Rowe #415009 et al v. Bergh et al, No. 2:2008cv00031 - Document 19 (W.D. Mich. 2008)
Court Description: OPINION AND ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 10 ; signed by EDTN 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 DEMARCUS ROWE #415009 and EVERETT COX #235218, Plaintiffs, v. Case No. 2:08-cv-31 Honorable R. Allan Edgar D. BERGH, 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 April 22, 2008. The Report and Recommendation was duly served on the parties. The Court received objections from the Plaintiff Rowe. 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 Rowe merely reasserts the allegations set forth in his underlying complaint. For the reasons stated by the Magistrate Judge in the report and recommendation, the complaint lacks merit and is properly dismissed. THEREFORE, IT IS ORDERED that the Report and Recommendation of the Magistrate Judge is approved and adopted as the opinion of the court and plaintiff s action will be dismissed pursuant to 28 U.S.C. §§ 1915(e)(2), 1915A(b); 42 U.S.C. § 1997e(c). This is a dismissal described by 28 U.S.C. § 1915(g). IT IS FURTHER ORDERED that Plaintiffs pending motions to appoint counsel and for extension of time to file an amended complaint (docket #5 and #12) are denied as moot. IT IS FURTHER 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 Plaintiffs appeal this decision, the Court will assess the $255 appellate filing fee pursuant to § 1915(b)(1), see McGore, 114 F.3d at 610-11, unless Plaintiffs are barred from proceeding in forma pauperis, e.g., by the three-strikes rule of § 1915(g). If they are barred, they will be required to pay the $455 appellate filing fee in one lump sum. Accordingly, should Plaintiffs 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 9/26/08 -2-
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