Securities and Exchange Commission v. McDuff et al

Filing 74

ORDER accepting 71 FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE: Accordingly, the court denies Defendant's 69 Application and certifies that any appeal of this action would not be taken in good faith. See 28 U.S.C. § 1915(a)(3); Fed. R. App. 24(a)(3). (Ordered by Judge Sam A Lindsay on 10/5/2016) (twd)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
SECURITIES AND EXCHANGE
COMMISSION,
Plaintiff,
v.
GARY L. McDUFF, et al.,
Defendants.

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Civil Action No. 3:08-CV-0526-L
(USCA No. 16-10691)

ORDER
Before the court is Defendant Gary L. McDuff’s (“Defendant”) Application to Proceed
Without Prepayment of Fees on appeal (“Application”) (Doc. 69), filed July 27, 2016. On August
17, 2016, United States Magistrate Judge Renée Harris Toliver entered her Recommendation
regarding Defendant’s request to proceed in forma pauperis on appeal, recommending that the
court deny Defendant’s Application. No objections to the Recommendation were filed.
Having reviewed the Application, file, and record in this case, and Recommendation of the
magistrate judge, to which no objection was made, the court determines that the Recommendation
of the magistrate judge is correct, and accepts it as that of the court. Accordingly, the court denies
Defendant’s Application (Doc. 69) and certifies that any appeal of this action would not be taken
in good faith.

See 28 U.S.C. § 1915(a)(3); Fed. R. App. 24(a)(3). In support of this

determination, the court accepts and incorporates by reference Document Nos. 40, 41, 51, and 59
entered in this case and concludes that the appeal presents no legal points of arguable merit and
is, therefore, frivolous. See Baugh v. Taylor, 117 F.3d 197, 202 n.21 (5th Cir. 1997).
Although this court has certified that the appeal is not taken in good faith, Defendant may
challenge this finding pursuant to Baugh v. Taylor by filing a separate motion to proceed in

forma pauperis on appeal with the clerk of the United States Court of Appeals for the Fifth Circuit
within 30 days of this order. The cost to file a motion to proceed on appeal with the Fifth Circuit
is calculated below, and if Defendant moves to proceed in forma pauperis on appeal, the prison
authorities shall collect the fees as calculated in this order as follows: Defendant is assessed an
initial partial fee of $11. The agency having custody of Defendant shall collect this amount from
the trust fund account or institutional equivalent, when funds are available, and forward it to the
clerk of the district court. See 28 U.S.C. ' 1915(b)(1). Thereafter, Defendant shall pay $494, the
balance of the filing fee, in periodic installments.

Defendant is required to make payments of

20% of the preceding month=s income credited to Defendant=s prison account until he has paid
the total filing fee of $505. The agency having custody of Defendant shall collect this amount
from the trust fund account or institutional equivalent, when funds are available and when
permitted by 28 U.S.C. ' 1915(b)(2), and forward the funds to the clerk of the district court.
Further, if Defendant moves to proceed in forma pauperis on appeal, the clerk shall
transmit a copy of this order to the inmate accounting office or other person(s) or entity with
responsibility for collecting and remitting to the district court interim filing payments on behalf
of prisoners, as designated by the facility in which the prisoner is currently or subsequently
confined.

It is so ordered this 5th day of October, 2016.

_________________________________
Sam A. Lindsay
United States District Judge