Justice v. Wells
ORDER ADOPTING 6 REPORT AND RECOMMENDATIONS and FURTHER ORDERED that 3 Motion for leave to proceed in forma pauperis is DENIED and action is Dismissed With Prejudice as to refilling of another in forma pauperis lawsuit raising same claims and ORD ERED that should the Plaintiff pay the full filing fee within 15 days after the date of entry of final judgment in this case, he shall be allowed to proceed in the lawsuit as though the full fee has been paid from the outset.. Signed by Judge Robert W. Schroeder, III on 7/18/2017. (sm, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
CHRISTOPHER JUSTICE #2065124
TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, ET AL.
CIVIL ACTION NO. 5:17cv20
MEMORANDUM ADOPTING REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
AND ENTERING FINAL JUDGMENT
The Plaintiff Christopher Justice, proceeding pro se, filed this civil rights lawsuit under
42 U.S.C. §1983 complaining of alleged violations of his constitutional rights. This Court
referred the case to the United States Magistrate Judge pursuant to 28 U.S.C. §636(b)(1) and (3)
and the Amended Order for the Adoption of Local Rules for the Assignment of Duties to United
States Magistrate Judges.
Plaintiff has filed at least three previous lawsuits or appeals which have been dismissed
as frivolous, malicious, or for failure to state a claim upon which relief may be granted. See
Justice v. Bexar County Jail, et al., Civil Action No. 5:16-cv-449 (W.D. Tex., dismissed
as frivolous June 1, 2016); Justice v. Texas Board of Pardons and Paroles, Civil Action No.
5:16-cv-1162 (W.D. Tex., dismissed as frivolous November 23, 2016); Justice v. Garza West
Prison, Civil Action No. 5:16-cv-892 (W.D. Tex., dismissed as frivolous October 27, 2016);
Justice v. Bexar County Jail, et al., Civil Action No. 5:16-cv-1088 (W.D. Tex., dismissed as
frivolous November 28, 2016). As a result, Plaintiff may not proceed under the in forma
pauperis statute unless he shows he is in imminent danger of serious physical injury at the time
of the filing of his lawsuit. 28 U.S.C. §1915(g); Baños v. O’Guin, 144 F.3d 883, 885 (5th Cir.
In his complaint, Plaintiff asserts Telford Unit law librarian E. Wells has engaged in mail
tampering and denied Plaintiff legal supplies, thus violating Plaintiff’s right of access to court.
Docket No. 1 at 1. He states he is in imminent danger as a result of exposure to second hand
smoke from synthetic marijuana, but he offers no other details or factual support for this
contention, nor does he show how this assertion relates to the allegations of his complaint. Id.
After review of the pleadings, the Magistrate Judge issued a Report recommending the
lawsuit be dismissed as barred by §1915(g). Docket No. 6 at 4. Plaintiff received a copy of this
Report but filed no objections thereto; accordingly, he is barred from de novo review by the
District Judge of those findings, conclusions, and recommendations and, except upon grounds of
plain error, from appellate review of the unobjected-to factual findings and legal conclusions
accepted and adopted by the district court. Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415,
1430 (5th Cir. 1996) (en banc).
The Court has reviewed the pleadings in this cause and the Report of the Magistrate
Judge. Upon such review, the Court has determined the Report of the Magistrate Judge is correct.
See United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir.), cert. denied, 492 U.S. 918, 109
S.Ct. 3243 (1989) (where no objections to a Magistrate Judge’s Report are filed, the standard of
review is “clearly erroneous, abuse of discretion and contrary to law.”). It is accordingly
ORDERED that the Report of the Magistrate Judge (Docket No. 6) is ADOPTED as
the opinion of the District Court. It is further
ORDERED that the Plaintiff’s application for leave to proceed in forma pauperis is
DENIED and the above-styled civil action is DISMISSED WITH PREJUDICE as to the refiling
of another in forma pauperis lawsuit raising the same claims as herein presented, but without
prejudice to the refiling of this lawsuit without seeking in forma pauperis status and upon
payment of the statutory filing fee. It is further
ORDERED that should the Plaintiff pay the full filing fee within 15 days after the date
of entry of final judgment in this case, he shall be allowed to proceed in the lawsuit as though
the full fee had been paid from the outset. Because Plaintiff is ineligible to proceed in forma
pauperis, the full filing fee is $400.00.
Payment of the full filing fee will not affect a
determination as to whether the lawsuit is frivolous, malicious, or fails to state a claim upon
which relief may be granted. 28 U.S.C. §1915A. It is further
ORDERED that any and all motions which may be pending in this action are hereby
SIGNED this 18th day of July, 2017.
ROBERT W. SCHROEDER III
UNITED STATES DISTRICT JUDGE
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