KAISER v. DIXON

Opinion

Page 1 of 3 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA TALLAHASSEE DIVISION

DAVID KAISER, D.O.C. # 102094, Plaintiff, v. 4:23cv225–WS/MAF RICKY DIXON, et al.,

Defendants.

ORDER ADOPTING THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION Before the court is the magistrate judge's report and recommendation (ECF

No. 76) docketed October 24, 2024. The magistrate judge recommends that this case be dismissed—with prejudice because amendment would be futile—for failure to state a claim upon which relief may be granted. He also recommends that

the dismissal should count as a strike pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). Plaintiff has filed objections (ECF No. 79) to the report and recommendation. Among other things, Plaintiff suggests that this case should not count as a strike because he paid the filing fee. Dismissals, however, may count as “strikes” Page 2 of 3 under 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915(g) whether or not the prisoner has paid the filing fee. Section 1915(g) explicitly provides that any prisoner complaint

“that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted” counts as a “strike.” §1915(g) (emphasis added). It is Plaintiff’s status as a prisoner—not his ability to pay the filing

fee—that makes a dismissal for failure to state a claim a “strike” under the Prison Litigation Reform Act. See, e.g., Belanus v. Clark, 796 F.3d 1021, 1028 (9th Cir. 2015); Lewis v. FDOC, No. 4:20cv300–WS/HTC, 2020 WL 5505644 at *1 (N.D> Fla. Sept. 11, 2020).

Having reviewed the record, the undersigned finds—as did the magistrate judge—that (1) Plaintiff’s claims are due to be dismissed with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim upon which relief may

be granted; and (2) the dismissal should count as a strike under 28 U.S.C. § 1915(g). Accordingly, it is ORDERED:

1. The magistrate judge’s report and recommendation (ECF No. 76) is ADOPTED and incorporated by reference into this order. 2. Plaintiff’s complaint and this action are hereby DISMISSED with prejudice pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) for failure to state a claim. Page 3 of 3 3. The clerk shall enter judgment stating: "All claims are dismissed with prejudice."

4. The dismissal of this case counts as a “strike” pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915(g). 5. The clerk shall close the case.

DONE AND ORDERED this 19th day of December , 2024.

s/ William Stafford WILLIAM STAFFORD SENIOR UNITED STATES DISTRICT JUDGE