Staszak v. USA et al
Filing
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ORDER approving and adopting the 3 Proposed Findings and Recommendations as this Court's findings in all respects; dismissing without prejudice Mr. Staszak's 1 complaint for failure to state a claim upon which relief may be granted; de termining that dismissal of this action counts as a "strike" for purposes of purposes of 28 U.S.C. § 1915(g); certifying that an in forma pauperis appeal from this Order would not be taken in good faith; and denying all pending motions 9 , 11 , 12 , 14 , and 20 as moot. Signed by Judge Kristine G. Baker on 8/22/2017. (ljb)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
EASTERN DIVISION
MATTHEW L. STASZAK
v.
PLAINTIFF
Case No. 2:16-cv-168 KGB-JJV
UNITED STATES OF AMERICA, et al.
DEFENDANTS
ORDER
Before the Court are the Proposed Findings and Recommendations submitted by United
States Magistrate Judge Joe J. Volpe on December 14, 2016 (Dkt. No. 3).
Judge Volpe
recommended that this Court dismiss without prejudice plaintiff Matthew L. Staszak’s complaint
for failure to state a claim upon which relief may be granted (Id.).
On December 23, 2016, this Court granted Mr. Staszak’s motion for extension of time to
file objections to the Proposed Findings and Recommendations (Dkt. Nos. 4, 5). This Order
permitted Mr. Staszak to file any objections to the Proposed Findings and Recommendations up
to and including January 13, 2017 (Dkt. No. 5). Mr. Staszak did not file any such objections prior
to January 13, 2017.
In its subsequent Order of June 30, 2017, this Court construed Mr. Staszak’s subsequent
motion to stay as a successive motion for extension of time to file objections to the Proposed
Findings and Recommendations (Dkt. No. 15). The Court granted Mr. Staszak an additional 30
days from entry of the Order to file any objection to the Proposed Findings and Recommendations,
permitting Mr. Staszak to file any such objection up to and including July 30, 2017 (Id.). Mr.
Staszak did not file any such objections, and the time to file an objection has passed. Instead, Mr.
Staszak filed what is styled as a motion for leave to supplement and amend his complaint, wherein
Mr. Staszak requests to join an additional defendant to his original complaint (Dkt. No. 20).
The Court declines to construe this filing as a timely objection to Judge Volpe’s Proposed
Findings and Recommendations. Mr. Staszak has had ample time to file an objection to address
the substance of Judge Volpe’s Proposed Findings and Recommendations. Mr. Staszak’s latest
motion does not do so. In making this determination, the Court has reviewed the record de novo,
considering all of Mr. Staszak’s filings, including but not limited to his exhibit and motion to
amend complaint, his first motion for leave to supplement and amend his complaint pursuant to
Fed. R. Civ. P. 15(D), and his second motion for leave to supplement and amend his complaint
pursuant to Fed. R. Civ. P. 15(D) (Dkt. Nos. 12; 14; 20). Mr. Staszak’s proposed amendments do
not cure the deficiencies Judge Volpe identified in his Proposed Findings and Recommendations.
Specifically in regard to placement in the Special Housing Unit (“SHU”), Mr. Staszak admits this
placement was pursuant to protocol and while the alleged incident was investigated (Dkt. No. 14,
at 2-3). He does not indicate how long he was in the SHU nor does he explain the outcome of the
investigation. Although he describes language which is troubling, he claims to have received
information regarding that language from an unnamed inmate, does not identify the individual
defendant to whom that language was attributed, and does not identify when those alleged
statements were made. For these reasons, among others, after careful review, the Court concludes
that the Proposed Findings and Recommendations should be, and hereby are, approved and
adopted as this Court’s findings in all respects (Dkt. No. 3).
Thus, the Court dismisses without prejudice Mr. Staszak’s complaint for failure to state a
claim upon which relief may be granted (Dkt. No. 1). 28 U.S.C. §1915A(b). The Court determines
that dismissal of this action counts as a “strike” for purposes of 28 U.S.C. § 1915(g). Further, the
Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an in forma pauperis appeal from this
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Order would not be taken in good faith. The Court will separately enter Judgment consistent with
this Order.
Also pending before the Court are a series of motions filed by Mr. Staszak, including his
motion to withdraw document, motion for preliminary injunction, the first motion to amend
complaint, the second motion to amend complaint, and the third motion to amend complaint (Dkt.
Nos. 9, 11, 12, 14, 20).
Because the Court has adopted the Proposed Findings and
Recommendations to dismiss without prejudice the action (Dkt. No. 3), the Court denies all
pending motions as moot (Dkt. Nos. 9, 11, 12, 14, 20).
It is so ordered this the 22nd day of August, 2017.
_______________________
Kristine G. Baker
United States District Judge
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