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Emmett v. TDCJ-CID

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS TYLER DIVISION
Jan 25, 2021
Case No. 6:20-cv-642-JDK-JDL (E.D. Tex. Jan. 25, 2021)

Opinion

Case No. 6:21-cv-002-JDK-JDL

01-25-2021

BARRY EMMETT, #1383329, Plaintiff, v. TDCJ-CID, et al., Defendants.


ORDER ADOPTING REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

Plaintiff Barry Emmett, 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 6, 2021, Judge Love issued a Report and Recommendation in this case. Docket No. 5. 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 timely objected. Docket No. 8.

Where a party objects within fourteen days of service of the Report and Recommendation, the 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 Ass'n, 79 F.3d 1415, 1430 (5th Cir. 1996) (en banc), superseded on other grounds by statute, 28 U.S.C. § 636(b)(1) (extending the time to file objections from ten to fourteen days).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 Report and the record in this case, the Court has determined that the Report of the United States Magistrate Judge is correct, and Petitioner's objections are without merit. Accordingly, the Court hereby ADOPTS the Report and Recommendation of the United States Magistrate Judge (Docket No. 5) as the findings of this Court. The Court DENIES Plaintiff's motion for leave to proceed in forma pauperis (Docket No. 2). Further, the Court DISMISSES Plaintiff's civil rights lawsuit, with prejudice for purposes of proceeding in forma pauperis under 28 U.S.C. § 1915(g), but without prejudice as to the refiling of his lawsuit without seeking in forma pauperis status. Finally, if Plaintiff pays the requisite $400 filing fee within fifteen days of this Order, the lawsuit shall proceed as though the full filing fee had been paid from the outset.

So ORDERED and SIGNED this 25th day of January, 2021.

/s/_________

JEREMY D. KERNODLE

UNITED STATES DISTRICT JUDGE


Summaries of

Emmett v. TDCJ-CID

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS TYLER DIVISION
Jan 25, 2021
Case No. 6:20-cv-642-JDK-JDL (E.D. Tex. Jan. 25, 2021)
Case details for

Emmett v. TDCJ-CID

Case Details

Full title:BARRY EMMETT, #1383329, Plaintiff, v. TDCJ-CID, et al., Defendants.

Court:UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS TYLER DIVISION

Date published: Jan 25, 2021

Citations

Case No. 6:20-cv-642-JDK-JDL (E.D. Tex. Jan. 25, 2021)