Justice v. Texas Board Pardons and Paroles

Filing 8

ORDER ADOPTING 5 REPORT AND RECOMMENDATIONS, Denying 2 MOTION for Leave to Proceed in forma pauperis filed by Christopher M Justice 3 Supplemental MOTION for Leave to Proceed in forma pauperis filed by Christopher M Justice and civil acti on is Dismissed With Prejudice as to the refilling of another informa pauperis lawsuit but Without Prejudice to refilling without seeking forma pauperis but if plaintiff pays the full filing fee within 15 days after entry of judgment he shall be allowed to proceed and FURTHER ORDERED all motions pending are hereby Denied.. Signed by District Judge Robert W. Schroeder, III on 1/9/2018. (sm, )

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS TEXARKANA DIVISION CHRISTOPHER M. JUSTICE § v. § TEXAS BOARD OF PARDONS AND PAROLES § CIVIL ACTION NO. 5:17-cv-40 MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND ENTERING FINAL JUDGMENT The Plaintiff Christopher Justice filed this civil rights lawsuit under 42 U.S.C. §1983 complaining of alleged violations of his constitutional rights. Docket No. 1. 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 complains the Texas Board of Pardons and Paroles has for the second time refused to supply him with a letter explaining why he was denied parole. Docket No. 1 at 1. The Magistrate Judge determined Plaintiff has previously filed at least three lawsuits or appeals which were dismissed as frivolous or for failure to state a claim upon which relief may be granted. Docket No. 5 at 2. Consequently, the Magistrate Judge stated Plaintiff could not proceed under the in forma pauperis statute unless he showed he was in imminent danger of serious physical injury as of the time of the filing of the lawsuit. 28 U.S.C. §1915(g); Baños v. O'Guin, 144 F.3d 883, 885 (5th Cir. 1998). After reviewing the pleadings, the Magistrate Judge determined Plaintiff did not pay the full filing fee and did not show he was in imminent danger of serious physical injury from the events forming the basis of his claim as of the filing of the lawsuit. Docket No. 5 at 4. The Magistrate Judge therefore concluded Plaintiff’s lawsuit is barred by the three-strike provision of 28 U.S.C. §1915(g). Id. Plaintiff received a copy of the Magistrate Judge’s Report on May 24, 2017 (Docket No. 7) 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 Services Automobile Association, 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. 5) is ADOPTED as the opinion of the District Court. It is further ORDERED the Plaintiff’s motion and supplemental motion for leave to proceed in forma pauperis (Docket Nos. 2 and 3) are 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 full statutory filing fee. It is further ORDERED that if the Plaintiff pays 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 frivolousness analysis. It is further ORDERED any and all motions which may be pending in this civil action are hereby DENIED. SIGNED this 9th day of January, 2018. Page 2 of 2 ____________________________________ ROBERT W. SCHROEDER III UNITED STATES DISTRICT JUDGE

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