Heath v. Davidson et al

Filing 6

ORDER adopting 4 Report and Recommendation of the United States Magistrate Judge. This case is DISMISSED with prejudice as to the refiling of another in forma pauperis lawsuit raising the same claims but without prejudice to the refiling of this lawsuit upon payment of the full $405.00 filing fee. Signed by District Judge Jeremy D. Kernodle on 11/22/2024. (wea)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
SECIAL HEATH,
Plaintiff,
v.
DAVID DAVIDSON, et al.,
Defendants.

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Case No. 6:24-cv-370-JDK-JDL

ORDER ADOPTING THE REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
Plaintiff Secial Heath, a Texas Department of Criminal Justice inmate
proceeding pro se, filed this civil rights lawsuit pursuant to 42 U.S.C. § 1983. The
case was referred to United States Magistrate Judge John D. Love for findings of fact,
conclusions of law, and recommendations for disposition.
On October 17, 2024, Judge Love issued a Report finding that Plaintiff has
accumulated at least three strikes under the Prison Litigation Reform Act and
recommending that the Court deny Plaintiff’s motion to proceed in forma pauperis
and dismiss this case with prejudice as to the refiling of another in forma pauperis
lawsuit raising the same claims but without prejudice to the refiling of this lawsuit
upon payment of the full $405.00 filing fee. Docket No. 4. A copy of this Report was
sent to Plaintiff but was returned as “undeliverable.” Docket No. 5. Plaintiff has not
filed objections or otherwise communicated with the Court since filing this lawsuit.
This Court reviews the findings and conclusions of the Magistrate Judge de

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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superseded on other grounds by statute, 28 U.S.C. § 636(b)(1) (extending the time to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 object in the prescribed period. The Court therefore
reviews the Magistrate Judge’s findings for clear error or abuse of discretion and
reviews the 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 the record in this case,
the Court finds no clear error or abuse of discretion and no conclusions contrary to
law. Accordingly, the Court hereby ADOPTS the Report and Recommendation of the
United States Magistrate Judge (Docket No. 4) as the findings of this Court. It is
therefore ORDERED that this case is DISMISSED with prejudice as to the refiling
of another in forma pauperis lawsuit raising the same claims but without prejudice
to the refiling of this lawsuit upon payment of the full $405.00 filing fee.
So ORDERED and SIGNED this 22nd day of November, 2024.

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JEREMY D. KERNODLE
UNITED STATES DISTRICT JUDGE
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