Tabish v. Ferriter et al, No. 6:2008cv00036 - Document 15 (D. Mont. 2008)

Court Description: ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 14 in full. Plaintiff's Complaint is DISMISSED WITH PREJUDICE for failure to state a claim. Plaintiff's filing of this action constitutes a strike for the purposes of 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 12/5/2008. Copy mailed to Tabish. (TAG, )
Download PDF
Tabish v. Ferriter et al Doc. 15 FILED DEC 0 5 2008 PATRICK E. DUFFY, CLERK BY DEPUTY CLERK, MISSOULA IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA HELENA DIVISION GREGORY P. TABISH, Plaintiff, vs. ) ) ) ) ) CV 08-36-H-DWM-RKS ORDER MIKE MAHONEY, et al., Defendants. Plaintiff Tabish has filed a Complaint under 42 U.S.C. § 1983 alleging due process violations stemming from the Montana State Prison's continued imposition of disciplinary sanctions against him after the underlying infraction had been dismissed. United States Magistrate Judge Keith Strong conducted preliminary screening of the Complaint as required by 28 U.S.C. § 1915 (e)(2). Under that statute, the court engages in a preliminary screening to assess the merits of the claims and identify cognizable claims, or dismiss the complaint or any portion thereof if the complaint is frivolous, malicious, or fails to state a claim upon which relief can be granted. Judge Strong issued Findings and Recommendations in which he recommends dismissal of the Complaint with prejudice for failure to state a claim upon which relief can be granted. Judge Strong explained that a liberty interest exists only if prison officials take action that affects the sentence in an unexpected manner or imposes a hardship that is atypical and significant in relation to normal prison life, citing Sandin v. Conner, 515 U.S. 472, 483-84 (1995). The Plaintiff was placed in detention (the hole) for five days, which Judge Strong determined is not unexpected or atypical. The Plaintiff was also permanently reclassified to a higher security level, and argues that he should have been returned to his prior classification upon dismissal of the infraction. Judge Strong disagreed, explaining that inmates have no liberty interest in custody classification decisions. Plaintiff Tabish did not timely object and so has waived the right to de novo review of the record. 28 U.S.C. § 636(b) (1). This Court will review the Findings and Recommendation for clear error. McDonnell Douqlas Corp. v. Commodore 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 been committed." (9th Cir. 2000). United States v. Svrax, 235 F.3d 422, 427 I can find no clear error with Judge Strong's Findings and Recommendations and therefore adopt them in full. Accordingly, IT IS HEREBY ORDERED that the Complaint is DISMISSED W I T H PREJUDICE f o r f a i l u r e t o s t a t e a c l a i m upon which r e l i e f can be granted. The C l e r k o f C o u r t i s d i r e c t e d t o e n t e r judgement i n a c c o r d a n c e w i t h t h i s O r d e r . I T I S FURTHER ORDERED t h a t P l a i n t i f f T a b i s h ' s f i l i n g of t h i s a c t i o n c o n s t i t u t e s a s t r i k e f o r p u r p o s e s o f 2 8 U.S.C. § 1915(g). The C o u r t c e r t i f i e s p u r s u a n t t o R u l e 2 4 ( 3 ) (1) o f t h e F e d e r a l Rules of A p p e l l a t e Procedure t h a t any appeal of t h i s d e c i s i o n would n o t b e t a k e n i n good f a i t h . DATED t h i s y o f Dec /-"