Bradshaw v. Perdue et al

Filing 7

ORDER denying 2 Motion for Leave to Proceed in forma pauperis; adopting 3 Report and Recommendations; denying as moot 5 Motion to Appoint Counsel and 6 Motion to Amend/Correct. Therefore, plaintiff's complaint is dismissed and this action is closed. Signed by Judge Dudley H. Bowen on 10/15/13. (cmr)

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srArES
DISTRICT
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I5
2OIS()CT AI{II: 03
DISTRICT GEORGIA
OF
SOUTHERN
FORTHE
DUBLIN DIVISION
VICTORBRADSHAW.
Plaintiff,

cv 313-049
et
SONNYPERDUE, al.,
Defendants.

ORDER
After a careful,de novo review of the file, the Court concurswith the Magistrate
("R&R"), to which objections
Judge's
ReportandRecommendation
havebeenfiled (doc.
Judgerecommended
denyingPlaintiff s motion to proceed
ln
no. 6).t The Magistrate
his
to
forma pauperis('IFP") and dismissing complaintwithout prejudicepursuant 28
he
as
U.S.C. $ 1915(9)because had three prior federallawsuitsthat were dismissed
frivolous or failing to state a claim and he failed to show that he qualified lor the
physicalinjury" exception. (Doc. no. 3.) The Magistrate
"imminentdangerof serious
Judgefou4d that Plaintiff did not quali$,for the "imminentdanger"exception
because
in
only his arrestandextradition 2010. (Id. a1
in
concemed
the allegations his complaint

t Although Plaintiffs submission docketedas a motion to amend, it also
is
Judge's
R&R. (Seedoc. no. 6, p.2.)
his objections the Magistrate
to
contains

underFed.R. Civ. P.
After the R&R was frled,Plaintiff frled a motionto amend
in
15(a),statingthat he is in fact in imminentdanger"simply by being incarcerated
pleadinghas beenfiled, Plaintiff may
prison.'t (Doc. no. 6, p. 2.) As no responsive
amendas a matterof right without an orderfrom the Court. SeeFed.R. Civ. P. 15(a).
Therefore,
Plaintiff s Motion for Leaveto Amendis MOOT. (Doc. no. 6.) However,
under Fed. R. Civ. P. 15(a),a tequestto amendis properlydeniedif the requested
First. LLC v. McCart)',605 F.3d 865, 870
would be futile. SeeCoventr.v
amendment
(l I th Cir. 2010)("A proposed
may
for
amendment be denied futility 'whenthecomplaint
510 F.3d
would still be properlydismissed. (quotingCockell v. Sparks,
as amended
"'
(llth Cir.2007)).
r307,1310
that he is in imminentdangersimply by being in
Here, Plaintiff baldly asserts
prison,but he fails to enumerate specificfactsor reasons support
any
to
sucha claim. As
to
physical
suc\ his assertion plainlyinsufficient showany imminentdanger serious
is
of
v.
injuryat the time he filed his complaint.SeeMedberry Butler,185F.3d 1189,1193
(l lth Cir. 1999).Thus,evenif Plaintiffwereto amend complaint, wouldstill fail to
his
it
to
for
showthathe is in imminentdanger, would still be subject dismissal thereasons
and

' Plaintiff also argues in his motion to amend that two of his prior caseswere
of$ l9l5(g). (Seedoc.no.6, p.2.) However,
improperly
foundto be "strikes"for purposes
without merit andthus his obiections OVERRULED.
are
Plaintiff s arzuments
are

the
to
statedin the MagistrateJudge'sR&R. Therefore, Court finds it inappropriate
his
as
to
allowPlaintiff amend complaint requested.l
of
Accordingly, the Report and Recommendation the MagistrateJudge is
ADOPTED as the opinion of the Coun.

Therefore, Plaintiff s complaint is

DISMISSED,his request proceed is DENIED (doc.no. 2), andthis civil actionis
to
IFP
with the claimsraisedin this lawsuit,he must
CLOSED. If Plaintiff wishesto proceed
v.
284 F.3d 1234,1236
initiatea new lawsuitby filing a new complaint.Dupree Palmer,
(l lth Cir. 2002)
(percuriam).
2013,at Augusta,
th
Georgia.
SOORDERED is /y'%ay ot October,

'Plaintiffalso filed a motionto appointcounsel
afterthe R&R wasissued.(Doc.
the
Judge'sfinding that this
no. 5.) Because Court is hereinadoptingthe Magistrate
action shouldbe dismissed
under 28 U.S.C. $ 1915(9),Plaintiff s motion to appoint
counsel DENIED asMOOT.
is
l