Burke v. Menard

Filing 15

ORDER Affirming, approving and adopting 14 Magistrate Judge's Report and Recommendation. 13 Motion to Dismiss for Failure to State a Claim filed by Lisa Menard is GRANTED. Leave to amend 6 Complaint is DENIED. Pltf shall file proof of service of 6 Complaint as to dft Ralph Cherry within 20 days of the date of this Order. Failure to do so will result in the dismissal without prejudice of all claims against him. Signed by District Judge J. Garvan Murtha on 7/6/2016. (kak)

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
JAMES T. BURKE,
Plaintiff,
v.
LISA MENARD, Commissioner,
Vermont Department of Corrections,
RALPH CHERRY, Superintendent,
N.L.C.F. - Baldwin, MI,
Defendants.

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File No. 1:16-cv-00052-jgm-jmc

ORDER
The Magistrate Judge's Report and Recommendation was filed June 1, 2016.
(Doc. 14.) After de novo review and absent objection, the Report and
Recommendation is AFFIRMED, APPROVED and ADOPTED. See 28 U.S.C. §
636(b)(1).
Defendant Lisa Menard’s Motion to Dismiss for failure to state a claim upon
which relief can be granted (Doc. 13) is GRANTED. Leave to amend the Complaint is
DENIED because Plaintiff’s claims fail in substance and any amendment would be
futile. The Court refrains from exercising supplemental jurisdiction over any potential
state law claims raised in Plaintiff’s Complaint.
It is hereby ORDERED that, on or before 20 days from the date hereof, Plaintiff
shall file proof of service of the Complaint as to Defendant Ralph Cherry,
Superintendent, North Lake Correctional Facility, Baldwin, Michigan. Failure to do so
will result in the dismissal without prejudice of all claims against him.

It is further certified that any appeal taken in forma pauperis from this Order
would not be taken in good faith because such an appeal would be frivolous. See 28
U.S.C. § 1915(a)(3).
SO ORDERED.
Dated at Brattleboro, in the District of Vermont, this 6th day of July, 2016.

/s/ J. Garvan Murtha
Honorable J. Garvan Murtha
United States District Judge