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)

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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

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