Rogers v. Deputy King et al, No. 9:2013cv00163 - Document 24 (D. Mont. 2015)

Court Description: ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 23 in full. Complaint 2 is DISMISSED. This dismissal counts as a strike pursuant to 28 U.S.C. §1915(g). Any appeal of this decision would not be taken in good faith. Signed by Judge Donald W. Molloy on 11/18/2015. Mailed to Rogers. (TAG, )

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Rogers v. Deputy King et al Doc. 24 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA MISSOULA DIVISION DONALD P. ROGERS, CV 13-00163-M-DWM-JCL Plaintiff, vs. ORDER DEPUTY KING, DEPUTY BURT, ASS. DEPUTY COUNTY ATTORNEY JASON TROY MARKS, CHIEF COUNTY ATTORNEY FRED VANVALKENBURG, CITY OF MISSOULA JUDICIAL COURT SYSTEM, and the COUNTY OF MISSOULA, FILED NOV 18 2015 Clerk, U.S District Court District Of Montana Missoula Defendants. Donald Rogers, appearing prose, brings this action under 42 U.S.C. § 1983, alleging violations of his federal Constitutional rights during the course of a criminal proceeding brought against him by the State of Montana. Magistrate Judge Jeremiah Lynch recommends Rogers' complaint be dismissed. (Doc. 23.) As Rogers has not filed objections to Judge Lynch's Findings and Recommendations, they are reviewed for clear error. McDonnell Douglas Corp. v. Commodor Bus. Mach., Inc., 656 F.2d 1309, 1313 (9th Cir. 1981). Clear error exists if the Court is left with a "definite and firm conviction that a mistake has Dockets.Justia.com been committed." United States v. Syrax,, 235 F.3d 422, 427 (9th Cir. 2000). After consideration of the five factors delineated in Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992), no clear error exists with Judge Lynch's determination that Rogers' claims should be dismissed pursuant to Rule 41 (b) for failure to comply with court orders. Additionally, no clear error exists in Judge Lynch's determination that Rogers' claims are barred by Heckv. Humphrey, 512 U.S. 477 (1994). That case prevents challenges to the validity of a conviction or sentence if that conviction or sentence has not been reversed, declared invalid, expunged, or called into question. Accordingly, IT IS ORDERED that the Findings and Recommendations (Doc. 23) are ADOPTED IN FULL. Rogers' Complaint (Doc. 2) is DISMISSED. IT IS FURTHER ORDERED that the Clerk of Court is directed to close this matter and enter judgment pursuant to Rule 58 of the Federal Rules of Civil Procedure. IT IS FURTHER ORDERED that the Clerk of Court is directed to have the docket reflect that this dismissal counts as a strike pursuant to 28 U.S.C. § 1915(g). Rogers has failed to state a claim upon which relief may be granted. IT IS FURTHER ORDERED that the Clerk of Court is directed to have the docket reflect that the Court certifies pursuant to Fed. R. App. P. Rule 24(a)(3)(A) that any appeal of this decision would not be taken in good faith. The record makes plain the instant Complaint is frivolous and lacks arguable substance in law or fact. t-- DATED this J£day of November, 2015. / Donald W. Mo loy, District Judge United Stites ·strict Court

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