Lewis v. Lopinto ( 2024 )

EASTERN DISTRICT OF LOUISIANA ALBERT LEWIS CIVIL ACTION VERSUS NO. 22-4476 JOSEPH LOPINTO, ET AL. SECTION “R” (1) ORDER On July 12, 2022, plaintiff Albert Lewis, a state pretrial detainee, filed this lawsuit under 42 U.S.C. § 1983, proceeding pro se and in forma pauperis, against defendants Joseph Lopinto, Derek Adams, Daniel Lassus, Marc Macaluso, Toni Nguyen, and Wilfred Garrison.1 Following a hearing held in accordance with Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985), to clarify the factual bases of plaintiff’s claims, plaintiff was ordered to file an amended complaint detailing the basis of his claims against Macaluso.2 Plaintiff did not comply with the Court’s order. Magistrate Judge Janis van Meerveld issued a Report and Recommendation (“R&R”) recommending that the Court dismiss plaintiff’s claims against Macaluso without prejudice under 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1) for failure to state a claim, and dismiss plaintiff’s claims against Nguyen and Garrison under 28 U.S.C. §§ 1915(e)(2)(B)(i)-(ii) and 1915A(b)(1) with prejudice as frivolous 1 R. Doc. 1. 2 R. Doc. 11. Court adopted the R&R and dismissed plaintiff’s claims against Macaluso without prejudice, and dismissed plaintiff’s claims against Nguyen and Garrison with prejudice.4 In an order scheduling a preliminary conference, Magistrate Judge van Meerveld ordered the Warden of Jefferson Parish Correctional Center to notify the Court of any reason it would be unable to make plaintiff available by telephone on January 9, 2024.5 The Warden informed the Court that he would not be able to make plaintiff available because plaintiff was no longer incarcerated at the Jefferson Parish Correctional Center, his address of record.6 Magistrate Judge van Meerveld issued an order cancelling the preliminary conference and alerting plaintiff of his obligation to promptly notify the court of any address or telephone number change or face dismissal of his claims.7 See L.R. 11.1; L.R. 41.3.1. To date, plaintiff has not notified the Court of any change in address or telephone number. Accordingly, Magistrate Judge van Meerveld issued an R&R recommending plaintiff’s 3 Id. 4 R. Doc. 13. 5 R. Doc. 19. 6 R. Doc. 20. 7 Id. remaining claims be dismissed without prejudice for failure to prosecute under Federal Rule of Civil Procedure 41(b).8 No party objected to the R&R. The Court thus reviews the R&R for clear error. See Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1430 (5th Cir. 1996) (en banc), superseded by statute on other grounds, 28 U.S.C. § 636(b)(1); see also Fed. R. Civ. P. 72(b) advisory committee’s note (1983) (“When no timely objection is filed, the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.”). The Court finds no clear error. Therefore, the Court adopts the R&R as its opinion. Accordingly, the Court DISMISSES WITHOUT PREJUDICE plaintiffs claims against the remaining defendants, Joseph Lopinto, Derek Adams, and Daniel Lassus, for failure to prosecute. New Orleans, Louisigna, this _12th day of March, 2024. “Arak Vorwer SARAH S. VANCE UNITED STATES DISTRICT JUDGE 8 R. Doc. 24.