Opinion
CIVIL NO. 3:17-CV-3078-M-BK
12-18-2017
DONALD FOSTER, #1038609, Plaintiff, v. THE STATE OF TEXAS, et al., Defendants.
ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
On November 28, 2017, the United States Magistrate Judge filed Findings, Conclusions, and a Recommendation in this case. No objections were filed. However, on December 5 and 8, 2017, Plaintiff filed two motions to recuse, which are for the most part identical. Then on December 11, 2017, he filed a motion for leave to amend.
I.
Plaintiff seeks to recuse District Judge Reed O'Connor, claiming that he has a personal bias against Texas prisoners. This case is assigned to Chief Judge Barbara M. G. Lynn. Therefore, Plaintiff's motions to recuse are DENIED.
Plaintiff also seeks to amend his petition for removal to add "legal authority" to the opening and jurisdictional paragraphs on page 1 and to paragraph 8 on page 6. A review of the proposed amended complaint reflects that Plaintiff has added only a reference to 28 U.S.C. § 1447, which sets out the procedures to be followed after removal, and has made no substantive change.
Federal Rule of Civil Procedure 15(a) requires a court to grant leave to amend "freely." Consequently, Plaintiff's motion for leave to amend is GRANTED. The Clerk of the Court is directed to file Plaintiff's proposed amended complaint for removal.
II.
The Court has reviewed the proposed findings, conclusions and recommendation for plain error. Finding none, the Court ACCEPTS the Findings, Conclusions, and Recommendation of the United States Magistrate Judge.
IT IS THEREFORE ORDERED that this action is REMANDED sua sponte to the 30th Judicial District Court of Wichita County. See 28 U.S.C. § 1455(b)(4).
IT IS FURTHER ORDERED that, to the extent Plaintiff seeks to sue the individual Defendants, this action is DISMISSED as barred by the three-strike provision of 28 U.S.C. § 1915(g), and that Plaintiff's motion to proceed in forma pauperis is DENIED. Such dismissal is with prejudice to the refiling of an in forma pauperis lawsuit raising the same claims as herein presented, but without prejudice to refiling of this lawsuit with full payment of the $400.00 filing fee.
III.
The Court prospectively CERTIFIES that any appeal of this action would not be taken in good faith. See 28 U.S.C. § 1915(a)(3); FED. R. APP. P. 24(a)(3). In support of this certification, the Court adopts and incorporates by reference the Magistrate Judge's Findings, Conclusions, and Recommendation. See Baugh v. Taylor, 117 F.3d 197, 202 and n.21 (5th Cir. 1997). Based on the Findings and Recommendation, the Court finds that any appeal of this action would present no legal point of arguable merit and would, therefore, be frivolous. Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). In the event of an appeal, Plaintiff may challenge this certification by filing a separate motion to proceed in forma pauperis on appeal with the Clerk of the Court, U.S. Court of Appeals for the Fifth Circuit. See Baugh, 117 F.3d at 202; FED. R. APP. P. 24(a)(5).
Federal Rule of Appellate Procedure 4(a) governs the time to appeal an order. A timely notice of appeal must be filed even if the court certifies an appeal as not taken in good faith. --------
SO ORDERED this 18th day of December, 2017.
/s/ _________
BARBARA M. G. LYNN
CHIEF JUDGE