Burton v. Pierce

Filing 9

MEMORANDUM ORDER ADOPTING REPORT AND RECOMMENDATIONS. The report of the magistrate judge 7 is ADOPTED as the opinion of the District Court. The above-styled civil action is DISMISSED WITH PREJUDICE as to the refiling of another in forma pauperis la wsuit 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 statutory filing fee. Should Plaintiff pay the full filing fee within 15 days after the date o f entry of final judgment in this case, he shall be allowed to proceed in the lawsuit as through the fullfee had been paid from the outset. Because Burton is ineligible to proceed IFP, the full filing fee is $400.00. Any and all motions which may be pending in this action are hereby DENIED. Signed by Judge Michael H. Schneider on 05/05/15. (mll, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
BOBBY BURTON JR. #836846

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v.

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BILL PIERCE

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CIVIL ACTION NO. 6:14cv128

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
AND ENTERING FINAL JUDGMENT
The Plaintiff Bobby Burton Jr., 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.
Burton complains that he was not allowed to make a phone call home. After review of the
pleading, the magistrate judge issued a report recommending that Burton be denied in forma
pauperis status and that the lawsuit be dismissed. The magistrate judge observed that Burton has
filed at least three previous lawsuits or appeals which were dismissed as frivolous or for failure to
state a claim; consequently, Burton is subject to the provisions of 28 U.S.C. §1915(g). That statute
provides that a prisoner who has filed at least three previous lawsuits or appeals which have been
dismissed as frivolous or for failure to state a claim cannot proceed under the in forma pauperis
statute unless he shows that he is in imminent danger of serious physical injury as of the time of the
filing of the lawsuit or appeal. The magistrate judge determined that Burton failed to make such a
showing.
Burton received a copy of the magistrate judge’s report but filed no objections thereto;
accordingly, he is barred from de novo review by the district judge of those findings, conclusions,
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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. It is accordingly
ORDERED that the report of the magistrate judge (docket no. 7) is ADOPTED as the
opinion of the District Court. It is further
ORDERED that the above-styled civil action 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 filing fee. It is further
.
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. Because Burton is ineligible to proceed in forma pauperis, the
full filing fee is $400.00. Finally, it is
ORDERED that any and all motions which may be pending in this action are hereby
DENIED.
It is SO ORDERED.
SIGNED this 5th day of May, 2015.

____________________________________
MICHAEL H. SCHNEIDER
UNITED STATES DISTRICT JUDGE

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