Opinion
Case No. 2:05-cv-39.
February 23, 2006
OPINION AND ORDER APPROVING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
The Court has reviewed the Report and Recommendation filed by the United States Magistrate Judge in this action. The Report and Recommendation was duly served on the parties. The Court has received objections from the plaintiff. In accordance with 28 U.S.C. § 636(b)(1), the Court has performed de novo consideration of those portions of the Report and Recommendation to which objection has been made.
Plaintiff argues that he did exhaust his grievance remedies or alternatively that the court should only dismiss those claims that are unexhausted and decide the merits of the exhausted claims. Plaintiff had the burden of establishing that he exhausted his grievance remedies at the time he filed his complaint. Plaintiff failed in showing that he exhausted each claim against each defendant. Plaintiff's complaint is appropriately dismissed under Jones Bey v. Johnson, 405 F.3d 801 (6th Cir. 2005).
The court must next decide whether an appeal of this action would be in good faith within the meaning of 28 U.S.C. § 1915(a)(3). See McGore v. Wrigglesworth, 114 F.3d 601, 611 (6th Cir. 1997). For the same reasons that the court grants defendants' motion to dismiss, the court discerns no good-faith basis for an appeal. Should the plaintiff appeal this decision, the court will assess the $255 appellate filing fee pursuant to § 1915(b)(1), see McGore, 114 F.3d at 610-11, unless plaintiff is barred from proceeding in forma pauperis, e.g., by the "three-strikes" rule of § 1915(g). If he is barred, he will be required to pay the $255 appellate filing fee in one lump sum.
THEREFORE, IT IS ORDERED that the Report and Recommendation of the Magistrate Judge is approved and adopted as the opinion of the court.