Dollar v. Fairview Hospital et al

Filing 7

ORDER adopting re 4 Report and Recommendations.; denying 2 Motion for Leave to Proceed in forma pauperis; this action is Dismissed w/o prejudice. Signed by Judge Dudley H. Bowen on 8/8/11. (cmr)

CRGINAL

F L.

U.S.

Ti COUTT
AUGU;1A [fl V.

IN THE UNITED STATES DISTRICT COURT

U-8 P2L8

FOR THE SOUTHERN DISTRICT OF GEORGIA
CLER
DUBLIN DIVISION
SO. D3T. OF 4-A
WESLEY EUGENE DOLLAR,
Plaintiff,
CV 311-051

V.

FAIRVIEW HOSPITAL, C. PRESTON,
Doctor, FAIRVIEW HOSPITAL
NURSING STAFF, and NURSE MISSY,
Defendants.

ORDER

After a careful, de novo review of the file, the Court concurs with the Magistrate
Judge's Report and Recommendation, to which objections have been filed.' In the Report
and Recommendation, the Magistrate Judge determined that Plaintiff should not be allowed
to proceed informapauperis ("IFP") because he had accumulated three strikes against him
under 28 U.S.C. § 1915(g) and could not satisfy the dictates of the "imminent danger"
exception to that statute; the Magistrate Judge also concluded that even if Plaintiff were
allowed to proceed IFP, the case should be dismissed without prejudice as a sanction for
abusing the judicial process by providing dishonest information about his filing history.

'The Clerk of Court docketed Plaintiff's objections as an appeal to the District Court
of the Magistrate Judge's decision. (Doc. no. 6.) However, the filing was clearly intended
as Plaintiff's objection to Magistrate Judge's recommendation for dismissal. (See, e.g, id.
at 2 ("The Plaintiff does object to Judge W. Leon Barfield's decision with this Notice of
Appeal.").)

(Doc. no. 4, pp. 2-7) The bulk of Plaintiffs objections merely rehash his alleged claims
against Defendants, and he offers nothing to undermine the dual-basis for the Magistrate
Judge's recommendation for dismissal.2 Thus, the objections are OVERRULED.
Accordingly, the Report and Recommendation of the Magistrate Judge is ADOPTED
as the opinion of the Court. Therefore, Plaintiffs request to proceed TFP is DENIED, and
this case is DISMISSED without prejudice. If Plaintiff wishes to proceed with the claims
raised in this lawsuit, he must initiate a new lawsuit, which would require submission of a
new complaint. Dupree v. Pal

284 F.3d 1234, 1236 (11th Cir. 2002) (per curiam).

SO ORDERED this ___ y

2The Court is aware of Plaintiffs assertion that on July 20, 2011, the Eleventh Circuit
Court of Appeals ruled that Plaintiffs appeal in Dollar v. Coweta County Sheriffs Office,
No. 11-1 1285-B (11th Cir. July 20, 2011) was not frivolous. (Doe. no. 6, p. 4.) However,
the Magistrate Judge did not count that appeal as a strike. Rather, the Magistrate Judge cited
the dismissal of the underlying case by the district court as a strike because the Honorable
Willis B. Hunt, Jr., United States District Judge, dismissed the case as frivolous. (k.. at 2
(citing Wesley E. Dollar v. Coweta County Sheriffs Office, CV 310-070 (N.D. Ga. Feb. 28,
2011).) To date, that ruling by Judge Hunt has not been reversed. Moreover, the notice of
appeal in that case was filed on March 21, 2011, prior to the date Plaintiff accumulated one
of his strikes cited by the Magistrate Judge, Dollar v. Carter, No. 10-15195-A (11th Cir. Apr.
15, 2011). Thus, Plaintiffs eligibility to proceed IFP on the 11th Circuit appeal allowed to
go forward on July 20th was not determined on the same factors at issue here. In any event,
even if the underlying dismissal were to eventually be reversed, that does nothing to change
the analysis that this case is also subject to dismissal based on Plaintiffs dishonesty
concerning his prior filing history.
2