Ontiveros-Lara v. USA

Filing 9

Order Accepting 7 Findings and Recommendations and dismisses without prejudice this action pursuant to Rule 41(b) for want of prosecution. (Ordered by Judge Sam A Lindsay on 3/31/2015) (ykp)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
EMILIO ONTIVEROS-LARA, 45172-177, §
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Plaintiff,
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v.
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UNITED STATES OF AMERICA,
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Defendant.
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Civil Action No. 3:14-CV-3274-L

ORDER
The case was referred to Magistrate Judge Paul D. Stickney, who entered Findings,
Conclusions and Recommendation of the United States Magistrate Judge (“Report”) on January 28,
2015, recommending that this action be dismissed for want of prosecution pursuant to Federal Rule
of Civil Procedure 41(b). A copy of this Report was returned as undeliverable. Plaintiff has been
released from incarceration, and the court is without an additional mailing address to provide
Plaintiff with a copy of the Report.
Having reviewed the pleadings, file, and record in this case, and the findings and conclusions
of the magistrate judge, the court determines that the findings and conclusions are correct, accepts
them as those of the court, and dismisses without prejudice this action pursuant to Rule 41(b) for
want of prosecution.
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 and the court’s order accepting the Report. See
Baugh v. Taylor, 117 F.3d 197, 202 and n.21 (5th Cir. 1997). Based on the foregoing orders, the

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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; Fed. R. App. P. 24(a)(5). In the event that Plaintiff files a notice of appeal, he must
pay the $505 appellate filing fee or submit a motion to proceed in forma pauperis (“IFP”), unless he
has been granted IFP status by the district court.
It is so ordered this 31st day of March, 2015.

_________________________________
Sam A. Lindsay
United States District Judge

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