Miller v. McDaniel

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS TYLER DIVISION

§ ROBERT MILLER, #866293, § § Plaintiff, § § v. § Case No. 6:21-cv-006-JDK-JDL § JOHN MCDANIEL, et al., § § Defendants. § §

ORDER OF DISMISSAL Plaintiff Robert Miller, a prisoner within the Texas Department of Criminal Justice, proceeding pro se, filed this civil rights lawsuit pursuant to 42 U.S.C. § 1983. This case was referred to United States Magistrate Judge, the Honorable John D. Love, for findings of fact, conclusions of law, and recommendations for disposition. On January 7, 2021, Judge Love issued a Report and Recommendation in this case. Docket No. 4. In that Report, Judge Love found that Plaintiff accumulated at least three strikes prior to filing this lawsuit pursuant to 28 U.S.C. § 1915(g). Accordingly, the Report recommended that Plaintiff’s motion to proceed in forma pauperis be denied and that the case be dismissed, with prejudice for the purpose of proceeding in forma pauperis. Judge Love further recommended that the case should proceed if Plaintiff paid the full filing fee within fifteen days of the dismissal order. Plaintiff filed objections on January 19, 2021. Docket No. 6. Where a party timely objects to the Report and Recommendation, this Court reviews the objected-to findings and conclusions of the Magistrate Judge de novo. 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 Ass’n, 79 F.3d 1415, 1430 5th Cir. 1996) (en banc), superseded on other grounds by statute, 28 U.S.C. § 636(b)(1) (extending the time to file objections from ten to fourteen days). Having conducted a de novo review of the record in this case and the Magistrate Judge’s Report, the Court has determined that the Report of the Magistrate Judge is correct, and Plaintiff's objections are without merit. The Court further notes that, pursuant to court orders in Miller v. University of Texas Medical Branch Hospital; No. 6:18-cv-41-C (N.D. Tex. Nov. 18, 2018), and Miller v. University of Texas Medical Branch, No. 6:20-cv-223 (E.D. Tex. June 16, 2020), Plaintiff is barred from filing any new civil action or lawsuit unless he obtains advanced written permission from a United States District Judge or Fifth Circuit Judge expressly authorizing the filing of such law or civil action. Any request for permission to file a lawsuit must be accompanied by: (1) a proposed, completed complaint on the proper form, and (2) payment in full of the applicable filing fee. There is no indication that Plaintiff complied with those requirements here. Accordingly, it is hereby ORDERED that this civil action is DISMISSED WITH PREJUDICE as BARRED. So ORDERED and SIGNED this 3rd_ day of February, 2021. qe J Kerb JHREMYD. KERN DLE UNITED STATES DISTRICT JUDGE