Gray v. Inmate Prisoners Trust et al
MEMORANDUM OPINION. Signed by Judge L Scott Coogler on 3/31/2021. (PSM)
2021 Mar-31 PM 02:11
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
ANTWOINE D. GRAY,
INMATE PRISONERS TRUST, et al., )
Case No. 7:21-cv-00150-LSC-HNJ
The magistrate judge filed a report and recommendation on March 15, 2021,
recommending this action be dismissed without prejudice as frivolous and for failing
to state a claim upon which relief can be granted, pursuant to 28 U.S.C. §§ 1915(e)(2)
and 1915A(b). (Doc. 4). The magistrate judge notified the plaintiff of his right to
file objections within fourteen (14) days of the report and recommendation (id.), and
on March 25, 2021, the court received the plaintiff’s timely objections (doc. 5).
The majority of the plaintiff’s objections challenge the law this court must
apply, specifically 28 U.S.C. §§ 1914, 1915, and 1915A, as being “in bad faith fraud
of Fed. R. Civ. P. Rule 56(g) and Rule 60(b)(4).”1 (Doc. 5 at 1-5). However, the
Fed.R.Civ.P. 56 concerns summary judgment procedures. Those rules do not apply in this
instance, as the plaintiff’s failure to state a viable claim prevents this case from proceeding to that
point. Fed.R.Civ.P. 60 provides instructions on how to receive relief from a judgment or order.
That Rule does not apply to a magistrate judge’s report and recommendation. Rather, Fed.R.Civ.P.
72 governs the process used here. As provided in Rule 72(b), the plaintiff filed written objections
plaintiff refused to pay the applicable filing fees or file a motion to proceed in forma
pauperis, and refused to file an amended complaint (see doc. 3), after being
instructed that he had failed to state any claim, against any named defendant, upon
which relief could be granted.
A complaint “must contain sufficient factual matter … to state a claim to relief
that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
[u]nder § 1915A, the district court must review a prisoner’s § 1983
complaint “before docketing, if feasible, or, in any event, as soon as
practicable after docketing.” 28 U.S.C. § 1915A(a). The district court
must “identify cognizable claims,” id. § 1915A(b), and dismiss any
portion of the complaint that  is “frivolous, malicious, or fails to state
a claim upon which relief can be granted.” Id. § 1915A(b)(1).
Dollar v. Coweta County Sheriff Office, 446 F. App’x 248, 250 (11th Cir. 2011); see
also Iqbal, 556 U.S. at 678. “[A]n action is frivolous if it is without arguable merit
either in law or fact.” Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002)
(quotation marks omitted); see also Netizke v. Williams, 490 U.S. 319, 325 (1989).
Even if the plaintiff had complied with 28 U.S.C. §§ 1914 and 1915
concerning the costs of filing this action, because the plaintiff is a prisoner, the court
is required to review his claims, as set forth in § 1915A(a) and (b)(1). See e.g.,
to the report and recommendation and the undersigned district judge has considered those
objections as required by Rule 72(b)(3).
Caldwell v. Warden, FCI Talladega, 748 F.3d 1090, 1096 n.11 (11th Cir. 2014)
(“under 28 U.S.C. § 1915A, the district court may sua sponte dismiss a prisoner’s
complaint or any portion of the complaint for any of those four reasons [stated in §
1915A] prior to service of process.”). The plaintiff’s failure to state any valid legal
claim mandates dismissal. See e.g., White v. DeKalb Cty., 665 F. App’x 795, 797
(11th Cir. 2016). And, in any event, the court may dismiss this action based upon
the plaintiff’s refusal to comply with the court’s instructions to pay his filing fees or
file an application to proceed in forma pauperis, and to file an amended complaint.
See Wimbush v. Georgia, 673 F. App’x 965, 967 (11th Cir. 2016).
The remainder of the plaintiff’s objections are similarly nonsensical. He
alleges that “[p]ursuant to the U.S. Government Accountability Act statutes under
Title 5 Appendix 4 § 104 subsection provisions we demand federal employees
Judge’s be held accountable for not affixing the writs and court process under 28
U.S.C. § 1691, in violation of 28 U.S.C. § 563 and § 453.” (Doc. 5 at 5 (errors in
original)). As no writ or process has been issued, § 1691 has no bearing on the
plaintiff’s claims. The plaintiff’s “demand under 28 U.S.C. § 1653” (id., at 6) fares
no better, that code provision concerns amendment of pleadings to cure defective
allegations of jurisdiction. It provides no assistance to the plaintiff.
Having carefully reviewed and considered de novo all the materials in the
court file, including the report and recommendation, and the objections thereto, the
court OVERRULES the plaintiff’s objections. The magistrate judge’s report is
ADOPTED and the recommendation is ACCEPTED. Therefore, in accordance
with 28 U.S.C. §§ 1915(e)(2) and 1915A(b), this action is due to be dismissed
without prejudice as frivolous and for failing to state a claim upon which relief can
A Final Judgment will be entered.
DONE and ORDERED on March 31, 2021.
L. Scott Coogler
United States District Judge
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