Miller v. McDaniel

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS TYLER DIVISION ROBERT H MILLER, § § Plaintiff, § § v. § Case No. 6:20-CV-61-JDK-JDL § JOHN MCDANIEL, ET AL., § § Defendants. § ORDER ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE Plaintiff Robert H Miller, an inmate proceeding pro se, filed this civil rights lawsuit pursuant to 42 U.S.C. § 1983. The case was referred to United States Magistrate Judge John D. Love under 28 U.S.C. § 636. On February 14, 2020, Judge Love issued a Report and Recommendation (Docket No. 5), recommending that Plaintiff’s claims be dismissed for purposes of in forma pauperis proceedings pursuant to the “three strikes” provisions of 28 U.S.C. § 1915(g). Id. at 2–3. A return receipt indicating delivery to Plaintiff was received by the Clerk on March 10, 2020. Docket No. 6. This Court reviews the findings and conclusions of the Magistrate Judge de novo only if a party objects within fourteen days of service of the Report and Recommendation. 28 U.S.C. § 636(b)(1). In conducting a de novo review, the Court examines the entire record and makes an independent assessment under the law. Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1430 (5th Cir. 1996) (en banc), superseded on other grounds by statute, 28 U.S.C. § 636(b)(1) (extending the time to file objections from ten to fourteen days). Here, Plaintiff did not file objections in the prescribed period. The Court therefore reviews the Magistrate Judge’s findings for clear error or abuse of discretion and reviews his legal conclusions to determine whether they are contrary to law. See United States v. Wilson, 864 F.2d 1219, 1221 (Sth Cir. 1989), cert. denied, 492 U.S. 918 (1989) (holding that, if no objections to a Magistrate Judge’s Report are filed, the standard of review is “clearly erroneous, abuse of discretion and contrary to law’). Having reviewed the Magistrate Judge’s Report and Recommendation, the Court adopts the Report and Recommendation of the United States Magistrate Judge (Docket No. 5) as the findings of this Court. Accordingly, it is hereby ORDERED that the Magistrate Judge’s Report (Docket No. 5) be ADOPTED. It is further ORDERED that the complaint is DISMISSED WITH PREJUDICE for purposes of in forma pauperis proceedings pursuant to 28 U.S.C. § 1915(g). It is further ORDERED that Plaintiff's motion to proceed in forma pauperis (Docket No. 2) is DENIED. This Order does not bar refiling of this lawsuit without seeking in forma pauperis status and upon payment of the full $400.00 filing fee. Plaintiff may resume the lawsuit if he pays the entire filing fee of $400 within fifteen days after the entry of the Final Judgment. So ORDERED and SIGNED this 8th day of April, 2020. ony DY Kobe JERQMY D, KERNODIE UNITED STATES DISTRICT JUDGE

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