Malone v. Ekeke et al

Filing 7

MEMORANDUM ORDER OVERRULING OBJECTIONS AND ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION that this case be dismissed without prejudice pursuant to 28 USC 1915(g). Signed by District Judge Marcia A. Crone on 4/18/18. (mrp, )

UNITED STATES DISTRICT COURT
FREDERICK DEWAYNE MALONE,
Plaintiff,
versus
G. EKEKE, et al.,
Defendants.

EASTERN DISTRICT OF TEXAS
§
§
§
§
§
§
§
§
§

CIVIL ACTION NO. 1:18-CV-99

MEMORANDUM ORDER OVERRULING OBJECTIONS AND ADOPTING
THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff Frederick Dewayne Malone, an inmate confined at the Stiles Unit of the Texas
Department of Criminal Justice, Correctional Institutions Division, proceeding pro se, filed this
civil rights lawsuit pursuant to 42 U.S.C. § 1983. The court previously 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 has submitted a Report
and Recommendation of United States Magistrate Judge recommending the case be dismissed
without prejudice pursuant to 28 U.S.C. § 1915(g).
The court has received the Report and Recommendation, along with the record, pleadings,
and all available evidence. Plaintiff filed letters which the court construes as objections to the
magistrate judge’s Report and Recommendation. The court must therefore conduct a de novo
review of the objections in relation to the pleadings and the applicable law.
Pursuant to Section 1915(g), prisoners who previously had at least three lawsuits or appeals
dismissed as frivolous or for failure to state a claim may not proceed with a lawsuit on an in forma
pauperis basis unless they are under imminent danger of serious physical injury. Plaintiff alleges
he has not been provided with sufficient paper to file a state application for writ of habeas corpus
and has been harassed by officers in the law library. The magistrate judge’s recommendation for
dismissal was based on the conclusion that three lawsuits or appeals filed by plaintiff had been

dismissed as frivolous or for failure to state a claim and plaintiff had not demonstrated he was in
imminent danger of serious physical injury.
In his objections, plaintiff asserts that his claims are meritorious. However, he does not
contend he is in imminent danger of serious physical injury or state he has not had three lawsuits
or appeals dismissed as frivolous or for failure to state a claim. As a result, the magistrate judge
correctly recommended that this lawsuit be dismissed.
ORDER
Accordingly, the objections filed by 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. A final judgment shall be entered dismissing this lawsuit.
.
SIGNED at Beaumont, Texas, this 7th day of September, 2004.

SIGNED at Beaumont, Texas, this 18th day of April, 2018.

________________________________________
MARCIA A. CRONE
UNITED STATES DISTRICT JUDGE

2