Stubl #218092 v. Baraga Maximum Correctional Facility et al

Filing 84

ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 52 , and Dismissing Plaintiff's complaint; Denying [49, 56, 71]; and denying as moot 73 , 11 , 52 , 68 , 65 , 80 , 23 , 62 , 77 , 75 , 38 , 39 , 28 , 54 , 76 , 37 , 70 , 83 , 18 , 74 ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)

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UNITED STATES DISTRICT COURT F O R THE WESTERN DISTRICT OF MICHIGAN N O R T H E R N DIVISION R O G E R STUBL, P l a in tif f , F ile No. 2:08-CV-10 v. HON. ROBERT HOLMES BELL B A R A G A MAXIMUM CORRECTIONAL F A C IL IT Y , et al., D e f e n d a n ts . / O R D E R ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION AND DISMISSING COMPLAINT O n June 5, 2008, United States Magistrate Judge Timothy P. Greeley issued a Report a n d Recommendation ("R&R") recommending that Plaintiff Roger Stubl's 42 U.S.C. § 1983 p riso n er civil rights complaint be dismissed pursuant to 28 U.S.C. §§ 1915(e)(2), 1915A(b), a n d 42 U.S.C. § 1997e(c) for failure to state a claim on which relief can be granted. Plaintiff f ile d objections to the R&R on June 19, 2008. This Court is required to make a de novo determination of those portions of the R&R t o which objection has been 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. 7 2 (b ). The R&R recommends dismissal of Plaintiff's complaint for failure to state a claim. P la in t if f does not object to the R&R's determination that he failed to state a claim against c e rta in defendants on the basis that they are not "persons" within the meaning of § 1983, they h a v e sovereign immunity, or they cannot be held liable under a theory of respondeat superior o r supervisory liability. Neither does Plaintiff object to the R&R's determination that he has f a ile d to state a procedural or substantive due process claim. However, Plaintiff does object to the R&R's determination that he failed to state a claim against the remaining Defendants f o r an Eighth Amendment violation. Plaintiff contends that the dangerous condition of his c e ll could state a claim under the Eighth Amendment and that he will be able to prove that D e f e n d a n ts were deliberately indifferent to the condition of the cell. It is undisputed that a prisoner could conceivably state an Eighth Amendment claim b a se d upon dangerous conditions in his cell if the deprivation was sufficiently serious and th e prison officials were deliberately indifferent to the inmate's health or safety. Spencer v. B o u c h a r d , 449 F.3d 721, 727-28 (6th Cir. 2006). The R&R concludes, however, based upon th e available case law, that Plaintiff's complaint that water leaked onto the floor of his cell d o e s not allege a sufficiently serious deprivation to satisfy the first prong of an Eighth A m e n d m e n t conditions of confinement claim. The Court agrees with this conclusion. The Court has reviewed Plaintiff's amended complaint (Dkt. No. 47), his motion for le a v e to file amended complaint (Dkt. No. 49) and his motion to amend (Dkt. No. 71), and c o n c lu d e s that they do not resolve any of the deficiencies of his original complaint. A c c o rd in g ly, Plaintiff's motions to amend his complaint will be denied. Plaintiff also objects to the R&R's recommendation that this complaint count as a 2 s trik e for purposes of the three strikes rule. Plaintiff contends that his complaint should not c o u n t as a strike because he is complaining about being placed at a serious risk of harm based u p o n his living conditions while incarcerated in a state prison. T h e Prison Litigation Reform Act of 1995 ("PLRA") prohibits a prisoner from b rin g in g a civil action or appeal if the prisoner has "three strikes." 28 U.S.C. § 1915(g). The P L R A reads in pertinent part: In no event shall a prisoner bring a civil action or appeal a judgment in a civil a c tio n or proceeding under this section if the prisoner has, on 3 or more prior o c c as io n s , while incarcerated or detained in any facility, brought an action or a p p e al in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be g ra n te d , unless the prisoner is under imminent danger of serious physical i n j u r y. 2 8 U.S.C. § 1915(g). The PLRA does not contain an exception from the three-strike rule for c o m p l a in t s raising particular kinds of issues. It merely provides that if a prisoner files a c o m p la in t that fails to state a claim on which relief can be granted, the complaint counts as a strike, regardless of the subject matter of the complaint or its degree of seriousness. P la in tif f filed a complaint that fails to state a claim on which relief can be granted. A c c o rd in g ly, his complaint is properly counted as a strike under the statute. Accordingly, 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. 56) are DENIED. I T IS FURTHER ORDERED that Plaintiff's motions amend his complaint (Dkt. N o s . 49, 71) are DENIED. 3 I T IS FURTHER ORDERED that the Report and Recommendation of the M a g i str a te Judge (Dkt. No. 52) is APPROVED and ADOPTED as the opinion of the Court. I T 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). I T IS FURTHER ORDERED that all of Plaintiff's pending motions, including his m o tio n for preliminary injunction (Dkt. No. 28), motions for discovery (Dkt. Nos. 11, 18, 23, 3 8 , 65, 68, 70, 73, 74, 76, 77, 80), motion to require surety bond (Dkt. No. 39), motion to sta y proceedings (Dkt. No. 37), motion to amend to add defendants (Dkt. No. 54), motion to a p p o in t counsel (Dkt. No. 62), motion for settlement (Dkt. No. 75), and motion to serve the c o m p la in t (Dkt. No. 83) are DENIED AS MOOT. IT 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). Dated: October 30, 2008 /s/ Robert Holmes Bell ROBERT HOLMES BELL UNITED STATES DISTRICT JUDGE 4

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