Leigh v. John Doe #1 et al
MEMORANDUM OPINION. Signed by Judge L Scott Coogler on 1/13/2016. (PSM)
2016 Jan-13 PM 02:42
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
JOHN S. LEIGH,
JOHN DOE #1, et al.,
Case No. 1:14-cv-1223-LSC-JHE
The magistrate judge filed a report on October 15, 2015, recommending that this action
be dismissed without prejudice for failing to state a claim upon which relief can be granted
pursuant to 28 U.S.C. § 1915A(b). (Doc. 19). The magistrate judge advised the plaintiff of his
right to file specific written objections within fourteen (14) days (id. at 7), and granted the
plaintiff two extensions of time in order to do so (docs. 21 & 23). The plaintiff’s objections were
due on or before December 9, 2015. (Doc. 23).
On December 16, 2015, 1 the plaintiff filed untimely “Objections to Magistrate Judge’s
Report and Recommendation.” (Doc. 24). Moreover, while the title of pleading refers to
objections, the plaintiff is actually
request[s] that this Honorable Court allow him to withdraw this legal action, at
this time. It ha[s] become oblivious (sic) to this plaintiff that he do[esn]’t have
any legal ground in this matter. This plaintiff is in the process of exploring his
legal options, and wish[es] not to waste this Honorable Court[’s] time.
Because prisoners proceeding pro se have virtually no control over the mailing of their
pleadings, their pleadings are deemed to be filed at the time the prisoner delivers the pleading to
prison officials to be mailed. See Houston v. Lack, 487 U.S. 266, 270-72 (1988). Although the
record contains no information regarding the date plaintiff gave his objections to prison officials
to mail, he signed the pleading on December 16, 2015, and therefore, it is deemed filed on that
date. (The objections were not received by this court until December 21, 2015.)
(Id. at 7).
The pleading does not object to the report and recommendation and is a motion to
voluntarily dismiss the case. Pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i), a
plaintiff “may dismiss an action without a court order by filing . . . a notice of dismissal before
the opposing party serves either an answer or a motion for summary judgment[.]” This rule,
however, is “subject to . . . any applicable federal statute.” (Id.).
As a prisoner, the plaintiff is subject to the Prison Litigation Reform Act, a statute
enacted by Congress to “discourage prisoners from filings claims that are unlike to succeed.”
Crawford-El v. Britton, 523 U.S. 574, 596 (1998). One provision of that Act amended the in
forma pauperis statute, 28 U.S.C. ' 1915, to add subsection (g), which is known informally as
the three strikes rule. That rule provides as follows:
In no event shall a prisoner bring a civil action or appeal a
judgment in a civil action or proceeding under this section if the
prisoner has, on 3 or more prior occasions, while incarcerated or
detained in any facility, brought an action or appeal in a court of
the United States that was dismissed on the grounds that it is
frivolous, malicious, or fails to state a claim upon which relief may
be granted, unless the prisoner is under imminent danger of serious
28 U.S.C. ' 1915(g).
In this case, the plaintiff’s motion was filed after his complaint was screened pursuant to
28 U.S.C. § 1915A and it was recommended the action be dismissed for failure to state a claim
upon which relief can be granted. Considerable time and resources already have been spent upon
the plaintiff’s case – a case he admits he has no legal ground upon which to stand.
“[A]llowing a prisoner to voluntarily dismiss a complaint ... after
screening has been completed [would] allow prisoners to frustrate Congress’s
intent behind enacting the PLRA.” Hines v. Graham, 320 F. Supp. 2d 511, 526
(N.D. Tex. 2004); Apel v. McCool, 2007 WL 4592245, at *1 (N.D. Fla. Dec. 28,
2007); Young v. Leonard, 2006 WL 3447662, at *1 (S.D. Tex. Nov.21, 2006);
Sumner v. Tucker, 9 F. Supp. 2d 641, 644 (E.D. Va. 1998) (“It would frustrate the
purpose of Section 1915(g) if an inmate was allowed to exploit this system by
filing a meritless action and waiting until after it was reviewed to move for its
Stone v. Smith, No. CV608-088, 2009 WL 368620, at *1 (S.D. Ga. Feb. 13, 2009).
The plaintiff will not be allowed to avoid a “strike” by voluntarily dismissing his case at
this juncture. Accordingly, the motion for voluntary dismissal pursuant to Fed. R. Civ. P.
41(a)(1)(A)(i) is due to be DENIED.
Having carefully reviewed and considered de novo all the materials in the court file,
including the report and recommendation and the plaintiff’s “objections,” the magistrate judge’s
report is hereby ADOPTED and the recommendation is ACCEPTED. Therefore, in accordance
with 28 U.S.C. § 1915A(b), this action is due to be dismissed without prejudice for failing to
state a claim upon which relief can be granted.
A Final Judgment will be entered.
DONE and ORDERED on January 13, 2016.
L. Scott Coogler
United States District Judge
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