Chief Judge Robert J. Shelby
ORDER SUSTAINING OBJECTION TO REPORT AND RECOMMENDATION IN PART
Chief Magistrate Judge Paul M. Warner
This case was referred to Chief Magistrate Judge Paul M. Warner pursuant to 28 U.S.C. § 636(b)(1)(B). Before the court is Judge Warner's Report and Recommendation, in which Judge Warner recommended this action be dismissed without prejudice based upon Plaintiff Edson Gardner's failure to establish standing. Gardner objected to the Report and Recommendation. for plaintiff to do. Thus far, the plaintiff has been unable to allege any facts or overt acts which would support a legal finding of any such conspiracy in spite of repeated opportunities to do so. Like rape, the only thing the defendants can do is deny its existence, thus effectively precluding a summary judgment.
Plaintiff has been an avid litigator in this court (a total of 29 docketed cases thus far, of which 3 are still pending) and others, but he has apparently never been successful in a case in which he was opposed. His past lack of success is relevant to consideration of his chances of ultimate success here. See Cruz v. Beto, 405 U.S. 319, 329, 92 S.Ct. 1079, 31 L.Ed.2d 263 (1972) (Rehnquist, J. dissenting).
Even if the plaintiff could demonstrate the criminal guilt of defendant Bales or any action by her leading to his arrest, the failure of the government to prosecute her or even the use of her as an informant, tipster, or witness at trial against plaintiff does not show a conspiracy to violate plaintiff's civil rights. To the contrary, arrest and conviction by such tactics are recognized lawful police methods and not violative of any civil right. Under such circumstances, the Court does not assume lack of merit. To the contrary, in order to allow the case to proceed on this aspect, the Court would have to assume merit by piling inference upon inference. This it should not do. See, e.g., United States v. Ross, 92 U.S. 281, 23 L.Ed. 707 (1875); Tyrrell v. Dobbs Inv. Co., 337 F.2d 761 (10th Cir. 1964); Dreijer v. Girod Motor Co., 294 F.2d 549, 554 (5th Cir. 1961); Klein v. Continental Emsco Co., 310 F.Supp. 413 (D.C.Tex.1970), aff'd 445 F.2d 629 (5th Cir. 1971). The Court sees no way that plaintiff could establish the violation of a civil right or a conspiracy on the part of the defendants to do so in order to prevail in a § 1983 claim. Since both the Tennessee search claim and the Georgia arrest and imprisonment claim are frivolous, this case is accordingly dismissed. 28 U.S.C. § 1915.
It is so ordered.