Opinion
4:20cv470-WS/MJF
01-07-2021
PROPHET PAULCIN, Plaintiff, v. MARK S. INCH, Defendant.
ORDER OF DISMISSAL
Before the court is the magistrate judge's report and recommendation (ECF No. 8) docketed November 4, 2020. The magistrate judge recommends that Plaintiff's case be dismissed as malicious under 28 U.S.C. § 1915A for abuse of the judicial process. Plaintiff has filed no objections to the report and recommendation but, instead, has filed a motion (ECF No. 11) to voluntarily dismiss the case.
The undersigned has reviewed the record and finds, as did the magistrate judge, that Plaintiff's case should be dismissed as malicious under 28 U.S.C. § 1915A based on Plaintiff's abuse of the judicial process.
Inasmuch as Congress intended the Prison Litigation Reform Act ("PLRA"), including § 1915A, to reduce baseless prisoner litigation, courts have generally determined that a prisoner may not voluntarily dismiss an action where, as here, screening has been completed and an adverse recommendation has been rendered. See, e.g., Grider v. Thomas, No. 2:12-cv-02674-WMA, 2013 WL 2443828, at *1 (N.D. Ala. June 5, 2013) (denying the plaintiff's motion for voluntary dismissal, filed after an adverse report and recommendation was entered, noting that "the rationale of [the PLRA] would not be served by granting the plaintiff's motion for voluntary dismissal"); Stone v. Smith, No. CV608-088, 2009 WL 368620, at *2 (S.D. Ga. Feb. 13, 2009) (denying the plaintiff's motion for voluntary dismissal, filed after screening and an adverse report and recommendation, noting that "the PLRA's screening and three-strikes provisions trump the civil rule," Fed. R. Civ. P. 41(a), allowing voluntary dismissal); see also Wilson v. Beardon, 3:20cv5260-LAC/EMT, 2020 WL 3105554 at * 1 (N.D. Fla. May 8, 2020) (Timothy, Mag. J.) (recommending denial of the plaintiff's motion to voluntarily dismiss, filed after the magistrate judge screened the complaint and recommended dismissal of the complaint as malicious, noting that a prisoner "cannot unilaterally dismiss this case for the purpose of avoiding the entry of an order of dismissal and a strike against him based on the dismissal"), report and recommendation adopted by Collier, J., on June 11, 2020. Consistent with decisions in the above-cited cases, Plaintiff's motion for voluntary dismissal is due to be denied.
Accordingly, it is ORDERED:
1. The magistrate judge's report and recommendation (ECF No. 8) is ADOPTED and incorporated by reference into this order.
2. Plaintiff's complaint and this action are DISMISSED as malicious pursuant to 28 U.S.C. § 1915A, based on Plaintiff's abuse of the judicial process.
3. The clerk shall enter judgment stating: "This action is dismissed as malicious under 28 U.S.C. § 1915A."
4. Plaintiff's motion for voluntary dismissal is DENIED.
5. The clerk shall close the case.
DONE AND ORDERED this 7th day of January, 2021.
s/ William Stafford
WILLIAM STAFFORD
SENIOR UNITED STATES DISTRICT JUDGE