Justice v. Texas Department of Criminal Justice

Filing 8

MEMORANDUM ORDER ADOPTING 4 REPORT AND RECOMMENDATIONS and FURTHER ORDERED that Plaintiffs 2 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 presented herein and ORDERED 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. Signed by Judge Robert W. Schroeder, III on 9/19/2017. (sm, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TEXARKANA DIVISION
CHRISTOPHER M. JUSTICE #2065124

§

v.

§

CIVIL ACTION NO. 5:17cv134

TEXAS DEPARTMENT OF CRIMINAL §
JUSTICE
MEMORANDUM ADOPTING REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
The Plaintiff Christopher Justice filed this civil rights lawsuit under 42 U.S.C. § 1983
complaining of alleged violations of his constitutional rights. This Court ordered that the case be
referred 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 he has been fed sack lunches for every meal over a period of four to five
weeks, instead of three hot meals a day as he claims is required by state and federal law, resulting
in “malnourishment.” He also asserts the ventilation in the building is inadequate.
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. 4 at 3. 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. Id. (citing 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 concluded Plaintiff did not pay the full
filing fee and did not show he was in imminent danger of serious physical injury as of the filing of
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the lawsuit. The Magistrate Judge therefore concluded Plaintiff’s lawsuit is barred by the threestrike provision of 28 U.S.C. § 1915(g).
Plaintiff received a copy of the Magistrate Judge’s Report on August 1, 2017, but filed no
objections. 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 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 (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 the Report of the Magistrate Judge (Docket No. 4) is ADOPTED as the opinion
of the District Court. It is further
ORDERED the Plaintiff’s application for leave to proceed in forma pauperis (Docket No.
2) 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 presented herein, but is
denied 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 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 Justice is ineligible to proceed in forma pauperis, the full filing
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fee is $400.00. Payment of the full filing fee will not affect a frivolousness analysis nor the
requirement of exhaustion of administrative remedies. It is further
ORDERED any and all motions which may be pending in this civil action are hereby
DENIED.
SIGNED this 19th day of September, 2017.

____________________________________
ROBERT W. SCHROEDER III
UNITED STATES DISTRICT JUDGE

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