Shine v. Hofmann et al

Filing 90

ORDER ADOPTING 88 REPORT AND RECOMMENDATION granting 68 Motion for Partial Summary Judgment. All claims are dismissed with the exception of claims relating to the alleged assault by dft Burham; 61 motion for a pre-trial conference, 62 motion for appointment of counsel and 63 motion in limine are DENIED without prejudice. A certificate of appealability is DENIED because the petitioner has failed to make a substantial showing of denial of a federal right. Furthermore, it is certified that any appeal of this matter would not be taken in good faith, pursuant to 28 U.S.C. § 1915(a)(3). Signed by Judge William K. Sessions III on 7/22/2009. (jam) Text clarified on 7/22/2009

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF VERMONT Cassius Lamar Shine, Plaintiff, v. Robert Hofmnn, Susan Blair, Jodie Chaffee, Cindy Modiano, Kevin Ashburn, Nick Burham, Defendants. : : : : File No. 2:06 CV 237 : : : : : ORDER The Report and Recommendation of the United States Magistrate Judge was filed June 17, 2009. objections were filed June 29, 2009. A district judge must make a de novo determination of those portions of a magistrate judge's report and recommendation to which an objection is made. Fed. R. Civ. P. Plaintiff's

72(b); 28 U.S.C. § 636(b) (1); Perez-Rubio v. Wyckoff, 718 F.Supp. 217, 227 (S.D.N.Y. 1989). The district judge may

"accept, reject, or modify, in whole or in part, the magistrate's proposed findings and recommendations." Id.

After careful review of the file, the Magistrate Judge's Report and Recommendation and the objections, this Court ADOPTS the Magistrate Judge's recommendations in full. IT IS HEREBY ORDERED that the defendants' motion for partial summary judgment (Paper 68) is GRANTED, and that all claims be DISMISSED with the exception of claims relating to

the alleged assault by Defendant Burham.

Plaintiff's motion

for a pre-trial conference (Paper 61), for appointment of counsel (Paper 62), and motion in limine (Paper 63), are DENIED without prejudice. Pursuant to Fed. R. App. P. 22(b), a certificate of appealability is DENIED because the petitioner has failed to make a substantial showing of denial of a federal right. Furthermore, the petitioner's grounds for relief do not present issues which are debatable among jurists of reasons, which could have been resolved differently, or which deserve further proceedings. See e.g., Flieger v. Delo, 16 F.3rd 878, 882-83

(8th Cir.) cert. denied, 513 U.S. 946 (1994); Sawyer v. Collins, 986 F.2d 1493, 1497 (5th cir.), cert. denied, 508 U.S. 933 (1993). Furthermore, it is certified that any appeal of this matter would not be taken in good faith, pursuant to § 1915(a)(3). Dated at Burlington, in the District of Vermont, this 22nd day of July, 2009. /s/ William K. Sessions III William K. Sessions III Chief Judge 28 U.S.C.