Anderson v. Davis-Director TDCJ-CID, No. 3:2017cv01633 - Document 16 (N.D. Tex. 2018)

Court Description: Order Accepting 15 Findings and Recommendations and Denying Certificate of Appealability. (Ordered by Judge Sam A Lindsay on 11/7/2018) (axm)

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Anderson v. Davis-Director TDCJ-CID Doc. 16 IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION CHAMEL NICOLE ANDERSON, # 1811941, Plaintiff, v. LORI DAVIS, Defendant. § § § § § § § § § § Civil Action No. 3:17-CV-1633-L ORDER On October 1, 2018, United States Magistrate Judge Irma Carrillo Ramirez entered the Findings, Conclusions and Recommendation of the United States Magistrate Judge (“Report”), recommending that the court dismiss with prejudice this action under 28 U.S.C. § 1915(e)(2)(B) for failure to state a claim upon which relief can be granted. The magistrate judge further recommended that this dismissal count as a “strike” or “prior occasion” under 18 U.S.C. § 1915(g). No objections to the Report were filed. Having reviewed the pleadings, file, record in this case, and Report, the court determines that the findings and conclusions of the magistrate judge are correct, accepts them as those of the court, and dismisses with prejudice this action under 28 U.S.C. § 1915(e)(2)(B) for failure to state a claim upon which relief can be granted. Further, this dismissal counts as a “strike” or “prior occasion” under § 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 Order – Page 1 Dockets.Justia.com incorporates by reference the Report. See Baugh v. Taylor, 117 F.3d 197, 202 and n.21 (5th Cir. 1997). The court concludes 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 United States Court of Appeals for the Fifth Circuit. See Baugh, 117 F.3d at 202; Fed. R. App. P. 24(a)(5). It is so ordered this 7th day of November, 2018. _________________________________ Sam A. Lindsay United States District Judge Order – Page 2

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