Burgess v. Keller

Filing 10

MEMORANDUM REJECTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE 7 . The case is returned to the Magistrate Judge for further proceedings consistent with this opinion. Signed by District Judge Amos L. Mazzant, III on 2/20/2018. (rpc, )

United States District Court
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

NATHAN EARL BURGESS
v.
PEGGY O. KELLER

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Civil Action No. 4:17-CV-531
(Judge Mazzant/Judge Nowak)

MEMORANDUM REJECTING REPORT AND
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Came on for consideration the report of the United States Magistrate Judge in this action,
this matter having been heretofore referred to the Magistrate Judge pursuant to 28 U.S.C. § 636.
On December 6, 2017, the report of the Magistrate Judge (Dkt. #7) was entered containing
proposed findings of fact and recommendations that Plaintiff Nathan Earl Burgess’s claims be
dismissed pursuant to Federal Rule of Civil Procedure 41. The Court rejects the Report and
Recommendation.
On November 1, 2017, Plaintiff filed a Motion to Proceed In Forma Pauperis (Dkt. #4).
On November 5, 2017, the Magistrate Judge denied Plaintiff’s Motion to Proceed In Forma
Pauperis, finding that “Plaintiff’s application provides insufficient information from which the
Court could determine that Plaintiff is unable to pay the filing fee” (Dkt. #5 at p. 2). A plaintiff
who wishes to proceed in forma pauperis must file an affidavit attesting to his indigence.
See 28 U.S.C. § 1915(a)(1). “The affidavit is sufficient if it states that, due to poverty, plaintiff
cannot afford to pay the costs of legal representation and still provide for himself and his
dependents.” Bright v. Hickman, 96 F. Supp. 2d 572, 575 (E.D. Tex. 2000) (citing Adkins, 335 U.S.
at 339; Weber v. Holiday Inn, 42 F. Supp. 2d 693, 697 (E.D. Tex. 1999)). Upon review, the
undersigned finds that Plaintiff’s Motion to Proceed In Forma Pauperis is not insufficient and
should instead be granted. Accordingly,

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It is therefore ORDERED that the Magistrate Judge’s Report and Recommendation
(Dkt. #7) is REJECTED, and the case is returned to the Magistrate Judge for further proceedings
consistent with this opinion.
SIGNED this 20th day of February, 2018.

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AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE

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