Manning v. McKee et al

Filing 16

ORDER adopting Report and Recommendations for 14 Report and Recommendations (Motion(s) 14 terminated). Signed by District Judge Jeremy D. Kernodle on 11/26/24. (jbe)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
KEVIN JAMES MANNING,
Plaintiff,
v.
JUDGE SCOTT MCKEE, et al.,
Defendants.

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Case No. 6:23-cv-464-JDK-KNM

ORDER ADOPTING THE REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
Plaintiff Kevin Manning, a former inmate of the Henderson County Jail
proceeding pro se, filed this civil rights lawsuit pursuant to 42 U.S.C. § 1983. The
case was referred to United States Magistrate Judge K. Nicole Mitchell for findings
of fact, conclusions of law, and recommendations for disposition.
On October 9, 2024, Judge Mitchell issued a Report recommending that
Plaintiff’s claims concerning the validity of his conviction be dismissed with prejudice
for failure to state a claim until such time as Plaintiff can show that this conviction
has been reversed, expunged, or otherwise set aside. Docket No. 14. The Report
further recommended that Plaintiff’s remaining claims be dismissed without
prejudice for failure to state a claim upon which relief may be granted. Id.
Plaintiff has not filed any objections. A copy of this Report was sent to Plaintiff
at his last known address but was returned as undeliverable. Docket No. 15. To date,
Plaintiff has not advised the Court of his current mailing address. See Loc. R. CV-

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11(d) (“A pro se litigant . . . is responsible for keeping the clerk advised in writing of
his or her current physical address.”); Docket No. 6 at 5 (Plaintiff’s amended
complaint including a declaration stating that Plaintiff has the responsibility to keep
the Court informed of his current mailing address).
This Court reviews the findings and conclusions of the Magistrate Judge de
novo only if a party objects within fourteen days of service of the Report and
Recommendation. 28 U.S.C. § 636(b)(1). In conducting a de novo review, the Court
examines the entire record and makes an independent assessment under the law.
Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1430 (5th Cir. 1996) (en banc),
superseded on other grounds by statute, 28 U.S.C. § 636(b)(1) (extending the time to
file objections from ten to fourteen days).
Here, Plaintiff did not object in the prescribed period. The Court therefore
reviews the Magistrate Judge’s findings for clear error or abuse of discretion and
reviews the legal conclusions to determine whether they are contrary to law. See
United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir. 1989) (holding that, if no
objections to a Magistrate Judge’s Report are filed, the standard of review is “clearly
erroneous, abuse of discretion and contrary to law”).
Having reviewed the Magistrate Judge’s Report and the record in this case,
the Court finds no clear error or abuse of discretion and no conclusions contrary to
law. Accordingly, the Court hereby ADOPTS the Report and Recommendation of the
United States Magistrate Judge (Docket No. 14) as the findings of this Court. It is
therefore ORDERED that Plaintiff’s claims which implicate the validity of his

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conviction are DISMISSED with prejudice for failure to state a claim until such time
as Plaintiff can show that this conviction has been reversed, expunged, or otherwise
set aside, and Plaintiff’s remaining claims are DISMISSED without prejudice for
failure to state a claim upon which relief may be granted.
So ORDERED and SIGNED this 26th day of November, 2024.

___________________________________
JEREMY D. KERNODLE
UNITED STATES DISTRICT JUDGE

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