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Timothy Hatten v. D. Young

April 5, 2011

TIMOTHY HATTEN, PLAINTIFF
v.
D. YOUNG, ET AL., DEFENDANT



The opinion of the court was delivered by: William W. Caldwell United States District Judge

ORDER

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

We are considering the Report and Recommendation of the magistrate judge recommending we dismiss plaintiff's complaint pursuant to 28 U.S.C. § 1915(g), without prejudice to refiling if plaintiff pays the court's filing fee. Magistrate Judge Mannion concluded that plaintiff's in forma pauperis motion should be denied because he filed at least three prior civil actions that were ultimately dismissed as frivolous or for failure to state a claim. Since objections were filed, the Court must "make a de novo determination of those portions of the report or specified proposed finding or recommendations to which objection is made." 28 U.S.C. § 636(b)(1)(c).

After review, we agree with Judge Mannion's report. Plaintiff objects to the report on multiple grounds, but each of the his objections goes to the substance of the complaint. He fails to address the three strikes issue or explain why the rule should be waived in these circumstance.

ACCORDINGLY, this 5th day of April, 2011, it is ordered that upon consideration of the report and recommendation of the magistrate judge (doc. 15), filed February 22, 2011, to which objections were filed, and upon independent review of the record, it is ordered that:

1. The magistrate judge's report is adopted.

2. Petitioner's objections are overruled.

3. Plaintiff's motion to proceed in forma pauperis (doc. 8) is denied.

4. Plaintiff's complaint is dismissed pursuant to 28 U.S.C. § 1915(g), without prejudice to refiling if plaintiff pays the court's filing fee.

5. Plaintiff's motion for a preliminary injunction and/or a protective order (doc. 12) is dismissed as moot.

6. The Clerk of Court shall close this file.

William W. Caldwell

20110405

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