Massey v. Hinojosa, No. 3:2021cv00451 - Document 12 (N.D. Tex. 2021)

Court Description: Order Accepting Findings and Recommendations and Denying Certificate of Appealability. 7 Motion for Leave to Proceed in forma pauperis is denied. Case dismissed without prejudice pursuant to Rule 41(b) for failure to prosecute and comply with a court order. (Ordered by Judge Sam A. Lindsay on 6/25/2021) (chmb)

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Massey v. Hinojosa Doc. 12 IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION BRUCE ALLEN MASSEY, Plaintiff, v. RENE HINOJOSA, Defendant. § § § § § § § § § Civil Action No. 3:21-CV-451-L-BH ORDER The Findings, Conclusions and Recommendation of the United States Magistrate Judge (“Report”) (Doc. 10) was entered on May 24, 2021, recommending that the court deny Plaintiff’s Motion for Leave to Proceed In Forma Pauperis (Doc. 7), filed March 30, 2021, and dismiss without prejudice this action under Federal Rule of Civil Procedure 41(b) for failure to prosecute and comply with a court order. No objections to the Report were filed as of the date of this order, and the deadline for filing objections has expired. Having considered motion, file, record in this case, and Report, the court determines that the findings and conclusions of the magistrate judge are correct, and accepts them as those of the court. Accordingly, the court denies Plaintiff’s Motion for Leave to Proceed In Forma Pauperis (Doc. 7) and, pursuant to Rule 41(b), it dismisses without prejudice this action for failure to prosecute and comply with a court order. 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 accepts and incorporates by reference the Report. See Baugh v. Taylor, 117 F.3d 197, 202 and n.21 (5th Cir. 1997). Based on the Report, the court finds that any appeal of this action would Order – Page 1 Dockets.Justia.com present no legal point of arguable merit and would, therefore, be frivolous. See 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 25th day of June, 2021. _________________________________ Sam A. Lindsay United States District Judge Order – Page 2

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