Kirkland #460066 v. McKee et al

Filing 13

ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 4 and dismissing Plaintiff's complaint ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)

UNITED STATES DISTRICT COURT F O R THE WESTERN DISTRICT OF MICHIGAN S O U T H E R N DIVISION

J A M E S KIRKLAND, P l a in tif f , F ile No. 1:08-cv-861 v. H O N . ROBERT HOLMES BELL K E N N E T H MCKEE, et al., D e f e n d a n ts . / M E M O R A N D U M OPINION AND ORDER A D O P T I N G THE REPORT AND RECOMMENDATION O n October 8, 2008, United States Magistrate Judge Joseph G. Scoville issued a R e p o rt and Recommendation ("R&R"), recommending that Plaintiff Kenneth McKee's 42 U .S .C . § 1983 prisoner civil rights action be dismissed pursuant to 28 U.S.C. §§ 1915(e)(2), 1 9 1 5 A (b ), and 42 U.S.C. § 1997e(c), for failure to state a claim. (Dkt. No. 4.) Plaintiff has f ile d objections to the R&R. (Dkt. No. 7.) For the reasons that follow, Plaintiff's objections a re denied and the R&R is adopted as the opinion of the Court. T h is Court is required to make a de novo determination of those portions of a R&R to which specific objections are made, and may accept, reject, or modify any or all of the M a g is tra te Judge's findings or recommendations. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P . 72(b).

P la in tif f first objects to the determination in the R&R that Plaintiff does not have a lib e rty interest in obtaining release on parole. In his objections, Plaintiff appears to rely on th e Michigan Court of Appeals opinion in In re Parole Glover, 575 N.W.2d 655 (Mich. Ct. A p p . 1997), which held that a Michigan prisoner has a protectible liberty interest in obtaining re le a se on parole. However, that holding was overturned in Glover v. Michigan Parole B o a r d , 596 N.W.2d 598 (Mich. 1999). In its opinion, the Michigan Supreme Court noted th a t it was bound to follow the majority opinion in Greenholtz v. Inmates of Nebraska Penal & Correctional Complex, 442 U.S. 1 (1979), not the dissenting opinion followed by the court o f appeals. Glover, 596 N.W.2d at 603-04. Plaintiff offers no authority to the contrary. Plaintiff also objects that, though Section 1983 does not provide redress for state law, th e Magistrate Judge "fails to give proper consideration to the facts which show that the P la in tif f 's rights under the 8th and 14th Amendments were violated." (Dkt. No. 7, Obj. 4.) H o w e v e r, Plaintiff does not indicate which facts the Magistrate should have considered, or h o w the facts alleged in the complaint suffice to state a § 1983 claim. Moreover, upon de n o v o review, the Court agrees with the R&R that Plaintiff's complaint fails to state a claim f o r violation of the United States Constitution or any federal law. Having conducted the req u ired review with respect to the remainder of Plaintiff's objections to the R&R, the Court f in d s that Plaintiff's objections are without merit, and the Court concurs with the conclusions in the R&R. A c c o r d i n g l y,

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I T IS HEREBY ORDERED that Plaintiff's objections to the Report and R e c o m m e n d a tio n of the Magistrate Judge (Dkt. No. 7) are DENIED. I T IS FURTHER ORDERED that the Report and Recommendation (Dkt. No. 4) is A P P R O V E D and ADOPTED as the opinion of this Court. I T IS FURTHER ORDERED that Plaintiff Kenneth McKee's complaint is D I S M I S S E D for failure to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2), 1915A, and 4 2 U.S.C. § 1997e(c). I T IS FURTHER ORDERED that Plaintiff's state law claims are DISMISSED w ith o u t prejudice. I T IS FURTHER ORDERED that this dismissal shall count as a STRIKE for p u rpo ses of 28 U.S.C. § 1915(g). I T IS FURTHER ORDERED that the Court finds no good-faith basis for appeal w ith in the meaning of 28 U.S.C. § 1915(a)(3). See McGore v. Wrigglesworth, 114 F.3d 601, 6 1 1 (6th Cir. 1997).

Dated: June 2, 2009

/s/ Robert Holmes Bell ROBERT HOLMES BELL UNITED STATES DISTRICT JUDGE

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