Hicks v. Brooks et al

Filing 10

ORDER ADOPTING REPORT AND RECOMMENDATIONS 6 and dismissing the case with prejudice, for failure to state a claim upon which relief may be granted. The 9 Motion to Appoint Counsel filed by Olajuwon Hicks is denied as moot. This dismissal constitutes a "strike," and the Court certifies that an ifp appeal would not be taken in good faith. Signed by Judge James M. Moody on 3/5/12. (kpr)

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IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS EASTERN DIVISION OLAJUWON HICKS, ADC #122781 v. PLAINTIFF 2:12-cv-00002-JMM-JTK W. BROOKS, et al. DEFENDANTS ORDER The Court has received proposed findings and recommendations from United States Magistrate Judge Jerome T. Kearney. After a review of those proposed findings and recommendations, and the timely objections received thereto, as well as a de novo review of the record, the Court adopts them in their entirety with the exception that the Court finds that Plaintiff’s complaint of January 3, 2011 contains allegations that Plaintiff suffered physically from being placed in a strip cell for three days. However, these allegations do not rise to the level of unnecessary and wanton infliction of pain which is necessary to state a claim of cruel and unusual punishment prohibited by the Eighth Amendment. IT IS, THEREFORE, ORDERED that Plaintiff’s Complaint against Defendants is DISMISSED with prejudice, for failure to state a claim upon which relief may be granted. IT IS FURTHER ORDERED that this dismissal constitutes a “strike” within the meaning of the PLRA. The Court hereby certifies that an in forma pauperis appeal from an Order and Judgment dismissing this action would not be in good faith, pursuant to 28 U.S.C. § 1915(g). Plaintiff’s Motion for Appointment of Counsel is dismissed as moot (#9). An appropriate Judgment shall accompany this Order. IT IS SO ORDERED this 5 day of March , 2012. ______________________________________ JAMES M. MOODY UNITED STATES DISTRICT JUDGE

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