Adan v. Dekalb County District Attorney et al

Filing 5

OPINION AND ORDER adopting Magistrate Judge Janet F. Kings Final Report and Recommendation 3 , denying Plaintiff in forma pauperis status and dismissing this action without prejudice. Signed by Judge William S. Duffey, Jr on 8/18/16. (ddm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
SALEEBAN ADAN,
Plaintiff,
v.

1:15-cv-4392-WSD

DEKALB COUNTY DISTRICT
ATTORNEY and BALDWIN
COUNTY DISTRICT ATTORNEY,
Defendants.

OPINION AND ORDER
This matter is before the Court on Magistrate Judge Janet F. King’s Final
Report and Recommendation [3] (“R&R”). The R&R recommends the Court deny
Plaintiff Saleeban Adan (“Plaintiff”) in forma pauperis status and dismiss this
action without prejudice.
I.

BACKGROUND
On December 16, 2015, Plaintiff, confined in Georgia State Prison in

Reidsville, Georgia, filed his pro se complaint [1].
On January 21, 2016, the Magistrate Judge issued her R&R. In it, she noted
that 28 U.S.C. § 1915(g) does not allow a prisoner to bring an in forma pauperis
civil action in federal court “if the prisoner has, on 3 or more prior occasions, while

incarcerated . . . , 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). Accordingly, the Magistrate Judge
recommends this action be dismissed without prejudice. Plaintiff did not file any
objections to the R&R, and has not otherwise taken any action in this case.
II.

ANALYSIS
A.

Legal Standard

After conducting a careful and complete review of the findings and
recommendations, a district judge may accept, reject, or modify a magistrate
judge’s report and recommendation. 28 U.S.C. § 636(b)(1); Williams
v. Wainwright, 681 F.2d 732 (11th Cir. 1982), cert. denied, 459 U.S. 1112 (1983).
No party objects to the R&R, and the Court thus conducts a plain error review of
the record. See United States v. Slay, 714 F.2d 1093, 1095 (11th Cir. 1983).
B.

Discussion

A prisoner may not file an in forma pauperis civil action in federal court “if
the prisoner has, on 3 or more prior occasions, while incarcerated . . . , 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
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granted, unless the prisoner is under imminent danger of serious physical injury.”
28 U.S.C. § 1915(g). When Section 1915(g) does not allow a prisoner to proceed
in forma pauperis, the complaint should be dismissed without prejudice, and a
prisoner wishing to pursue his or her claims must refile the action with full
payment of the filing fee. See Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir.
2002).
The Magistrate Judge determined that Plaintiff, while incarcerated, filed at
least three civil actions that have been dismissed as frivolous, malicious, or for
failure to state a claim. She determined Plaintiff does not show he is in imminent
threat of serious injury, and recommends the Court deny Plaintniff in forma
pauperis status and dismiss this action. The Court finds no plain error in these
findings and recommendation, and this action is dismissed without prejudice. See
Slay, 714 F.2d at 1095.
III.

CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Magistrate Judge Janet F. King’s Final

Report and Recommendation [3] is ADOPTED.
IT IS FURTHER ORDERED that Plaintiff is DENIED in forma pauperis
status.
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IT IS FURTHER ORDERED that this action is DISMISSED
WITHOUT PREJUDICE.

SO ORDERED this 18th day of August, 2016.

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