Breer v. Gold et al

Filing 26

ORDER ADOPTING 25 REPORT AND RECOMMENDATION granting in part and denying in part Defendants' 24 SECOND MOTION to Dismiss for Failure to State a Claim. A certificate of appealability is DENIED because Plaintiff has failed to make a substantial showing of denial of a federal right. 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 8/16/2013. (hbc)

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
HARLEY L. BREER, JR.,
Plaintiff,
v.

Docket No. 2:12-CV-53

MICHELLE MEDOR, BRIAN REED,
CHARLES CROSS, JAMES HONSINGER, and
STEVE MARANVILLE,
Defendants.
ORDER
The Report and Recommendation of the United States
Magistrate Judge was filed July 29, 2013.

After careful review

of the file and the Magistrate Judge's Report and
Recommendation, no objections having been filed by any party,
this Court ADOPTS the Magistrate Judge's recommendations in
full for the reasons stated in the Report.
The defendants’ motion to dismiss (Doc. 24) is GRANTED
with respect to: (1) all claims against Defendant Maranville;
(2) Breer’s causes of action under the PREA and Vermont
Criminal statutes; and (3) Breer’s Eighth Amendment claim
against Defendants Reed and Honsinger.

Otherwise, the motion

to dismiss is DENIED.
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
16th day of August, 2013
/s/ William K. Sessions III
William K. Sessions III
District Court Judge