Roberson v. Castro

• Court: District Court, S.D. Texas
• Decided: December 17, 2020
• Docket: 2:20-cv-00223
• Status: Unknown

Opinion

Southern District of Texas ENTERED December 18, 202C UNITED STATES DISTRICT COURT David J. Bradley, Clerk SOUTHERN DISTRICT OF TEXAS CORPUS CHRISTI DIVISION MICHAEL CARDORA ROBERSON, § Plaintiff, VS. § CIVIL ACTION NO. 2:20-CV-223 EVELYN CASTRO, et al., Defendants. : ORDER ADOPTING MEMORANDUM AND RECOMMENDATION Plaintiff Michael Cardora Roberson (“Plaintiff”) filed this action pursuant to 18 U.S.C. § 1983 while he was housed at the McConnell Unit in Bee County, Texas against various McConnell Unit prison officials (“Defendants”). (D.E. 1; D.E. 14). He claims that Defendants’ alleged failure to protect him against threats endangering his life was a violation of his Eighth Amendment rights. (D.E. 1; D.E. 14). Before the Court is Magistrate Judge Jason Libby’s Memorandum and Recommendation (““M&R”). (D.E. 14). In the M&R, Judge Libby states that Plaintiff has had three prior actions dismissed as frivolous, malicious, or for failure to state a claim upon which relief can be granted, thereby barring Plaintiff from filing this civil suit in forma pauperis unless Plaintiff was in imminent danger of physical injury at the time he filed this action. Id. at 4; Choyce v. Dominguez, 160 F.3d 1068, 1071 (5th Cir. 1998) (per curiam) (citing Batios v. O’Guin, 144 F.3d 883, 884-85 (Sth Cir. 1998) (per curiam)). After reviewing the complaint (D.E. 1) and conducting a Spears hearing on October 14, 2020, Judge Libby found that Plaintiff failed to meet the imminent danger test set forth in 28

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U.S.C. § 1915. (D.E. 14, p. 5). As a result, Judge Libby vacated the order granting Plaintiffs application to proceed in forma pauperis and recommends that this Court dismiss the case because it is barred by the three strikes rule set forth in § 1915(g). (D.E. 14; see D.E. 15). The parties were provided proper notice of, and the opportunity to object to, the Magistrate Judge’s M&R. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); General Order No. 2002-13. Plaintiff timely filed objections to the M&R. (D.E. 17). Having carefully reviewed the proposed findings and conclusions of the M&R, the record, the applicable law, and having made a de novo review of the portions of the M&R to which Plaintiff's objections were directed, 28 U.S.C. § 636(b)(1), the Court OVERRULES Plaintiff's objections. (D.E. 17). Accordingly, the Court: (1) ADOPTS the M&R in its entirety. (D.E. 14). (2) DISMISSES the case in its entirety. Plaintiff is currently housed at the Connally Unit located in Karnes County Texas, which is in the San Antonio Division of the Western District of Texas. (D.E. 14, p. 5 n.2). As the M&R explains, if Plaintiff seeks to overcome the three strikes bar in connection with his current confinement, he may file a separate action in the San Antonio division of the Western District of Texas. Id. SO ORDERED. | | ( DAVID S. MORALES UNITED STATES DISTRICT JUDGE Dated: Corpus Christi, Texas December 17, 2020 2/2