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, )

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.

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ROBERT W. SCHROEDER III
UNITED STATES DISTRICT JUDGE