Holmes v. Davis et al

Filing 15

MEMORANDUM ORDER overruling objections and adopting the magistrate judge's 7 report and recommendation. Plaintiff's 3 motion for leave to proceed in format pauperis is denied. Plaintiff's 11 motion for temporary retraining order and/or preliminary injunction is also denied. Plaintiff has 30 days to pay the full filing fee of $400.00. Signed by District Judge Marcia A. Crone on 1/8/2018. (bjc)

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UNITED STATES DISTRICT COURT ERIC-CANTRELL HOLMES, Plaintiff, versus LORIE DAVIS, et al., Defendants. EASTERN DISTRICT OF TEXAS § § § § § § § § § CIVIL ACTION NO. 1:17-CV-133 MEMORANDUM ORDER OVERRULING OBJECTIONS AND ADOPTING THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION Plaintiff, Eric-Cantrell Holmes, a prisoner formerly confined at the Mark Stiles Unit with the Texas Department of Criminal Justice, Correctional Institutions Division, proceeding pro se, filed this civil rights action pursuant to 42 U.S.C. § 1983 against seventeen defendants. The court referred this matter to the Honorable Zack Hawthorn, United States Magistrate Judge, at Beaumont, Texas, for consideration pursuant to applicable laws and orders of this court. The Magistrate Judge recommends denying plaintiff’s motion to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(g). 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 the applicable law. See FED. R. CIV. P. 72(b). After careful consideration, the court finds plaintiff’s objections are without merit. Plaintiff states he has met the imminent danger exception. Plaintiff’s complaint surrounds events that occurred at the Mark Stiles Unit. At the time he filed his complaint, however, plaintiff was no longer incarcerated at the Mark Stiles Unit. Since the inception of this civil action, plaintiff has been incarcerated at the Michael Unit. Plaintiff was not under threat of imminent danger at the time he filed this complaint. ORDER Accordingly, the objections of the plaintiff 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. Plaintiff’s motion for leave to proceed in forma pauperis (docket entry no. 3) is DENIED. Plaintiff’s Motion for Temporary Restraining Order and/or Preliminary Injunction (docket entry no. 11) is also DENIED, subject to reconsideration. Plaintiff has thirty (30) days from entry below to pay the full filing fee of $400.00. Failure to do so will result in dismissal of this case for want of prosecution pursuant to Federal Rule of . Civil Procedure 41(b). SIGNED at Beaumont, Texas, this 7th day of September, 2004. SIGNED at Beaumont, Texas, this 8th day of January, 2018. ________________________________________ MARCIA A. CRONE UNITED STATES DISTRICT JUDGE 2

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