Buckley v. Marshall

Opinion

IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS HOT SPRINGS DIVISION

ARSENIO ORTEZ BUCKLEY PLAINTIFF

v. Case No. 6:22-cv-06128

BAPTIST HEALTH MEDICAL CENTER, JOHN OR JANE DOE #1 CSN and JOHN OR JANE DOE #2 MRN DEFENDANTS

ORDER

Before the Court is the Report and Recommendation filed February 1, 2023, by the Honorable Barry A. Bryant, United States Magistrate Judge for the Western District of Arkansas. ECF No. 9. Plaintiff Arsenio Ortez Buckley has not filed objections to the Report and Recommendation, and the time to object has passed. See 28 U.S.C. § 636(b)(1). Being well and sufficiently advised, and finding no clear error on the face of the record, the Court adopts the Report and Recommendation in toto. Plaintiff’s complaint (ECF No. 1) is hereby DISMISSED WITHOUT PREJUDICE.1 Plaintiff is 0F warned that, in the future, this dismissal may be counted as a strike for purposes of 28 U.S.C. § 1915(g), and the Clerk of the Court is hereby DIRECTED to place a § 1915(g) strike flag on the case for future judicial consideration. Finally, any appeal from this dismissal would not be taken in good faith, and a certificate of appealability shall not issue. IT IS SO ORDERED, this 3rd day of March, 2023. /s/ Susan O. Hickey Susan O. Hickey Chief United States District Judge

1Judge Bryant does not specify whether he recommends dismissing with or without prejudice. See ECF No. 9. However, “[w]hen a district court dismisses an action for failure to state a claim, it may do so with or without prejudice.” Stewart v. Freddie, No. 6:14-cv-06143, 2016 WL 5403099, at *4 (W.D. Ark. May 24, 2016) (citation omitted). Thus the Court, in its discretion, chooses to dismiss without prejudice.