IN THE UNITED STATES DISTRICT COURT September 04, 2024 FOR THE SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk MCALLEN DIVISION

MILES FLORES PENA, § E-1289-20 § TDCJ # 02502272 § § § Plaintiff, § CIVIL ACTION NO. 7:23-CV-166 § VS. § § J.E. EDDIE GUERRA, et al., § §

§ Defendants. §

ORDER ADOPTING REPORT AND RECOMMENDATION

Plaintiff Miles Flores Pena initially filed a civil rights action pursuant to

, which had been referred to the Magistrate Court for a report and recommendation. Pena then filed a motion for voluntary dismissal pursuant to Rule 41(a) of the Federal Rules of Civil Procedure.1 Shortly thereafter, Pena filed a letter motion seeking to continue his case.2 That motion was referred to the Magistrate Court.3 On July 24, 2024, the Magistrate Court issued the Report and Recommendation, recommending that Pena’s letter/motion of May 30, 2024,4 be construed as a Rule 60(b) motion to vacate the Rule 41(a)(1)(A)(i) voluntary dismissal, that the letter/motion be denied, and that the Clerk of Court be instructed to administratively close this case. It was further recommended that Pena’s request for the appointment of counsel contained in his letter/motion be denied as moot. The time for filing objections has passed and no objections have been filed.

1 Dkt. No. 14. 2 Dkt. No. 22. 3 Dkt. No. 23. 4 Dkt. No. 22. Pursuant to Federal Rule of Civil Procedure 72(b), the Court has reviewed the Report and Recommendation for clear error.° Finding no clear error, the Court adopts the Report and Recommendation in its entirety. Accordingly, it is ORDERED that Pena’s letter/motion of May 30, 2024,° is construed as a Rule 60(b) motion to vacate the Rule 41(a)(1)(A)@) voluntary dismissal, the letter/motion is DENIED, Pena’s request for the appointment of counsel contained in his letter/motion is DENIED AS MOOT, and the Clerk of Court is instructed to administratively close this case. IT IS SO ORDERED. DONE at McAllen, Texas, this 4th of September, 2024. Worn Micaela Alv Senior United States District Judge

> As noted by the Fifth Circuit, “[t]he advisory committee’s note to Rule 72(b) states that ‘[w]hen no timely objection is filed, the [district] court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.’” Douglas v. United Servs. Auto, Ass'n,

(Sth Cir. 1996) (quoting Fed. R. Civ. P. 72(b) advisory committee’s note (1983)), superceded by statute on other grounds by

(b)(1), as stated in ACS Recovery Servs., Inc. v. Griffin, No. 11-40446,

, at *7 n.5 (Sth Cir. Apr. 2, 2012). © Dkt. No. 22.