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IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF TEXAS 

TYLER DIVISION 

BARRY EMMETT, 

 Plaintiff, 

v. 

UNKNOWN DEFENDANT, 

 Defendant. 

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Case No. 6:23-cv-55-JDK-KNM 

ORDER ADOPTING THE REPORT AND RECOMMENDATION 

OF THE UNITED STATES MAGISTRATE JUDGE 

Plaintiff Barry Emmett, a Texas Department of Criminal Justice inmate 

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 March 14, 2023, Judge Mitchell issued a Report recommending that the 

Court dismiss this case with prejudice for in forma pauperis purposes, but without 

prejudice to refiling without seeking in forma pauperis status and with payment of 

the full $402.00 filing fee. Docket No. 3. A copy of this Report was sent to Plaintiff. 

However, no objections have been received. 

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. 

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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superseded on other grounds by statute, 28 U.S.C. § 636(b)(1) (extending the time to 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), cert. denied, 492 U.S. 

918 (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. 3) as the findings of this Court. The 

Court DISMISSES Plaintiff’s claims, with prejudice for purposes of proceeding in 

forma pauperis under 28 U.S.C. § 1915(g), but without prejudice as to the refiling of 

this lawsuit without seeking in forma pauperis status and payment of the full filing 

fee. It is further ORDERED that should Plaintiff pay the full $402.00 filing fee 

within fifteen days after entry of final judgment, he shall be allowed to proceed in the 

lawsuit as though the full fee had been paid from the outset. Payment of the filing 

fee would not affect screening for frivolousness, maliciousness, or failure to state a 

claim under 28 U.S.C. § 1915A. The dismissal of this lawsuit shall not prevent 

Plaintiff from pursuing his claims in cause number 6:22-cv-399. 

Case 6:23-cv-00055-JDK-KNM Document 5 Filed 06/13/23 Page 2 of 3 PageID #: 13
3 Signed this

Jun 13, 2023

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