JAMES ROSENBAUM, Chief Judge
Based upon the Findings of Fact, Conclusions of Law, and Recommendation by United States Magistrate Judge Franklin L. Noel dated October 27, 2009, all the files and records, and no objections having been filed to said Report and Recommendation,
IT IS HEREBY ORDERED that:
1. Plaintiff's Application to Proceed Without Prepayment of Fees, (Docket Nos. 2 and 5), is DENIED;
2. Plaintiff's motion for appointment of counsel, (Docket No. 3), is DENIED; and
3. This action is DISMISSED WITHOUT PREJUDICE.