The Estate of Roosevelt Holliman v. Turner

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF MISSISSIPPI GREENVILLE DIVISION

THE ESTATE OF ROOSEVELT PLAINTIFFS HOLLIMAN; and MICHELLE LUMZY, individually and in her capacity as the Administratrix of the Estate of Roosevelt Holliman

V. NO. 4:22-CV-75-DMB-JMV

MARSHAL TURNER, et al. DEFENDANTS

ORDER

On October 26, 2023, United States Magistrate Judge Jane M. Virden issued a Report and Recommendation (“R&R”) recommending denial of the plaintiffs’ “Motion for Entry of Default of Defendant Lee Simon”1 because “[t]he plaintiffs have not carried their burden of proving that service was adequate with respect to Defendant Lee Simon.” Doc. #112 at PageID 637. The R&R warned that “[f]ailure to timely file written objections to the proposed findings[,] conclusions and recommendations … will bar … attacking on appeal unobjected-to proposed factual findings and legal conclusions accepted by the district court” “except upon grounds of plain error.” Id. at PageID 637‒38. No objection to the R&R was filed. Under 28 U.S.C. § 636(b)(1)(C), “[a] judge of the court shall make a de novo determination of those portions of the report … to which objection is made.” “[P]lain error review applies where a party did not object to a magistrate judge’s findings of fact, conclusions of law, or recommendation to the district court despite being served with notice of the consequences of failing to object.” Quintero v. State of Texas – Health and Hum. Servs. Comm’n, No. 22-50916,

1 Doc. #102. 2023 WL 5236785, at *2 (5th Cir. Aug. 15, 2023) (cleaned up). “[W]here there is no objection, the Court need only determine whether the report and recommendation is clearly erroneous or contrary to law.” United States v. Alaniz, 278 F. Supp. 3d 944, 948 (S.D. Tex. 2017). Because the Court reviewed the R&R for plain error and concludes the R&R is neither

clearly erroneous nor contrary to law, the R&R [112] is ADOPTED as the order of the Court. The plaintiffs’ “Motion for Entry of Default of Defendant Lee Simon” [102] is DENIED. SO ORDERED, this 14th day of November, 2023. /s/Debra M. Brown UNITED STATES DISTRICT JUDGE