Order – Page 1

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

After the court dismissed this action as barred by the “three strikes” rule under 28 U.S.C. 

§ 1915(g), it received Plaintiff’s Objections to Magistrate Judge[’] 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. The Findings, Conclusions and Recommendation 

of the United States Magistrate Judge (“Report”) (Doc. 12) was entered on April 25, 2022, as to 

both filings. Although not received until after entry of judgment, the Report recommends treating 

Plaintiff’s Objections (Doc. 10) as timely filed under the prison mailbox rule; construing both 

filings as motions to alter or amend the judgment under Federal Rule of Civil Procedure 59(e); and 

denying both motions. 

On May 24, 2022, Plaintiff’s objections to the Report were docketed (Doc. 13). Plaintiff 

asserts seven objections in which he contends that: (1) the magistrate judge lacks 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”; 

Case 3:22-cv-00566-L-BH Document 14 Filed 05/26/22 Page 1 of 3 PageID 69
Order – Page 2

(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.”

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

filed on March 18, 2022. Notwithstanding Plaintiff’s objections, the court also agrees that both 

filings should be treated and construed as Rule 59(e) motions, as both were received after entry of 

judgment in this case. See Alexander v. Milligan, 201 F. App’x 228, 230 (5th Cir. 2006) (“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.”) (citing United States 

v. Gallardo, 915 F.2d 149, 150 n.2 (5th Cir. 1990)) (other citations omitted). Regardless 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 Report. 

Plaintiff’s other objections are similarly without merit. In addition, the court notes that this is not 

the first time a case by Plaintiff was found to be barred by section 1915(g)’s “three strikes” rule. See, e.g.,

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

Cir. March 30, 2021) (affirming dismissal of Case No. 3:17-CV-26-L-BN, and warning: “The dismissal of 

this appeal counts as a strike under § 1915(g). . . . Gorbey is CAUTIONED that he remains barred from 

proceeding IFP in any civil action or appeal filed while he is incarcerated or detained in any facility unless 

he is under imminent danger of serious physical injury. See § 1915(g). He is further CAUTIONED that 

frivolous, repetitive, or otherwise abusive filings will invite the imposition of additional sanctions, which 

may include dismissal, monetary sanctions, and restrictions on his ability to file pleadings in this court and 

any court subject to this court's jurisdiction. To avoid sanctions, Feather-Gorbey should review any pending 

Case 3:22-cv-00566-L-BH Document 14 Filed 05/26/22 Page 2 of 3 PageID 70
Order – Page 3

appeals and actions he may have pending and move to dismiss any frivolous ones.”) (citation omitted); 

Feather-Gorbey v. NFN NLN, 856 F. App’x 526, 527 (5th Cir. Aug. 17, 2021) (affirming dismissal of Case 

No. 3:20-CV-1311-N-BN for the same reason and ordering him to pay a monetary sanction of $100 for his 

failure to heed prior warning to review all pending cases and voluntarily dismiss any that were frivolous, 

repetitive, or abusive).

Accordingly, having carefully considered the pleadings, file, record in this case, and 

Report, and having conducted a de novo review to that portion of the Report to which objection 

was made, 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 postjudgment filings (Docs. 10, 11) as motions for relief under Rule 59(e) to alter or amend the 

judgment, denies the motions (Doc. 10, 11), and overrules his objections (Doc. 13).

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 

and 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 26th day of May, 2022.

_________________________________

Sam A. Lindsay

United States District Judge

Case 3:22-cv-00566-L-BH Document 14 Filed 05/26/22 Page 3 of 3 PageID 71