Dudley v. Niell et al

Filing 10

ORDER Accepting Findings, Conclusions, and Recommendation, re 9 Amended Findings, Conclusions, and Recommendation of the United States Magistrate Judge. The court prospectively CERTIFIES that any appeal of this action would not be taken in good faith. (Ordered by Senior Judge A. Joe Fish on 11/6/2015) (mem)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

HOWARD BLAIN DUDLEY,
Plaintiff,
VS.
JUDGE J. NIELL, 18th State District
Court, Johnson County, Texas, ET AL.,
Defendants.

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CIVIL ACTION NO.
3:15-CV-1434-G (BK)

ORDER ACCEPTING FINDINGS, CONCLUSIONS AND
RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

The United States Magistrate Judge made findings, conclusions, and a
recommendation in this case. No objections were filed. The district court reviewed
the proposed findings, conclusions and recommendation for plain error. Finding
none, the court ACCEPTS the findings, conclusions, and recommendation of the
United States Magistrate Judge.
It is therefore ORDERED that plaintiff’s claims seeking to enjoin his pending
state criminal cases are DISMISSED without prejudice in accordance with the

abstention doctrine in Younger v. Harris, 401 U.S. 37, 41 (1971), that the claims
challenging the building code violation are DISMISSED without prejudice for want
of jurisdiction, and that the claims challenging the imposition of mandatory drug
testing and seeking habeas relief are DISMISSED without prejudice to be reasserted
in a habeas corpus action.
It is further ORDERED that any claims brought on behalf of plaintiff’s wife
and two of his daughters are DISMISSED without prejudice to the wife and
daughters filing their own actions if appropriate.
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. P. 24(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).* In the event of an appeal, plaintiff may challenge this certification by filing a
separate motion to proceed in forma pauperis on appeal with the Clerk of the Court,

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Federal Rule of Appellate Procedure 4(a) governs the time to appeal an
order. A timely notice of appeal must be filed even if the district court certifies an
appeal as not taken in good faith.
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U.S. Court of Appeals for the Fifth Circuit. See Baugh, 117 F.3d at 202; FED. R. APP.
P. 24(a)(5).

November 6, 2015.

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A. JOE FISH
Senior United States District Judge

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