Bohannan v. Redic et al

Filing 95

MEMORANDUM OPINION ORDER OVERRULING OBJECTIONS AND ADOPTING REPORT AND RECOMMENDATIONS. Plaintiff's Motion for Leave to Appeal In Forma Pauperis filed March 14, 2023 85 is DENIED as MOOT. Signed by District Judge Michael J. Truncale on 5/18/23. (ljw, )

Case 1:20-cv-00252-MJT-CLS Document 95 Filed 05/18/23 Page 1 of 4 PageID #: 447

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
BEAUMONT DIVISION
MICHAEL BOHANNAN

§

VS.

§

BRYAN WILLIAMS, et al.,

§

CIVIL ACTION NO. 1:20-CV-252

MEMORANDUM OPINION AND ORDER OVERRULING
OBJECTIONS AND ADOPTING REPORT AND RECOMMENDATION
Plaintif, Michael Bohannan, an inmate currently confined at the Mark Stiles Unit of the
Texas Department of Criminal Justice, Correctional Institutions Division, proceeding pro se and in
forma pauperis, filed this civil rights action against numerous defendants pursuant to 42 U.S.C. §
1983, the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc, et seq., the
Americans with Disabilities Act, 42 U.S.C. § 12131-12165, and the Texas Religious Freedom and
Restoration Act, TEX. CIV. PRAC. & REM. CODE § 110.
The court referred this matter to the Honorable Christine Stetson, United States Magistrate
Judge, at Beaumont, Texas, for consideration pursuant to applicable laws and orders of this court.
The Magistrate Judge recommends Plaintiff’s Application to be Proceed In Forma Pauperis on
Appeal be denied as lacking in good faith [Dkt. 89].
The court has received and considered the Report and Recommendation of United States
Magistrate Judge filed pursuant to such order, along with the records, and pleadings. Plaintiff filed
objections to the Report and Recommendation of United States Magistrate Judge on May 2, 2023,
the date Plaintiff certifies he placed the objections in the prison mailing system [Dkt. 93].1 This
requires a de novo review of the objections in relation to the pleadings and applicable law. See FED.
R. CIV. P. 72(b).

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Per the order of the magistrate judge entered April 24, 2023, Plaintiff’s objections were due no later
than May 1, 2023 [Dkt. 92]. Contemporaneous with his objections, Plaintiff also filed a Motion for
Extension of Time to file his objections due to issues with the prison mailing system [Dkt. 93]. The motion
is granted and the objections are considered timely.

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Plaintiff offers several iterations as to why his Application to Proceed In Forma Pauperis on
Appeal should not be denied as lacking in good faith.2 Many of the objections, however, are
irrelevant and serve only to detract from core issue that is now ripe for consideration. Namely, is
Plaintiff’s appeal of the Final Judgment dismissing this case for want of prosecution pursuant to
Federal Rule of Civil Procedure 41(b) taken in good faith?
As this Court has previously noted, Plaintiff’s pleadings in this case, and others, demonstrate
Plaintiff has a sound and sophisticated understanding of federal legal procedure and a firm grasp of
the facts and legal theories surrounding his claims. Despite this, the record in this case also firmly
establishes that Plaintiff has feigned ignorance as to how he should amend his pleadings and outlines
his refusal to comply. Between this Court and the magistrate judge, four orders were entered
outlining the parameters for Plaintiff to amend his pleadings and warnings that his failure to comply
could result in dismissal of his case for want of prosecution pursuant to Federal Rule of Civil
Procedure 41(b). Plaintiff was given several opportunities to comply, yet rather than attempt to refile an amended complaint, Plaintiff chose to repeatedly challenge the orders and further delay these
proceedings. It bares repeating, Plaintiff’s history of obfuscation and delay is established in this
record and consistent with conduct described by the Fifth Circuit as contumacious in a related civil
action. Bohannan v. Redic, No. 20-40860 (5th Cir. Mar. 3, 2023).3
Based on the foregoing, this Court can find no error in the ruling of the magistrate judge and
specifically certifies that Plaintiff’s appeal is not taken in good faith pursuant to 28 U.S.C.
§ 1915(a)(3) and Federal Rule of Appellate Procedure 24(a)(3). Although this court has certified

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For example, Plaintiff challenges the magistrate judge’s determination that he is subject to the
PLRA as he is being held under a civil commitment order. Plaintiff also challenges the assessment of an
initial partial filing fee as somehow in violation of the Religious Land Use and Institutionalized Persons
Act. With respect to the latter, Plaintiff appears to argue that forcing him to take money from his inmate
trust fund account to pay for the initial partial filing fee limits his ability to comply with his sincerely held
religious beliefs as he has to use his own funds to pay for kosher food.
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Currently pending is Plaintiff’s Motion for Leave to Petition for Panel Rehearing Out of Time.
Id. [Dkt. 121]. Plaintiff continues to argue he is not subject to the PLRA as he alleges he is being held
under a civil commitment order and does not qualify as a prisoner. The panel specifically found on March
3, 2023, that Plaintiff is now subject to the PLRA as a prisoner.

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that the appeal is not taken in good faith, Plaintiff may challenge this finding pursuant to Baugh v.
Taylor, 117 F. 3d 197 (5th Cir. 1997), by filing a separate motion to proceed in forma pauperis on
appeal with the Clerk of Court, United States Court of Appeals for the Fifth Circuit, within thirty
(30) days of this order. The cost to file a motion to proceed on appeal with the Fifth Circuit is
calculated below, and if the appellant moves to proceed on appeal in forma pauperis, the prison
authorities will be directed to collect the fees as calculated in this order.
ORDER
Accordingly, Plaintiff objections 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. It
is, further,
ORDERED that MICHAEL WAYNE BOHANNAN, TDCJ # 01841746 is assessed an initial
partial fee of $66.85. The agency having custody of the prisoner shall collect this amount from the
trust fund account or institutional equivalent, when funds are available, and forward it to the clerk
of the district court.
Thereafter, the prisoner shall pay $438.15, the balance of the filing fees, in periodic
installments. The appellant is required to make payments of 20 % of the preceding month’s income
credited to the appellant’s prison account until appellant has paid the total filing fees of $505.00.
The agency having custody of the prisoner shall collect this amount from the trust fund account or
institutional equivalent, when funds are available and when permitted by 28 U.S.C. § 1915 (b)(2),
and forward it to the clerk of the district court.
If Plaintiff moves to proceed on appeal in forma pauperis, the clerk shall mail a copy of this
order to the inmate accounting office or other person(s) or entity with responsibility for collecting
and remitting to the district court interim filing payments on behalf of prisoners, as designated by
the facility in which the prisoner is currently or subsequently confined. It is, further,

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Case 1:20-cv-00252-MJT-CLS Document 95 Filed 05/18/23 Page 4 of 4 PageID #: 450

ORDERED that Plaintiff’s Motion for Leave to Appeal In Forma Pauperis filed March 14,
2023 [Dkt. 85] s DENIED as MOOT.
SIGNED this 18th day of May, 2023.

____________________________
Michael J. Truncale
United States District Judge

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