Elliott v. Poteet et al, No. 3:2016cv03466 - Document 8 (N.D. Tex. 2017)

Court Description: Order Adopting 6 Findings and Recommendations. This action is summarily dismissed with prejudice as frivolous until such time as plaintiff satisfies the conditions set forth in Heck v. Humphrey. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b). The court certifies that any appeal of this action would not be taken in good faith. (Ordered by Judge Sidney A Fitzwater on 3/13/2017) (axm)

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Elliott v. Poteet et al Doc. 8 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION JOHNNY RAY ELLIOTT, # 16039302 Plaintiff, v. GEORGE POTEET, et al., Defendants. § § § § § § § Civil Case No. 3:16-CV-3466-D ORDER After making an independent review of the pleadings, files, and records in this case, and the findings, conclusions, and recommendation of the magistrate judge, the court concludes that the findings and conclusions are correct. It is therefore ordered that the findings, conclusions, and recommendation of the magistrate judge are adopted, and this action is summarily dismissed with prejudice as frivolous until such time as plaintiff satisfies the conditions set forth in Heck v. Humphrey. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b). This dismissal counts 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 finding, the court adopts and incorporates by reference the magistrate judge’s findings, conclusions, and recommendation. See Baugh v. Taylor, 117 F.3d 197, 202 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). If plaintiff appeals, he may challenge this certification by filing a separate motion to proceed in forma pauperis on appeal with the Clerk of the Court, United States Court of Appeals Dockets.Justia.com for the Fifth Circuit. See Baugh, 117 F.3d at 202; Fed. R. App. P. 24(a)(5). SO ORDERED. March 13, 2017. _________________________________ SIDNEY A. FITZWATER UNITED STATES DISTRICT JUDGE -2-

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