Rheaume v. Pallito et al

Filing 63

ORDER Adopting 58 Report and Recommendation denying as moot 47 Motion to Dismiss for Failure to State a Claim; denying 6 Motion for Preliminary Injunction and denying 7 Motion to Appoint Counsel. A certificate of appealability is DENIED bec ause 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 11/18/2015. (jam)

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF VERMONT Allen Rheaume, Plaintiff, v. Andrew Pallito, Mark Potanas, Cullen Bullard, Kris Goldstein, Samantha Clarke, Kim Bushey, Jim Gibson, Dale Crook, Larry Martineau, Tammy Kennison, and Brad Dunsmore, Defendants. : : : : : File No. 2:15 CV 135 : : : : : : : : : ORDER The Report and Recommendation of the United States Magistrate Judge was filed October 22, 2015. Plaintiff’s objections were filed November 12, 2015. 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. IT IS HEREBY ORDERED that the Defendants’ Motion to Dismiss Rheaume’s First Amended Complaint (Doc. 47) is DENIED as moot, Rheaume’s Motion for Injunctive Relief (Doc. 6) is DENIED for failure to show irreparable harm and Rheaume’s Motion for Appointment of Counsel (Doc. 7) is DENIED for failure to demonstrate a special reason for said appointment. 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 November, 2015. /s/ William K. Sessions III William K. Sessions III District Court Judge

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