MERIWETHER v. HOWARD et al

Filing 33

ORDER rejecting 29 Report and Recommendations and granting 25 Motion to Dismiss Complaint. As there are no remaining Defendants in this case, the Court directs the Clerk of Court to close this case and to enter judgment accordingly. Ordered by US DISTRICT JUDGE TILMAN E SELF, III on 03/14/2019. (chc)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
ROBERT L. MERIWETHER,
Plaintiff,
CIVIL ACTION NO.
5:18-cv-00126-TES-CHW

v.
PA HOWARD, et al.,
Defendants.

ORDER REJECTING THE UNITED STATES MAGISTRATE JUDGE’S
REPORT AND RECOMMENDATION

Before the Court is the United States Magistrate Judge’s Report and
Recommendation (“R&R”) [Doc. 29] to deny Defendant Jessica Battle’s 1 Motion to
Dismiss [Doc. 25] Plaintiff’s Section 1983 action against her. Defendant Battle seeks
dismissal pursuant to the Prison Litigation Reform Act’s (“PLRA”) three-strikes rule
arguing that Meriwether v. Rasnick, No. 1:00-CV-2952 (N.D. Ga. Dec. 8, 2000); Meriwether
v. Baldwin, No. 1:00-CV-2953 (N.D. Ga. Dec. 8, 2000); and Meriwether v. Hayes, No. 1:00CV-2954, 2 all constitute “strikes” under 28 U.S.C. § 1915(g). After reviewing the
magistrate judge’s R&R, Defendant Battle timely filed her objection pursuant to 28 U.S.C.
§ 636(b)(1). As such, the district court conducted a de novo review of the portions of the

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Defendant Battle is the only remaining Defendant in this case. See [Docs. 8, 14].

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Collectively referred to as the “2000 Meriwether cases.”

R&R to which objection was made, and for the reasons discussed below, REJECTS the
magistrate judge’s R&R. 28 U.S.C. § 636(b)(1)(C).
Precedent is clear that in “determining whether a prisoner has accrued three
strikes, ‘the [PLRA] instructs [courts] to consult the prior order that dismissed the action
or appeal and to identify the reasons that the court gave for dismissing it.’” [Doc. 29 at p.
2 (alterations in original) (quoting Daker v. Comm’r, Ga. Dep’t of Corr., 820 F.3d 1278, 1284
(11th Cir. 2016) (emphasis in original))]. In his R&R, the magistrate judge wrote that
“[c]ourts are not permitted to conclude that a case counts as a strike against a prisoner
‘based on [a] conclusion that the dismissing court could have dismissed it’” for one of the
grounds enumerated in § 1915(g). [Doc. 29 at pp. 2–3 (quoting Daker, 820 F.3d at 1284
(emphasis in original))]. Based on this, the magistrate judge concluded that because the
2000 Meriwether cases are not in the record for the Court’s review—to conclusively
determine whether a previous dismissing court’s reasoning for disposing of the cases can
constitute “strikes”—it cannot be said that those cases were dismissed under § 1915(g).
[Id. at p. 3]. This is undeniably true. The record before the magistrate judge, at the time
he issued his R&R, was not clear regarding the reasoning for the earlier dismissals of the
2000 Meriwether cases and whether those dismissals would count as “strikes” for
purposes of § 1915(g).
In her Objection [Doc. 30], Defendant Battle urges the Court to take judicial notice
of a 2015 order from the Northern District of Georgia which indicated that “the dockets”

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for the 2000 Meriwether cases “were dismissed pursuant to 28 U.S.C. § 1915A and that all
count as ‘strikes’ under 1915(g).” [Doc. 30 at p. 2 (quoting [Doc. 25-3 at p. 3]) (italics in
original)]. Because the PLRA instructs courts to identify the reasoning on which a court
based a previous dismissal, rather than take judicial notice of the Order from the
Northern District of Georgia, the Court deferred ruling on the magistrate judge’s R&R
until Defendant Battle could supplement her Objection with the materials received from
the National Archives. See [Doc. 30 at pp. 3–4]. Two weeks after filing her initial Objection,
Defendant Battle supplemented her Objection by filing the archived record materials
related to the 2000 Meriwether cases from the Northern District of Georgia.
A review of those materials shows that instead of filing a single, all-inclusive
lawsuit against three defendants, Plaintiff Meriwether filed three different lawsuits, with
three different case numbers, all of which were dismissed on the district court’s frivolity
review. See [Docs. 32-1, 32-2, 32-3]. In dismissing the three 2000 Meriwether cases, the
district court filed identical orders in each case reasoning that Meriwether failed to state
a claim upon which relief could be granted, one of the three bases of dismissal at the
PLRA’s frivolity-review stage. Given that the substance of these prior orders falls within
the ambit of 28 U.S.C. § 1915A, Plaintiff has incurred three strikes and the Court must
sustain Defendant Battle’s Objection. Accordingly, the Court REJECTS the United States
Magistrate Judge’s Report and Recommendation [Doc. 29] and GRANTS Defendant
Battle’s Motion to Dismiss [Doc. 25]. As there are no remaining Defendants in this case,

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the Court DIRECTS the Clerk of Court to close this case and to enter judgment
accordingly.
SO ORDERED, this 14th day of March, 2019.

S/ Tilman E. Self, III
TILMAN E. SELF, III, JUDGE
UNITED STATES DISTRICT COURT

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