Owl Feather-Gorbey v. United States

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

MICHAEL S. OWL §

FEATHER-GORBEY, §

§

Plaintiff, §

§

v. § Civil Action No. 3:22-CV-566-L-BH

§

ADMINISTRATOR, F. BOP §

DESIGNATION CENTER, GRAND §

PRAIRIE TEXAS, §

§

Defendant. §

ORDER

Before the court are Plaintiff’s Motions to Reconsider (Docs. 15, 21), filed July 15, 2022,

and May 2, 2023; and the Findings, Conclusions and Recommendations of the United States

Magistrate Judge (Docs. 16, 24) that were entered on July 20, 2021, and May 11, 2023, and

recommend that the Motions to Reconsider be construed as requests for relief under Federal Rule

of Civil Procedure 60(b) and denied. For the reasons that follow, the court accepts the magistrate

judge’s findings and conclusions and denies Plaintiff’s Motions to Reconsider (Docs. 15, 21).

I. Factual and Procedural History

Plaintiff Michael S. Owl Feather-Gorbey (“Plaintiff”) originally filed a habeas petition

under 28 U.S.C. § 2241 and a motion to proceed in forma pauperis in Case No. 3:22-CV-545-L-

BH on March 9, 2022. His petition challenged his referral to a Bureau of Prisons (“BOP”) Special

Management Unit (“SMU”) and the “loss of some 236 days good time [and] loss of some other

123 other good time days total 359 days.” Doc. 3 at 2. Because his claims concerning the SMU

referral did not challenge the fact or duration of his confinement, they were not cognizable in a

habeas action. The magistrate judge, therefore, construed these claims as arising under Bivens v.

Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), severed them

from Plaintiff’s habeas action, and opened this new civil action to address them. See Doc. 6. On

March 11, 2022, the magistrate judge recommended that Plaintiff’s motion to proceed in forma

pauperis be denied, and that this case be summarily dismissed as barred by the “three-strikes” rule

of 28 U.S.C. § 1915(g), unless he timely paid the filing fee. See Doc. 7.

A. Plaintiff’s Objections and First Motion to Reconsider

After the court accepted this recommendation and dismissed this action on March 31, 2022,

as barred by the “three strikes” rule under 28 U.S.C. § 1915(g), it received Plaintiff’s Objections

to Magistrate Judge[’s] Findings, Conclusions and Recommendation (Doc. 10) on April 1, 2022;

and Plaintiff’s Objections & Motion to Reconsider [Under] Rule 59(e) (Doc. 11) on April 19,

2022. On April 25, 2022, the magistrate judge entered her Findings, Conclusions and

Recommendation (Doc. 12) as to both filings, recommending that the court treat Plaintiff’s

Objections (Doc. 10) as timely filed under the prison mailbox rule; construe both filings as motions

to alter or amend the judgment under Federal Rule of Civil Procedure 59(e); and deny both

motions.

Plaintiff’s objections (Doc. 13) to this recommendation were docketed on May 24, 2022.

Plaintiff contended that: (1) the magistrate judge lacked authority to consider his filings; (2) the

magistrate judge improperly applied Rule 59 to his previous objections that were timely filed; (3)

the magistrate improperly denied his objection to “converting my Habeas Corpus to a Bivens”

because his “issues are Habeas issues and not proper under Bivens”; (4) “imminent danger does

apply” because he is a “non-violent D.C. state prisoner illegally housed in federal custody under

unconstitutional D.C. State Code 24-101”; and (5) contrary to the magistrate judge’s

determination, his “assault issues are [not] past issues” for purposes of § 1915(g), as he has clearly

argued “continuing threats & patterns of misconduct by the FBOP and Fed Courts” that place him

“at risk of further physical assaults or death.” Doc. 13.

The court agreed with the magistrate judge that Plaintiff’s Objections (Doc. 10) were

timely filed on March 18, 2022. Doc. 14. The court also agreed that both filings should be treated

and construed as Rule 59(e) motions, as both were received after entry of judgment in this case.

Id. For support, the court cited Alexander v. Milligan, in which the Fifth Circuit concluded:

Alexander is correct that the district court erred in finding that he did not

timely file objections to the magistrate judge’s report. Moreover, because the

objections were filed within 10 days of the final judgment, the objections should

have been construed by the district court as a Fed. R. Civ. P. 59(e) motion.

201 F. App’x 228, 230 (5th Cir. 2006) (citing United States v. Gallardo, 915 F.2d 149, 150 n.2

(5th Cir. 1990)) (other citations omitted). The court further reasoned that, “[r]egardless of whether

the filings are construed as timely objections and subjected to a de novo review or as requests to

alter or amend the judgment under Rule 59(e) motion, the result would be the same for the reasons

stated in the [magistrate judge’s] Report [Doc. 12].” Doc. 14.

Regarding Plaintiff’s other objections, the court concluded that they were “similarly

without merit.” Id. In addition, the court noted that this was not the first time a case by Plaintiff

was found to be barred by section 1915(g)’s “three strikes” rule. Id. (citing Feather-Gorbey v.

Administrator Fed. Bureau of Prisons Grand Prairie, 841 F. App’x 724, 724-25 (5th Cir. March

30, 2021); and Feather-Gorbey v. NFN NLN, 856 F. App’x 526, 527 (5th Cir. Aug. 17, 2021)).

The court, therefore, denied Plaintiff’s post-judgment filings (Docs. 10, 11), which it construed as

motions for relief under Rule 59(e); overruled his objections (Doc. 13); and prospectively denied

a certificate of appealability.

B. Plaintiff’s Second Motion to Reconsider

Plaintiff then filed his second motion for reconsideration, which was docketed on July 15, 2022

(Doc. 15). On July 20, 2022, the magistrate judge entered Findings, Conclusions and Recommendation

(Doc. 16), recommending that the court construe Plaintiff’s second motion for reconsideration as

one arising under Federal Rule of Civil Procedure 60(b) because it was filed more than two months

after entry of judgment. The magistrate judge recommends that this motion be denied, as it does

not invoke any of the reasons for relief recognized under Rule 60(b).

In this regard, the magistrate judge explains that Plaintiff again challenges the severance

and treatment of his claims regarding the SMU proceedings as a civil rights or Bivens action,

contending that those proceedings are merely extensions of the various prison disciplinary

proceedings that resulted in his loss of good time credit. Doc. 16 at 4. As the magistrate judge

correctly, determined, however:

As noted in the initial recommendation, his claims challenging the SMU referral do

not challenge the fact or duration of his confinement and are therefore not

cognizable in a habeas action. (See doc. 7 at 1-2.) His allegations and claims

regarding his SMU referral and challenging various disciplinary proceedings that

have already been considered and addressed.

Accordingly, this argument by Plaintiff is without merit.

In addition, Plaintiff points to inmate altercations and related events that occurred in June

2022 in an apparent effort to show that he is in imminent danger of serious physical injury. Such

allegations are insufficient to support application of the imminent danger exception under § 1915

because, as the magistrate judge correctly notes, “a prisoner with three strikes is entitled to proceed

with his action or appeal only if he is in imminent danger at the time that he seeks to file his suit

in district court or seeks to proceed with his appeal or files a motion to proceed IFP.” Doc. 16

(citing Banos v. O’Guin, 144 F.3d 883, 884-85 (5th Cir. 1998) (emphasis added)). For the same

reason, the magistrate judge determined, and the court agrees, that Plaintiff’s allegations regarding

new altercations is insufficient to establish exceptional circumstances warranting relief under Rule

60(b).

Plaintiff filed objections to this recommendation, which were docketed on August 9, 2022

(Doc. 19). He contends that reconsideration is proper because of alleged defects in the integrity

of the original federal habeas proceedings that require further review and relief. In particular, he

contends that the defect in converting his habeas action to a Bivens action seriously prejudiced him

because he was not given the opportunity to amend under Federal Rule of Civil Procedure 15(a)(2)

before his case or claims were summarily dismissed for failure to qualify for relief. He further

asserts that the magistrate judge’s recommendation seeks to deny him leave to expand and

supplement the record with facts based on subsequent events that he contends relate back to his

original Complaint. According to Plaintiff, these new events qualify as exceptional circumstances

entitling him to relief under Rule 60(b).

Plaintiff also asserts that BOP staff have been retaliating against him for filing lawsuits and

misconduct complaints by denying him any staff assistance at an SMU hearing to compile

evidence and witnesses. Additionally, he contends that BOP staff falsified information in his SMU

referral papers to designate him to the SMU, which he asserts is the BOP’s most violent facility.

Many of these objections to the magistrate judge’s recommended denial of his second motion for

reconsideration are substantially similar to those asserted by Plaintiff in response to the magistrate

judge’s recommended denial of his first motion for reconsideration.

Before the court was able to rule on Plaintiff’s second motion for reconsideration and

objections to the related findings and conclusions by the magistrate judge, he filed a conditional

notice of appeal on August 16, 2022, in which he indicated that he sought to appeal if the

undersigned denied his second motion for reconsideration and request to proceed under § 1915(g).

Because this second motion for reconsideration, Plaintiff’s objections, and the magistrate judge’s

recommendation regarding the motion were pending, the appeal was deemed to be premature and

dismissed by the Fifth Circuit on March 31, 2023, for lack of jurisdiction. The Fifth Circuit’s

mandate followed on May 10, 2023.

C. Plaintiff’s Third Motion to Reconsider

Plaintiff’s third motion for reconsideration was docketed on May 2, 2023 (Doc. 21). In

this motion, he: (1) seeks reconsideration of the order denying him leave to proceed in forma

pauperis and relief under § 1915(g) based on new facts and evidence; (2) requests the court to

reopen his case to allow him to expand the record by supplementing his pleadings with facts

supporting imminent danger; (3) requests a hearing on the merits; and (4) requests appointment of

“co-counsel to assist [him].” Mot. 1 (Doc. 21).

The magistrate judge denied Plaintiff’s request for postjudgment appointment of counsel

for the reasons discussed in her August 19, 2022 order (Doc. 20). The magistrate judge also

recommended that Plaintiff’s third motion for reconsideration, which was filed approximately one

year after entry of judgment in this action, be construed as a Rule 60(b) motion and denied for

essentially the same reasons that his second motion for reconsideration should be denied—because

Plaintiff has failed to establish any of the grounds justifying relief under Rule 60(b).

The magistrate judge determined that, while Plaintiff again disputes his SMU referral and

challenges the finding that he has failed to satisfy the imminent danger exception to § 1915(g)’s

“three-strikes” rule, none of the events at his current or prior facility that are alleged to have

occurred in June, July, August, and September 2022, and March 2023 are alleged to have occurred

at the time he filed this action challenging his SMU referral in March 2022. Because these events

do not relate to any danger existing at the time of his initial filing in which he complained about

due process violations during his disciplinary proceedings that allegedly resulted in a SMU

referral, the magistrate judge determined that the imminent danger exception does not apply, and

Plaintiff has not demonstrated exceptional circumstances to obtain relief under Rule 60(b). The

court agrees. No objections to this recommendation or the magistrate judge’s order denying

Plaintiff’s request for appointment of counsel or co-counsel were filed, and the deadline for doing

so has expired.

II. Discussion

A. Applicable Legal Standards

Federal Rule of Civil Procedure 72(b) provides that the “district court must determine de

novo any part of the magistrate judge’s disposition that has been properly objected to.” Fed. R.

Civ. P. 72(b)(3). The Fifth Circuit has similarly held that “a district court must make a de novo

review whenever a party objects to the magistrate judge’s recommendation of dismissal.”

Kreimerman v. Casa Veerkamp, S.A. de C.V., 22 F.3d 634, 646 & n.72 (5th Cir. 1994) (citing

Longmire v. Guste, 921 F.2d 620, 623 (5th Cir. 1991); and United States v. Wilson, 864 F.2d 1219,

1221 (5th Cir. 1989)). Thus, to the extent that Plaintiff objected to any portion of the magistrate

judge’s Findings, Conclusions, and Recommendations, the court will resolve those objections

based on a de novo standard of review.

Rule 60(b)(1) allows a court to relieve a party from a judgment or order based on the party’s

“mistake, inadvertence, surprise, or excusable neglect.” Fed. R. Civ. P. 60(b)(1). “Implicit in the

fact that Rule 60(b)(1) affords extraordinary relief is the requirement that the movant make a

sufficient showing of unusual or unique circumstances justifying such relief.” Pryor v. United

States Postal Serv., 769 F.2d 281, 286 (5th Cir. 1985). With regard to “mistake, inadvertence, . . .

or excusable neglect,” “‘[i]gnorance of the rules is not enough, nor is ignorance of the law.’” Id.

at 287 (citation omitted). Rule 60 applies to Plaintiff’s second and third motions for

reconsideration.

“[D]istrict courts often afford plaintiffs at least one opportunity to cure pleading

deficiencies before dismissing a case, unless it is clear that the defects are incurable or the plaintiffs

advise the court that they are unwilling or unable to amend in a manner that will avoid dismissal.”

Great Plains Tr. Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 329 (5th Cir. 2002).

The liberal standard for leave to amend a complaint under Rule 15(a), however, is “tempered by

the necessary power of a district court to manage a case.” Schiller v. Physicians Res. Grp. Inc.,

342 F.3d 563, 566 (5th Cir. 2003). In Schiller, the Fifth Circuit explained:

In deciding whether to grant leave to amend, the district court may consider a

variety of factors in exercising its discretion, including undue delay, bad faith or

dilatory motive on the part of the movant, repeated failures to cure deficiencies by

amendments previously allowed, undue prejudice to the opposing party by virtue

of allowance of the amendment, and futility of the amendment.

Id. at 566 (citation omitted).

B. Application of Law to Facts

Except for the new event(s) alleged in his second motion for reconsideration, Plaintiff’s

objections with respect to his second motion are essentially the same as those rejected by the court

regarding his first motion for reconsideration and objections. The magistrate judge correctly

determined that Plaintiff’s claims, as pleaded, concerning the SMU referral are not cognizable in

a habeas action because they do not challenge the fact or duration of his confinement. The

magistrate judge was, therefore, correct to construe these claims as arising under Bivens and sever

them from Plaintiff’s habeas action. Plaintiff’s contentions to the contrary are not supported by

law or fact.

Further, as noted, the events and altercations that allegedly occurred after he filed his

Complaint cannot satisfy the imminent danger exception under § 1915. Even assuming as Plaintiff

contends that these events establish that he was in imminent danger at one time or another, by

Plaintiff’s admission, these events did not occur at the time he filed his Complaint in this court.

Banos, 144 F.3d 884-85 (emphasis added). Plaintiff takes issue with this legal requirement, but

Rule 60(b) is not an appropriate vehicle for changing well-established Bivens law; nor has Plaintiff

made a sufficient showing of “unusual or unique circumstances” justifying relief under Rule 60

based on exceptional circumstances. Pryor, 769 F.2d at 286.

Plaintiff also contends in connection with his objections to the recommended denial of his

second motion for reconsideration that the magistrate judge erred in not allowing him to amend

his pleadings. Plaintiff, however, did not previously request to amend his pleadings, and no prior

filings by him, even if liberally construed, sought to amend his pleadings. Thus, the magistrate

judge and undersigned could not have previously erred in this regard. Regardless, a “district court

may construe an issue raised for the first time in an objection to a magistrate judge’s report and

recommendation as a motion to amend complaint.” United States v. Riascos, 76 F.3d 93, 94, 1996

WL 61345 (5th Cir. 1996).

Although a court “should freely give leave [to amend] when justice so requires,” Fed. R.

Civ. P. 15(a)(2), leave to amend is not automatic and can be denied when justified. Carroll v. Fort

James Corp., 470 F.3d 1171, 1175 (5th Cir. 2006). The district court need not give reasons when

the reason justifying the denial is apparent and the record reflects “ample and obvious grounds”

for doing so. See id. (internal quotations omitted) (quoting Mayeaux v. La. Health Serv. & Indem.

Co., 376 F.3d 420, 426 (5th Cir. 2004)). The court denies Plaintiff’s request to amend his pleadings

and supplement the record with the additional factual allegations in his motions for

reconsideration, as doing so would be futile for the reasons explained in this order and the various

reports entered by the magistrate judge. This is so because, even if allowed to amend, Plaintiff

would still not be able to establish the imminent danger exception under § 1915. For similar

reasons, the court also disagrees that Plaintiff’s allegations regarding new events and altercations

relate back to his original claims under Rule 15(c) because these events do not relate to any danger

existing at the time of his initial filing in which he complained about due process violations during

his disciplinary proceedings that allegedly resulted in the SMU referral.

C. Plaintiff’s Prior Objection Regarding Applicable Standard

Finally, while Plaintiff did not reurge his original objection that the magistrate judge erred

in applying the standard applicable to Rule 59 motions to his timely filed objections, the court

believes that this issue requires further clarification. There is no dispute that Plaintiff’s objections

(Doc. 10) were timely filed under the mailbox rule,1 even though they were not received by the

court until after the entry of judgment. The magistrate judge, nevertheless, determined that,

because Plaintiff’s objections were received within 28 days after the entry of judgment, they should

be “liberally construed” as a Rule 59(e) motion. Doc. 12 at 3.

For support that Rule 59(e) applies to Plaintiff’s objections, the magistrate judge referenced

the following authority:

See Williams v. Thaler, 602 F.3d 291, 303 (5th Cir. 2010) (“When a litigant

files a motion seeking a change in judgment, courts typically determine the

appropriate motion based on whether the litigant filed the motion within Rule

59(e)’s time limit.”), abrogated on other grounds by Thomas v. Lumpkin, 995 F.3d

432, 440 (5th Cir. 2021); see also Rogers v. McKee, No. 9:06[-]cv[-]228, 2007 WL

2900545, at *2 (E.D. Tex. Oct. 1, 2007) (construing objections to recommendation

received after dismissal of habeas petition as motion for relief from judgment)

(citing Bagley v. Bd. of Directors-Farmers Nat’l Bank, 31 F. App’x 152 (5th Cir.

2001) (holding that objections filed after the entry of an order of dismissal should

1 Under the prison mailbox rule, “a pro se prisoner’s written objections to a magistrate’s report and recommendations

must be deemed filed and served at the moment they are forwarded to prison officials for delivery to the district court.”

Thompson v. Raspberry, 993 F.2d 513, 514 (5th Cir. 1993).

be construed as a Rule 60 motion for relief from judgment)). Because Plaintiff’s

second filing was dated and received within 28 days of the entry of judgment, and

specifically references Rule 59(e), it is also properly construed as a Rule 59(e)

motion. See Williams, 602 F.3d at 303.

Doc. 12 at 3.

In revisiting this issue, the court determines that these cases are distinguishable, or they are

not binding on the court. Williams v. Thaler involved a Rule 59(e) motion, not timely filed

objections to a magistrate judge’s recommendation. See Williams, 602 F.3d at 295. In this case,

Plaintiff filed a Rule 59(e) motion (Doc. 11), but this motion was separate from his objections that

were received by the court approximately eighteen days earlier.

Rogers v. McKee is likewise distinguishable from the present case because the objections

in that case were filed or presumed to have been filed after expiration of the deadline for filing

objections under Rule 72(b). Specifically, in Rogers, the petitioner’s objections were received by

the district court on April 18, April 28, and June 26, 2006, more than 30 days after the magistrate

judge’s report and recommendation to dismiss a habeas petition was filed on March 2, 2006.

Without discussing when the objections were filed, the district court in Rogers construed the

objections as a Rule 60 motion for relief from the judgment based on the Fifth Circuit’s reasoning

in Bagley v. Board of Directors-Farmers National Bank, which concluded that: (1) “objections

filed after the entry of an order of dismissal should be construed as a Rule 60 motion for relief

from judgment”; and (2) Rogers’ objections, which were received after dismissal of the habeas

petition, were not timely filed. Rogers, 2007 WL 2900545, at *2-3.

In Bagley, the prisoner’s objections were construed as a Rule 60 motion, but this case did

not involve objections to a magistrate judge’s report under Rule 72(b). It involved: (1) a prisoner’s

objections to the district court’s order of dismissal that were “filed” “almost one month after” entry

of judgment; and (2) the issue of whether the objections or Rule 60 motion suspended the time to

appeal from the judgment. Bagley, 2001 WL 1747886, at *1. Moreover, the objections were

treated as a Rule 60 motion because they were “filed” after entry of the judgment, not because they

were received after entry of the judgment. Id.

Upon closer inspection, the Fifth Circuit’s opinion in Alexander v. Milligan previously

relied on by the undersigned also appears to be factually distinguishable. See Doc. 14 at 2.

Although Alexander concluded that the plaintiff, a prisoner, was “correct that the district court

erred in finding that he did not timely file objections to the magistrate judge’s report,” the docket

sheet in underlying civil Case No. 6:05-CV-203-MHS-JKG reflects that the magistrate judge’s

report was filed on September 20, 2005; the final judgment was entered on October 25, 2005; the

plaintiff’s objections to the report were filed on October 24, 2005, the date they were put into the

prison mail; and the plaintiff’s objections were received by the district court and docketed on

October 27, 2005.

In 2005, objections under Rule 72(b) were required to be filed within ten days after service

of the magistrate judge’s findings and recommendations. Three additional days were added to this

10-day deadline under Federal Rule of Civil Procedure 3(d). As a result, the deadline for the

plaintiff in Alexander to file his objections to the magistrate judge’s report was October 3, 2005,

thirteen days after the report was entered. As noted, however, his objections were not filed under

the mailbox rule until October 24, 2005, thirty-four days after issuance of the magistrate judge’

report. It, therefore, appears that the plaintiff’s objections in Alexander were not timely filed, and,

if so, it makes sense that the objections were addressed under Rule 59(e)’s standard rather than the

de novo standard of review applicable to objections under Rule 72(b). Regardless, this unreported

case and the unreported cases cited in the magistrate judge’s report have no precedential value.

Additionally, one Fifth Circuit panel cannot overrule another without an intervening change in the

law,2 and, in the event of a conflict, the earlier case controls.3 Moreover, the court does not find

that the Fifth Circuit intended to overrule the well-established rule that timely filed objections are

reviewed de novo under Rule 72(b).

Like the present case, Kreimerman v. Casa Veerkamp, S.A. de C.V. cited above by the court

involved timely filed written objections to the magistrate judge’s report and recommended

dismissal that were not received until after the district court accepted the recommendation and

dismissed the case. 22 F.3d at 637. The Fifth Circuit in Kreimerman ultimately found no

reversible error because of the absence of prejudice, and it was unclear whether the district court

failed to engage in a “proper de novo review” as contended by the plaintiffs. Id. at 646-67. In any

event, this case makes clear that, even if written objections to a magistrate judge’s recommended

dismissal are not received by the district court until after dismissal of an action or entry of

judgment, they must be reviewed de novo if they were filed timely before expiration of the deadline

to object under Rule 72(b).

For the court to conclude that a different standard applies in this case would obviate the

need for applying the mailbox rule and determining whether objections were timely filed.

Accordingly, the court determines that Plaintiff was correct that his timely filed objections were

subject to a de novo review standard and should not have been construed as a Rule 59(e) motion.

The court, therefore, vacates in part its prior order (Doc. 14 at 2) to the extent it concluded

otherwise in the second full paragraph on this page. This, however, does not change the conclusion

previously reached by the court because, as it explained, regardless of whether Plaintiff’s filings

are construed as timely objections and subjected to a de novo review or as requests to alter or

2 See United States v. Darrington, 351 F.3d 632, 634 (5th Cir. 2003).

3 See Texaco Inc. v. La. Land & Expl. Co., 995 F.2d 43, 44 (5th Cir. 1993).

amend the judgment under Rule 59(e), the result would be the same for the reasons stated in the

magistrate judge’s report. Doc. 14 at 2.

III. Conclusion

Having carefully considered Plaintiff’s second and third Motions to Reconsider, the

pleadings, file, record in this case, and the magistrate judge’s Findings, Conclusions, and

Recommendations, and having conducted a de novo review of that portion of the magistrate

judge’s Findings, Conclusions, and Recommendations to which Plaintiff objected, 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 construes Plaintiff’s Motions to Reconsider (Docs.

15, 21) as motions for relief under Rule 60(b); denies the motions (Doc. 15, 21); and overrules

his objections (Doc. 17) made in connection with his second Motion to Reconsider. For the reasons

stated, the court also denies the request by Plaintiff in his objections to amend his pleadings under

Rule 15(a)(2).

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 magistrate judge’s reports (Docs. 12, 16, 24).

See Baugh v. Taylor, 117 F.3d 197, 202 and n.21 (5th Cir. 1997). Based on the magistrate judge’s

reports, 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 2nd day of August, 2023.

Sam A. Lindsay C

United States District Judge

Order — Page 15