Summary
finding that prisoner who was denied lunch five days per week for four months, but who did not allege that he had suffered physical harm, failed to state a claim for violation of the Eighth Amendment
Summary of this case from Vitalis v. SterlingOpinion
Case No. 3:05cv39/MCR/EMT.
May 24, 2006
ORDER
This cause comes on for consideration upon the magistrate judge's report and recommendation dated May 8, 2006. Plaintiff has been furnished a copy of the report and recommendation and has been afforded an opportunity to file objections pursuant to Title 28, United States Code, Section 636(b)(1). I have made ade novo determination of any timely filed objections.
Having considered the report and recommendation, and any objections thereto timely filed, I have determined that the report and recommendation should be adopted.
Accordingly, it is now ORDERED as follows:
1. The magistrate judge's report and recommendation is adopted and incorporated by reference in this order.
2. Plaintiff's First Amendment claim is DISMISSED WITHOUT PREJUDICE for failure to state a claim, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), such dismissal being without prejudice to Plaintiff's filing a new action asserting his First Amendment claim after he has exhausted his administrative remedies.
3. Plaintiff's claim under 18 U.S.C. § 4042 is DISMISSED WITH PREJUDICE as frivolous, pursuant to 28 U.S.C. § 1915(e)(2)(b)(i).
4. Plaintiff's claims under the Eighth Amendment, Due Process Clause, and Equal Protection Clause are DISMISSED WITH PREJUDICE for failure to state a claim, pursuant to 28 U.S.C. § 1915(e)(2)(b)(ii).
5. All pending motions are DENIED as moot.
DONE AND ORDERED.