Elliott v. Poteet et al
Filing
8
Order Adopting 6 Findings and Recommendations. This action is summarily dismissed with prejudice as frivolous until such time as plaintiff satisfies the conditions set forth in Heck v. Humphrey. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b). The court certifies that any appeal of this action would not be taken in good faith. (Ordered by Judge Sidney A Fitzwater on 3/13/2017) (axm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
JOHNNY RAY ELLIOTT, # 16039302
Plaintiff,
v.
GEORGE POTEET, et al.,
Defendants.
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Civil Case No. 3:16-CV-3466-D
ORDER
After making an independent review of the pleadings, files, and records in this case, and the
findings, conclusions, and recommendation of the magistrate judge, the court concludes that the
findings and conclusions are correct. It is therefore ordered that the findings, conclusions, and
recommendation of the magistrate judge are adopted, and this action is summarily dismissed with
prejudice as frivolous until such time as plaintiff satisfies the conditions set forth in Heck v.
Humphrey. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b). This dismissal counts 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). If plaintiff appeals, he may challenge this certification by filing a separate motion to
proceed in forma pauperis on appeal with the Clerk of the Court, United States Court of Appeals
for the Fifth Circuit. See Baugh, 117 F.3d at 202; Fed. R. App. P. 24(a)(5).
SO ORDERED.
March 13, 2017.
_________________________________
SIDNEY A. FITZWATER
UNITED STATES DISTRICT JUDGE
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