Borgos v. Doe, No. 3:2016cv02936 - Document 11 (N.D. Tex. 2017)
Court Description: Order Accepting 10 Findings and Recommendations. The court certifies that any appeal of this action would not be taken in good faith. Plaintiff's claims against the BOP and the Defendants in their official capacity are DISMISSED WITHOUT PREJ UDICE for want of jurisdiction, and that Plaintiff's Bivens claims against the Defendants in their individual capacity are summarily DISMISSED WITH PREJUDICE as frivolous and/or for failure to state a claim upon which relief can be granted.This dismissal will count as a strike or prior occasion. (Ordered by Judge David C Godbey on 7/7/2017) (epm)
Borgos v. Doe Doc. 11 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION DANNY BORGOS, #65484-054, Plaintiff, v. JENNIFER LAPERTON, et al., Defendants. § § § § § § § CIVIL NO. 3:16-CV-2936-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 Judge. IT IS THEREFORE ORDERED that Plaintiff’s claims against the BOP and the Defendants in their official capacity are DISMISSED WITHOUT PREJUDICE for want of jurisdiction, and that Plaintiff’s Bivens claims against the Defendants in their individual capacity are summarily DISMISSED WITH PREJUDICE as frivolous and/or for failure to state a claim upon which relief can be granted. See 28 U.S.C. § 1915(e)(2)(B); and 28 U.S.C. § 1915A(b). This dismissal will count as a “strike” or “prior occasion” within the meaning of 28 U.S.C. § 1915(g).1 1 28 U.S.C. § 1915(g), commonly known as the “three-strikes” provision, provides: “[i]n no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section, if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was Dockets.Justia.com . 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).2 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 this 7th day of July, 2017. __________________________________ UNITED STATES DISTRICT JUDGE dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.” 2 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.