Nunn v. Martin

Filing 8

MEMORANDUM ORDER OVERRULING OBJECTIONS AND ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION that plaintiff's motion for leave to proceed in forma pauperis should be denied and this civil rights action dismissed without prejudice to plaintiff's right to re-file this suit upon paying the full $350.00 filing fee. Signed by Judge Marcia A. Crone on 1/11/12. (mrp, )

UNITED STATES DISTRICT COURT

TYRONE NUNN, SR.,
Petitioner,
versus
M. MARTIN,
Respondent.

EASTERN DISTRICT OF TEXAS

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CIVIL ACTION NO. 1:11-CV-571

MEMORANDUM ORDER OVERRULING OBJECTIONS AND ADOPTING
THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff, Tyrone Nunn, Sr., an inmate currently confined at FCI Beaumont Low,
proceeding pro se, filed this Bivens1 type action against defendant Mark Martin.
The Court referred this matter to the Honorable Keith F. Giblin, United States Magistrate
Judge, at Beaumont, Texas, for consideration pursuant to applicable laws and orders of this Court.
The Magistrate Judge recommends plaintiff’s motion for leave to proceed in forma pauperis should
be denied and this civil rights action dismissed without prejudice to plaintiff’s right to re-file this
suit upon paying the full $350.00 filing fee.
The Court has received and considered the Report and Recommendation of United States
Magistrate Judge filed pursuant to such referral, along with the record, and pleadings. Plaintiff
filed objections to the Magistrate Judge’s Report and Recommendation. This requires a de novo
review of the objections in relation to the pleadings and applicable law. See FED . R. CIV . P. 72(b).
After careful consideration, the Court finds the objections lacking in merit. To the extent
plaintiff calls into question the constitutionality of § 1915(g), the Fifth Circuit has considered and

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See Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971).

upheld its constitutionality. See Carson v. Johnson, 112 F.3d 818, 821-22 (5th Cir. 1997); see also
Rivera v. Allin, 144 F.3d 719, 731 (11th Cir. 1998) (upholding the constitutionality of § 1915(g))
and Jones v. Bock, 549 U.S. 199 (2007) (Supreme Court abrogated Rivera but only to the extent
Rivera required an inmate to plead exhaustion of remedies in his complaint).
ORDER
Accordingly, the objections of petitioner are OVERRULED. The findings of fact and
conclusions of law of the Magistrate Judge are correct and the report of the Magistrate Judge is
ADOPTED. A final judgment will be entered in this case in accordance with the Magistrate

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Judge’s recommendations.
SIGNED at Beaumont, Texas, this 7th day of September, 2004.
SIGNED at Beaumont, Texas, this 11th day of January, 2012.

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MARCIA A. CRONE
UNITED STATES DISTRICT JUDGE

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