Shaw v. Dailey

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
Delvin L. Shaw, )
)
Plaintiff, ) ORDER ADOPTING REPORT
) AND RECOMMENDATION
vs. )
) Case No. 1:22-cv-214
Sgt. John Dailey, )
)
)
Defendant. )
______________________________________________________________________________
The Plaintiff, an inmate at the North Dakota State Penitentiary, initiated this pro se action
and in forma pauperis on January 5, 2023. See Doc. Nos. 2 and 6. The complaint was filed on
January 19, 2023. See Doc. No. 8. After screening the complaint as required by 28 U.S.C. § 1915A,
Magistrate Judge Clare R. Hochhalter issued a Report and Recommendation on March 13, 2023,
in which he recommended the claim be dismissed. See Doc. No. 11. The Plaintiff was given until
March 27, 2023, to file an objection to the Report and Recommendation. On March 22, 2023, the
Plaintiff filed an objection. See Doc. No. 12.
The Court has carefully reviewed the Report and Recommendation, the relevant case law,
the Plaintiff’s objection, and the entire record, and finds the Report and Recommendation to be
persuasive. The Court finds the Plaintiff’s objection unpersuasive.
The Court ADOPTS the Report and Recommendation (Doc. No. 11) in its entirety and
ORDERS as follows:
1) The Plaintiff’s complaint (Doc. No. 8) is DISMISSED without prejudice on the
grounds that it is frivolous or otherwise fails to state a claim.
2) The Court assess Shaw a strike for PLRA purposes under 28 U.S.C. § 1915A.
3) The Plaintiff’s motion to reassign case (Doc. No. 13) is DENIED.
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4) The Court finds that any appeal would be frivolous, could not be taken in good
faith, and may not be taken in forma pauperis.
IT IS SO ORDERED.
Dated this 11th day of April, 2023.
/s/ Daniel L. Hovland
Daniel L. Hovland, District Judge
United States District Court
Case 1:22-cv-00214-DLH-CRH Document 15 Filed 04/11/23 Page 2 of 2