Opinion
Civil Action No. 3:18-CV-653-L
05-31-2020
AUTREY JOE HUBBARD, ID # 18006108, Plaintiff, v. DALLAS COUNTY SHERIFF'S DEPT. JAIL STAFF, UTMB - PARKLAND HOSPITAL MEDICAL STAFF AT JAIL, Defendants.
ORDER
On May, 5 2020, United States Magistrate Judge Irma Carrillo Ramirez entered the Findings, Conclusions, and Recommendation ("Report") (Doc. 12), recommending that this action be dismissed for failure to state a claim. Specifically, she determined that Plaintiff Autrey Joe Hubbard ("Plaintiff") failed to assert any viable claims under 42 U.S.C. § 1983 against Defendants Dallas County Sheriff's Department Jail Staff, UTMB - Parkland Hospital Medical Staff at Jail (collectively, "Defendants"). She also recommends that this dismissal count as a "strike" or "prior occasion" within the meaning of 28 U.S.C. § 1915(g). No objections to the Report were filed.
The docket sheet reflects that the Report was returned undeliverable and was not resent. Thus, Plaintiff did not receive it. The court notes that Plaintiff changed his address on June 8, 2018 (see doc. 11), which is the address to which the Report was mailed, and has not provided an updated address. Plaintiff was notified that failure to provide an updated address may result in dismissal of this action. Doc. 2. The court, therefore, will rule on the Report, as Plaintiff has failed to update his address as required. --------
Having reviewed the pleadings, file, record in this case, and Report, 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 dismisses with prejudice this action under 28 U.S.C. §§ 1915(e)(2)(B) for failure to state a claim. Further, the dismissal of this action shall count as a "strike" or "prior occasion" within the meaning of 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. P. 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 & n.21 (5th Cir. 1997). Based on the Report, the court finds that any appeal of this action would present no legal point of arguable merit and would, therefore, be frivolous. See 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 United States Court of Appeals for the Fifth Circuit. See Baugh, 117 F.3d at 202; Fed. R. App. P. 24(a)(5).
It is so ordered this 31st day of May, 2020.
/s/_________
Sam A. Lindsay
United States District Judge