Opinion
CASE NO. C19-0813-RSM
07-08-2019
GABRIEL ECKARD, Plaintiff, v. MICHAEL RIZK, et al., Defendants.
ORDER ADOPTING REPORT AN RECOMMENDATION AND DISMISSING ACTION
This matter comes before the Court on the Report and Recommendation of the Honorable Mary Alice Theiler. Dkt. #6. Plaintiff Gabriel Eckard has not filed objections. Instead, Mr. Eckard has filed a Motion to Dismiss to withdraw his Complaint without further explanation. Dkt. #7. It is clear to the Court that Mr. Eckard wishes to withdraw his Complaint to avoid dismissal counting as a strike under 28 U.S.C. § 1915(g), as recommended by Judge Theiler. This strategy is not permitted by the Court. See Love v. Jones, 2018 U.S. Dist. LEXIS 104595 (S.D. Fla. Jun. 20, 2018) ("Allowing prisoners to file multiple complaints, wait until they are screened, and then dismiss only those found to be wanting... would frustrate Congressional intent in enacting the PLRA."); Davis v. Huskipower Outdoor Equip. Corp., 936 F.2d 193, 199 (5th Cir. 1991).
28 U.S.C. § 1915(g) states, "[i]n no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury." --------
Accordingly, having reviewed plaintiff's civil rights complaint, the Report and Recommendation of Mary Alice Theiler, United States Magistrate Judge, and the remaining record, the Court hereby finds and ORDERS:
1. The Report and Recommendation (Dkt. #6) is ADOPTED;
2. Plaintiff's complaint (Dkt. #5) and this action are DISMISSED with prejudice for failure to state a claim on which relief may be granted under 28 U.S.C. § 1915(e)(2)(B)(ii). The Clerk shall count this dismissal as a strike under 28 U.S.C. § 1915(g); and
3. The Clerk is directed to send copies of this Order to plaintiff and to the Honorable Mary Alice Theiler.
DATED this 8 day of July 2019.
/s/_________
RICARDO S. MARTINEZ
CHIEF UNITED STATES DISTRICT JUDGE