Nickerson v. Texas Department of Criminal Justice et al

Filing 15

ORDER ADOPTING 10 Report and Recommendations, and overruling pltf's objections. This civil action is hereby DISMISSED with prejudice. Any and all motions that may be pending in this civil action are hereby DENIED. The Clerk shall provide a copy of this opinion to the Administrator of the Three-Strikes List for the Eastern District of Texas. Signed by Judge Leonard Davis on 02/01/13. cc:pltf 2-01-13(mll, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION

CEDRIC NICKERSON, #681323

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VS.

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TEXAS DEPARTMENT OF
CRIMINAL JUSTICE - INSTITUTIONAL
DIVISION, ET AL.

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CIVIL ACTION NO. 6:12CV761

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ORDER OF DISMISSAL
The above-entitled and numbered civil action was heretofore referred to United States
Magistrate Judge Judith K. Guthrie. The Report and Recommendation of the Magistrate Judge,
which contains proposed findings of fact and recommendations for the disposition of such action,
concludes that this civil rights action should be dismissed with prejudice pursuant to the “three
strikes” provision of 28 U.S.C. § 1915(g). The Plaintiff has filed written objections (docket entry
#14). In his objections, he contends that certain of his past lawsuits and actions cited by the
Magistrate Judge should not qualify as “strikes” under the statute. He has raised the same argument
in a number of other actions in which his claims were also dismissed for three strikes violations, and
his objections have been overruled consistently. Most notably, however, the Court observes that the
United States Court of Appeals for the Fifth Circuit entered an order on August 3, 2010, in Nickerson
v. Price, USCA Case No. 09-40807 (5th Cir. Aug. 3, 2010), expressly stating that Plaintiff has three
strikes and giving him 30 days from the date of entry of the order in which to pay the appellate filing
fee of $455.00. That order counted as strikes the dismissals in Nickerson v. U.S. Marshal’s Office,
No. 5:96cv235 (N.D. Tex. July 16, 1997); Nickerson v. Justices Texas Supreme Court, No.
2:03cv411 (S.D. Tex. Feb. 29, 2004); and Nickerson v. Klevenhagen, No. 4:95cv4089 (S.D. Tex.
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Mar. 13, 2000), all of which were cited by the Magistrate Judge in her Report at issue here. The
Court further observes that when Plaintiff failed to comply with the Fifth Circuit’s order above, that
appeal was dismissed.
Because Plaintiff has three strikes as determined by the Fifth Circuit, this Court need not
consider whether the other cases the Magistrate Judge cited were properly counted as strikes. The
record clearly shows that he has three, as found by the Fifth Circuit, and that is all that is required
to trigger operation of the “three strikes” bar of 28 U.S.C. § 1915(g).
The Court has conducted a careful de novo review of the pleadings in this case, the Report
of the Magistrate Judge, the Plaintiff’s objections thereto, and all other documents, and records in
the case. Upon such de novo review, the Court has concluded that the Report of the Magistrate
Judge is correct and that the Plaintiff’s objections are without merit and are overruled. It is
accordingly
ORDERED that Plaintiff’s objections are OVERRULED and the Report of the Magistrate
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Judge is ADOPTED as the opinion of the District Court. It is further
ORDERED that the above-styled civil case be and hereby is DISMISSED WITH
PREJUDICE pursuant to 28 U.S.C. § 1915(g). It is further
ORDERED that any and all other motions that may be pending in this civil action are hereby
DENIED. Finally, it is
ORDERED that the Clerk shall provide a copy of this opinion to the Administrator of the
Three-Strikes List for the Eastern District of Texas.
SIGNED this 19th day of December, 2011.
So ORDERED and SIGNED this 1st day of February, 2013.

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