Dotson v. Collier

Opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

TYLER DIVISION

BRUCE D. DOTSON, #01432390 §

VS. § CIVIL ACTION NO. 6:19cv451

BRYAN COLLIER, ET AL. §

ORDER ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

Plaintiff Bruce Darnell Dotson, an inmate confined at the Coffield Unit within the Texas Department of Justice proceeding pro se and attempting to proceed in forma pauperis, filed this civil rights lawsuit pursuant to 42 U.S.C. § 1983 alleging purported violations of his constitutional rights. The complaint was referred to the United States Magistrate Judge, the Honorable John D. Love, for findings of fact, conclusions of law, and recommendations for the disposition of the case. On December 5, 2019, Judge Love issued a Report, (Docket no. 14), recommending that Plaintiff Dotson’ in forma pauperis status be revoked and that Plaintiff’s entire civil rights lawsuit be dismissed, with prejudice, under 28 U.S.C. § 1915(g) for purposes of proceeding in forma pauperis. Specifically, Judge Love found that Plaintiff Dotson has accumulated at least three strikes for his previous filings of lawsuits that were dismissed as frivolous or for failure to state a claim upon which relief can be granted—prior to his filing this current lawsuit in September 2019. See Dotson v. Warden, Michael Unit, et al., civil action number 6:13-cv-888 (E.D. Tex. Apr. 23, 2014) (dismissed as frivolous and for failure to state a claim); Dotson v. Butscher, civil action number 4:17cv25 (E.D. Tex. Mar. 29, 2018) (dismissal pursuant to 28 U.S.C. § 1915A(b)(1)); Dotson v. Stephenson, civil action number 6:17cv3 (E.D. Tex. Apr. 4, 2017) (dismissal as frivolous under 28 U.S.C. § 1915A(b)(1)). Plaintiff has filed timely objections, (Docket no 19). Contrary to Plaintiff’s claims, the March 2018 dismissal in case number 4:17cv25 constitutes a strike under the Prison Litigation Reform Act, as the order of dismissal specifically cites 28 U.S.C. § 1915A(b)(1). See, e.g.,

Sullivan v. Orleans Indigent Defenders Program, 95 F.3d 46 (5th Cir. 1996) (unpublished) (dismissing appeal as frivolous and warning Appellant about sanctions because “[t]he court- appointed attorneys were not acting under color of state law. This appeal is without merit and is thus frivolous.”) (internal citation omitted). Because Plaintiff Dotson has accumulated three strikes, the Magistrate Judge was correct in recommending a dismissal, with prejudice, under 28 U.S.C. § 1915(g). The Court has conducted a careful de novo review of record and the Magistrate Judge’s proposed findings and recommendations. See 28 U.S.C. § 636(b)(1) (District Judge shall “make a de novo determination of those portions of the report or specified proposed findings or

recommendations to which objection is made.”). Upon such de novo review, the Court has determined that the Report of the United States Magistrate Judge is correct, and Plaintiff’s objections are without merit. Accordingly, it is ORDERED that the Report of the United States Magistrate Judge, (Docket no. 14), is ADOPTED as the opinion of the court. Plaintiff’s objections, (Docket no. 19), are overruled. Further, it is ORDERED that Plaintiff’s in forma pauperis status is REVOKED and his motion to proceed in forma pauperis, (Docket no. 2), is DENIED. It is also ORDERED that Plaintiff’s civil rights lawsuit is DISMISSED, with prejudice, for purposes of proceeding in forma pauperis pursuant to 28 U.S.C. § 1915(g). Finally, it is ORDERED that any and all motions which may be pending in this civil action are hereby DEENIED.

So ordered and signed on this Jan 9, 2020 . nl JERQMY DJ/KERNODEE UNITED STATES DISTRICT JUDGE