Opinion
Civil Action 00-0117-CB-L
January 2, 2001
JUDGMENT
It is ORDERED, ADJUDGED, and DECREED that this action be and is hereby DISMISSED without prejudice, prior to service of process, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for Plaintiff's failure to state a claim upon which relief may be granted.
ORDER
This matter is before the Court on plaintiffs objection to the Report and Recommendation of the Magistrate Judge. The Magistrate Judge recommends that this action be dismissed, prior to service of process, for failure to state a claim upon which relief may be granted. Plaintiffs sole objection is that the complaint should not be dismissed as frivolous prior to service of process because he has paid a partial filing fee. As support for this proposition, plaintiff cites Herrick v. Collins, 914 F.2d 228 (11th Cir. 1990). wherein the Eleventh Circuit held that the complaint of a prisoner who has been permitted to proceed after paying a partial filing fee may not be dismissed prior to service of process. However, several years later Congress enacted the Prisoner Litigation Reform Act of 1995 ("PLRA"), Pub.L. No. 104-134, § 804(a), 110 Stat. 1321 (1996), which superseded the rule set forth in Herrick. The PLRA amended 28 U.S.C. § 1915 to add, inter alia, the following: "Notwithstanding any filing fee or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action . . . fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915(e)(2)(B).
Because this is a prisoner action, the plaintiff has been required to pay an initial partial filing fee (and is obligated to pay the entire filing fee) even though he has been allowed to proceed in forma pauperis. See 28 U.S.C. § 1915(b)(1). Plaintiffs payment of a partial filing fee does not entitle him to service of process before the Court considers the merits of his complaint. The Magistrate Judge, having reviewed the complaint, has determined that it does not state a claim upon which relief can be granted and has recommended dismissal. The plaintiff has asserted no substantive objection to the recommendation, and his technical objection, that is, that the payment of a partial filing fee requires service prior to dismissal, is without merit. Accordingly, it is ORDERED the Report and Recommendation of the Magistrate Judge be and hereby is ADOPTED as the opinion of this Court and that this action be and hereby is DISMISSED without prejudice.
The Clerk of Court is directed to send to the Commissioner of the Alabama Department of Corrections a copy of the Report and Recommendation recommending the dismissal of this action, a copy of this Order and a copy of the Judgment entered herewith.