Kelley v. Rupert et al

Filing 32

ORDER ADOPTING 9 Report and Recommendations, and denying 2 Motion for Leave to Proceed in forma pauperis filed by William Steed Kelley. Leave of court to file this lawsuit is DENIED, and this civil action is DISMISSED with prejudice as to the fil ing of another IFP lawsuit raising the same claims as herein presented, but without prejudice to the refiling of this lawsuit without seeking IFP status and upon payment of the full $350.00 filing fee.The refiling of this lawsuit also requires t hat Kelley show proof that all sanctions imposed upon him, by the Fifth Circuit or any federal district court in the State of Texas, have been satisfied, and that Kelley obtain leave of court to file the case. Should Kelley meet all of these requirem ents within 15days after the date of entry of dismissal, he shall be allowed to proceed in the case as though all conditions had been met from the outset. Any and all motions which may be pending in this civil action are hereby DENIED. Signed by Judge Leonard Davis on 05/19/11. cc:pltf 5-20-11(mll, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
WILLIAM STEED KELLEY #457296

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v.

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JOHN RUPERT, ET AL.

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CIVIL ACTION NO. 6:11cv134

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
AND ENTERING FINAL JUDGMENT
The Plaintiff William Steed Kelley, proceeding pro se, filed this civil rights lawsuit under
42 U.S.C. §1983 complaining of alleged deprivations 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.
Kelley complained generally of the conditions of confinement in the Separate Segregation
area of the Coffield Unit. After review of the pleadings, the Magistrate Judge observed that Kelley
had an extensive history of filing frivolous lawsuits as a result is subject to the three-strikes bar of
28 U.S.C. §1915(g), which prevents him from filing in forma pauperis absent a showing of
imminent danger of serious physical injury. The Magistrate Judge determined that Kelley had failed
to make such a showing of imminent danger, and so his lawsuit could be dismissed on this basis.
Furthermore, the Magistrate Judge noted that Kelley has also accumulated additional
sanctions, citing two cases from the Northern District of Texas in which Kelley was sanctioned a
total of $320.00 and barred from filing any further lawsuits until these sanctions were satisfied.
Because the Eastern District of Texas honors sanctions imposed by other courts, and Kelley has not
shown that these sanctions were satisfied, the Magistrate Judge stated that Kelley’s lawsuit cold be
dismissed on this basis as well.
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The Magistrate Judge’s Report was entered on March 29, 2011, and was received by Kelley
on April 1. Since that time, Kelley has filed a request for a copy of his litigation history, a motion
for leave to file additional pages of exhibits, a motion for leave to supplement his complaint, a
“notice of due process flow chart,” a notice of offer of settlement, a motion for leave to file a motion
for a preliminary injunction in excess of 20 pages, a motion for extension of time in which to file
objections to the Magistrate Judge’s Report, a motion for leave to file sealed documents, a motion
for leave to file witness declarations in excess of the 20 page limit, a supplemental motion for a
preliminary injunction, a notice of witness declaration in support of his motion for a subpoena duces
tecum and his amended complaint, and a motion for leave to file his supplemental motion for a
preliminary injunction in excess of 20 pages.
Although Kelley’s motion for extension of time to file objections to the Magistrate Judge’s
Report was granted to May 9, to date Kelley has 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 proposed 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). A review of
Kelley’s motions filed since the entry of the Report shows none that could even be construed as
objections, as none specifically address the proposed findings or conclusions of the Magistrate
Judge.
The Court has carefully reviewed the pleadings in this cause as well as the Report of the
Magistrate Judge. Upon such review, the Court has concluded that the Report of the Magistrate
Judge is correct. It is accordingly
ORDERED that the Report of the Magistrate Judge (docket no. 9) 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 (docket no.
2) is DENIED. It is further
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ORDERED that leave to court to file this lawsuit is DENIED, and the above-styled civil
action be and hereby is DISMISSED with prejudice as to the filing 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 $350.00 filing fee.
The refiling of this lawsuit also requires that Kelley show proof that all sanctions imposed upon him,
by the Fifth Circuit or any federal district court in the State of Texas, have been satisfied, and that
Kelley obtain leave of court to file the case. Should Kelley meet all of these requirements within 15
days after the date of entry of dismissal, he shall be allowed to proceed in the case as though all
conditions had been met from the outset. It is further
ORDERED that any and all motions which may be pending in this civil action are hereby
DENIED. Finally, it is
ORDERED that the Clerk shall transmit a copy of this opinion to the Administrator of the
Three Strikes List for the Eastern District of Texas.
So ORDERED and SIGNED this 19th day of May, 2011.

__________________________________
LEONARD DAVIS
UNITED STATES DISTRICT JUDGE

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