Turnbaugh v. United States of America et al

Filing 18

Order Accepting 17 Findings and Recommendations. The court certifies that any appeal of this action would not be taken in good faith, re: 16 Amended Complaint,, filed by Kent Eugene Turnbaugh. (Ordered by Judge Sam A. Lindsay on 8/13/2019) (ndt)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
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Plaintiff,
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v.
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UNITED STATES OF AMERICA;
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L. LYNCH, United States Attorney General; §
EDDY M. MAJIA, Warden, FCI
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Seagoville; and KEVIN DEAN,
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Corrections Officer at FCI Seagoville,
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Defendants.
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KENT EUGENE TURNBAUGH,

Civil Action No. 3:17-CV-334-L

ORDER
On July 2, 2019, the Findings, Conclusions and Recommendation of the United States
Magistrate Judge (“Report”) (Doc. 17) was entered, recommending that the court dismiss with
prejudice, under 28 U.S.C. § 1915(e)(2)(B), as frivolous or failure to state a claim, Plaintiff’s: (1)
claims against the United States, the Attorney General, the Warden, or any other individual, except
the corrections officer brought pursuant to Bivens v. Six Unknown Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971) (“Bivens claims”); (2) claims under the Federal Tort Claims Act
(“FTCA”) against all individual defendants; and (3) and his remaining Bivens claims against the
corrections officer for use of excessive force and his FTCA claims against the United States until
he satisfies the conditions in Heck v. Humphrey, 512 U.S. 477 (1994). No objections to the Report
were filed.
Having reviewed the pleadings, file, record in this case, and Report, the court determines that
the findings and conclusions of the magistrate judge are correct, and accepts them as those of the
court. Accordingly, pursuant to 28 U.S.C. § 1915(e)(2)(B), the court dismisses with prejudice as
Order – Page 1

frivolous or failure to state a claim, Plaintiff’s: (1) Bivens claims against the United States, the
Attorney General, the Warden, or any other individual, except the corrections officer; (2) claims
under the FTCA against all individual defendants; and (3) and his remaining Bivens claims against
the corrections officer for use of excessive force and his FTCA claims against the United States until
he satisfies the conditions in Heck v. Humphrey.
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
incorporates by reference the Report. See Baugh v. Taylor, 117 F.3d 197, 202 and n.21 (5th Cir.
1997). The court concludes 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 United States Court of Appeals for the Fifth
Circuit. See Baugh, 117 F.3d at 202; Fed. R. App. P. 24(a)(5).
It is so ordered this 13th day of August, 2019.

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Sam A. Lindsay
United States District Judge

Order – Page 2