Miller v. Vega et al

Filing 13

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 9 Report and Recommendations, and denying 2 Motion for Leave to Proceed in forma pauperis filed by Robert H Miller The complaint is dismissed with prejudice for purposes of ifp proceedings. Plaintiff may resume the lawsuit if he pays the $400 filing fee within 15 days after the entry of the Final Judgment. Signed by District Judge Jeremy D. Kernodle on 8/15/2019. (mjc, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
ROBERT MILLER,
Plaintiff,
v.
ABRAHAM VEGA, ET AL.,
Defendants.

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Case No. 6:19-CV-305-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. This case
was referred to United States Magistrate Judge John D. Love pursuant to 28 U.S.C. § 636. On
July 12, 2019, the Magistrate Judge issued a Report and Recommendation (Docket No. 9),
recommending that the action be dismissed for purposes of in forma pauperis proceedings pursuant
to the “three strikes” provisions of 28 U.S.C. § 1915(g). A return receipt indicating delivery to
Plaintiff was received by the Clerk on July 26, 2019 (Docket No.12).
This Court reviews the findings and conclusions of the Magistrate Judge de novo only if a
party objects within fourteen days of service of the Report and Recommendation. 28 U.S.C.
§ 636(b)(1). In conducting a de novo review, the Court examines the entire record and makes an
independent assessment under the law. Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1430
(5th Cir. 1996) (en banc), superseded on other grounds by statute, 28 U.S.C. § 636(b)(1)
(extending the time to file objections from ten to fourteen days). Here, Plaintiff did not file
objections in the prescribed period. The Court therefore reviews the Magistrate Judge’s findings

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for clear error or abuse of discretion and reviews his legal conclusions to determine whether they
are contrary to law. See United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir. 1989), cert. denied,
492 U.S. 918 (1989) (holding that, if no objections to a Magistrate Judge’s Report are filed, the
standard of review is “clearly erroneous, abuse of discretion and contrary to law”).
Having reviewed the Magistrate Judge’s Report and Recommendation, the Court adopts
the Report and Recommendation of the United States Magistrate Judge (Docket No. 9) as the
findings of this Court.
Accordingly, it is hereby ORDERED that the Magistrate Judge’s Report (Docket No. 9)
be ADOPTED. It is further
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 Plaintiff’s motion to proceed in forma pauperis (Docket No. 2) is
DENIED. This Order does not bar refiling of this lawsuit without seeking in forma pauperis status
and upon payment of the full $400.00 filing fee. Plaintiff may resume the lawsuit if he pays the
entire filing fee of $400 within fifteen (15) days after the entry of the Final Judgment. It is finally
ORDERED that all motions not previously ruled on are DENIED.
So ORDERED and SIGNED this 15th day of August, 2019.

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JEREMY D. KERNODLE
UNITED STATES DISTRICT JUDGE

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