Lundy #305478 v. White et al, No. 2:2008cv00050 - Document 10 (W.D. Mich. 2008)
Court Description: OPINION AND ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 4 ; 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 SHAWN LUNDY #305478, Plaintiff, v. Case No. 2:08-cv-50 Honorable R. Allan Edgar JEFF WHITE, 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 May 16, 2008. 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 contends that the Magistrate Judge erred in finding that Defendants were not deliberately indifferent when they failed to protect Plaintiff from being stabbed by another inmate. However, as noted by the Magistrate Judge in the report and recommendation, hearing officer Spicer stated during the rehearing that video of the assault shows that staff could only help so much in this instance without also being stabbed. The fact that Defendants were not able to intervene more quickly to subdue prisoner Mason does not indicate that they were deliberately indifferent to the peril posed to Plaintiff, but merely that they were attempting to avoid being injured themselves. Such a situation does not rise to the level of an Eighth Amendment violation. 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 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 $255 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 9/26/08 -2-
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