Lane v. Collier et al

Filing 30

ORDER adopting 24 Report and Recommendation. Ordered that Defendants' 17 motion to revoke plaintiff's in forma pauperis status is granted. Plaintiff's in forma pauperis status is revoked. Ordered that Plaintiff's lawsuit is dismissed with prejudice as to the refilling of another in forma pauperis lawsuit raising these claims - but without prejudice to the refilling of his lawsuit without seeking an in forma pauperis status and with payment of the statutory filing fee. O rdered that if Plaintiff pays the full filing fee within fifteen (15) days of the date of this order, the lawsuit will proceed as though the full filing fee had been paid from the outset. Ordered that Defendants motions to dismiss, (Dkt. #s 15, 20), are denied as prematuresubject to consideration if Plaintiff refiles his lawsuit and pays the full statutory filing fee. Ordered that any and all motions which may be pending in this civil action are hereby denied. Signed by District Judge Ron Clark on 3/17/2019. (bjc, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
MICHAEL LANE, #1238595

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VS.

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BRYAN COLLIER, ET AL.

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CIVIL ACTION NO. 6:17cv381

ORDER OF DISMISSAL
Plaintiff Michael Lane, an inmate confined at the Coffield Unit within the Texas
Department of Justice proceeding pro se, filed this civil rights lawsuit pursuant to 42 U.S.C. §
1983 alleging purported violations of his constitutional rights. The complaint was referred to the
United States Magistrate Judge, the Honorable Judge John D. Love, for findings of fact,
conclusions of law, and recommendations for the disposition of the case.
On February 5, 2019, Judge Love issued a Report, (Dkt. #24), recommending that
Defendants’ motion to revoke Plaintiff’s in forma pauperis status, (Dkt. #17), be granted because
Plaintiff has accrued at least three qualifying strikes—for the filing of frivolous lawsuits or claims
upon which relief cannot be granted—before he filed the present lawsuit. Judge Love further
found that Plaintiff failed to demonstrate imminent danger.

Finally, Judge Love also

recommended that Plaintiff’s civil rights lawsuit be dismissed, with prejudice, as to the refiling of
another in forma pauperis lawsuit raising these claims—but without prejudice to the refiling of
this lawsuit without seeking in forma pauperis status and with payment of the full statutory filing
fee. Plaintiff has filed timely objections to the Report, (Dkt. #29).
As an initial matter, objections to a Report and Recommendation must specifically identify
portions of the Report and the basis for those objections. See Fed. R. Civ. P. 72(b); see also Battle
v. U.S. Parole Com’n, 834 F.2d 419, 421 (5th Cir. 1987) (explaining that if the party fails to
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properly object because the objections lack the requisite specificity, then de novo review by the
court is not required.). In other words, a party objecting to a Magistrate Judge’s Report must
specifically identify those findings to which he or she objects. Furthermore, frivolous, conclusory,
or general objections need not be considered by the District Court. Nettles v. Wainwright, 677
F.2d 404, 410 n.8 (5th Cir. 1982) (en banc), overruled on other grounds by Douglass v. United
Servs. Auto. Ass’n, 79 F.3d 1415 (5th Cir. 1996) (en banc).
Here, Plaintiff’s objections are general in nature. Specifically, Plaintiff argues that Judge
Love should have weighed the merits of his claims and asserts that courts cannot rely on the
“number” of cases someone has filed. While Plaintiff complains that a “court” found that only
two “sanctions” were imposed on Plaintiff, he provides no support for this contention; further,
Judge Love correctly highlighted several cases in which Plaintiff has accumulated three strikes.
Plaintiff does not raise specific objections to that finding.
Plaintiff also objects to Judge Love’s determination that Plaintiff failed to meet the
imminent danger requirement under section 1915(g). In his complaint, Plaintiff opined that during
the thirty days of Ramadan, he was starving and suffering from numerous discomforts. However,
while asserting that he was starving, Plaintiff readily admitted that he was fed during Ramadan;
he simply argued that he was not fed enough calories and that the food provided was insufficient.
Judge Love found that Plaintiff’s claims did not rise to the level of imminent danger of
serious bodily injury. See e.g., Entler v. McGerr, 2013 WL 11318861 *2 (E.D. Wash. Sept. 13,
2013) (“Plaintiff presents no facts from which the Court could infer he experienced substantial and
unhealthy weight loss as the result of any alleged dietary restrictions.”); Wallace v. Cockrell, 2003
WL 21528744 *2 (N.D. Tex. July 3, 2003) (finding that the plaintiff’s allegations that he was being
starved while on a food loaf diet did not establish entitlement to the imminent-danger exception.).

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On objection, Plaintiff reargues his claims. Specifically, he notes that he was provided less
than 1,500 calories during Ramadan. Plaintiff also maintains that Judge Love failed to consider
other claims concerning conditions of his confinement—his high cholesterol, his diabetic
condition, and the use of a CPAP machine. However, Plaintiff did not raise these claims in his
civil rights lawsuit; his civil rights complaint concerned only alleged starvation during Ramadan.
(Dkt. #1). Plaintiff failed to mention anything related to his diabetes, high cholesterol, or CPAP
machine in his complaint. Issues raised for the first time in an objection to a Magistrate Judge’s
Report is not properly before the District Court. See Place v. Thompson, 61 F. App’x 120, 2003
WL 342287 *1 (5th Cir. 2003) (unpublished); United States v. Armstrong, 951 F.2d 626, 630 (5th
Cir. 1992). Accordingly, these objections are without merit.
The Court has conducted a careful de novo review of record and the Magistrate Judge’s
proposed findings and recommendations. 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 United States Magistrate Judge is correct and Plaintiff’s
objections are without merit. Accordingly, it is
ORDERED that Plaintiff’s objections, (Dkt. #29), are overruled and the Report of the
Magistrate Judge, (Dkt. #’s 24), is ADOPTED as the opinions of the Court. Moreover, it is
ORDERED that Defendants’ motion to revoke Plaintiff’s in forma pauperis status, (Dkt.
#17), is GRANTED. Plaintiff’s in forma pauperis status is revoked. Further, it is
ORDERED that Plaintiff’s lawsuit is DISMISSED with prejudice as to the refiling of
another in forma pauperis lawsuit raising these claims—but without prejudice to the refiling of his

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lawsuit without seeking an in forma pauperis status and with payment of the statutory filing fee.
It is also
ORDERED that if Plaintiff pays the full filing fee within fifteen (15) days of the date of
this order, the lawsuit will proceed as though the full filing fee had been paid from the outset.
Further, it is
ORDERED that Defendants’ motions to dismiss, (Dkt. #’s 15, 20), are DENIED as
premature—subject to consideration if Plaintiff refiles his lawsuit and pays the full statutory filing
fee. Finally, it is
ORDERED that any and all motions which may be pending in this civil action are hereby
DENIED.

So Ordered and Signed
Mar 17, 2019

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