LUDY v. NELSON et al

Filing 26

ORDER ADOPTING 24 Report and Recommendations, GRANTING 18 Defendants' Motion to Dismiss Complaint; DENYING 25 Plaintiff's Motion to Dismiss Complaint; DENYING as moot 10 Motion to Amend/Correct; DENYING as moot 11 Motion to Amend/Correct; DENYING as moot 14 Motion for Permanent Injunction. Ordered by U.S. District Judge MARC THOMAS TREADWELL on 2/5/2014. (tlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
MITCHELL LAVERN LUDY,

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Plaintiff,
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v.
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CYNTHIA NELSON, et al.,
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Defendants.
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________________________________)

CIVIL ACTION NO. 5:13-CV-353 (MTT)

ORDER
This matter is before the Court on the Recommendation of United States
Magistrate Judge Stephen Hyles. (Doc. 24). After reviewing the Defendants’ motion to
dismiss (Doc. 18), the Magistrate Judge recommends granting the motion because the
Plaintiff has abused the judicial process by failing to disclose prior lawsuits on his
Section 1983 complaint form. The Magistrate Judge also recommends denying the
Plaintiff’s motions to amend his complaint (Docs. 10, 11) and his motion for injunctive
relief (Doc. 14) as moot. The Plaintiff did not file an objection to the Recommendation
but, instead, filed a motion for voluntary dismissal pursuant to Fed. R. Civ. P.
41(a)(1)(A), claiming his “complaint was done in such haste that [he] committed to[o]
many inadvertent errors.” (Doc. 25 at 1).
The Plaintiff contends he has an “unqualified right” to voluntarily dismiss his case
without prejudice prior to the filing of the Defendants’ answer. (Doc. 25 at 2). The
Prison Litigation Reform Act (“PLRA”), however, “does not permit this type of

gamesmanship.” Stone v. Smith, 2009 WL 368620, at *1(S.D. Ga.). Rule 41(a) is
trumped by the PLRA’s screening and three-strikes provisions, and the Plaintiff may not
voluntarily dismiss his case to circumvent the three-strikes provision once it has been
recommended that his case be involuntarily dismissed for abuse of the judicial process.
See id. at *1-2.
The Court has reviewed the Recommendation, and the Recommendation is
adopted and made the order of this Court. The Defendants’ motion to dismiss is
GRANTED. The Plaintiff’s motions to amend and for injunctive relief (Docs. 10, 11, 14)
are DENIED as moot. The Plaintiff’s motion to voluntarily dismiss (Doc. 25) is DENIED.
The Court determines that its decision in this case is a strike for purposes of 28 U.S.C.
§ 1915(g), the so-called "three strikes provision" of the PLRA. See Rivera v. Allin, 144
F.3d 719, 731 (11th Cir. 1998), abrogated on other grounds by Jones v. Bock, 549 U.S.
199 (2007) (“[D]ismissal for abuse of the judicial process is precisely the type of strike
that Congress envisioned when drafting section 1915(g).”).
SO ORDERED, this the 5th day of February, 2014.

S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT

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