James v. U.S. Marshals et al

Filing 9

ORDER ADOPTING the 6 REPORT AND RECOMMENDATIONS as the Court's opinion, overruling Plaintiff's 8 Objections, dismissing this case without prejudice, and directing the Clerk of Court to close this case. Signed by Judge William T. Moore, Jr on 01/17/2023. (jlh)

Case 4:20-cv-00111-WTM-CLR Document 9 Filed 01/17/23 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION

CALVIN JAMES,

Plaintiff,
CASE NO. CV420-111

V.

U.S. MARSHALS and U.S.
DISTRICT COURT FOR GEORGIA

SAVANNAH DIVISION,
Defendants.

ORDER

Before the Court is the Magistrate Judge's November 9, 2022,

Report and Recommendation (Doc. 6), to which Plaintiff filed an

Objection (Doc.

8)

After

a

careful

review

of

the

record,^

Plaintiff's objections (Doc. 8) are OVERRULED, and the report and
recommendation (Doc. 6) is ADOPTED as the Court's opinion in this

^ Plaintiff also filed a ''Notice to the Court" explaining his delay
in filing his objection. (Doc. 7.) Although the Court orders
dismissal based upon Plaintiff's failure to state a claim under 28
U.S.C. § 1915(e)(2)(B) rather than his untimeliness, the Court

notes that even pro se litigants have a continuing obligation to
apprise the Court of any address change. S.D. Ga. L.R. 11.1.
2 The Court reviews de novo a magistrate judge's findings to which
a party objects, and the Court reviews for clear error the portions
of a report and recommendation to which a party does not object.
28 U.S.C. § 636(b)(1); see Merchant v. Nationwide Recovery Serv.,

Inc., 440 F. Supp. 3d 1369, 1371 (N.D. Ga. 2020) (outlining the
standard of review for report and recommendations (citing Macort
V. Prem, Inc., 208 F. App'x 781, 784 (11th Cir. 2006) (per
curiam))).

Case 4:20-cv-00111-WTM-CLR Document 9 Filed 01/17/23 Page 2 of 4

case. Plaintiff's Complaint is DISMISSED WITHOUT PREJUDICE. (Doc.
1.) The Clerk of Court is DIRECTED to close this case.

The

Magistrate

Judge

recommended

dismissing

Plaintiff's

complaint because Plaintiff named federal entities that are immune
from suit rather than individual federal officials. (Doc. 6 at 6-

7.) The Magistrate Judge also found that Plaintiff's complaint
failed to allege sufficient facts to state a claim. (Id. at 6-7.)

Plaintiff objects to the Magistrate Judge's recommendation,
arguing

that

warrant[']s

the

"Courts

existence

nor

have

provided

probable

cause

no

evidence

for

[the]

of

search

[a]
or

arrest." (Doc. 8 at 1.) Plaintiff also reasserts his argument that
Defendants are liable under Bivens v. Six Unknown Named Agents of

Federal Bureau of Narcotics, 403 U.S. 388, 91 8. Ct. 1999, 29 L.
Ed. 2d 619 (1971), but he claims the officers' identities are

unknown. (Doc. 8 at 1.) Plaintiff further objects to the Magistrate

Judge's order directing the Clerk of Court to collect filing fees
from Plaintiff's prison account until the fees are fully recovered.
(Id.)

Plaintiff's objections do not defeat the Magistrate Judge's
recommendation

that dismissal is

warranted.

Although

Plaintiff

claims the officers' identities are unknown, he does not address

the

Magistrate

Judge's

conclusion

that

he

failed

to

allege

sufficient facts to state a claim. As to Plaintiff's objection to
the Magistrate Judge's order assessing filing fees. Plaintiff has

Case 4:20-cv-00111-WTM-CLR Document 9 Filed 01/17/23 Page 3 of 4

not

established

that that the

Magistrate

Judge's

decision

is

^^clearly erroneous or contrary to law." Fed. R. Civ. P. 72(a)
(reversing a magistrate judge's ruling on a nondispositive matter
is appropriate upon a finding that the order is ^'clearly erroneous

or contrary to law[]"). Indeed, as noted by the Magistrate Judge,
under the Prison Litigation Reform Act("PLRA"), all prisoners,
even those who are allowed to proceed in forma pauperis (^^IFP"),

must pay the full filing fee of $350.00. (Doc. 6 at 2-3); 28 U.S.C.
§ 1915(b)(1). IFP status does not afford prisoners the ability to

avoid

paying

filing

fees.

Rather,

IFP

status

merely

allows

prisoners to avoid prepaying their filing fees. Thus, Plaintiff's
objection

in

this

respect

is

meritless.

Plaintiff

had

an

opportunity to avoid the obligation of paying a filing fee (Doc.
3 at 3), but he is determined to pursue frivolous, duplicative
claims without any apparent concern for the cost (Doc. 6 at 1-2).
Plaintiff's repeated failure to respond or adhere to the Court's
orders

constitutes

Plaintiff's

frustrate

an

abuse

'^three-strike"

the

purpose

of

of

the

status,

the

judicial
he

PLRA

may

process.

not

without

Given

continue

suffering

to

the

consequences, which include the payment of filing fees.

Accordingly, the Court OVERRULES Plaintiff's objections (Doc.
8),

and ADOPTS the

report and

recommendation

(Doc. 6) as the

Court's opinion in this case. Consequently, this case is DISMISSED

Case 4:20-cv-00111-WTM-CLR Document 9 Filed 01/17/23 Page 4 of 4

WITHOUT PREJUDICE.

{Doc. 1.) The Clerk of Court is DIRECTED to

close this case.

SO ORDERED this '
^

day of January 2023.

WILLIAM T. moored' JR.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA