Burton v. Pace
Filing
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ORDER ADOPTING REPORT AND RECOMMENDATIONS. The Report of the Magistrate Judge 5 is hereby 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 lawsui t raising the same claims as herein presented, but without prejudice to the refiling of this lawsuit without seeking IFP status andupon payment of the statutory filing fee. 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 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 Leonard Davis on 10/09/14. (mll, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
BOBBY BURTON JR. #836846
§
v.
§
PAM PACE
§
CIVIL ACTION NO. 6:14cv522
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 Pam Pace, the practice manager at the Coffield Unit, is denying him
medical boots and a non-prescription antihistamine called Benadryl. The grievances which he
attaches to his complaint make no mention of either medical boots or Benadryl.
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.
In the present case, the Magistrate Judge concluded that Burton failed to show that he was
in imminent danger of serious physical injury as of the time that the lawsuit was filed. Because
allegations of past harm do not show “imminent danger,” the Magistrate Judge concluded that
Burton failed to trigger the “imminent danger” exception to §1915(g), and recommended that the
lawsuit be dismissed.
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,
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. 5) is hereby ADOPTED as
the opinion of the District Court. 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 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
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ORDERED that any and all motions which may be pending in this action are hereby
DENIED.
So ORDERED and SIGNED this 9th day of October, 2014.
__________________________________
LEONARD DAVIS
UNITED STATES DISTRICT JUDGE
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