Humphrey v. Montereg et al

Filing 7

ORDER ADOPTING 5 REPORT AND RECOMMENDATION denying 1 Motion for Leave to Proceed in forma pauperis and dismissing this case without prejudice. Also, 2 Motion to Appoint Counsel is denied as moot. A certificate of appealability is denied and it is certified that any appeal of this matter would not be taken in good faith pursuant to 28:1915(a)(3). Signed by Judge William K. Sessions III on 12/1/2009. (law)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF VERMONT Todd Humphrey, Plaintiff, v. Joseph Montereg, Gregory Pittsfield, Nedwin Bailey, Edwin Thibault, and Harold Studebaker, Defendants. : : : : File No. 2:09 CV 226 : : : : : : ORDER The Report and Recommendation of the United States Magistrate Judge was filed November 12, 2009. objections were filed November 19, 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 Plaintiff's motion for leave to proceed in forma pauperis (Doc. 1) is DENIED and that this

case is DISMISSED without prejudice.

Also, Plaintiff's motion

to appoint counsel (Doc. 2) is DENIED as moot. 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 1st day of December, 2009. /s/ William K. Sessions III William K. Sessions III Chief Judge 28 U.S.C.