Williams v. Flournay

Filing 7

ORDER ADOPTING the Magistrate Judge's 4 Report and Recommendation. The Court GRANTS Plaintiff's 5 Motion for Leave to Supplement, and Plaintiff's Complaint is hereby deemed amended. Accordingly, the Court OVERRULES Plaintiff&# 039;s Objections and DISMISSES Plaintiff's Complaint, without prejudice, pursuant to 28 U.S.C. § 1915(g). The Clerk of Court is DIRECTED to enter the appropriate judgment of dismissal and to CLOSE this case. The Court DENIES Plaintiff leave to proceed in forma pauperis on appeal. Signed by Chief Judge Lisa G. Wood on 3/25/2016. (csr)

3n the auttleb Statto Ai0tritt Court
for the 6outberu Aiotritt t Otor0a
Jgruusbttk flthiion
FRANKLIN L. WILLIAMS,
Plaintiff,
V.

J.V. FLOURNAY; CMC COUNCIL; UNIT
MANAGER; CASE MANAGER; and
REGIONAL DIRECTOR,
Defendants.

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CIVIL ACTION NO.: 2:16-cv-23

ORDER

Before the Court is the Magistrate Judge's Report and
Recommendation, dkt. no. 4, to which Plaintiff filed Objections,
dkt. no. 6. Plaintiff also filed a Motion for Leave to
Supplement his Complaint. Dkt. No. 5. For the reasons set
forth below, the Court GRANTS Plaintiff's Motion for Leave to
Supplement. Nevertheless, the Court concurs with the Magistrate
Judge's Report and Recommendation and ADOPTS the Report and
Recommendation as the opinion of the Court.
I. Motion for Leave to Supplement the Complaint

Under Federal Rule of Civil Procedure 15(a), a party may
amend a complaint "once as a matter of course at any time before
a responsive pleading is served." The Eleventh Circuit has made

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clear that the Prison Litigation Reform Act ("PLRA") does not
change this right to amend. Brown v. Johnson, 387 F.3d 1344,
1349 (11th Cir. 2004) ("We agree with the majority of circuits
that the PLRA does not preclude the district court from granting
a motion to amend. Nothing in the language of the PLRA repeals
Rule 15(a). Because [plaintiff] filed his motion to amend
before the district court dismissed his complaint and before any
responsive pleadings were filed, [plaintiff] had the right to
amend his complaint under Rule 15(a)."). Accordingly, the fact
that the Magistrate Judge has already conducted a frivolity
review of Plaintiff's Complaint and issued a Report and
Recommendation does not deprive Plaintiff of his right to amend.
Id. Thus, the Court GRANTS Plaintiff's Motion for Leave to
Supplement, and Plaintiff's Complaint is hereby deemed amended
to include the assertions contained in the Motion for Leave, as
well as the exhibits attached thereto.
II. The Magistrate Judge's Report and Recommendation

In the Report and Recommendation, the Magistrate Judge
concluded that Plaintiff's Complaint is subject to dismissal
under the "three strikes" provision of 28 U.S.C. § 1915(g). In
reviewing the Report and Recommendation, the Court has conducted
a de novo review of the entire record. That review has included
the assertions contained in the Motion for Leave to Amend which
mirror those contained in Plaintiff's Objections. Those
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I,

contentions fail to establish that Plaintiff was in imminent
danger of serious physical injury at the time he filed his
Complaint. Thus, for the reasons stated by the Magistrate
Judge, the Court cannot allow Plaintiff to proceed in forma
pauperis in this cause of action.
Accordingly, the Court OVERRULES Plaintiff's Objections and
DISMISSES Plaintiff's Complaint, without prejudice, pursuant to

28 U.S.C. § 1915(g). The Clerk of Court is DIRECTED to enter
the appropriate judgment of dismissal and to CLOSE this case.
The Court DENIES Plaintiff leave to proceed in forma pauperis on
appeal.
SO ORDERED, this

_ day of _

LISA GODY WOOD, CHIEF JUDGE
UNITED %TAS2IrRICT COURT
SOUTHEiN DISTRICT OF GEORGIA

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(Rev. 8182)

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, 2016.