Nasseff v. Domagalski et al

Filing 18

ORDER re 17 Report and Recommendation: Nasseff's applications to proceed in forma pauperis [Docket Nos. 2 , 10 , and 13 ] are DENIED. Nasseff's motion for production of documents [Docket No. 14 ] is DENIED AS MOOT.This action is summarily DISMISSED WITHOUT PREJUDICE pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). (Written Opinion) Signed by Judge Joan N. Ericksen on February 5, 2015. (CBC)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Anthony Nasseff, Jr.,
Plaintiff,
v.

Civil No. 14-4822 (JNE/JSM)
ORDER

Abby Domagalski and John Quist,
Defendants.
Anthony Nasseff, Jr., brought this action against Abby Domagalski and John Quist
under 42 U.S.C. § 1983, claiming that Domagalski and Quist had failed to protect him
from an attack by another inmate. Noting that Nasseff’s complaint was “quite sparse,”
the magistrate judge concluded that there was “simply too little in the complaint to
conclude that defendants [had] violated Nasseff’s Eighth Amendment rights.” The
magistrate judge granted Nasseff an opportunity to amend his pleading. Nasseff timely
filed an amended complaint. In a Report and Recommendation dated January 16, 2015,
the magistrate judge concluded that Nasseff had failed to state a claim on which relief can
be granted. The magistrate judge recommended that Nasseff’s applications to proceed in
forma pauperis be denied, that his motion for production of documents be denied as
moot, and that this action be summarily dismissed without prejudice pursuant to 28
U.S.C. § 1915(e)(2)(B)(ii). No objection to the Report and Recommendation has been
made. The Court has conducted a de novo review of the record. Based on that review
and subject to the following comments, the Court accepts the recommendations.

1

The Report and Recommendation concluded with a citation to Milliman v. County
of Stearns, Civil No. 13-136, 2013 WL 5426049 (D. Minn. Sept. 26, 2013), for the
proposition that the United States Court of Appeals for the Eighth Circuit, as well as this
Court, “favors dismissals for failure to state a claim upon which relief may be granted to
be without prejudice.” Notwithstanding Milliman, which is a report and recommendation
that was adopted by a district judge, 1 the Eighth Circuit has stated that “there is a
presumption that a dismissal under Rule 12(b)(6) is a judgment on the merits made with
prejudice.” Orr v. Clements, 688 F.3d 463, 465 (8th Cir. 2012). A dismissal under Rule
12(b)(6) “can be rendered without prejudice if the court so specifies.” Id.
Based on the files, records, and proceedings herein, and for the reasons stated
above, IT IS ORDERED THAT:
1.

Nasseff’s applications to proceed in forma pauperis [Docket Nos. 2, 10,
and 13] are DENIED.

2.

Nasseff’s motion for production of documents [Docket No. 14] is DENIED
AS MOOT.

3.

This action is summarily DISMISSED WITHOUT PREJUDICE pursuant
to 28 U.S.C. § 1915(e)(2)(B)(ii).

LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: February 5, 2015
s/Joan N. Ericksen
JOAN N. ERICKSEN
United States District Judge

1

The assertion in Milliman was qualified: “decisions from the Eighth Circuit and
this Court generally favor dismissals under Rule 12(b)(6) without prejudice, at least
where there is no evidence of persistent pleading failures.” Milliman, 2013 WL 5426049
at *16.
2