Opinion
4:24-cv-00431-LPR
11-04-2024
MICHAEL EDWARD ALLEN ADC #176724 PLAINTIFF v. DESMUT, et al. DEFENDANTS
ORDER
LEE P. RUDOFSKY UNITED STATES DISTRICT JUDGE
The Court has reviewed the Recommended Disposition (RD) submitted by United States Magistrate Judge Joe J. Volpe (Doc. 5) and the Plaintiff's Objections (Doc. 6). After a de novo review of the RD, along with careful consideration of the Objections and the entire case record, the Court hereby approves and adopts the RD in its entirety as this Court's findings and conclusions in all respects.
Plaintiff submitted a second filing titled “Objections to Magistrate's Recommended Disposition” (Doc. 7), but it is clear from the content of this filing that it was intended for a different case.
It is not entirely clear that the RD should have treated as fact the content of the response to Plaintiff's grievance at this stage. See Compl. (Doc. 1) at 4. Thus, it is not entirely clear if the RD should have concluded that Plaintiff was given medications during the time period at issue. See RD (Doc. 5) at 2. Nonetheless, the Court will approve the RD because: (1) if Plaintiff wanted to contravene the grievance response that he attached to the Complaint, all Plaintiff had to do was affirmatively allege that he was not given medication; and (2) in any event, the RD is right that the Complaint does not allege any facts suggesting harm from the alleged medical monitoring failure. See id. at 3.
Accordingly, Plaintiff's Complaint (Doc. 1) is DISMISSED without prejudice for failure to state a claim upon which relief may be granted. The Court recommends that dismissal of this case count as a “strike,” in the future, for purposes of 28 U.S.C. § 1915(g). The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an in forma pauperis appeal from this Order or the accompanying Judgment would not be taken in good faith.
IT IS SO ORDERED.