Northup v. Bell et al, No. 6:2011cv00222 - Document 58 (E.D. Tex. 2013)
Court Description: MEMORANDUM AND OPINION, ORDER DENYING 56 MOTION to Dismiss filed by Kirk John Northup, DENYING 50 MOTION for Reconsideration re 47 Order Adopting Report and Recommendations, 48 Judgment, filed by Kirk John Northup, DENYING 51 MOTION for Recusal filed by Kirk John Northup. Signed by Judge Leonard Davis on 5/21/2013. (gsg)
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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS TYLER DIVISION KIRK JOHN NORTHUP § v. § OLIVER BELL, ET AL. § CIVIL ACTION NO. 6:11cv222 MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE ON PLAINTIFF S MOTION FOR RELIEF FROM JUDGMENT The Plaintiff Kirk Northup, proceeding pro se, filed this civil rights lawsuit under 42 U.S.C. §1983 complaining of alleged deprivations of his constitutional rights. 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. The lawsuit was dismissed on July 9, 2012, after an evidentiary hearing. On January 11, 2013, Northup filed motions for relief from judgment and to recuse the District Judge and Magistrate Judge. A Report was entered on March 5, 2013, recommending that these motions be denied. Northup did not file objections to this Report; instead, he filed a motion for voluntary dismissal, stating that he had been moved to another prison unit and his claims were now moot. Because Northup did not object to the Magistrate Judge s Report, 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). 1 The Court has reviewed the pleadings in this cause as well as 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. 53) is ADOPTED as the opinion of the District Court. It is further ORDERED that the Plaintiff s motion for relief from judgment (docket no. 50) be and hereby is DENIED. It is further ORDERED that the Plaintiff s motion to recuse the Magistrate Judge and the District Judge (docket no. 51) is hereby DENIED. Finally, it is ORDERED that the Plaintiff s motion for voluntary dismissal (docket no. 56) is DENIED as moot and unnecessary, in that the case had already been dismissed at the time that the motion was filed. So ORDERED and SIGNED this 21st day of May, 2013. __________________________________ LEONARD DAVIS UNITED STATES DISTRICT JUDGE 2
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