Johnston v. Dooley et al

Filing 11

ORDER denying as moot 4 Motion for Bill of Costs; adopting 9 Report and Recommendation; denying 10 Objection to Report and Recommendation.The dismissal of this lawsuit will be considered a first "strike" for purposes of the Prison Litigation Reform Act 28 U.S.C. 1915(g). Signed by U.S. District Judge Lawrence L. Piersol on 6/3/15. (DJP)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION

FILED
JUN 0 't 2015

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DAVID H. JOHNSTON,
Plaintiff:
VS.

ROBERT DOOLEY, Warden,
Mike Durfee State Prison, Springfield, SD;
DENNIS KAEMINGK,
Secretary of Corrections
for the State of South Dakota; and
MARTY JACKLEY, Attorney General,
State of South Dakota,
Defendants.

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~.....

CLERk

CIV. 14-4182

ORDER

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Plaintiff David H. Johnston, an inmate at the Mike Durfee State Prison, has filed a civil rights
lawsuit pursuant to 42 U.S.C. § 1983. The Magistrate Judge issued a Report and Recommendation
recommending that the Plaintiff's Complaint be dismissed without prejudice for failure to state a claim
upon which relief may be granted and for seeking monetary relief against a Defendant who is immune
from such relief pursuant to 28 U.S.C. §§ 1915(e)(2)(B) (ii) and (iii) and 1915A(b)(l) and (2).
Plaintifffiled objections to the Report and Recommendation. After conducting an independent review
of the record,
IT IS ORDERED:
1.

That the Magistrate Judge's Report and Recommendation, Doc. 9, is
ADOPTED and Plaintiff's Objections to the Report and Recommendation,
Doc. 10, are DENIED.

2.

That Plaintiff's Complaint, Doc. 1, is DISMISSED without prejudice for
failure to state a claim upon which relief may be granted and for seeking
monetary relief against a Defendant who is immune from such relief pursuant
to 28 U.S.C. §§ 1915(e)(2)(B) (ii) and (iii) and 1915A(b)(l) and (2).

3.

That Plaintiffs Motion for Attorney Fees and Costs, Doc. 4, is DENIED as
moot.

4.

That Plaintiff is advised that the dismissal of this lawsuit will be considered a
first "strike" for purposes of the Prison Litigation Reform Act. 28 U.S.C.
§ 1915(g).

td

Dated this~Clay ofJune, 2015.
BY THE COURT:

L

rence L. Piersol
nited States District Judge