Owl Feather-Gorbey v. Administrator F. BOP Grand Prairie et al
Filing
12
Order: After carefully reviewing the pleadings, file, record in this case, and Report, and having conducted a de novo review of that portion of the Report to which objection was made, the court determines that the findings and conclusions of the magistrate judge are correct, accepts them as those of the court, and dismisses without prejudice this action pursuant to 28 U.S.C. § 1915(g) for failure to pay the required filing fee. The court prospectively certifies that any appeal of this action would not be taken in good faith. re: 8 Findings and Recommendations on Case re: 1 Complaint filed by Michael S. Owl Feather-Gorbey. (Ordered by Judge Sam A Lindsay on 4/3/2018) (ndt)
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
CHIEF MICHAEL S. OWL FEATHER
GORBEY, #33405-013,
Plaintiff,
v.
ADMINISTRATOR F. BOP GRAND
PRAIRIE and F. BOP UNITED STATES,
Defendants.
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Civil Action No. 3:17-CV-26-L-BN
ORDER
The case was referred to Magistrate Judge David L. Horan, who entered the Findings,
Conclusions and Recommendation of the United States Magistrate Judge (“Report”) on February
9, 2017, recommending that the court summarily dismiss without prejudice this action pursuant to
28 U.S.C. § 1915(g), unless Plaintiff pays the full filing fee of $400 within the time for filing
objections to the Report or another deadline set by the court. In support of the Report, the magistrate
judge notes that Plaintiff has filed three or more frivolous civil actions in federal court that were
dismissed with prejudice, and that Plaintiff does not satisfy the imminent danger exception to the
“three strikes” bar applicable to prisoner lawsuits. Report 3.
Plaintiff filed objections to the Report on February 22, 2017, but never paid the required
filing fee. In his objections, Plaintiff contends that application of section 1915(g) is an
unconstitutional denial of due process and that the magistrate judge should be required to recuse
himself for bias because his imminent danger determination is arbitrary and retaliatory. Plaintiff
Order – Page 1
cites a number of cases, but the matters raised by him do not satisfy the imminent danger standard
in the Report. Accordingly, the objection is overruled.
After carefully reviewing the pleadings, file, record in this case, and Report, and having
conducted a de novo review of that portion of the Report to which objection was made, the court
determines that the findings and conclusions of the magistrate judge are correct, accepts them as
those of the court, and dismisses without prejudice this action pursuant to 28 U.S.C. § 1915(g) for
failure to pay the required filing fee.
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 certification, the court
accepts and incorporates by reference the Report. See Baugh v. Taylor, 117 F.3d 197, 202 and
n.21 (5th Cir. 1997). Based on the Report, the court finds that any appeal of this action would
present no legal point of arguable merit and would, therefore, be frivolous. See Howard v. King, 707
F.2d 215, 220 (5th Cir. 1983). Plaintiff, however, may challenge this 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 $505. Because
Plaintiff has accumulated three strikes, he cannot file any new lawsuit or appeal, as long as he is
incarcerated, without first prepaying the filing fee, unless he can show that he is in imminent danger
of serious physical injury. 28 U.S.C. § 1915(g). Plaintiff has not made the required showing of
imminent danger of a serious physical injury in this case. Therefore, he cannot take advantage of the
initial partial payment provision of Section 1915. Accordingly, if Plaintiff appeals, he must pay the
$505 fee in full immediately.
Order – Page 2
As provided above, however, Plaintiff may challenge this
determination by filing a separate motion to proceed in forma pauperis on appeal, with the Fifth
Circuit, within 30 days of this order.
It is so ordered this 3rd day of April, 2018.
_________________________________
Sam A. Lindsay
United States District Judge
Order – Page 3
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