Upchurch v. Vittorio

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Eric S. Upchurch, II,
Plaintiff,
v.
Dr. Vittorio,
Defendant.
File No. 25-cv-4630 (ECT/DJF)
ORDER ACCEPTING REPORT
AND RECOMMENDATION
Magistrate 	Judge 	Dulce J. Foster issued a 	Report and Recommendation 	on
February 13, 	2026. 	ECF 	No. 	10. 	No 	party 	has 	objected 	to 	that 	Report 	and
Recommendation, and it is therefore reviewed for clear error. 	See Fed. R. Civ. P. 72(b);
Grinder v. Gammon, 73 F.3d 793, 795 (8th Cir. 1996) (per curiam). Finding no clear error,
and based on all the files, records, and proceedings in the above-captioned matter, IT IS
ORDERED THAT:
1. 	The Report and Recommendation [ECF No. 10] is ACCEPTED;
2. 	Plaintiff’s 	Complaint 	[ECF 	No. 	1] 	is 	DISMISSED 	WITHOUT
PREJUDICE for failure to state a claim upon which relief may be granted;
3. 	Plaintiff’s IFP application [ECF No. 6] is DENIED AS MOOT;
4. 	Plaintiff’s Motion to Appoint Counsel [ECF No. 2] is DENIED AS MOOT;
5. 	Plaintiff is required to pay the unpaid balance of the statutory filing fee for
this action ($339.72) in the manner prescribed by 28 U.S.C. § 1915(b)(2), with the Clerk
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of Court to provide notice of this requirement to the authorities at the institution where
Plaintiff is confined.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: March 24, 2026 	s/ Eric C. Tostrud
Eric C. Tostrud
United States District Court
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