MCELWAIN v. COKER

Filing 40

ORDER adopting 34 Report and Recommendation; granting 26 Motion to Dismiss; vacating 37 Order and 38 Clerk's Judgment. Signed by CHIEF JUDGE M CASEY RODGERS on 9/17/2012. The Clerk is directed to note on the docket that this cause was dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(i),(ii), and that plaintiff has three strikes under 28 U.S.C. § 1915(g). (kdm)

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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION
WAYNE McELWAIN,
Plaintiff,
v.

CASE NO. 4:11cv393-MP-CAS

JAMES COKER and
CAPTAIN ABEL,
Defendants.
_____________________________/
ORDER
This cause comes on for consideration upon the magistrate judge's Report and
Recommendation dated July 19, 2012. (Doc. 34). The parties have been furnished a copy
of the Report and Recommendation and have been afforded an opportunity to file
objections pursuant to Title 28, United States Code, Section 636(b)(1). I have made a de
novo determination of any timely filed objections.
Having considered the Report and Recommendation, and any objections thereto
timely filed, I have determined that the Report and Recommendation should be adopted.
Accordingly, it is now ORDERED as follows:
1.

The court’s previous order adopting the magistrate judge’s Report and

Recommendation (doc. 37) and the Clerk’s judgment (doc. 38) are VACATED.1
2.

The magistrate judge’s Report and Recommendation is adopted and

incorporated by reference in this order.
3.

Defendants’ motion to dismiss (doc. 26) is GRANTED and plaintiff's amended

complaint (doc. 7) is DISMISSED as abuse of the judicial process for failing to disclose

1

The court previously granted plaintiff’s m otion for extension of tim e to file objections to the
m agistrate judge’s Report and Recom m endation and extended the deadline to August 29, 2012. Plaintiff’s
tim ely objections were provided to Century Correctional Institution on August 27, 2012, but not received by
the court until August 4, 2012. Thus, the court has reviewed plaintiff’s tim ely filed objections de novo and
entered a new order adopting the m agistrate judge’s Report and Recom m endation.

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prior cases, and because the complaint fails to state a claim upon which relief may be
granted pursuant to 28 U.S.C. § 1915(e)(2).
4.

The Clerk is directed to note on the docket that this cause was dismissed

pursuant to 28 U.S.C. § 1915(e)(2)(B)(i),(ii), and that plaintiff has three strikes under 28
U.S.C. § 1915(g).
DONE and ORDERED this 17th day of September, 2012.

s/

M. Casey Rodgers

M. CASEY RODGERS
CHIEF UNITED STATES DISTRICT JUDGE

Case No: 4:11cv393-MP-CAS