Edwards v. Coffee County Facility et al

Filing 40

ORDER ADOPTING 36 Report and Recommendations of the Magistrate Judge, as supplemented herein, as the opinion of the Court. The Court DISMISSES Plaintiff's Complaint, without prejudice, pursuant to 28 U.S.C. § 1915(g) and DENIES Plaintiff in forma pauperis status on appeal. Moreover, all pending Motions are DISMISSED AS MOOT. The Clerk is DIRECTED to enter the appropriate judgment of dismissal and to CLOSE this case. Signed by Chief Judge Lisa G. Wood on 1/25/2016. (ca)

n the Eniteb Otatto flitrttt Court
for the southern flttritt of Otorgia
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RANDY EDWARDS,,
Plaintiff,
V.

COFFEE COUNTY FACILITY;
CORRECTIONS CORPORATION OF
AMERICA; GRADY PERRY; JOHN PAUL;
GEORGIA DEPARTMENT OF
CORRECTIONS; HOMER BRYSON;
STATE OF GEORGIA; NATHAN DEAL;
and STATE BOARD OF PARDONS AND
PAROLE,
Defendants.

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CIVIL ACTION NO.: 5:15-cv-34

ORDER

After an independent and de novo review of the record, the
undersigned concurs with the Magistrate Judge's December 30,
2015, Report and Recommendation, dkt. no. 36, to which no
objections have been filed. The Court ADOPTS the Report and
Recommendation, as supplemented herein, as the opinion of the
Court.
The Magistrate Judge recommended that the Court dismiss
Plaintiff's Complaint pursuant to the three strikes provision of
the Prison Litigation Reform Act ("PLRA"), 28 U.S.C. § 1915(g).
After the issuance of the Report and Recommendation, Plaintiff
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(Rev. 8/82)

filed a Notice of Voluntary Dismissal. Dkt. No. 38. Federal
Rule of Civil Procedure 41(a) permits a plaintiff to
unilaterally dismiss a case before the opposing party serves an
answer or a motion for summary judgment. However, a
plaintiff's right to dismiss is "[s]ubject to ... any applicable
federal statute[.]" Fed. R. Civ. P. 41(a). Consequently,
Plaintiff cannot avoid the operation of the PLPA by stipulating
to dismissal of his action after the issuance of the Report and
Recommendation. See Wilson v. Freesemann, No. CV407-059,
WL 2083827,

2007

at *1 (S.D. Ga. July 13, 2007) ("28 U.S.C. § 1915(a)

prevents a prisoner from avoiding a 28 U.S.C. § 1915(g) 'strike'
merely by exploiting Rule 41(a) in the face of an adverse Report
and Recommendation.").
Further, the Court cautioned Plaintiff early in this
litigation that the PLRA would require the Court to dismiss this
action if Plaintiff had on three or more prior occasions, 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. Dkt.
No. 8, p. 2. Moreover, the Court afforded Plaintiff an
opportunity to voluntarily dismiss his Complaint prior to
submitting the forms enclosed with that Order, thereby avoiding
payment of the filing fee or receiving another "strike" under

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2

§ 1915(g) . Id. at pp. 2-3

Plaintiff did not avail himself of

that opportunity.
Consequently, the Court DISMISSES Plaintiff's Complaint,
without prejudice,

pursuant to 28 U.S.C. § 1915(g) and DENIES

Plaintiff in forma pauperis status on appeal. Moreover, all
pending Motions are DENIED AS MOOT.

The Clerk of the Court is

DIRECTED to enter the appropriate judgment of dismissal and to
CLOSE this case.
SO ORDERED,

this

day of

LISA GODEE WOOD, CHIEF JUDGE
UNITED STE DISTRICT
T
SOUTHERN /DIST
GEORGIA

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(Rev. 8/82)

3

2016.