Means v. Dallas County Jail (LSU) et al

Filing 21

Order Accepting Findings and Recommendations. The court certifies that any appeal of this action would not be taken in good faith. re: 17 Findings and Recommendations on Case re: 3 Complaint filed by Tavaris Jamar Means. (Ordered by Judge Sam A Lindsay on 1/13/2016) (ndt)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
TAVARIS JAMAR MEANS,
Plaintiff,
v.
DALLAS COUNTY JAIL, et al.,
Defendants.

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Civil Action No. 3:15-CV-2231-L

ORDER
This case was referred for screening to Magistrate Judge Paul D. Stickney, who entered
Findings, Conclusions and Recommendation of the United States Magistrate Judge (“Report”) on
November 18, 2015, recommending that the court allow Plaintiff’s claims against the two unknown
police officers to proceed and summarily dismiss Plaintiff’s claims against the remaining Defendants
pursuant to 28 U.S.C. ¶¶ 1915A(b) and 1915(e)(2)(B). No objections to the Report were received
by the court as of the date of this order. For the reasons that follow, the court accepts in part and
rejects in part as moot the magistrate judge’s findings and conclusions.
I.

Plaintiff’s Claims Against All Defendants Other than the Unknown Police Officers
After considering the pleadings, file, the record in this case, and Report, the court determines

that the findings and conclusions of the magistrate judge regarding Plaintiff’s claims against all
Defendants other than the two unknown police officers are correct, and accepts them as those of the
court. Accordingly, the court dismisses with prejudice these claims pursuant to 28 U.S.C. ¶¶
1915A(b) and 1915(e)(2)(B).

Order – Page 1

II.

Plaintiff’s Claims Against Two Unknown Police Officers
As previously noted, the magistrate judge recommended that the court allow Plaintiff’s

claims against the two unknown police officers to proceed; however, no objections to the Report
were filed, and the clerk’s attempts to deliver the Report to Plaintiff were unsuccessful. On
December 2, 2015, the Report that was mailed to the address provided by Plaintiff was returned as
undeliverable. On December 29, 2015, the Report was mailed by the clerk of the court to the
alternative address provided by Plaintiff on August 13, 2015. On January 5, 2016, the Report was
again returned as undeliverable.
After filing this action, Plaintiff was warned that this action may be dismissed if he failed to
promptly notify the court of changes to his address. Doc. 2 (“You must notify the Court if your
address changes, or your case may be dismissed. Promptly file a written change of address notice
in your case.”). Moreover, this is not the first time that Plaintiff has failed to prosecute or comply
with court orders. Rather than allow Plaintiff’s remaining claims against the two unknown police
officers proceed as recommended by the magistrate judge, the court, pursuant to Federal Rule of
Civil Procedure 41(b), dismisses without prejudice the claims for failure to prosecute and comply
with court orders. The court’s decision to dismiss without prejudice Plaintiff’s remaining claims
against the two unknown police officers moots the magistrate judge’s recommendation as to these
claims. Accordingly, the court rejects as moot the magistrate judge’s findings and conclusions
regarding these claims.
III.

Appeal by Plaintiff
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). Plaintiff, however, may challenge this
Order – Page 2

finding pursuant to Baugh v. Taylor, 117 F. 3d 197 (5th Cir. 1997), by filing a separate motion to
proceed in forma pauperis on appeal with the Clerk of Court, United States Court of Appeals for the
Fifth Circuit, within 30 days of this order. The cost to file a motion to proceed on appeal with the
Fifth Circuit is set forth below, and if Plaintiff moves to proceed on appeal in forma pauperis, the
prison authorities having custody of Plaintiff shall forward payments from Plaintiff’s prisoner
account to the clerk of the court in accordance with 28 U.S.C. § 1915(b)(1) and (2).* Plaintiff is not
assessed an initial partial appellate fee. Plaintiff shall pay $505, the balance of the filing fee, in
periodic installments in accordance with 28 U.S.C. § 1915(b)(1) and (2).
It is so ordered this 13th day of January, 2016.

_________________________________
Sam A. Lindsay
United States District Judge

*

Section 1915(b)(1) and (2) provide:

(b)(1) Notwithstanding subsection (a), if a prisoner brings a civil action or files an appeal in forma
pauperis, the prisoner shall be required to pay the full amount of a filing fee. The court shall assess
and, when funds exist, collect, as a partial payment of any court fees required by law, an initial partial
filing fee of 20 percent of the greater of—
(A) the average monthly deposits to the prisoner’s account; or
(B) the average monthly balance in the prisoner’s account for the 6-month period
immediately preceding the filing of the complaint or notice of appeal.
(2) After payment of the initial partial filing fee, the prisoner shall be required to make monthly
payments of 20 percent of the preceding month’s income credited to the prisoner’s account. The
agency having custody of the prisoner shall forward payments from the prisoner’s account to the clerk
of the court each time the amount in the account exceeds $10 until the filing fees are paid.
Order – Page 3