Oliver v. Brown et al

Filing 72

ORDER ACCEPTING 70 FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE. Defendant Jonathan Proffitt's Motion for Summary Judgment on Qualified Immunity (Doc. 59 ) and Defendants James Lewis' and Josie Hertel's Motion for Summary Judgment on Qualified Immunity. (Doc. 62 ) are both GRANTED. Plaintiff's remaining claims against Defendants Proffitt, Lewis and Hertel are dismissed with prejudice as barred by the statute of limitations. The Court CERTIFIES that any appeal of this action would not be taken in good faith. (Ordered by Judge Jane J Boyle on 5/20/2013) (ctf)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
NORMAL CHARLES OLIVER,
Plaintiff,
v.
OFFICER JONATHAN PROFIT, et al.,
Defendant.

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Civil No. 3:10-CV-2154-B-BK

ORDER ACCEPTING FINDINGS AND RECOMMENDATION OF
THE UNITED STATES MAGISTRATE JUDGE
The United States Magistrate Judge made findings, conclusions and a recommendation in
this case. Plaintiff filed a Notice of Appeal to the Court, which remains pending with the United
States Court of Appeals for the Fifth Circuit as an interlocutory appeal. (Doc. 71). In his Notice
of Appeal, however, Petitioner also seeks to object to the Magistrate Judge’s findings and
recommendation.
The Court is not deprived of jurisdiction to act on the Magistrate Judge's findings and
recommendation because the interlocutory appeal is from a non-appealable order. Such an
appeal does not deprive the Court of jurisdiction. See United States v. Green, 882 F.2d 999, 1001
(5th Cir.1989) (notice of appeal from non-appealable order does not render void for lack of
jurisdiction acts of trial court taken in the interval between filing of the notice and dismissal of
the appeal).
Accordingly, the District Court has made a de novo review of those portions of the
proposed findings and recommendation to which objection was made. The objections are

overruled, and the Court ACCEPTS the Findings, Conclusions and Recommendation of the
United States Magistrate Judge.
Defendant Jonathan Proffitt’s Motion for Summary Judgment on Qualified Immunity (Doc.
59) and Defendants James Lewis’ and Josie Hertel’s Motion for Summary Judgment on Qualified
Immunity. (Doc. 62) are both GRANTED. Plaintiff’s remaining claims against Defendants
Proffitt, Lewis and Hertel are dismissed with prejudice as barred by the statute of limitations.
The Court CERTIFIES that any appeal of this action would not be taken in good faith.
See 28 U.S.C. § 1915(a)(3). In support of this finding, the Court adopts and incorporates by
reference the Magistrate Judge’s Findings, Conclusions, and Recommendation. See Baugh v.
Taylor, 117 F.3d 197, 202 n.21 (5th Cir. 1997). Based on the Findings and Recommendation,
the Court finds that any appeal of this action would present no legal point of arguable merit and
would, therefore, be frivolous. Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983).
SO ORDERED this 20th day of May 2013.

JANE J. BOYLE
UNITED STATES DISTRICT JUDGE