Mack v. Bell et al
Filing
10
ORDER ADOPTING 8 Report and Recommendations. Plaintiff's motion for leave to proceed IFP 2 is DENIED. This civil action is DISMISSED with prejudice as to the refiling of another IFP lawsuit raising the same claims as herein presented, but wi thout prejudice to the refiling of this lawsuit without seeking IFP status and upon payment of the statutory $350.00 filing fee. Should the Plaintiff pay the full filing fee within 15 days after the date ofentry of final judgment in this case, h e shall be allowed to proceed in the lawsuit as through the full fee had been paid from the outset. It should be noted that payment of the filing fee will not affect a frivolousness analysis. Any and all motions which may be pending in this action are hereby DENIED. Signed by Judge Leonard Davis on 02/19/13. cc:pltf 2-19-13(mll, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
CRAIG MACK
§
v.
§
MICHAEL BELL, ET AL.
§
CIVIL ACTION NO. 6:12cv852
MEMORANDUM ADOPTING REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
AND ENTERING FINAL JUDGMENT
The Plaintiff Craig Mack, proceeding pro se, 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.
Mack complains of the medical care which he received while confined at the East Texas
Treatment Facility, a private correctional center falling under the Private Facility Contract
Monitoring and Oversight Division of the Texas Department of Criminal Justice, Correctional
Institutions Division. After review of the pleadings, the Magistrate Judge issued a Report stating that
Mack had filed at least three previous lawsuits or appeals which had been dismissed as frivolous or
for failure to state a claim, and so was subject to the provisions of 28 U.S.C. §1915(g). That statute
provides that inmates who have filed at least three previous lawsuits or appeals which have been
dismissed under 28 U.S.C. §1915(g) cannot proceed under the in forma pauperis statute unless they
show that they are in imminent danger of serious physical injury. In the present case, the Magistrate
Judge concluded that Mack had failed to show that he was in imminent danger of serious physical
injury; although Mack alleged, as he had in a prior case, that he was in imminent danger because his
blood pressure was too high, the Magistrate Judge concluded that allegations of high blood pressure
1
do not themselves support a conclusion that an inmate is in imminent danger of serious physical
injury for purposes of 28 U.S.C. §1915(g). The Magistrate Judge therefore recommended that
Mack’s application for leave to proceed in forma pauperis be denied and that the lawsuit be
dismissed with prejudice as to the refiling of another in forma pauperis lawsuit raising the same
claims, but without prejudice as to the refiling of the lawsuit without seeking in forma pauperis
status and upon payment of the full filing fee.
Mack received a copy of the Magistrate Judge’s Report on December 31, 2012, 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 carefully reviewed the pleadings and documents in this case, 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. 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. 8) is hereby ADOPTED as
the opinion of the District Court. It is further
ORDERED that the Plaintiff’s motion for leave to proceed in forma pauperis (docket no. 2)
is hereby DENIED. It is further
ORDERED that the above-styled civil action be and hereby 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 statutory $350.00 filing fee. It is further
2
.
ORDERED that should the Plaintiff pay 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 through the full
fee had been paid from the outset. It should be noted that payment of the filing fee will not affect
a frivolousness analysis under 28 U.S.C. §1915A. Finally, it is
ORDERED that any and all motions which may be pending in this action are hereby
DENIED.
SIGNED this 19th day of December, 2011.
So ORDERED and SIGNED this 19th day of February, 2013.
3
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?