Neighbors v. Winkle, No. 4:2013cv00601 - Document 9 (N.D. Tex. 2013)
Court Description: Order Adopting Findings and Recommendations, Finding that Plaintiff is Barred from Proceeding in Forma Pauperis Under 28 USC 1915(gh) and Ordering Palintiff to Pay a Full Filing Fee, Motions terminated: 7 Findings and Recommendations on Case re : 1 Complaint filed by Nathan Darrell Neighbors. Magistrate Judge Jeffrey L Cureton no longer assigned to case.., ORDER for Collection and Payment of Full Filing Fee. Nathan Darrell Neighbors shall pay full filing fee of $400.00 Clerk to m ail separate copy of order to TDCJ Inmate Trust Account, PO Box 629, Huntsville, TX 77342. re: 7 Findings and Recommendations on Case re: 1 Complaint filed by Nathan Darrell Neighbors. Magistrate Judge Jeffrey L Cureton no longer assigned to case. (Ordered by Judge Reed C O'Connor on 8/21/2013) (wrb)
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Neighbors v. Winkle Doc. 9 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS FORT WORTH DIVISION NATHAN DARRELL NEIGHBORS, (TDCJ # 1435598) VS. CAROLYN VAN WINKLE § § § § § § CIVIL ACTION NO.4:13-CV-601-O ORDER ADOPTING FINDINGS, CONCLUSIONS AND RECOMMENDATION, FINDING THAT PLAINTIFF IS BARRED FROM PROCEEDING IN FORMA PAUPERIS UNDER 28 U.S.C. § 1915(g) AND ORDERING PLAINTIFF TO PAY A FULL FILING FEE This civil action was initiated by the filing of a civil complaint by Texas Department of Criminal Justice inmate Nathan Darrell Neighbors. On July 26, 2013, the magistrate judge entered a findings, conclusions, and recommendation that Plaintiff not be allowed to proceed under 28 U.S.C. § 1915 because he previously incurred more than three “strikes” under 28 U.S.C. § 1915(g), and had not claimed in this case that he was under imminent danger of serous physical injury.1 The report also recommended that Plaintiff be required to pay the full filing fee. The Court has made an independent review of the following matters in the above-styled and numbered cause: 1. The pleadings and record; 2. The proposed findings, conclusions, and recommendation of the United States magistrate judge filed on July 26, 2013; and 3. The petitioner's written objections to the proposed findings, conclusions, and recommendation of the United States magistrate judge filed on August 16, 2013. 1 As a result of the Prison Litigation Reform Act (PLRA) amendments to 28 U.S.C. 1915, section 1915(g) provides that a prisoner may not proceed in forma pauperis in a civil action if, on three or more occasions, the prisoner had a case dismissed as frivolous, malicious, or for failure to state a claim, unless the prisoner is under imminent danger of serious physical injury. 28 U.S.C.A. § 1915(g)(West 2006). Dockets.Justia.com The Court, after de novo review, concludes that, for the reasons stated by the magistrate judge, Plaintiff’s objections must be overruled, Plaintiff is not entitled to proceed in forma pauperis, and must pay the filing fee. Therefore, the findings, conclusions and recommendation of the magistrate judge are ADOPTED. Plaintiff Nathan Darrell Neighbors (TDCJ No. 1435598) is not entitled to proceed in forma pauperis in this action. If plaintiff Neighbors wishes to proceed with this action, he must pay to the clerk of Court the full filing and administrative fees of $400.00 within ten (10) days of the date of this order.2 Plaintiff is advised that failure to timely pay the full fees to the clerk of Court will result in the dismissal of this action without further notice pursuant to Federal Rule of Civil Procedure 41(b).3 Signed August 21, 2013. _____________________________________ Reed O’Connor UNITED STATES DISTRICT JUDGE 2 Although the Court would normally give an inmate plaintiff thirty days to pay a filing fee, as Neighbors has previously been notified of the bar to filing under § 1915(g), the Court concludes that ten days to comply is sufficient. 3 See Hickerson v. Christian, 283 Fed. Appx. 251 (June 24, 2008)(A district court may sua sponte dismiss an action for failure to prosecute under Rule 41(b)); see also Link v. Wabash R. Co., 370 U.S. 626 (1962)(a court may dismiss for lack of prosecution under its inherent authority). -2-
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