Hurdsman v. Cadell et al
Filing
7
ORDER ADOPTING FINDINGS, CONCLUSIONS AND RECOMMENDATION, FINDING THAT PLAINTIFF IS BARRED FROM PROCEEDING IN FORMA PAUPERIS UNDER 28 U.S.C. § 1915(g) AND ORDERING PLAINTIFF TO PAY FULL FEES: Therefore, the findings, conclusions and recommendati on of the magistrate judge are ADOPTED. Plaintiff Rodney A, Hursdman aka Rodney Adam Hurdsman is not entitled to proceed in forma pauperis in this action. If plaintiff Hurdsman wishes to proceed with this action, he must pay to the clerk of Court the full filing and administrative fees of $400.00 within fourteen (14) days of the date of this order. Plaintiff is advised that failure to timely pay the full filing and administrative fees to the clerk of Court could result in the dismissal of t his action without further notice pursuant to Federal Rule of Civil Procedure 41(b). re: 5 Findings and Recommendations on Case re: 1 Complaint filed by Rodney A Hurdsman, 2 Motion for Leave to Proceed in forma pauperis filed by Rodney A Hurdsman. Magistrate Judge Jeffrey L Cureton no longer assigned to case. (Ordered by Judge Terry R Means on 12/9/2015) (trs)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
RODNEY A. HURDSMAN
§
aka Rodney Adam Hurdsman
§
(Williamson County SO# 15-16009)§
§
§
VS.
§
§
NFN CADELL, Deputy, Wise County §
Sheriff’s Office, et al.
§
CIVIL ACTION NO.4:15-CV-703-Y
ORDER ADOPTING FINDINGS, CONCLUSIONS AND RECOMMENDATION,
FINDING THAT PLAINTIFF IS BARRED FROM PROCEEDING
IN FORMA PAUPERIS UNDER 28 U.S.C. § 1915(g)
AND ORDERING PLAINTIFF TO PAY FULL FEES
This civil action was initiated by the filing of a civil
complaint by Williamson County jail inmate Rodney A. Hurdsman. On
September 24, 2015, the magistrate judge entered a findings,
conclusions, and recommendation that Plaintiff not be allowed to
proceed under 28 U.S.C. § 1915 because he previously incurred more
than three “strikes” under 28 U.S.C. § 1915(g), and had not claimed
in this case that he was under imminent danger of serous physical
injury.1
The report also recommended that Plaintiff be required to
pay the full filing and administrative fees. The Court has made an
independent review of the following matters in the above-styled and
numbered cause:
1.
1
The pleadings and record;
As a result of the Prison Litigation Reform Act (PLRA) amendments to 28
U.S.C. 1915, section 1915(g) provides that a prisoner may not proceed in forma
pauperis in a civil action if, on three or more occasions, the prisoner had a
case dismissed as frivolous, malicious, or for failure to state a claim, unless
the prisoner is under imminent danger of serious physical injury. 28 U.S.C.A. §
1915(g)(West 2006).
2.
The proposed findings, conclusions, and recommendation of
the United States magistrate judge filed on September 24,
2015; and
3.
The petitioner's written objections to the proposed
findings, conclusions, and recommendation of the United
States magistrate judge filed on October 16, 2015.
The Court, after de novo review, concludes that, for the
reasons stated by the magistrate judge and as set forth herein,
Plaintiff’s objections must be overruled, Plaintiff is not entitled
to proceed in forma pauperis, and must pay the filing fee.
More particularly, the Court notes that the magistrate judge
listed three cases that qualify as § 1915(g) “strikes”: Hurdsman,
et al. v. Wright, et al., No.4:15-CV-090-KGB-JJV, 2015 WL 1932250
(E.D. Ark. April 28, 2015)(Order adopting March 19, 2015 Findings
and Recommendation to dismiss partial claims filed while in custody
at Saline County Jail in Benton, Arkansas under 28 U.S.C. §
1915A(b) for failure to state a claim upon which relief may be
granted); Kolcun and Hurdsman, v. Deer, et al., No. 5:98-CV-0157-C
(W.D. Ok. Nov. 24, 1998) (Order adopting October 23, 1998 Report
and Recommendation dismissing claims under 42 U.S.C. § 1983 arising
from the Oklahoma County Detention Center for failure to state a
claim upon which relief may be granted); and Hurdsman v. Wackenhut
Corporation, et al., (W.D. Tex. April 5, 1999) (Order adopting
September 30, 1998 report and recommendation to dismiss complaint
arising from the Travis County Community Justice Center for failure
to state a claim upon which relief may be granted pursuant to 28
U.S.C. § 1915(e)).
Hurdsman now claims that the court in Kolcun, et al. V. Deer,
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et al., No.CIV-98-157-C, dismissed the case only for want of
prosecution. A review of the report and recommendation in that
case, however, shows that the court adopted a recommendation to
dismiss the cause of action for failure to state a claim for relief
under 42 U.S.C. § 1983. Kolcun, et al. v. Dear, et al., No.5:98-CV157-C (W.D. Ok. Oct. 23, 1998), adopted, (Order of Dismissal
November 24, 1998). Thus, Hurdsman’s objection to counting this
case under 1915(g) is overruled.
Hurdsman also now challenges the finding that Hursdman, et al.
v. Wright, et al., No. 4:15-CV-090-KGB-JJV qualifies under §
1915(g) because the Court adopted the magistrate judge’s recommendation as to some of the claims, stating: “All other claims are
dismissed without prejudice from this action.” Hurdsman, et al. v.
Wright, et al., 2015 WL 1932250, at *1. But, in that case the
magistrate judge analyzed several claims, expressly employed the
screening provision of 28 U.S.C. § 1915A(b), and issued findings
that Plaintiff’s claims that he received inadequate mental health
care should be partially dismissed “without prejudice for failure
to state a claim upon which relief may be granted.”2 Hurdsman, et
al. v. Wright, et al., 2015 WL 1932250, at *3, **5-6. In the
concluding recommendation section, the magistrate judge included
this claim as one to be dismissed without prejudice. Id., at *7.
The district judge adopted that recommendation with the same
2
See generally Thornton v. Merchant, 526 F. App’x 385, 388 (5th Cir.
2013)(“A district court’s partial dismissal of a complaint as frivolous,
malicious, or for failure to state a claim ‘counts as a strike under 28 U.S.C.
§ 1915(g)’”)(citing Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir. 1996)).
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wording. Id., at *1. Thus, the district judge’s adoption of the
magistrate judge’s report to partially dismiss with the use of the
phrase “dismissed without prejudice” was inclusive of the magistrate judge’s analysis and findings that Plaintiff’s mental health
care claims should be dismissed for failure to state a claim upon
which relief may be granted. Plaintiff’s objections are overruled.
Therefore, the findings, conclusions and recommendation of the
magistrate judge are ADOPTED.
Plaintiff Rodney A, Hursdman aka Rodney Adam Hurdsman is not
entitled to proceed in forma pauperis in this action. If plaintiff
Hurdsman wishes to proceed with this action, he must pay to the
clerk of Court the full filing and administrative fees of $400.00
within fourteen (14) days of the date of this order.3 Plaintiff is
advised that failure to timely pay the full filing and administrative fees to the clerk of Court could result in the dismissal of
this action without further notice pursuant to Federal Rule of
Civil Procedure 41(b).4
Signed December 9, 2015.
____________________________
TERRY R. MEANS
UNITED STATES DISTRICT JUDGE
3
Although the Court would normally give an inmate plaintiff thirty days to
pay a filing fee, as Plaintiff has previously been notified of the bar to filing
under § 1915(g), the Court concludes that fourteen days to comply is sufficient.
4
See Hickerson v. Christian, 283 F. App’x. 251 (5th Cir. 2008)(A district
court may sua sponte dismiss an action for failure to prosecute under Rule
41(b)); see also Link v. Wabash R. Co., 370 U.S. 626 (1962)(a court may dismiss
for lack of prosecution under its inherent authority).
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