Opinion
CIVIL ACTION NO. 5:20-CV-185-M-BQ
05-10-2021
DELBERT GLEN ROGERS, Institutional ID No. 02634254, Plaintiff, v. JOHN COCHRAN, et al., Defendants.
ORDER ACCEPTING THE FINDINGS , CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
The United States Magistrate Judge made Findings, Conclusions, and a Recommendation in this case. ECF No. 24. Plaintiff Delbert Glen Rogers filed a document titled "EXHIBITS FINDING, CONCLUSIONS, AND RECOMMEND OF THE UNITED STATES MAGISTRATE JUDGE [sic all]" on May 4, 2021, which falls within the time frame for raising objections. ECF No. 25; see 28 U.S.C. § 636(b)(1) (2017); Fed. R. Civ. P. 72(b). The purported exhibits, however, do not contain specific written objections to a finding or recommendation, and instead merely describe possible adverse side effects from two prescription drugs: Metformin and Cymbalta. ECF No. 25. Liberally construing the document as an objection, the District Court has made a de novo review of the relevant portions of the proposed findings and recommendation. The objections are overruled. Accordingly, the Court ACCEPTS the Findings, Conclusions, and Recommendation of the United States Magistrate Judge, and Plaintiff's Complaint is DISMISSED WITH PREJUDICE for failure to state a claim in accordance with 28 U.S.C. § 1915(e)(2)(B). ECF No. 1.
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 & 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, Plaintiff 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. --------
SO ORDERED this 10th day of May, 2021.
/s/ _________
BARBARA M. G. LYNN
CHIEF JUDGE