Jones v. Knight et al

Filing 14

ORDER ACCEPTING FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE re: 12 Findings and Recommendations, Terminate Motions. IT IS THEREFORE ORDERED that Plaintiff's claims under 42 U.S.C. § 1983 are DISMISSED with prejud ice as frivolous or for failure to state a claim on which relief may be granted, see 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b), and that his state-law claims are DISMISSED without prejudice, see 28 U.S.C. § 1367(c)(3). The Court CERTIFIES that any appeal of this action would not be taken in good faith. (Ordered by Judge David C Godbey on 7/24/2013) (tla)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
SAM JONES, #1787475,
Plaintiff,
v.
SHARON KNIGHT, TDCJ Parole
Officer, et al.,
Defendants.

§
§
§
§
§
§
§
§

3:13-CV-1511-N-BK

ORDER ACCEPTING FINDINGS AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
Plaintiff, a pro se litigant, sued three parole officers and a detective for malicious
prosecution and intentional infliction of emotional distress under 42 U.S.C. § 1983. The United
States Magistrate Judge recommended that Plaintiff’s section 1983 claims be dismissed as
frivolous or for failure to state a claim, and that his state-law claims be dismissed without
prejudice. Plaintiff filed objections, and the District Court has made a de novo review of those
portions of the proposed findings and recommendation to which objection was made.
At the outset, Plaintiff “contends that nowhere in his complaint nor in his Answers to the
Magistrate Judge’s questionnaire did [he] assert that Defendants maliciously prosecuted him for
failing to report in person a change of address seven days before moving.” (Doc. 13 at 3).
Instead,
What he asserted was that he was maliciously prosecuted by the Defendants
initiating a criminal proceeding against him without probable cause and in bad
faith due to their failure to disclose to the police their mistake not faxing the
Dallas Police Department (DPD) approval of plaintiff’s change of address as they
were required by DPD policy to do and [as they] had assured plaintiff that they
would do.
Id. Plaintiff reiterates at length, throughout his objections, that “Defendants [parole officers]
didn’t disclose to [the] authority the ‘truth’ about their failure to fax the Dallas Police

Department (DPD) plaintiff’s change of address.” Id. at 6. In addition, according to Plaintiff,
Detective Adams, who allegedly joined in the malicious prosecution and learned of the “patently
exculpatory evidence[,] deliberately fail[ed] to disclose it to the prosecutor.” Id. at 7.
Plaintiff overlooks, however, that the indictment, charged him with failing “to report in
person an intended change of address with the local law enforcement authority” seven days
before moving to his new residence. See State v. Jones, No. F11-14838 (203rd Judicial District
Court, Dallas County, Dec. 8, 2011) (electronic copy of the indictment available on the Dallas
County internet page). Defendants’ alleged failure to fax the change-of-address approval and,
later, to admit their mistakes is entirely separate from Plaintiff’s own duty to report in person an
intended change of address and, thus, irrelevant to the disposition of his malicious prosecution
claim.
Accordingly, Plaintiff’s objections are overruled, and the Court ACCEPTS the Findings,
Conclusions, and Recommendation of the United States Magistrate Judge.
IT IS THEREFORE ORDERED that Plaintiff’s claims under 42 U.S.C. § 1983 are
DISMISSED with prejudice as frivolous or for failure to state a claim on which relief may be
granted, see 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b), and that his state-law claims are
DISMISSED without prejudice, see 28 U.S.C. § 1367(c)(3).
IT IS FURTHER ORDERED that the dismissal under sections 1915(e)(2)(B) and
1915A(b) will count as a “strike” or “prior occasion” within the meaning 28 U.S.C. § 1915(g).1

1
 Section1915(g), commonly known as the “three-strikes” provision, provides: “[i]n no event shall a prisoner bring a
civil action or appeal a judgment in a civil action or proceeding under this section, if the prisoner has, on 3 or more
prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United
States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief
may be granted, unless the prisoner is under imminent danger of serious physical injury.”

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 above Order, 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 24th day of July, 2013.

________________________________
UNITED STATES DISTRICT JUDGE