GARY v. CHATMAN et al
Filing
46
ORDER adopting 15 and 43 Reports and Recommendations; GRANTING 29 Motion to Dismiss Complaint; DENYING 12 Motion for TRO and Motion for Preliminary Injunction. Plaintiff's complaint is dismissed without prejudice. Ordered by US DISTRICT JUDGE C ASHLEY ROYAL on 9/1/2016. (tlh)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
CARLTON MICHAEL GARY,
:
:
Plaintiff,
:
:
v.
:
NO. 5:15‐CV‐259 (CAR) (TQL)
:
Warden BRUCE CHATMAN, et al.,
:
:
Defendants.
:
____________________________________:
ORDER ON RECOMMENDATIONS
Before the Court are two Recommendations from the United States Magistrate
Judge: (1) the Order and Recommendation [Doc. 15] based on the preliminary screening of
Plaintiff’s Complaint recommending dismissal of some claims and allowing others to go
forward, and recommending denial of Plaintiff’s Motion for Temporary Restraining Order
[Doc. 12] (“First Order and Recommendation”); and (2) the Order and Recommendation
[Doc. 43] on Defendants’ pre‐answer Motion to Dismiss [Doc. 31] recommending dismissal
of Plaintiff’s remaining claims based on three strikes (the “Second Order and
Recommendation”).
Plaintiff filed a Notice of Appeal [Doc. 25] from the First Order and
Recommendation. However, the Order and Recommendation is not a final order subject to
appeal.1 Thus, Plaintiff’s attempt to file an interlocutory appeal of the First Order and
1 Perez‐Priego v. Alachua County Clerk of Court, 148 F.3d 1272, 1272 (11th Cir. 1998).
Recommendation does not cause this Court to lose jurisdiction of the case.2 Thus, the
Court will construe Plaintiff’s Notice of Appeal [Doc. 25] as an Objection to the First
Report and Recommendation. Having reviewed Plaintiff’s 47‐page Objection and made a
de novo determination of the portions of the Recommendation to which Plaintiff objects,
the Court finds Plaintiff’s contentions do not change the well‐reasoned outcome set forth
in the Recommendation. Thus, Plaintiff’s Objections to the First Order and
Recommendation are OVERRULED.
Plaintiff also filed an Objection to the Second Order and Recommendation wherein
he restates his claims and contentions that have been thoroughly and completely
addressed in that Recommendation. The Court need not restate those findings here.
Having fully considered the record in this case and made a de novo determination of the
portions of this Recommendation to which Plaintiff objects, the Court finds them to be
without merit. Thus, Plaintiff’s Objections to the Second Order and Recommendation are
OVERRULED.
The Recommendations [Docs. 15 and 43] are hereby ADOPTED AND MADE THE
ORDERS OF THIS COURT. Plaintiff’s Motion for Temporary Restraining Order and
Motion for Preliminary Injunction [Doc. 12] are DENIED, and Defendants’ Motion to
Dismiss [Doc. 29] is GRANTED. Plaintiff’s Complaint is hereby DISMISSED without
prejudice for the reasons set forth in the Recommendations.
2 See Natty v. Morgan, Case No. 2:12‐cv‐73‐RWS, 2014 WL 11456280, *1 (N.D. Ga. Sept. 3, 2014)
(citation omitted).
2
SO ORDERED, this 1st day of September, 2016.
SSH
__________________________________________
C. ASHLEY ROYAL
UNITED STATES DISTRICT COURT
3
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