Cox v. Stephens et al

Filing 71

AMENDED ORDER ADOPTING MEMORANDUM AND RECOMMENDATION TO DENY PLAINTIFF'S APPLICATION TO PROCEED IN FORMA PAUPERIS ON APPEAL re: 67 Memorandum and Recommendations, (Signed by Judge Nelva Gonzales Ramos) Parties notified.(lcayce, 2)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
J L COX,
Plaintiff,
VS.
WILLIAM STEPHENS, et al,
Defendants.

October 21, 2015
David J. Bradley, Clerk

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§ CIVIL ACTION NO. 2:13-CV-00151
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AMENDED ORDER1 ADOPTING MEMORANDUM AND
RECOMMENDATION TO DENY PLAINTIFF’S APPLICATION
TO PROCEED IN FORMA PAUPERIS ON APPEAL
Pending before the Court is Plaintiff’s Application to Proceed In Forma Pauperis
(IFP) with respect to his appeal. (D.E. 65). On September 9, 2015, United States
Magistrate Judge Jason B. Libby issued a Memorandum and Recommendation to Deny
Plaintiff’s Application to Proceed IFP on Appeal.

(D.E. 67).

Plaintiff filed his

Objections (D.E. 68) on September 24, 2015.
Plaintiff simply suggests that he has demonstrated good cause or excusable neglect
regarding his application because his jailhouse lawyer was unable to timely prosecute his
appeal, including his application, because he was placed in solitary confinement for two
months, followed by an institutional lockdown of his unit for another month. Plaintiff
does not demonstrate why he did not or could not timely proceed on his own or with help
from another individual. Neither does Plaintiff attempt to show any exception to the

1

The original order did not include a filing fee assessment as required by the PLRA and the
United States Court of Appeals for the Fifth Circuit. (D.E. 70).
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jurisdictional limitations of this Court and the Fifth Circuit Court of Appeals related to
his untimely filings nor does he correct his illegible trust account statement. He has not
shown any defect in the Magistrate Judge’s reasoning.

His objections are

OVERRULED.
Having reviewed the findings of fact, conclusions of law, and recommendations
set forth in the Magistrate Judge’s Memorandum and Recommendation, as well as
Plaintiff’s Objections, and all other relevant documents in the record, and having made a
de novo disposition of the portions of the Magistrate Judge’s Memorandum and
Recommendation

to

which

objections

were

specifically

directed,

the

Court

OVERRULES Plaintiff’s Objections and ADOPTS as its own the findings and
conclusions of the Magistrate Judge. Accordingly, Plaintiff’s Application to Proceed IFP
on Appeal (D.E. 65) is DENIED.
Although this Court certifies that the appeal is not taken in good faith, Plaintiff
may challenge this finding by filing a separate motion to proceed IFP on appeal with the
Clerk of Court, U.S. Court of Appeals for the Fifth Circuit, within thirty (30) days of this
Order. FED. R. APP. P. 24(a)(5).
The cost to file a motion to proceed IFP on appeal with the Fifth Circuit is
calculated below, and if Plaintiff moves to proceed on appeal IFP, the prison authorities
will be directed to collect the fees as calculated in this Order.
Plaintiff shall pay $505.00 for the appellate filing fee in monthly installments to
the United States District Court as provided in 28 U.S.C. ' 1915(b)(1). The Texas
Department of Criminal Justice–Correctional Institutions Division shall deduct 20% of
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each deposit made to Plaintiff=s inmate trust account and forward payments to the United
States District Court on a regular basis provided the account exceeds $10.00. Plaintiff
shall sign all consents and other documents required by the agency having custody of
Plaintiff to authorize the necessary withdrawal from Plaintiff=s inmate trust account.
If Plaintiff moves to proceed on appeal IFP, the clerk shall mail a copy of this
Order to the Inmate Trust Fund, P.O. Box 629, Huntsville, Texas 77342-0629 and to
TDCJ - Office of the General Counsel, P.O. Box 13084, Capitol Station, Austin,
Texas 78711.
ORDERED this 21st day of October, 2015.

___________________________________
NELVA GONZALES RAMOS
UNITED STATES DISTRICT JUDGE

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