ADOPTING REPORT AND RECOMMENDATIONS. Plaintiff's objections 10 are overruled and the Report of the Magistrate Judge 9 is ADOPTED as the opinion of the District Court. This civil rights proceeding is DISMISSED, without prejudice, for Plaintiff's failure to comply with an order of the Court. It is ORDERED that any and all motions which may be pending in this civil action are hereby DENIED as MOOT. Signed by District Judge Jeremy D. Kernodle on 11/03/20. (mll, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
EMMETT BANKS, #01968852,
Plaintiff,
v.
KEITH GORSUCH, et al.,
Defendants.

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Case No. 6:20-cv-360-JDK-JDK

ORDER ADOPTING REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
Plaintiff Emmett Banks, a prisoner confined at the Texas Department of
Criminal Justice Beto Unit and proceeding pro se, filed this section 1983 action.
Plaintiff’s complaint was severed out of civil action number 6:20-cv-302, (Docket
No. 1), into this cause of action.

The complaint was referred to United States

Magistrate Judge, the Honorable John D. Love, for findings of fact, conclusions of
law, and recommendations for the disposition of the case.
On August 21, 2020, Judge Love issued a Report recommending that Plaintiff’s
case be dismissed, without prejudice, for Plaintiff’s failure to comply with an order of
the Court. Docket No. 9. A copy of this Report was sent to Plaintiff at his address,
with an acknowledgment card.
Plaintiff has filed timely objections. Docket No. 10. In his objections, Plaintiff
insists that he is a class member of the “class action” in case number 6:20-cv-302. He
also notes: “We, of the ‘class action’ civil case 6:20-cv-302, do not wish to be severed

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into different cases.”

Plaintiff further states that this cause number should be

dismissed, without prejudice, because he seeks to proceed only in the class action.
Contrary to Plaintiff’s contentions, this Court recently denied Plaintiffs’
motion to certify a class action.

See Case No. 6:20-cv-302, Docket No. 56.

Accordingly, there is no class action in case number 6:20-cv-302 for Plaintiff Banks
to be a member of. Plaintiff’s objections indicate that he does not wish to proceed on
his own in this specific case, as he specifically states that this case should be
dismissed, and that he only seeks to proceed in a class action.
The Court has conducted a careful de novo review of record and the Magistrate
Judge’s proposed findings and recommendations. See 28 U.S.C. §636(b)(1) (District
Judge shall “make a de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made.”). Upon such de
novo review, the Court has determined that the Report of the United States
Magistrate Judge is correct, and Plaintiff’s objections are without merit.
Accordingly, it is ORDERED that Plaintiff’s objections (Docket No. 10) are
overruled and the Report of the Magistrate Judge (Docket No. 9) is ADOPTED as
the opinion of the District Court.

It is also ORDERED that this civil rights

proceeding is DISMISSED, without prejudice, for Plaintiff’s failure to comply with
an order of the Court. Finally, it is ORDERED that any and all motions which may
be pending in this civil action are hereby DENIED as MOOT.
So ORDERED and SIGNED this 3rd day of November, 2020.

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JEREMY D. KERNODLE
UNITED STATES DISTRICT JUDGE