Johnson v. United States of America et al

Filing 14

ORDER ACCEPTING 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 Senior Judge A. Joe Fish on 2/25/2019) (svc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

DERRICK ADRIAN JOHNSON,
#36454-177,
Plaintiff,
VS.
UNITED STATES OF AMERICA,
Defendant.

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CIVIL ACTION NO.
3:18-CV-1329-G (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. Plaintiff filed objections, and the court has made a de
novo review of those portions of the proposed findings and recommendation to which
objection was made. The objections are overruled, and the court ACCEPTS the
findings, conclusions, and recommendation of the United States Magistrate Judge.
It is therefore ORDERED that this action is summarily DISMISSED with
prejudice for failure to state a claim and for seeking monetary relief against
defendants who are immune from such relief. See 28 U.S.C. § 1915(e)(2)(B).
This dismissal will count 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 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).* 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 Court, U.S. Court of Appeals for the Fifth Circuit. See
Baugh, 117 F.3d at 202; FED. R. APP. P. 24(a)(5).
SO ORDERED.
February 25, 2019.

___________________________________
A. JOE FISH
Senior United States District Judge

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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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