Makangula v. Duke et al

Filing 13

ORDER ACCEPTING 12 FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE: This action is DISMISSED WITHOUT PREJUDICE for want of jurisdiction. The Court prospectively CERTIFIES that any appeal of this action would not be taken in good faith. (Ordered by Chief Judge Barbara M.G. Lynn on 10/10/2017) (axm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
SIMON MAKANGULA, A079-001-399
Petitioner,
v.
ELAINE DUKE, Acting Secretary,
of the Department of Homeland Security,
et al.,
Respondents.

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CIVIL NO. 3:17-CV-2245-M-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 this action 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
1

Federal Rule of Appellate Procedure 4(a) governs the time to appeal an order. A timely notice

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,
( ) petitioner may proceed in forma pauperis on appeal.
(X) petitioner must pay the $505.00 appellate filing fee or submit a motion to proceed in
forma pauperis.
SO ORDERED this 10th day of October, 2017.

of appeal must be filed even if the district court certifies an appeal as not taken in good faith.