Cobble v. Hill et al

Filing 5

ORDER: The Court OVERRULES the 4 Objections, ADOPTS the 2 R&R as the opinion and order of the Court, and DISMISSES this action WITHOUT PREJUDICE pursuant to § 1915(g). The Clerk shall close the case. Signed by Judge Richard W. Story on 05/17/16. (sk)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
DAYID COBBLE,
Plaintiff,

PRISONER CIVIL RIGHTS
42 U.S .C. § 1983

v.
MS. HILL, Supervisor; OFFICER D.
RICHARDSON; and OFFICER M.
VIDAL,
Defendants.

CIVIL ACTION NO.
1: 16-CV-1305-RWS

ORDER
This case is before the Court on plaintiff David Cobble's Objections [4] to the
Final Report and Recommendation ("R&R") [2], which recommends that this action
be dismissed without prejudice pursuant to 28 U.S.C. § 1915(g).
In reviewing a Magistrate Judge's Report and Recommendation, the district
court "shall make a de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made." 28 U.S.C.
§ 636(b )(1 ). "Parties filing objections to a magistrate's report and recommendation
must specifically identify those findings objected to. Frivolous, conclusive, or general
objections need not be considered by the district court." United States v. Schultz, 565
F.3d 1353, 1361 (11th Cir. 2009) (per curiam) (quoting Marsden v. Moore, 847 F.2d
1536, 1548 (11th Cir. 1988)) (internal quotation marks omitted). Absent objection,

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the district judge "may accept, reject, or modify, in whole or in part, the findings and
recommendations made by the magistrate judge," 28 U.S.C. § 636(b )(1 ), and "need
only satisfy itself that there is no clear error on the face of the record in order to accept
the recommendation," Fed. R. Civ. P. 72, advisory committee note, 1983 Addition,
Subdivision (b ). Further, "the district court has broad discretion in reviewing a
magistrate judge's report and recommendation" - it "does not abuse its discretion by
considering an argument that was not presented to the magistrate judge" and "has
discretion to decline to consider a party's argument when that argument was not first
presented to the magistrate judge." Williams v. McNeil, 557 F.3d 1287, 1290-92
(11th Cir. 2009).
A prisoner may not bring a civil action in federal court in forma pauperis "if
[he] has, on 3 or more prior occasions, while incarcerated or detained in any facility,
brought an action or appeal in a court of the United States that was dismissed on the
grounds that it [was] frivolous, malicious, or fail[ ed] to state a claim upon which relief
may be granted, unless the prisoner is under imminent danger of serious physical
injury." 28U.S.C. § 1915(g). Plaintiffdoesnotdisputethathehasfiledatleastthree
prior cases while incarcerated that were dismissed as frivolous or for failure to state
a claim. See Cobble v. Governor of Georgia, No. 1:07-CV-0516-RWS (N.D. Ga. Mar.
2

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29, 2007); Cobble v. Ault, No. 1:94-CV-1121-RCF (N.D. Ga. July 8, 1994); Cobble
v. Newsome, No. 4:93-CV-0167-HLM (N.D. Ga. Aug. 25, 1993). 1 Plaintiff further
does not contend that he is under imminent danger of serious physical injury. Rather,
plaintiff asserts that he did "not seek leave to proceed in forma pauperis," but
maintains that he submitted a letter with his Complaint asking the Court "to attach his
bank account and order branch manager to withdraw amount of filing fee for his
complaint and mail it to Clerk of Court." (Objections at 1.)
However, plaintiff may not simply pay the filing fee after the Court has
determined that the three strikes provision of§ 1915(g) applies. Dupree v. Palmer,
284 F.3d 1234, 1236 (11th Cir. 2002) (per curiam). "He must pay the filing fee at the
time he initiates the suit." Id. Furthermore, the docket does not show that plaintiff
submitted a letter with his Complaint, and, in any event, the Court has no authority to
order a private bank to pay plaintiffs filing fee.

1

Dismissals under former 28 U.S.C. § 1915(d) count as strikes under§ l 9 l 5(g).
Perry v. Schack, No. 09-21771-CIV, 2009 WL 2369211, at *3 (S.D. Fla. July 31 ,
2009) (citing Medberry v. Butler, 185 F .3d 1189, 1192 (11 th Cir. 1999)), report and
recommendation adopted at, * 1.
3

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Accordingly, the Court OVERRULES the Objections [4], ADOPTS the R&R
[2] as the opinion and order of the Court, and DISMISSES this action WITHOUT

PREJUDICE pursuant to § 1915(g). The Clerk shall close the case.
SO ORDERED, this

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day of

4

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'2016.