LaBombard v. Burroughs-Biron et al

Filing 29

ORDER ADOPTING 26 CORRECTED REPORT AND RECOMMENDATION : 20 Motion for Conversion of Defendant's 9 Motion to Dismiss to a Motion for Summary Judgment is GRANTED and 9 Motion is GRANTED; 21 Motion for Leave to Amend Complaint is DENIED a s moot; 24 Motion to Strike Plaintiff's Surreply is DENIE; because plaintiff has failed to exhaust his administrative remedies, this case is DISMISSED without prejudice. A certificate of appealability is DENIED because the petitioner has fail ed 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 6/1/2010. (law)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF VERMONT Brent Labombard, Plaintiff, v. Delores Burroughs-Biron, Jeffrey C. Cobb, Judy Roberts, Jacqueline M. Johnson, Unknown Medical Staff at Chittenden Regional Correctional Facility, Unknown Medical Staff at Southern State Correctional Facility, Defendants. ORDER The Corrected Report and Recommendation of the United States Magistrate Judge was filed April 30, 2010. objection were filed on May 20, 2010. 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. 72(b); 28 U.S.C. Plaintiff's : : : : File No. 2:09 CV 136 : : : : : : : : :

§ 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

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Court ADOPTS the Magistrate Judge's recommendations in full. The plaintiff's motion for conversion of the defendant's motion to dismiss to a motion for summary judgment (Doc. 20) is GRANTED, and that the defendants' motion (Doc. 9) is GRANTED. Plaintiff's motion for leave to amend his complaint (Doc. 21) to re-plead the defendants' personal involvement is DENIED as moot, and the defendants' motion to strike plaintiff's surreply (Doc. 24) is DENIED. In addition, because plaintiff has failed

to exhaust his adminsitrative remedies, the case is DISMISSED 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). THIS CASE IS CLOSED. 2 28 U.S.C. §

Dated at Burlington, in the District of Vermont, this 1st day of June, 2010.

/s/ William K. Sessions III William K. Sessions III Chief Judge U.S. District Court

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