Opinion
Civil Action 5:23-CV-70-RWS-JBB
11-30-2023
LESTER JOE MUNN, Plaintiff, v. SANDRA CLARK, et al., Defendants.
ORDER
ROBERT W. SCHROEDER III, UNITED STATES DISTRICT JUDGE
Before the Court is Plaintiff Lester Munn's complaint and motion to proceed in forma pauperis. Docket Nos. 1, 5. Plaintiff, proceeding pro se, filed the above-captioned action complaining of alleged violations of his constitutional rights. See Docket No. 1. The case was referred to United States Magistrate Judge Boone Baxter in accordance with 28 U.S.C. § 636. The Magistrate Judge issued a Report recommending that Plaintiff be denied in forma pauperis status and that the case be dismissed with prejudice as to the refiling of another in forma pauperis lawsuit raising the same claims. Docket No. 3.
Plaintiff complained of an incident that occurred on August 29, 2019. Docket No. 1. The Magistrate Judge observed, however, that Plaintiff signed his complaint in July of 2023, almost four years after the incident occurred, and well outside of the two-year statute of limitations. Docket No. 3 at 1-2. The Magistrate Judge also stated that Plaintiff previously filed at least three lawsuits or appeals which were dismissed as frivolous or for failure to state a claim, thus barring him from proceeding in forma pauperis absent a showing of imminent danger of physical injury relating to the claims in the complaint. Docket No. 3 at 3 (citing 28 U.S.C. § 1915(g)); see also Judd v. Fed. Elections Comm'n, 311 Fed.Appx. 730, 731 (5th Cir. 2009). Because Plaintiff did not pay the full filing fee or show imminent danger, the Magistrate Judge recommended dismissal of the lawsuit with prejudice, although without prejudice to its refiling upon payment of the full $402.00 filing fee or a cognizable showing of imminent danger. Docket No. 3 at 4.
A copy of the Report was sent to Plaintiff at his last known address on August 16, 2023. After the Report was mailed, Plaintiff filed a motion to consolidate this lawsuit with Case No. 5:23-cv-72-which has been dismissed as of this date-as well as the motion for leave to proceed in forma pauperis. See Docket Nos. 4, 5. On September 15, 2023, Plaintiff filed a notice complaining that the law library had not provided him with a copy of his six-month inmate account data sheet. Docket No. 6. Yet, no objections to the Magistrate Judge's Report have been filed.
The Fifth Circuit has explained that where a letter is properly placed in the United States mail, a presumption exists that the letter reached its destination in the usual time and was actually received by the person to whom it was addressed. Faciane v. Sun Life Assurance Co. of Canada, 931 F.3d 412, 420-21, n.9 (5th Cir. 2019).
Because no objections have been received, Plaintiff is barred from de novo review by the District Judge of the Magistrate Judge's proposed findings, conclusions and recommendations and, except upon grounds of plain error, from appellate review of the unobjected-to factual findings and legal conclusions accepted and adopted by the District Court. See Duarte v. City of Lewisville, Texas, 858 F.3d 348, 352 (5th Cir. 2017); Arriaga v. Laxminarayan, No. 4:21-CV-00203-RAS, 2021 WL 3287683, at *1 (E.D. Tex. July 31, 2021).
The Court has reviewed the pleadings in this case and the Report of the Magistrate Judge. Upon such review, the Court has determined the Report of the Magistrate Judge is correct. See United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir. 1989), cert. denied, 492 U.S. 918 (1989) (where no objections to a Magistrate Judge's Report are filed, the standard of review is “clearly erroneous, abuse of discretion and contrary to law.”). Accordingly, it is
ORDERED that the Report of the Magistrate Judge (Docket No. 3) is ADOPTED as the opinion of the District Court. It is further
ORDERED that the above-styled civil action is DISMISSED WITH PREJUDICE as to the refiling of another in forma pauperis lawsuit raising the same claims as herein presented, but WITHOUT PREJUDICE to the refiling of this lawsuit upon payment of the full $402.00 filing fee or a showing that Plaintiff is in imminent danger of serious physical injury related to the basis of the complaint.
So ORDERED and SIGNED.