Davis v. Valdez

Filing 92

Order Accepting 90 FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE. The court, therefore, revokes Plaintiff's in forma pauperis status and dismisses without prejudice Plaintiff's claims against Hernandez and Hill pursuant to FRCvP 41(b) for failure to prosecute and comply with court orders. The court certifies that any appeal of this action would not be taken in good faith. (Ordered by Judge Sam A Lindsay on 1/27/2016) (twd)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
GRADY ALLEN DAVIS,
Plaintiff,
v.
SHERIFF LUPE VALDEZ, et al.,
Defendants.

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Civil Action No. 3:12-CV-2013-L

ORDER
On August 15, 2015, the United States Court of Appeals for the Fifth Circuit reversed the
summary judgment entered in this case in favor of Defendants DSO F. Hernandez (“Hernandez”)
and DSO Cody Hill (“Hill”) (Doc. 62) and remanded the case for further proceedings.* On January
5, 2016, Magistrate Judge David L. Horan entered Findings, Conclusions and Recommendation of
the United States Magistrate Judge (“Report”) recommending that court revoke Plaintiff’s in forma
pauperis status and dismiss without prejudice Plaintiff’s claims against Hernandez and Hill pursuant
to Federal Rule of Civil Procedure 41(b), for failure to prosecute and comply with court orders. No
objections to the Report were filed, and, as of today’s date, Plaintiff has made no contact with the
court.
After reviewing the pleadings, file, the record in this case, and Report, the court determines
that the findings and conclusions of the magistrate judge are correct and accepts them as those of
the court. The court, therefore, revokes Plaintiff’s in forma pauperis status and dismisses without

*

Plaintiff’s claims against the remaining Defendant in this case were dismissed with prejudice on September
6, 2012 (Doc. 14).
Order – Page 1

prejudice Plaintiff’s claims against Hernandez and Hill pursuant to Federal Rule of Civil Procedure
41(b) for failure to prosecute and comply with court orders.
The court prospectively 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 certification, the court
accepts and incorporates by reference the Report. See Baugh v. Taylor, 117 F.3d 197, 202 and
n.21 (5th Cir. 1997). The court concludes 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). In the event of an appeal, Plaintiff may challenge this certification by filing a separate motion
to proceed in forma pauperis on appeal with clerk of the United States Court of Appeals for the Fifth
Circuit. See Baugh, 117 F.3d at 202; F. R. App. 24(a)(5).
It is so ordered this 27th day of January, 2016.

_________________________________
Sam A. Lindsay
United States District Judge

Order – Page 2