Perez v. Fed. Bureau of Prisons et al

Filing 38

ORDER. ORDERED that the Recommendation of United States Magistrate Judge 37 is ACCEPTED. ORDERED that this case is dismissed in its entirety. ORDERED that all parties to this action shall bear their own costs and fees. ORDERED that, given the ci rcumstances of this case, this order shall not be considered a dismissal on the grounds that this case is "frivolous, malicious, or fails to state a claim upon which relief may be granted for purposes of the Prisoner Litigation Reform Act's "three strikes" provision, 28 U.S.C. § 1915(g). Signed by Judge Philip A. Brimmer on 03/24/16.(jhawk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 15-cv-02854-PAB-NYW
MICHAEL A. PEREZ,
Plaintiff,
v.
FEDERAL BUREAU OF PRISONS,
OFFICER SHEPARD,
OFFICER J. LEE,
NURSE MCKIEVER,
LIEUTENANT ANTHONY, and
ERIC EARWIN,
Defendants.

ORDER

This matter is before the Court on the Recommendation of United States
Magistrate Judge [Docket No. 37] filed on March 23, 2016 (the “Recommendation”).
On March 9, 2016, plaintiff filed a letter in which he indicated that he did not intend to
file this lawsuit. Docket No. 32 at 1. Plaintiff stated that the lawsuit was filed by another
inmate without plaintiff’s permission and that plaintiff wishes to “pull out [of] this civil
action.” Id. at 2. On March 21, 2016, Magistrate Judge Wang held a status conference
in which plaintiff repeated, under oath, that he never authorized the other inmate to file
suit on his behalf and that he does not want to pursue this case. Docket No. 37 at 2.
At the same status conference, counsel for defendants indicated that he had no
objection to dismissal of this action. Id. Accordingly, the magistrate judge recommends

dismissal of this lawsuit. The magistrate judge also recommends that this case “should
not count as a ‘strike’ against [p]laintiff Michael A. Perez for the purposes of the
Prisoner Litigation Reform Act.” Docket No. 37 at 3. 1
The Recommendation states that objections to the Recom mendation must be
filed within fourteen days after service on the parties. See 28 U.S.C. § 636(b)(1)(C).
Given the unusual circumstances of this case, the fact that plaintiff stated under oath
that he had no intention of filing this lawsuit and does not wish for the lawsuit to
continue, and the fact that counsel for defendants has indicated that he does not object
to dismissal of this lawsuit, the Court finds that dismissal with prejudice is appropriate at
this time.
Plaintiff did not voluntarily file this lawsuit and promptly cooperated in seeking
dismissal. The Court therefore exercises its discretion pursuant to Fed. R. Civ. P. 54(d)
and will not award defendants their costs. Rodriguez v. Whiting Farms, Inc., 360 F.3d
1180, 1190 (10th Cir. 2004) (“W hether or not a prevailing party shall be awarded costs
is ‘within the court’s sound discretion’”) (quoting Homestake Mining Co. v. MidContinent Exploration Co., 282 F.2d 787, 804) (10th Cir. 1960)).

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The Prisoner Litigation Reform Act includes a “three strikes” rule that provides:

[i]n 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 physical injury.
28 U.S.C. § 1915(g).

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Accordingly, it is
ORDERED that the Recommendation of United States Magistrate Judge [Docket
No. 37] is ACCEPTED. It is further
ORDERED that this case is dismissed in its entirety. It is further
ORDERED that all parties to this action shall bear their own costs and fees. It is
further
ORDERED that, given the circumstances of this case, this order shall not be
considered a dismissal on the grounds that this case is “frivolous, malicious, or fails to
state a claim upon which relief may be granted” for purposes of the Prisoner Litigation
Reform Act’s “three strikes” provision, 28 U.S.C. § 1915(g).

DATED March 24, 2016.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

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