Jones v. Roy et al

Filing 7

ORDER Adopting 3 Report and Recommendation; denying 5 Motion to Alter/Amend/Supplement Pleadings; denying 2 Application on Proceed In Forma Pauperis in District Court. All claims in the Complaint 1 are DISMISSED WITH PREJUDICE (Written Opinion). Signed by Judge Ann D. Montgomery on 06/07/2011. (TLU)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Michael Jones,
Plaintiff,
v.

ORDER
Civil No. 11-1032 ADM/LIB

Tom Roy, Commissioner of Department
of Corrections, sued in their individual
and official capacities; and Joan Fabian,
Former Commissioner of Corrections, sued
in their individual and official capacities,
Defendants.
______________________________________________________________________________
Michael Jones, pro se.
______________________________________________________________________________

This matter is before the undersigned United States District Judge for consideration of
Plaintiff’s Objections [Docket No. 4] to Magistrate Judge Leo I. Brisbois’ May 2, 2011 Report
and Recommendation (“R&R”) [Docket No. 3]. Judge Brisbois’ R&R recommends denying
Plaintiff’s Application to Proceed In Forma Pauperis in District Court [Docket No. 2] (the “IFP
Application”) and summarily dismissing all claims pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
Due to the procedural posture of this case, Defendants have not yet filed an appearance.
Contemporaneous with Plaintiff’s Objections, Plaintiff filed a Motion to Amend Complaint
[Docket No. 5]. Based on a de novo review of the record, Plaintiff’s Objections are overruled,
his Motion is denied, and the R&R is adopted.
Plaintiff is involuntarily committed as a patient as the Minnesota Sex Offender Program
in Moose Lake, Minnesota. Compl. [Docket No. 1] ¶¶ 1-2. He filed a pro se Complaint
purporting to allege claims under 42 U.S.C. § 1983. Plaintiff complains that the Minnesota

Department of Corrections misappropriated a medical device owned by him to treat sleep apnea
in violation of his constitutional rights. Compl. ¶¶ 3-10, 13-14. After a de novo review of the
record, the Court agrees with Judge Brisbois that Plaintiff has failed to state a claim on which
relief may be granted. Plaintiff has not pled any facts showing personal involvement in the
alleged constitutional violations by either named Defendant. Because Plaintiff fails to state a
claim, his IFP Application is denied and his claims are dismissed.
After filing his Objections, Plaintiff also filed a Motion to Amend, arguing that he should
be given leave to plead additional factual allegations. Rule 15 of the FRCP provides that leave
to amend the pleadings should be liberally granted “when justice so requires.” Fed. R. Civ. P.
15(a)(2). Leave to amend, however, is properly denied where amendment is futile. See Zutz v.
Nelson, 601 F.3d 842, 850-52 (8th Cir. 2010). Local Rule 15.1 requires that a motion to amend
a pleading be accompanied by a proposed amended pleading. Plaintiff did not include a
proposed amended complaint with his motion. Further, Plaintiff, in all his filings, has failed to
articulate how he would amend his Complaint to state a viable claim. Without an offer by
Plaintiff of any additional factual allegations in support of his claim, an amendment to the
Complaint would be futile and Plaintiff’s motion is denied.
Based upon the foregoing, and all the files, records, and proceedings herein, IT IS
HEREBY ORDERED that:
1. Plaintiff’s Objections [Docket No. 4] are OVERRULED;
2. Judge Brisbois’ R&R [Docket No. 3] is ADOPTED;
3. Plaintiff’s Application to Proceed In Forma Pauperis in District Court [Docket No. 2]
is DENIED;

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4. All claims in the Complaint [Docket No. 1] are DISMISSED WITH PREJUDICE;
and
5. Plaintiff’s Motion to Amend Complaint [Docket No. 5] is DENIED.

BY THE COURT:

s/Ann D. Montgomery
ANN D. MONTGOMERY
U.S. DISTRICT JUDGE
Dated: June 7, 2011.

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