Guevara v. Grimaldo

Filing 14

ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE. IT IS ORDERED that this action is summarily DISMISSED with prejudice as frivolous. This dismissal will count as a strike or prior occasion within the meaning of 28 U.S.C. § 1915(g). The court certifies that any appeal of this action would not be taken in good faith. (Ordered by Judge Jane J. Boyle on 7/18/2017) (rekc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

GERMAN H. GUEVARA, #48294-177,
Plaintiff,
v.
MARIO GRIMALDO,
Defendant.

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Civil Case No. 3:16-CV-2955-B-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 this action is summarily DISMISSED with prejudice
as frivolous. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b). This dismissal will count as a “strike”
or “prior occasion” within the meaning of 28 U.S.C. § 1915(g).
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).1 In the event of an appeal, Plaintiff/Petitioner may challenge this certification by filing
a separate motion to proceed in forma pauperis on appeal with the Clerk of the Court, U.S. Court of
Appeals for the Fifth Circuit. See Baugh, 117 F.3d at 202; FED. R. APP. P. 24(a)(5).
SO ORDERED this 18th day of July, 2017.

_________________________________
JANE J. BOYLE
UNITED STATES DISTRICT JUDGE

1

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.