United States District Court, S.D. Georgia, Dublin Division
DuDLEY H. BOWEN, Jr., District Judge.
After a careful, de novo review of the file, the Court concurs with the Magistrate Judge's Report and Recommendation, to which no objections have been filed. In lieu of objections, Plaintiff filed a motion to voluntarily dismiss this case in accordance with Fed.R.Civ.P. 41(a)(1) and the recommendation of the United States Magistrate Judge. (Doc. no. 41.)
Plaintiff originally filed this case in the Middle District of Georgia, but it was transferred when it became clear that Plaintiff was complaining about events that had occurred in the Southern District. (See doc. no. 14.) When the Court first took up the case upon its arrival in the Dublin Division, Plaintiff was cautioned that, pursuant to the Prison Litigation Reform Act, "a prisoner cannot bring a new civil action... in forma pauperis if the prisoner has 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." (Doc. no. 24, p. 2.) Because of these requirements, Plaintiff was given an opportunity at that time to voluntarily dismiss his case pursuant to Fed.R.Civ.P. 41(a)(1) and not be subjected to a "strike" under 28 U.S.C. § 1915(g). (Id. at 3-4.)
Plaintiff chose to proceed with his case. The Magistrate Judge reviewed Plaintiffs pleadings in conformity with the in forma pattperis statute and recommended that Plaintiff's case be dismissed for failure to follow a court order and failure to state a claim upon which relief can be granted. (Doc. no, 37.) A dismissal for failure to state a claim, as well as a dismissal for abuse of the judicial process, counts as a strike under § 1915(g). Rivera v. Allin, 144 F.3d 719, 730-31 (11th Cir. 1998), abrogated on other grounds by Jones v. Bock, 549 U.S. 199 (2007): see also Allen v. Clark, 266 F.Appx. 815, 817 (11th Cir. 2008). Plaintiff cannot now avoid a strike by voluntarily dismissing his case. As a result, the Court DENIES Plaintiffs motion to voluntarily dismiss his case. (Doc. no. 41.)
Accordingly, the Court ADOPTS the Report and Recommendation of the Magistrate Judge as its opinion, DENIES Plaintiffs motions for emergency treatment and to stay in the Southern District of Georgia, (doc. nos. 3, 34), ...