Nali #449422 v. Michigan Department of Corrections et al, No. 2:2007cv00255 - Document 104 (W.D. Mich. 2009)
Court Description: OPINION AND ORDER APPROVING REPORT AND RECOMMENDATION 100 RE: Denying Defendants' Motion to Strike 57 and Plaintiff's motion to amend 69 and Granting Defendants' motion for summary judgment 69 ; signed by Judge R. Allan Edgar (EDTN Judge R. Allan Edgar, cam)
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UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN NORTHERN DIVISION FRANK NALI, Plaintiff, v. Case No. 2:07-cv-255 HON. R. ALLAN EDGAR MICHIGAN DEPARTMENT OF CORRECTIONS, et al., Defendants. ___________________________________/ OPINION AND ORDER APPROVING MAGISTRATE JUDGE S REPORT AND RECOMMENDATION The Court has reviewed the Report and Recommendation filed by the United States Magistrate Judge on August 6, 2009. The Report and Recommendation was duly served on the parties. The Court received objections from the Plaintiff. In accordance with 28 U.S.C. § 636(b)(1), the Court has performed de novo consideration of those portions of the Report and Recommendation to which objection has been made. The Court now finds the objections to be without merit. In his objections, Plaintiff merely reasserts the allegations set forth in his complaint. However, the court notes that the Magistrate Judge conducted a thorough review of the record and of the claims made by both sides in this action. For the reasons stated in the report and recommendation, Defendants are entitled to summary judgment. THEREFORE, IT IS ORDERED that the Report and Recommendation of the Magistrate Judge is approved and adopted as the opinion of the court and Defendants motion for summary judgment (docket #60) is GRANTED and Plaintiff s action will be dismissed in its entirety. IT IS FURTHER ORDERED that Defendants motion to strike (docket #57) and Plaintiff s motion to amend (docket #69) are DENIED. FINALLY, IT IS ORDERED that an appeal of this action would not be in good faith within the meaning of 28 U.S.C. § 1915(a)(3). See McGore v. Wrigglesworth, 114 F.3d 601, 611 (6th Cir. 1997). For the same reasons that the Court dismisses the action, the Court discerns no good-faith basis for an appeal. Should plaintiff appeal this decision, the Court will assess the $455 appellate filing fee pursuant to § 1915(b)(1), see McGore, 114 F.3d at 610-11, unless plaintiff is barred from proceeding in forma pauperis, e.g., by the three-strikes rule of § 1915(g). If he is barred, he will be required to pay the $455 appellate filing fee in one lump sum. Accordingly, should plaintiff seek to appeal this matter to the Sixth Circuit, the appeal would be frivolous and not taken in good faith. Dated: /s/ R. Allan Edgar R. ALLAN EDGAR UNITED STATES DISTRICT JUDGE 9/21/09 -2-
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