Diehl v. King et al

Filing 8

ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 4 , and dismissing plaintiff's complaint for failure to state a claim ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

GENE DIEHL,
Plaintiff,
File No. 1:12-CV-402
v.
HON. ROBERT HOLMES BELL
PAROLE BOARD MEMBER ANTHONY
KING, et al.,
Defendants.
/
ORDER APPROVING AND ADOPTING
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
On May 4, 2012, United States Magistrate Judge Joseph G. Scoville issued a report
and recommendation (“R&R”) recommending that Plaintiff Gene Diehl’s complaint be
dismissed pursuant to 28 U.S.C. §§ 1915(e)(2), 1915A(b), and 42 U.S.C. § 1997e(c) because
Defendant Parole Board Members Anthony King and Amy Bonito are immune from
Plaintiff’s damage suit, and, in addition, because Plaintiff’s allegations that Defendants
imposed unconstitutional conditions of parole fail to state a claim on which relief can be
granted. (Dkt. No. 4, R&R.) Plaintiff filed objections to the R&R on May 24, 2012. (Dkt.
Nos. 5, 7.)
Plaintiff’s objections merely reiterate his assertion that prohibiting him from using
alcohol violates his constitutional rights. Plaintiff has neither addressed, nor contradicted,
the Magistrate Judge’s determination that Defendants are immune from suit and that a parole

condition requiring abstinence from alcohol, especially when the parolee has been convicted
of felony drunk-driving, does not state a constitutional violation. The Court agrees with the
R&R that Plaintiff’s complaint is subject to dismissal. Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s objections to the R&R (Dkt. No. 5) are
OVERRULED.
IT IS FURTHER ORDERED that the R&R (Dkt. No. 4) is APPROVED and
ADOPTED as the opinion of the Court.
IT IS FURTHER ORDERED that Plaintiff’s complaint is DISMISSED for failure
to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2), 1915A, and 42 U.S.C. § 1997e(c).
IT IS FURTHER ORDERED that leave to appeal in forma pauperis is DENIED
as any appeal would be frivolous and would not be taken in good faith. See 28 U.S.C.
§ 1915(a)(3).

Dated: July 8, 2013

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

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