Fountain v. Thaler et al

Filing 272

MEMORANDUM ADOPTING REPORT AND RECOMMENDATIONS OF THE UNITED STATES MAGISTRATE JUDGE for 260 Report and Recommendations. ORDERED that the Defendants objections are overruled and the report of the magistrate judge is ADOPTED as the opinion of the District Court. It is further ORDERED that the Defendants motion to revoke Plaintiffs in forma pauperis status (docket no. 197) is DENIED. Signed by Judge Michael H. Schneider on 3/7/2016. (gsg)

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

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v.

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RICK THALER, ET AL.

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CIVIL ACTION NO. 6:13cv958

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
AND DENYING MOTION TO REVOKE IN FORMA PAUPERIS STATUS
The Plaintiff Freddie Fountain, proceeding pro se, filed this civil rights lawsuit under 42
U.S.C. §1983 complaining of alleged violations of his constitutional rights during his confinement
in the Texas Department of Criminal Justice, Correctional Institutions Division. 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.
The Defendants have moved to revoke Fountain’s in forma pauperis status under 28 U.S.C.
§1915(g) based on strikes he acquired after the present lawsuit was filed. The Magistrate Judge
issued a report recommending that the motion be denied. The Defendants have filed objections
arguing, as they did in their motion, that the Court has inherent discretion to deny in forma pauperis
status and that a re-evaluation of Fountain’s pauper status is appropriate because he has an extensive
history of abusive litigation.
The Court has conducted a careful de novo review of those portions of the Magistrate Judge’s
proposed findings and recommendations to which the Defendants objected. See 28 U.S.C.
§636(b)(1) (district judge shall “make a de novo determination of those portions of the report or
specified proposed findings or recommendations to which objection is made.”) Upon such de novo
review, the Court has determined that the report of the magistrate judge is correct. It is accordingly
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ORDERED that the Defendants’ objections are overruled and the report of the magistrate
judge (docket no. 260) is ADOPTED as the opinion of the District Court. It is further
ORDERED that the Defendants’ motion to revoke Plaintiff’s in forma pauperis status
(docket no. 197) is DENIED. It is further
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ORDERED that this Court is of the opinion, and so finds, that this order involves a
controlling question or questions as to which there is substantial ground for difference of opinion
and an immediate appeal from this order may materially advance the ultimate termination of the
litigation. 28 U.S.C. §1292(b). The questions presented are whether the three-strikes provision of
28 U.S.C. §1915(g) may be applied to strikes issued after a case was filed and, more generally, the
latitude given to the district court to revoke in forma pauperis status in a lawsuit based on the
plaintiff’s actions in other lawsuits or appeals taken after the original lawsuit was filed.
SIGNED this 7th day of March, 2016.

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MICHAEL H. SCHNEIDER
UNITED STATES DISTRICT JUDGE

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