Johnson v. O'Daniel

Opinion

UNITED STATES DISTRICE COURT SOUTHERN DISTRICT OF TEXAS CORPUS CHRISTI DIVISION RODNEY FOLUNSON, § Plaintiff, V. § CIVIL ACTION NO, 2:23-CV¥-00050 □ PATRICK OCDANIEL. ef af. § Defendants. United States District Cov ORDER ADOPTING MEMORANDUM AND RECOMMENDATION AND Baliteli □□□□□□ of Texas MOTION TO REMIT ENTERED May 16, 2023 Before the Court is Magistrate Judge Jason Libby's Memorandum and Recqumengaien. clerk OMAR). (D.E. 9). The M&R recommends that the Court deny Plaintiffs applications to proceed in forma pauperis CUP). dé atl (referencing D.E. 2 and D.E. 7). The M&R further recommends that the Court order Plaintilf to pay the $402 filing fee within twenty days and that his case be dismissed if he fails to do so. Af at. Plaintiff timely filed written objections to the M&R. □□□□ 10}. and timely filed a supplement to those objections. (D.E. 11), Plaintiff also filed a “motion to remit the magistrate judgc["]s order to pay the court|”|s filing fee.” (DE, 12). I. PlaintifP?s Objections are Overruled. When a party objects to the findings and recommendations of a magistrate judge. the 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.” 28 U.S.C.§ 636(bIC1 KC). As lo any portion for which no objection is filed, a district court reviews for clearly erroneous factual findings and conclusions of law, United States vo Wilson, 864 F.2d 1219, 1221 (Sth Cir. 1989) (per curlam }. Plaintiff's objections are largely unclear, See (D.E. 10). ft appears that Plaintiff is alleging

that Magistrate Judge Libby was biased in his review of Plaintifl’s pleadings and [FP applications. See id. at 2. However, Plaintitf has not pointed to any evidence that indicates bias on the part of Magistrate Judge Libby. See id Plaintiffalso seemingly argues that he attempted to pay the filing {ee but cannot as he is an inmate and cannot “demand” that the Texas Department of Criminal Justice TDCI") "immediately release” the required amount from his inmate trust fund account. See id, Plaintiffhas attached what appears to be requests for monetary withdrawals from his inmate trust fund account in support of this claim. See ie, at (DLL. 11). Regardless of these purported, attempted withdrawals. the Court has not received Plaintiff's filing fee, and Plaintiff initiated this suit over three months avo. See (D.E. 1. p. 10). Having reviewed the proposed findings and conclusions of the M&R, the record, the applicable law. and having made ade novo review of the portions of the M&R to which Plaintiff's objections are directed. 28 U.S.C. 8 636¢b)1)(C). the Court OVERRULES Plaintilt’s objecuions. (D.E:. 10). and ADOPTS the findings and conclusions of the MRR, (1,1, 9). As such. Plaintiff's IP applications are DENIED. (DLE. 2: D.E. 7). Plaintiff has twenty days to pay the full $402 filing lec. The Court encourages Plaintiff to review FDCJ's policies on accessing and withdrawing money from an inmate trust fund account. I Plaintiff fails to pay the filing fee within twenty days. his case will be dismissed. H. Plaintiff's Motion to Remit Is Denied. In Plaintiff's motion to remit, he argues that 38 U.S.C. § 4323(h)(1) “permits veterans |such| as [himself] to commence an action without having to pay court filing fees.” (D.E. 12. p. 1}. Section 4323(h)(1) states. “No fees or court costs may be charged or taxed against any person claming rights wader this chapter.” 38 U.S.C. § 4323(h)C1) (emphasis added). For this statute to apply. a plaintiff must be claiming rights under Chapter 43 of Title 38 of the United States Code,

otherwise known as the Uniformed Services Employment and Reemployment Rights Act (USERRA), See ids Chance v. Dall, Cnty. Hosp. Dist, 176 F.3d 294, 296 (Sth Cie. 1999) (one claiming rights under the USERRA, and only the USERRA, may not be taxed costs” {citation omitted)). In this case. Plaintiff is not bringing a claim. or seeking to vindicate a right conlerred. under USERRA, See (D.1s. 1). As such. § 4323(h)(1) does not apply. and Plaintiff must pay the filing fee if he wishes to proceed with this case. Plainti/’s motion to remit the magistrate □□□□□□□ order to pay the Court's filing fee is DENIED. (1.E. 12).

SO ORDERED.

Lf | / Af

DA S. MORALES UNITED STATES DISTRICT JUDGE

Dated: Corpus Christi. Texas May 164 023