Gardner v. Hobbs et al

Filing 9

ORDER ADOPTING REPORT AND RECOMMENDATIONS 3 dismissing complaint with prejudice; that this dismissal counts as a "strike"; and certifying that an ifp appeal taken would not be taken in good faith. Signed by Judge Brian S. Miller on 11/8/10. (bkp)

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Gardner v. Hobbs et al Doc. 9 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF ARKANSAS PINE BLUFF DIVISION GARY WAYNE GARDNER ADC #95674 v. CASE NO. 5:10cv00276 BSM/JTR DEFENDANTS PLAINTIFF RAY HOBBS, Director, Arkansas Department of Correction, et al. ORDER The proposed findings and recommended disposition submitted by United States Magistrate Judge J. Thomas Ray and the filed objections have been reviewed. After carefully considering these documents and making a de novo review of the record, it is concluded that the proposed findings and recommended disposition should be, and hereby are, approved and adopted in their entirety in all respects. In his objections, plaintiff Gary Wayne Gardner ("Gardner") maintains that the Arkansas Department of Correction ("ADC") uses the co-pay to fund a committee to report on medical services, and that such use is unconstitutional. He also asserts that he is not claiming a violation of his Eighth Amendment rights. Rather, he claims violations of the Takings Clause and his right to due process. The assertion made by Gardner that the ADC uses his co-pay to fund a committee to report on medical services does not establish a constitutional violation. The costs associated with medical services often go beyond the particular service provided, and may include studies on ADC medical services. Further, allegations of violations of the Takings Clause and his due process rights does not change the fact that medical co-pays have been held constitutional by the Eighth Circuit Court of Appeals in Blaise v. McKinney, Case No. 98-3916, 1999 WL 486854 (8th Cir. July 12, 1999) (unpublished opinion). IT IS THEREFORE ORDERED THAT: 1. Pursuant to the screening function mandated by 28 U.S.C. 1915A, this action is DISMISSED, WITH PREJUDICE, for failing to state a claim on which relief may be granted. 2. 1915(g). 3. It is CERTIFIED, pursuant to 28 U.S.C. 1915(a)(3), that an in forma pauperis Dismissal of this action CONSTITUTES a "strike," as defined by 28 U.S.C. appeal from this order and the accompanying judgment would not be taken in good faith. 4. All other pending motions are denied as moot. Dated this 8th day of November, 2010. UNITED STATES DISTRICT JUDGE 2

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