Guevara v. Paul et al

Filing 17

MEMORANDUM ORDER ADOPTING 11 Report and Recommendation and denying 10 Motion for Leave to Proceed in forma pauperis. This action is dismissed with prejudice as to the refiling of another IFP lawsuit raising the same claims, but without prejudi ce to the refiling of this lawsuit without seeking IFP status and upon payment of the statutory filing fee. Should pltf pay the full $400 filing fee within 15 days, he will be allowed to proceed in this lawsuit. Ordered that all motions not previously ruled on are denied. Signed by District Judge Ron Clark on 2/22/19. (tkd, )

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

§

v.

§

OFFICER PAUL, ET AL.

§

CIVIL ACTION NO. 6:17cv176

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
AND ENTERING FINAL JUDGMENT
The Plaintiff Juvenal Guevara, proceeding pro se, filed this 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.
After review of the pleadings, the Magistrate Judge determined that at least three of
Guevara’s previous lawsuits or appeals were dismissed as frivolous or for failure to state a claim,
thus subjecting him to the three-strikes bar of 28 U.S.C. §1915(g). The Magistrate Judge therefore
recommended that Guevara’s application for leave to proceed in forma pauperis be denied and that
his lawsuit be dismissed.
Guevara received a copy of the Magistrate Judge’s Report but filed no objections thereto.
He has filed two motions for extensions of time in which to pay the full $400.00 filing fee, both of
which were granted, but he has not done so. Accordingly, Guevara he is barred from de novo review
by the District Judge of the Magistrate Judge’s 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).
1

The Court has reviewed the pleadings in this cause and the Report of the Magistrate Judge.
Upon such review, the Court has determined 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. 11) is ADOPTED as the
opinion of the District Court. It is further
ORDERED that the Plaintiff’s application for leave to proceed in forma pauperis (docket
no. 10) is DENIED and 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 of $400.00 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. Payment of the full filing fee will not affect a
frivolousness analysis. It is further
ORDERED that any and all motions which may be pending in this civil action are hereby
DENIED.

So ORDERED and SIGNED February 22, 2019.

____________________________
Ron Clark, Senior District Judge

2