Mangram v. Darden

Filing 8

ORDER re: 6 Report and Recommendation. Despite the Plaintiff's failure to file Objections, the Court REJECTS the Magistrate Judge's 6 Report recommending dismissal of Plaintiff's Complaint for failure to follow this Court's Orders and failure to prosecute. Plaintiff should not receive a strike in this case because he moved to dismiss the case prior to the Court's dismissal on other grounds. The Court also DENIES Plaintiff's 4 Motion for Reimbursement. The Court DISMISSES Plaintiff's 1 Complaint without prejudice and DIRECTS the Clerk of Court to enter the appropriate judgment of dismissal and to CLOSE this case. Signed by Chief Judge Lisa G. Wood on 12/19/2016. (csr)

In t|ie tliniteli States! Btsitnct Court
:lfQr t|ie ^onttiem Biotritt of d^eorgtn
Pmnolntcft BibtOton
DAN W. MANGRAM,

Plaintiff,

CIVIL ACTION NO.: 2:16-cv-49

V.

RICHARD M. DARDEN,
Defendant.

ORDER

Presently before the Court is the Magistrate Judge's
October 26, 2016, Report and Recommendation,

which Plaintiff failed to file Objections.

(dkt. no. 6), to

Despite Plaintiff's

failure to file Objections, the Court REJECTS the Magistrate
Judge's Report recommending dismissal of Plaintiff's Complaint
for failure to follow this Court's Orders and failure to

prosecute.

Nevertheless,

for the reasons stated below,

the

Court DISMISSES Plaintiff's Complaint without prejudice.^

The

^ The Magistrate Judge also recommended that this action be dismissed
without prejudice. However, the Magistrate Judge's reasoning for that
dismissal—Plaintiff's failure to prosecute and failure to follow the
Court's Orders—would result in a ^'strike" against Plaintiff under the
Prison Litigation Reform Act's three strikes provision, 28 U.S.C.
§ 1915(g).

Plaintiff should not receive a strike in this case because

he moved to dismiss the case prior to the Court's dismissal on other
grounds. Andrews v. Persley, No. 16-11943, 2016 WL 5390340 (11th Cir.
Sept.
A0 72A

(Rev. 8/82)

27,

2016).

Court also DENIES Plaintiff's Motion for Reimbursement,
no.

(dkt.

4).

In his letter requesting the return of his filing fee,
Plaintiff states that he ^^made a mistake by filing this [case]
with the Federal Court."

(Id.)

Though Plaintiff does not

specifically request dismissal, it is clear that he no longer
intends to pursue this cause of action in this Court.

Consequently, the Court construes Plaintiff s pleading as a
notice of dismissal and DISMISSES this action WITHOUT PREJUDICE

pursuant to Federal Rule of Civil Procedure 41(a)(1)(A).

However, the Court cannot reimburse Plaintiff's filing fee
upon his voluntary dismissal.

260, 261 (2d Cir. 2001)

See Coins v. Decaro, 241 F.3d

(The Prison Litigation Reform Act makes

no provision for return of filing fees upon withdrawal of
action; refund claim also encounters barrier of sovereign

immunity because funds have become property of United States);
Garner v.

FBI,

No.

CIVA 1:06CV1959 MHS,

(N.D. Ga. Oct. 10, 2006)

2006 WL 2917381,

at *1

(denying refund of filing fee despite

plaintiff's admission that she did not file action properly);
Morris v. Bush, No. 108-CV-00208-MP-AK,

(N.D. Fla. Dec. 9, 2008)

2008 WL 5231843, at *2

(^'[W]hen a complaint is dismissed, the

filing fee is not refimded to the Plaintiff.").

Consequently,

the Court DENIES Plaintiff s request for the refund of his
filing fee.

The Court DISMISSES Plaintiff's Complaint without prejudice

and DIRECTS the Clerk of Court to enter the appropriate judgment
of dismissal and to CLOSE this case

SO ORDERED, this (^

of ^

C
{T

LISA ^DBEY WOOD, CHIEF JUDGE
unitz!d states district court
5QUTHERN DISTRICT OF GEORGIA

A0 72A

(Rev. 8/82)

2016.