Adams v. Mahoney et al, No. 6:2010cv00045 - Document 9 (D. Mont. 2010)

Court Description: ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 4 in full. The Complaint 2 is DISMISSED for failure to state a claim. This dismissal counts as a strike pursuant to 28 U.S.C. Section 1915(g). The Court certifies that any appeal of this decision would not be taken in good faith. Signed by Judge Donald W. Molloy on 12/15/2010. Mailed to Adams. (TAG, )

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Adams v. Mahoney et al Doc. 9 FILED DEC 1 5 2010 PATRICK E. DUFFY. CLERK By"'oe=PIJTY='""'a:ERK:::r==­OMl;;;;S;;;SOUlA"'"­'­­- IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONT NA A HELENA DIVISION LARRY DEW NE ADAMS, AY ) ) ) ) ) ) ) ) ) Plaintiff, v. WARDEN MIKE MAHONEY, et aI., Defendants. CV 10­45­H­DWM­RKS ORDER ­­­­­­­­­­­­­­­­­­­­­­­) Plaintiff Larry Dewayne Adams, proceeding pro se, brought this action pursuant to 42 U.S.C. § 1983. He alleges claims arising from his 1999 conviction for aggravated assault with a weapon and criminal possession of dangerous drugs. Pursuant to 28 U.S.C. § 636(b), the matter was referred to Magistrate Judge Strong, who issued Findings and Recommendation on October 19, 2010. Judge Strong recommended the Complaint be dismissed for failure to state a claim on 1 Dockets.Justia.com which relief may be granted. In making this recommendation, Judge Strong found the Complaint deficient because (1) Defendants have immunity, (2) the claims are untimely, (3) the claims show no "violation of a right secured by the Constitution and laws ofthe United States," and (4) they are otherwise barred by Heck v. Humphrey, 512 U.S. 477, (1994). Adams timely objected to the Findings and Recommendation on November 2, 2010, and is therefore entitled to de novo review of the specified findings or recommendations to which he objects. 28 U.S.c. § 636(b)( 1). Despite Adams' objections, I agree with Judge Strong's analysis and conclusions. Because the parties are familiar with the factual and procedural background, it will not be restated here. Adams objects that his claims did not accrue until February 18, 2010, and thus are timely, and that immunity is an affirmative defense the defendant must plead. The objections are not well taken. February 18, 201 O­the day after the new judgment was entered against Adams­is not relevant to when his claims in this action accrued. See TwoRivers v. Lewis, 174 F.3d 987,991 (9th Cir. 1999) ("[AJ claim accrues when the plaintiff knows or has reason to know of the injury which is the basis of the action."). As to immunity, 28 U.S.C. §§ 1915A(b) and 1915(e)(2)(B) allow for the dismissal of a complaint before it is served upon the 2 defendants if it is "frivolous," "fails to state a claim upon which relief may be granted," or "seeks monetary relief from a defendant who is immune from such relief." Immunity provides grounds for a sua sponte dismissal where the defense is complete and obvious from the face of the pleadings. That is the case here. Regardless, Adams does not object to Judge Strong's findings that the Complaint fails to state a claim under 42 U.S.C. § 1983 and is otherwise Heck barred. As such, there are separate grounds for dismissaL Reviewing these unchallenged findings for clear error, I find none. Because no claim could be stated under § 1983 based on the alleged facts, amendment would be futile. ORDER Accordingly, IT IS HEREBY ORDERED that Judge Strong's Findings and Recommendation (dkt #4) are adopted in fulL IT IS FURTHER ORDERED that I. The Complaint (dkt #2) is DISMISSED for failure to state a claim on which relief may be granted; 2. The Clerk shall enter, by separate document, a judgment of dismissal; 3. The docket shall reflect that Plaintiffs filing ofthis action counts as one strike under 28 U.S.C. § 1915(g); and 3 4, The docket shall reflect that the Court certifies pursuant to Fed,KApp,P, 24 (a)(3)(A) that any appeal ofthis decision would not be taken in good faith. Dated this of December, 20 I Donald 91'. Mo oy, District Judge Uniteq.States 'strict Court , 4

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