Molina v. Nueces County Sherriffs

• Court: District Court, S.D. Texas
• Decided: October 14, 2022
• Docket: 2:22-cv-00154
• Status: Unknown

Opinion

. □ Southern District of Texas . ENTERED UNITED STATES DISTRICT COURT eee | * □□ SOUTHERN DISTRICT OF TEXAS eee CORPUS CHRISTI DIVISION SAMUEL MOLINA, § § Plaintiff, § VS. § CIVIL ACTION NO. 2:22-CV-00154 § NUECES COUNTY SHERRIFFS § DEPARTMENT, § § Defendant. ORDER ADOPTING MEMORANDUM & RECOMMENDATION _. Before the Court is Magistrate Judge Julie K. Hampton’s Memorandum and Recommendation (“M&R”), entered on September 19, 2022. (D.E. 8). The M&R recommends that the Court dismiss the case pursuant to Federal Rule of Civil Procedure 41(b) for want of prosecution and/or failure to comply with Court order. Jd. at 2; see Long v. Simmons, 77 F.3d 878, 879 (Sth Cir. 1996) (Rule 41 permits a district court to sua sponte dismiss an action for failure to

_ comply with court order); Boudwin v. Graystone Ins. Co., Ltd., 756 F.2d 399, 401 (Sth Cir. 1985) (Rule 41 permits a district court to sua sponte dismiss a claim for failure to prosecute). Specifically, the M&R discusses Plaintiff Samuel Molina’s failure to submit an application to proceed in forma pauperis along with a certified copy of his inmate trust fund account statement. (D.E. 8, p. 1). The parties were provided proper notice of, and the opportunity to object to, the Magistrate Judge’s M&R. See 28 U.S.C. § 636(b)(1); FED. R. Civ. P. 72(b); General Order No. 2002-13. No objection has been filed.! When no timely objection has been filed, the district court

1 On October 11, 2022, Plaintiff filed a letter indicating that he had “received a letter from [Judge] Hampton showing that the case against [the defendant] could be up for dismissal because [he] didn’t send the inmate trust fund or fill out the in forma pauperis [form].” (D.E. 9, p. 1) (emphasis added). Plaintiff stated that he did fill out the in forma pauperis form and did send his inmate trust fund. Jd. However, there is no evidence in the record of this. Moreover, upon reviewing Plaintiffs letter, the Court finds it does not state any objections to the M&R. Rather, it appears Plaintiff is referring to the Magistrate Judge’s D.E. 7 show cause 1/2

need only determine whether the Magistrate Judge’s M&R is clearly erroneous or contrary to law. United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir. 1989) (per curiam); Powell v. Litton Loan Servicing, LP, No. CIV. A. H-14-2700, 2015 WL 3823141, at *1 (S.D. Tex. June 18, 2015). Having carefully reviewed the proposed findings and conclusions of the Magistrate Judge, the filings of the parties, the record, and the applicable law, and finding that the M&R is not clearly erroneous or contrary to law, the Court ADOPTS the M&R in its entirety. (D.E. 8). The Court DISMISSES without prejudice Plaintiff's complaint pursuant to Rule 41(b). (D.E. 1). The Clerk of Court is DIRECTED to close this case. §O ORDERED.

D . MORALES UNITED STATES DISTRICT JUDGE

Dated: Corpus Christi, Texas October 14, 2022

order. Even if Plaintiffs letter could be construed as objecting to the M&R, such objections would be untimely. Plaintiff's objections were due October 3, 2022, and Plaintiff's letter is dated October 5, 2022. (D.E. 9); see Thompson y. Raspberry, 993 F.2d 513, 515 (Sth Cir. 1993) (“a pro se prisoner’s written objections to a magistrate’s report and recommendations must be deemed filed and served at the moment they are forwarded to prison officials for delivery to the district court.”). 2/2