Breer v. Gold et al

Filing 23

ORDER ADOPTING 20 REPORT AND RECOMMENDATION granting 13 Motion to Dismiss without prejudice. Plaintiff has already complied with filing of a new complaint. Signed by Judge William K. Sessions III on 12/18/2012. (law)

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
HARLEY L. BREER, JR.,
Plaintiff,
v.
STEVE MARANVILLE, MICHELLE MEDOR
BRIAN REED, CHARLES CROSS,
JAMES HONSIGER, and STEVE GOLD
Defendants.

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: Docket No. 2:12-CV-53
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ORDER
The Report and Recommendation of the United States
Magistrate Judge was filed November 27, 2012.

Plaintiff’s

objection was filed December 13, 2012.
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. § 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.
The defendants’ motion to dismiss (Doc. 13) is GRANTED
without prejudice.

Plaintiff has already complied with the

Magistrate Judge’s order and a new complaint has been filed.

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

28 U.S.C.

§ 1915(a)(3).
Dated at Burlington, in the District of Vermont, this
18th day of December, 2012
/s/ William K. Sessions III
William K. Sessions III
District Court Judge