Redus v. Harmon et al

Filing 9

ORDER adopting 6 Report and Recommendations in their entirety; therefore, Pltf's claims are DISMISSED with prejudice; this dismissal will count as a "strike" pursuant to 28 USC 1915(g); the Court certifies than an ifp appeal taken from this Order and the accompanying Judgment would be frivolous and not taken in good faith; judgment will be entered accordingly. Signed by Judge James M. Moody on 5/8/09. (vjt)

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS EASTERN DIVISION XAVIER REDUS ADC # 108610 V. GREG HARMON, et al. ORDER The Court has received the Recommended Disposition from Magistrate Judge Beth Deere. After careful review of the Recommended Disposition, the timely objections1 received thereto, as well as a de novo review of the record, the Court concludes that the Recommended Disposition should be, and hereby is, approved and adopted as this Court's findings in all respects in its entirety. Accordingly, Plaintiff's claims are DISMISSED with prejudice. This dismissal will count as a "strike" for purposes of 28 U.S.C. § 1915(g). The Court certifies that an in forma pauperis appeal taken from the order and judgment dismissing this action would NO. 2:09CV00033-JMM/BD DEFENDANTS PLAINTIFF

Plaintiff's objection is based partly on his assertion that the District Court of the Eastern District of Arkansas has held that the Arkansas Department of Correction's (ADC) fivephotograph policy is unconstitutional and cites Davis v. Norris, 249 F.3d 800 (8th Cir. 2000) to support his assertion. The opinion relied upon by plaintiff was not the final opinion of that case, but rather, was an opinion affirming that Court's denial of defendants' motion for summary judgment prior to trial. In that case, the appellate court stated that a genuine issue of fact existed concerning whether the ADC policy was reasonably related to its interest in security. Upon remand and following a bench trial, United States Magistrate Judge Henry L. Jones, Jr., held that the five-photograph policy at issue did not violate the plaintiff's First Amendment right. See Davis v. Norris, 5:98CV00115, March 13, 2003 Memorandum and Order and Judgment. That decision was later affirmed on appeal. Davis v. Norris, 86 Fed. Appx. 220 (8th Cir. 2004).

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be frivolous and not taken in good faith. IT IS SO ORDERED, this 8 day of May , 2009.

James M. Moody United States District Judge