Woodyard v. King et al, No. 1:2022cv00183 - Document 12 (S.D. Ala. 2022)

Court Description: MEMORANDUM OPINION AND ORDER, 11 Objection is OVERRULED as set out. 6 Report and Recommendation is ADOPTED as set out. It is ORDERED that this action be DISMISSED without prejudice as malicious malicious pursuant to 28 U.S.C. § 1915(e)(2)(B)(i), and that the action be counted as a strike for the purposes of 28 U.S.C. § 1915(g). A Separate judgment will issue pursuant to to Fed. R. Civ. P. 58. Signed by District Judge Terry F. Moorer on 10/31/2022. Copy to Plt. (fz)

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Woodyard v. King et al Doc. 12 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION DRAPER FRANK WOODYARD, #183250, Plaintiff, vs. J. KING, et al., Defendants. ) ) ) ) ) ) ) ) ) ) CIV. ACT. NO. 1:22-cv-183-TFM-MU MEMORANDUM OPINION AND ORDER On July 7, 2022, the Magistrate Judge entered a Report and Recommendation that this action be dismissed prior to service of process pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). See Doc. 6. Plantiff timely filed objections to the Report and Recommendation on July 19, 2022. See Doc. 8. Subsequently, Plaintiff filed a motion for a subpoena which the Magistrate Judge denied. See Docs. 9, 10. On October 5, 2022, Plaintiff filed objections to the order denying the subpoena. See Doc. 11. The Court will address all matters here. The Court will first address the “Objection to Doc. 10” wherein he clearly objects to the Magistrate Judge’s order denying the request for a subpoena. See Doc. 11. Pursuant to Fed. R. Civ. P. 72(a), “[a] party may serve and file objections to the order within 14 days after being served with a copy…[then the] district judge in the case must consider timely objections and modify or set aside any part of the order that is clearly erroneous or contrary to law.” In these objections, Plaintiff lodges general criticisms at the Magistrate Judge and allegations of bias. However, the objections do not overcome the fact that this case was already before the undersigned on a report and recommendation for dismissal and if dismissed, then no subpoena would issue. Further, discovery does not commence until after the Defendants have answered and the parties have Page 1 of 2 Dockets.Justia.com conducted a discovery conference pursuant to Fed. R. Civ. P. 26(f). In the case at hand, Plaintiff filed a motion to proceed in forma pauperis and therefore the Court is required to review his Complaint under 28 U.S.C. § 1915(e)(2)(B) and therefore service of process on the defendants was stayed pending the review. Therefore, the Magistrate Judge’s order denying the subpoena is not clearly erroneous and the objections (Doc. 11) are OVERRULED. The Court now turns to the Report and Recommendation and related objections. The Magistrate Judge identified misrepresentations of Plaintiff’s litigation history in that he failed to disclose multiple lawsuits when he filed his complaint as is required for an inmate filing in forma pauperis. Plaintiff filed his objections which either misunderstand or misconstrue the Magistrate Judge’s analysis regarding this complaint filed under 42 U.S.C. § 1983. The Complaint is clear in that Plaintiff failed to disclose the bulk of his litigation history which he was required to do. See Doc. 1. Therefore, his objections to the Report and Recommendation are OVERRULED. After due and proper consideration of all portions of this file deemed relevant to the issues raised, and a de novo determination of those portions of the Report and Recommendation to which objection is made, the Report and Recommendation is ADOPTED as the opinion of this Court. It is ORDERED that this action be DISMISSED without prejudice as malicious pursuant to 28 U.S.C. § 1915(e)(2)(B)(i), and that the action be counted as a strike for the purposes of 28 U.S.C. § 1915(g). A separate judgment will issue pursuant to Fed. R. Civ. P. 58. DONE and ORDERED this 31st day of October, 2022. /s/Terry F. Moorer TERRY F. MOORER UNITED STATES DISTRICT JUDGE Page 2 of 2

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