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Estrada v. Livingston

United States District Court, Fifth Circuit

January 10, 2014

JOE SALINAS ESTRADA
v.
BRAD LIVINGSTON, ET AL

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND ENTERING FINAL JUDGMENT

LEONARD DAVIS, District Judge.

The Plaintiff Joe Salinas Estrada, proceeding pro se , filed this civil rights lawsuit under 42 U.S.C. §1983 complaining of alleged violations of his constitutional rights in the Texas Department of Criminal Justice, Correctional Institutions Division. 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.

On October 29, 2013, Estrada was ordered to pay the filing fee or submit an application for leave to proceed in forma pauperis which was accompanied by a certified inmate trust account data sheet. These orders were returned to the Court with the notation "Refused to Accept."

When Estrada did not pay the filing fee or seek leave to proceed in forma pauperis , the Magistrate Judge issued a Report on December 4, 2013, recommending that the lawsuit be dismissed without prejudice for failure to prosecute or to obey an order of the Court. The Magistrate Judge observed that in a letter sent to the Court, Estrada stated that if he "does not detect the legal emblem image of the Court's title and place of business, I cannot except [sic] such fake and forged phantom forum's presentation."

A copy of the Report was sent to Estrada on two separate occasions, but each time was returned with the notation "Refused." Having chosen to decline mail from the Court, Estrada has waived his right to object; 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 ).

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. 6) is hereby ADOPTED as the opinion of the District Court. It is further

ORDERED that the above-styled civil action be and hereby is DISMISSED without prejudice for failure to prosecute or to obey an ...


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