Gordon v. Bertsch et al

Filing 96

ORDER ADOPTING REPORT AND RECOMMENDATIONS and granting 64 Motion for Summary Judgment by Chief Judge Daniel L. Hovland.(kmk) Distributed on 3/14/2018. (rh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
Michael Gordon,
Plaintiff,
vs.
Leann K. Bertsch, Director, et al.,
Defendants.

)
)
)
)
)
)
)
)
)

ORDER ADOPTING REPORT
AND RECOMMENDATION
Case No. 1:15-cv-026

The Plaintiff, Michael Gordon, initiated this proceeding pro se and in forma pauperis on
March 9, 2015. See Docket No. 1. On May 31, 2017, the Defendants filed a motion for summary
judgment. See Docket No. 64. On October 4, 2017, Gordon filed a response opposing the motion.
See Docket No. 88. On January 3, 2018, Magistrate Judge Charles S. Miller, Jr., issued a Report
and Recommendation, in which he recommended that the Defendants’ motion for summary
judgment be granted. See Docket No. 93. Gordon was given an initial period and an extension until
March 9, 2018, to file an objection. No objection was received.
The Court has carefully reviewed the Report and Recommendation, relevant case law, and
the entire record, and finds the Report and Recommendation to be persuasive. Accordingly, the
Court ADOPTS the Report and Recommendation (Docket No. 93) in its entirety and GRANTS the
Defendants’ motion for summary judgment (Docket No. 64), as follows:
1.

Gordon’s Eighth Amendment claims against defendants Hagan and Wilkens are
DISMISSED WITH PREJUDICE;

2.

Gordon’s retaliation claims against defendants Heit and Foster are DISMISSED
WITH PREJUDICE; and

3.

Gordon’s retaliation claims against defendants Flanagan, Stromme, Walk,
Thuerer, Kulman, Belisle, Schwehr, and Helgeson are DISMISSED WITHOUT
PREJUDICE for failure to exhaust available prison remedies.

In addition, the Court FINDS that any appeal would be frivolous, could not be taken in good
faith, and may not be taken in forma pauperis.
Let judgment be entered accordingly.
IT IS SO ORDERED.
Dated this 14th day of March, 2018.
/s/ Daniel L. Hovland
Daniel L. Hovland, Chief Judge
United States District Court

2