Kellat v. Owens et al

Filing 77

ORDER denying 76 Motion to object to the Court's Order and Request for Three Judge Consideration. Signed by Judge B. Avant Edenfield on 11/19/12. (bcw)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
STATESBORO DIVISION
JOHN KELLAT,
Plaintiff,
VA

6:11-cv- 126

BRIAN OWENS; BRUCE CHATMAN;
DON JARRIEL; JOHN PAUL; Mr.
MOSELEY; Mr. STRICKLAND;
TOMMY JONES; DEAN BROOME;
SHANNON ROLAND; JOHN DOE; and
JANE DOE,
Defendants.
ORDER
Before the Court is Plaintiff's "Motion
to Object to Court's Order and Request for
Three Judge Consideration," which the
Court construes as a motion for
reconsideration.' ECF No. 75; see Good v.
United States, 627 F.3d 846, 848 (11th Cir.
2010) (holding that courts have the authority
to "look behind the label" and recharacterize pro se filings). For the
following reasons, the Court DENIES the
motion.
This is not the only case Plaintiff has
filed in federal court. Far from it. In fact,
Plaintiff—in just the last two years—has
three other lawsuits that count as strikes
under the Prison Litigation Reform Act
("PLRA"). 2 See 28 U.S.C. §§ 1915, 1915A;
'At bottom, Plaintiff's motion requests the Court
reconsider its Order of October 17, 2012 denying
Plaintiff's request to reinstate his infor,napauperis
("IFP") status. See ECF No. 72.
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The PLRA "requires frequent filer prisoners to
prepay the entire filing fee before federal courts may

Kellat v. Douglas Cnty., et al., No. 1:10-cv225 (N.D. Ga. Sept. 24, 2010); Kellat v.
Owens, No. 1:11 -cv-525 (N.D. Ga. Mar. 30,
2011); Kellat v. Douglas CnIy., et al., No.
10-15713-D (11th Cir. Apr. 7, 2011).
Plaintiff is a frequent filer under the PLRA
and as a result, this Court dismissed this
case without prejudice and required Plaintiff
to prepay the entire filing fee before he
could refile. See ECF No. 55.
Plaintiff now argues that a motion to
supplement his complaint in Kellat v.
Owens, No. 1:11-cv-525, should serve to
nullify that case as a strike for purposes of
the PLRA and thus make him re-eligible for
IFP status in his case before this Court. See
ECF No. 75-1 at 1-2. Plaintiff's argument
fails.
Judge Duffey of the Northern District
dismissed Kellat v. Owens, No. 1:11 -cv-525,
well over a year ago. See No. 1:11-cv-525,
ECF No. 8. He shortly thereafter denied
Plaintiff's motion for reconsideration. See
No. 1:11-cv-525, ECF No. 11. So, no case,
and thus no complaint, existed which
Plaintiff could supplement. The complaint
in Case No. 1:1 1-cv-525 died with the
court's dismissal and no motion to
supplement could revive it. Plaintiff needed
to refile that complaint entirely, much like
he would need to do in this case should he
want to proceed further.
Perhaps if refiled, Plaintiff's complaint
in Case No. 1:11-cv-525, enhanced by the
new facts Plaintiff alleges in his motion to
supplement, would survive a motion to
dismiss. The Court has no opinion on that
consider their lawsuits and appeals." Rivera v. Aim,
144 F.3d 719,723(11th Cir. 1998).

Regardless of the answer,
question.
however, a refiled complaint in Case No.
1:11 -cv-525, even if non-frivolous, cannot
take Plaintiff from three strikes under the
PLRA to two. Plaintiff crossed—and then
burned—that bridge before he ever tiled suit
in this Court. His IFP status in this case
therefore cannot be reinstated as a result of
the motion to supplement in Case No. 1:11 cv-525, Plaintiff's motion is DENIED.

This 8day of November 2012.

B. AVANT EONFIELD, JIGE - /
UNITED STATES DISTRIØ'[' COURT
SOUTHERN DISTRICT Ok GEORGIA

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