McCreary v. Birdow

Filing 12

ORDER OF DISMISSAL overruling objections and adopting 9 Report and Recommendation. Pltf's 2 Motion to proceed in forma pauperis is denied. Pltf may resume the lawsuit if he pays the entire $400 filing fee within 30 days of entry of the final judgment. All motions not previously ruled on are denied. Signed by Judge Ron Clark on 12/14/16. (tkd, )

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

JODY FORD MCCREARY, #1694118

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VS.

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ELDRICK BIRDOW

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CIVIL ACTION NO. 6:16cv1275

ORDER OF DISMISSAL
Plaintiff Jody Ford McCreary, an inmate confined in the Texas prison system, proceeding
pro se and seeking to proceed in forma pauperis, brings this civil rights lawsuit pursuant to 42
U.S.C. § 1983. The complaint was referred to United States Magistrate Judge John D. Love, who
issued a Report and Recommendation (Dkt. #9) concluding that the lawsuit should be dismissed
with prejudice for purposes of in forma pauperis proceedings pursuant to the “three strikes”
provisions of 28 U.S.C. § 1915(g). Mr. McCreary has filed objections (Dkt. #11).
Mr. McCreary alleges in his objections that Magistrate Judge Love is biased against him
and that he does not have “three strikes.” Nonetheless, all of the cases and appeals that were
dismissed as frivolous and/or for failure to state a claim were listed in the Report and
Recommendation. The court has conducted a de novo review of the cases and appeals and has
determined that Mr. McCreary has accumulated at least “three strikes.”
Mr. McCreary complains about an event that occurred on January 4, 2016. He did not file
the present lawsuit until November 8, 2016. An inmate may not file any lawsuits or appeals in
forma pauperis if he has three or more lawsuits or appeals previously dismissed as “frivolous,
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malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under
imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). Mr. McCreary claims he was
the victim of excessive use of force, but he has not shown that he was under imminent danger of
serious physical injury at the time he filed the lawsuit in order to trigger the exception provided by
§ 1915(g).
The Report of the Magistrate Judge, which contains his proposed findings of fact and
recommendations for the disposition of such action, has been presented for consideration, and
having made a de novo review of the objections raised by Mr. McCreary to the Report, the court
is of the opinion that the findings and conclusions of the Magistrate Judge are correct, and Mr.
McCreary’s objections are without merit. It is therefore
ORDERED that the complaint is DISMISSED with prejudice for purposes of in forma
pauperis proceedings pursuant to 28 U.S.C. § 1915(g). It is further
ORDERED that Mr. McCreary’s motion to proceed in forma pauperis (Dkt. #2) is
DENIED. Mr. McCreary may resume the lawsuit if he pays the entire filing fee of $400 within
thirty days from the entry of the Final Judgment. It is finally
ORDERED that all motions not previously ruled on are DENIED.

So ORDERED and SIGNED this 14 day of December, 2016.

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Ron Clark, United States District Judge

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