Gilliam v. Cole et al

Filing 9

ORDER approving and adopting in their entirety the 5 Proposed Findings and Recommendations as this Court's findings in all respects; denying Mr. Gilliam's request for a hearing, motion to appoint counsel, and motion for copies 6 , 7 , and 8 included within his objections; dismissing without prejudice plaintiff's 1 Complaint for failure to state a claim upon which relief may be granted; and certifying that an in forma pauperis appeal from this Order would not be taken in good faith. Signed by Judge Kristine G. Baker on 12/1/2016. (ljb)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
EASTERN DIVISION
ALONZO GILLIAM, III,
ADC# 098194
v.

PLAINTIFF

Case No. 2:16-cv-00073-KGB-JJV

SECCER COLE,
Sergeant, East Arkansas
Regional Unit, ADC; et al.

DEFENDANTS
ORDER

The Court has reviewed the Proposed Findings and Recommendations submitted by
United States Magistrate Judge Joe J. Volpe and plaintiff Alonzo Gilliam, III’s objections (Dkt.
Nos. 5; 6). After carefully considering the Proposed Findings and Recommendations and Mr.
Gilliam’s objections, and making a de novo review of the record in this case, the Court concludes
that the Proposed Findings and Recommendations should be, and hereby are, approved and
adopted in their entirety as this Court's findings in all respects (Dkt. No. 5). Mr. Gilliam’s
request for a hearing, included within his objections, motion to appoint counsel, and motion for
copies are denied (Dkt. Nos. 6; 7; 8).
It is therefore ordered that:
1.

Plaintiff’s Complaint is dismissed without prejudice for failure to state a claim

upon which relief may be granted (Dkt. No. 1).
2.

Dismissal of this action does not count as a “strike” for purposes of 28 U.S.C. §

1915(g). 1

1

Title 28 U.S.C. § 1915(g) provides that: “In no event shall a prisoner bring a civil action
or appeal a judgment in a civil action under this section if the prisoner has, on 3 or more prior
occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of
the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state

3.

The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an in forma pauperis

appeal from this Order would not be taken in good faith.
So ordered this 1st day of December, 2016.
____________________________________
Kristine G. Baker
United States District Judge

a claim upon which relief may be granted . . . .” This Court adopts Judge Volpe’s
recommendation that, upon the facts of this case, a strike not be assessed to Mr. Gilliam (Dkt.
No. 5, at 5).
2