Opinion
Civil Action 3:20-CV-363-L-BN
08-31-2021
KEVIN LEE MILAN, Plaintiff, v. DALE HANNA, et al., [*] Defendants.
ORDER
Sam A. Lindsay, United States District Judge
On August 5, 2021, The Findings, Conclusions and Recommendation of the United States Magistrate Judge (“Report”) (Doc. 10) was entered, recommending that the court dismiss without prejudice this action, as Plaintiff's civil claims are subject to the rule announced in Heck v. Humphrey, 512 U.S. 477 (1994). No. objections to the Report were received as of the date of this order, and the deadline for filing objections has expired.
Having considered the pleadings, 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, court dismisses without prejudice this action in accordance with Heck v. Humphrey, 512 U.S. 477 (1994).
The court prospectively certifies that any appeal of this action by Plaintiff 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 incorporates by reference the Report (Doc. 14). See Baugh v. Taylor, 117 F.3d 197, 202 and n.21 (5th Cir. 1997). Based on this Report, the court concludes that any appeal of this action by Plaintiff 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 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.