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IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF TEXAS 

TYLER DIVISION 

KEVIN JAMES KOHUTE, 

 Plaintiff, 

v. 

TYLER POLICE DEPARTMENT, 

 Defendant. 

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Case No. 6:23-cv-315-JDK-KNM 

ORDER ADOPTING THE REPORT AND RECOMMENDATION 

OF THE UNITED STATES MAGISTRATE JUDGE 

Plaintiff Kevin James Kohute, 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 August 17, 2023, Judge Mitchell issued a Report recommending that the 

Court dismiss this case with prejudice to the claims being asserted again until such 

time as Plaintiff can show that his conviction has been overturned, expunged by 

executive order, declared invalid in a state collateral proceeding, or called into 

question through the issuance of a federal writ of habeas corpus pursuant to Heck v. 

Humphrey, 512 U.S. 477, 486–87 (1994). Docket No. 7. A copy of this Report was 

sent to Plaintiff at his last known address but was returned as undeliverable. 

Plaintiff has not advised the Court of his current mailing address as required by Local 

Rule CV-11(d) and has not filed objections to the Report. 

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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. 

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superseded on other grounds by statute, 28 U.S.C. § 636(b)(1) (extending the time to 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. 7) as the findings of this Court. It is 

therefore ORDERED that this case is DISMISSED with prejudice to the claims 

being asserted again until such time as Plaintiff can show that his conviction has 

been overturned, expunged by executive order, declared invalid in a state collateral 

proceeding, or called into question through the issuance of a federal writ of habeas 

corpus. This dismissal shall not prevent Plaintiff from challenging the legality of his 

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conviction through any lawful means, including but not limited to direct appeal or 

state or federal habeas corpus proceedings. 

So ORDERED and SIGNED this day of

___________________________________

JEREMY D. KERNODLE

UNITED STATES DISTRICT JUDGE 26th September, 2023.

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