Cook v. Bryson

Filing 13

ORDER adopting 9 Report and Recommendations; denying 10 Motion for Voluntary Dismissal, dismissing this case for failure to state a claim, and denying Plaintiff leave to proceed in forma pauperis on appeal. The Clerk of Court is hereby authorized and directed to enter an appropriate Judgment of Dismissal. Signed by Judge J. Randal Hall on 02/02/2016. (thb)

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

MARCEL COOK,

Plaintiff,

CIVIL ACTION NO.: 6:15-cv-46

v.

HOMER BRYSON,
Defendant.

ORDER

After an independent and de novo review of the entire record, the undersigned concurs
with the Magistrate Judge's Report and Recommendation, (doc. 9), to which no Objections have

been filed.

Accordingly, the Report and Recommendation of the Magistrate Judge, as

supplemented herein, is adopted as the opinion of the Court.
The Magistrate Judge conducted an initial review of Plaintiff s Complaint pursuant to the

Prison Litigation Reform Act ("PLRA"), 28 U.S.C. § 1915, and recommended that the

Complaint be dismissed for failure to state a claim.

After the issuance of the Report and

Recommendation, Plaintiff filed a Motion to Voluntarily Dismiss without prejudice. (Doc. 10.)
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 plaintiffs

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 PLRA by stipulating to dismissal of his
action after the issuance of the Report and Recommendation. See Wilson v. Freesemann, No.
CV407-059, 2007 WL 2083827, 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 regarding the requirements of the PLRA. (Doc. 4.) 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 § 1915(g).
Id. Plaintiff did not avail himself of that opportunity.
Consequently, the Court DENIES Plaintiffs Motion for Voluntary Dismissal (doc. 10),
DISMISSES this case for failure to state a claim, and DENIES Plaintiff leave to proceed in
forma pauperis on appeal. The Clerk of Court is hereby authorized and directed to enter an
appropriate Judgment of Dismissal.
n

SO ORDERED, this ,d?

clay ofFebruary, 2016.

HONORABLE J. RANDAL HALL

UNITED^TATES DISTRICT JUDGE
}UTH£RN DISTRICT OF GEORGIA