Byrd et al v. Texas Department of Family Protective Services et al

Filing 9

ORDER ACCEPTING 7 FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE. The court certifies that any appeal of this action would not be taken in good faith. (Ordered by Judge David C Godbey on 6/16/2017) (ykp)

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION ALISHA FAITH BYRD, on behalf of B.A.M.§ and J.B.M., et al., § Petitioners, § § v. § § TEXAS DEPARTMENT OF FAMILY § PROTECTIVE SERVICES, et al., § Respondents. § CIVIL NO. 3:17-CV-1305-N-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. IT IS THEREFORE ORDERED that the petition for writ of habeas corpus is DISMISSED WITHOUT PREJUDICE for want of jurisdiction. See Fed. R. Civ. P. 12(h)(3) (“If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.”). 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 adopts and incorporates by reference the Magistrate Judge’s Findings, Conclusions, and Recommendation. See Baugh v. Taylor, 117 F.3d 197, 202 and 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, 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). If petitioner files a notice of appeal, (X) petitioner may proceed in forma pauperis on appeal. ( ) petitioner must pay the $505.00 appellate filing fee or submit a motion to proceed in forma pauperis. SO ORDERED this 16th day of June, 2017. ________________________________ 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.

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