Opinion
Civil Action No. 3:15-CV-2441-L
01-25-2016
ANTOINE EVERTON BUTLER, #46206-177, Plaintiff, v. UNITED STATES OF AMERICA AND CITY OF DALLAS, Defendants.
ORDER
This prisoner case was referred for screening to Magistrate Judge Renée Harris Toliver, who entered Findings, Conclusions and Recommendation of the United States Magistrate Judge ("Report") on November 18, 2015, recommending that the court dismiss this case as frivolous and failure to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b). The magistrate further recommends that dismissal of this case count as a "strike" or "prior occasion" under 28 U.S.C. § 1915(g). Plaintiff filed objections to the Report.
After reviewing the pleadings, record in this case, Report, objections, and conducting a de novo review of those portions of the Report to which objection was made, the court determines that the findings and conclusions of the magistrate judge are correct, and accepts them as those of the court. Accordingly, the court overrules Plaintiff's objections, denies his request for return of property seized during his arrest, and dismisses with prejudice this action as frivolous and failure to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b). Further, dismissal of this case shall count as a "strike" or "prior occasion" under 28 U.S.C. § 1915(g).
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. 24(a)(3). In support of this certification, the court accepts and incorporates by reference the Report. See Baugh v. Taylor, 117 F.3d 197, 202 and n.21 (5th Cir. 1997). The court concludes 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 clerk of the United States Court of Appeals for the Fifth Circuit. See Baugh, 117 F.3d at 202; F. R. App. 24(a)(5).
It is so ordered this 25th day of January, 2016.
/s/_________
Sam A. Lindsay
United States District Judge