McCrimmon v. Marchant et al

Filing 10

ORDER adopting re 7 Report and Recommendations.; denying 9 Motion to Withdraw. Therefore, pla's case is dismissed for failure to state a claim upon wich relief can be granted and this civil action is Closed. Signed by Judge Dudley H. Bowen on 3/18/11. (cmr)

-WLB McCrimmon v. Marchant et al

Doc. 10

TIGINAI
IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA DUBLIN DIVISION DONALD MCCRIMMON, Plaintiff, V. JOSEPH I. MARCHANT, et al., Defendants. CV 310-074
FILED U.S. DISTRICT COURT A W 14 2011 MAR 18 P12U C'LER

ORDER
After a careful, de novo review of the file, the Court concurs with the Magistrate Judge's Report and Recommendation (R&R"), to which no objections have been filed. In lieu of objections, Plaintiff filed a motion to dismiss, seeking dismissal of the abovecaptioned case without prejudice so that he may bring his claims in state court.' (Doe. no. 9.) When Plaintiff first filed his lawsuit he was cautioned that the Prison Litigation Reform Act provides: that a prisoner cannot bring a new civil action or appeal a judgment in a civil action informapauperis if the prisoner has on three or more prior occasions,

'In the R&R, the Magistrate Judge reasoned that Plaintiff failed to state a § 1983 claim for violation of his due process rights because Georgia law provides an adequate postdeprivation remedy for the loss of his property in the form of a statutory conversion action. (See doe. no. 7, pp. 3-4 (citing O.C.G.A. § 51-10-1).) In addition to requesting the dismissal of his case, Plaintiff appears to ask the Court's permission to allow him to proceed against Defendants in state court. (See doe. no. 9, P. 1.) While the Court makes no comment on the validity of any conversion action that Plaintiff may bring under Georgia law, Plaintiff should be aware that he does not need this Court's permission to file a case in state court.

Dockets.Justia.com

while incarcerated, brought a civil action or appeal in federal court that was dismissed because it was frivolous, malicious, or failed to state a claim upon which relief may be granted. (Doc. no. 3, p. 2). Because of these requirements, Plaintiff was given an opportunity at that time to voluntarily dismiss his complaint pursuant to Fed. R. Civ. P. 41(a)(1) and not be subjected to a "strike" under 28 U.S.C. § 1915(g). Qd. at 3.) Plaintiff chose to proceed with his case. On January 31, 2011, the Magistrate Judge reviewed Plaintiffs complaint in conformity with the in forma pauperis statute and recommended that Plaintiff's complaint be dismissed for failure to state a claim upon which relief can be granted. (Doc. no. 7.) Plaintiff cannot now avoid a strike by voluntarily dismissing his case. As a result, Plaintiff's motion to voluntarily dismiss his case is
DENIED. (Doc. no. 9.)

Accordingly, the Report and Recommendation of the Magistrate Judge is ADOPTED as the opinion of the Court. Therefore, Plaintiffs case is DISMISSED for failure to state a claim upon which relief can be uTmited, and this civil action is CLOSED. SO ORDERED this fMarch, 2011, at Augusta, Georgia.