Miller v. University of Texas Medical Branch et al

Filing 11

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 8 Report and Recommendations signed by District Judge Jeremy D. Kernodle on 07/24/2019. (ksd)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
ROBERT MILLER, #866293,
Plaintiff,
v.
UNIVERSITY OF TEXAS MEDICAL
BRANCH, ET AL.,
Defendants.

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Case No. 6:19-CV-228-JDK-JDL

ORDER ADOPTING REPORT AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff Robert Miller, an inmate confined in the Texas prison system, proceeding pro se,
filed the above-styled and numbered civil rights lawsuit pursuant to 42 U.S.C. § 1983. The civil
action was referred to United States Magistrate Judge John D. Love. The Magistrate Judge issued
a Report and Recommendation, concluding that the lawsuit should be dismissed based on the
three-strikes provision of 28 U.S.C. § 1915(g), which prohibits incarcerated plaintiffs from
proceeding in forma pauperis when they have previously filed at least three lawsuits or appeals
that were dismissed as frivolous, as malicious, or for failure to state a claim, unless the plaintiff
shows he is in imminent danger of serious physical injury. Docket No. 8 at 2–4.
Plaintiff did not file formal Objections to the Magistrate Judge’s Report and
Recommendations. Plaintiff did, however, file a motion for leave to file an amended complaint.
Docket No. 10. Plaintiff’s motion only restates the claims that the Magistrate Judge rejected in his
Report and Recommendation. See Docket No. 10. Therefore, if the Court construes Plaintiff’s
motion as a proper motion for leave to file an amended complaint, the Court would deny the motion
because Plaintiff’s amendment would be futile. See Dyer v. Bd. of Pardons & Paroles, No. 7:13-

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MC-978, 2019 WL 1308256, at *1 (S.D. Tex. Mar. 8, 2019) (denying a motion for leave to amend
a complaint filed after the Magistrate Judge’s report and recommendation because of undue delay
and futility). Further, even if the Court construes Plaintiff’s motion as Objections, the Court would
find that Plaintiff’s Objections are without merit because they do not address the deficiencies
recognized by the Magistrate Judge.
The Court, having made a de novo review of the objection raised by Plaintiff, is of the
opinion that the findings and conclusions of the Magistrate Judge are correct, and the Objections
by Plaintiff are without merit. The Court hereby adopts the findings and conclusions of the
Magistrate Judge as the findings and conclusions of the Court. It is therefore
ORDERED that the Report of the Magistrate Judge (Docket No. 8) is ADOPTED as the
opinion of the 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 $400.00 filing fee. It is further
ORDERED that, should the Plaintiff pay the full filing fee within 15 days of the 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. Finally, it is
ORDERED that any and all motions that may be pending in this civil action are hereby
DENIED.
So ORDERED and SIGNED this 24th day of July, 2019.

___________________________________
JEREMY D. KERNODLE
UNITED STATES DISTRICT JUDGE
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