Opinion
CIVIL ACTION NO. 3:13-CV-4636-G (BK)
01-07-2014
MARVIN L. MALONE, # 411853, Petitioner, v. JUDGE EARNEST WHITE, Respondent.
ORDER ACCEPTING FINDINGS AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
The United States Magistrate Judge made findings, conclusions, and a recommendation in this case. Petitioner filed objections, and the district court has made a de novo review of those portions of the proposed findings and recommendation to which objection was made. The objections are overruled, and the court ACCEPTS the findings, conclusions, and recommendation of the United States Magistrate Judge.
It is therefore ORDERED that the petition for writ of mandamus is summarily DISMISSED with prejudice as frivolous and petitioner is WARNED that sanctions may be imposed if he persists in filing frivolous or baseless petitions for writ of mandamus or for nunc pro tunc relief.
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, petitioner 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 district court certifies an appeal as not taken in good faith.
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A. JOE FISH
Senior United States District Judge