Grey v. Lesmeister et al, No. 6:2009cv00054 - Document 5 (D. Mont. 2009)

Court Description: ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 4 in full. Plaintiff's 1 Motion for Leave to Proceed in forma pauperis is DENIED. The Complaint 2 is DISMISSED WITHOUT PREJUDICE. The Court certifies that any appeal would not be taken in good faith. Signed by Judge Donald W. Molloy on 12/2/2009. Copy mailed to Grey. (TAG, )

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Grey v. Lesmeister et al Doc. 5 FILED DEC 022009 P"TRICK E. DUFFY. CLERK BY'=="",=-=i>riiIi DEPUTY CLERK. MISSOULA IN THE UNITED STATES DISTRICT COURT FOR THE DISTRlCT OF MONTANA HELENA DIVISION VERN GAYLE GREY, ) ) Plaintiff, ) ) vs. ) ) PROBAnON OFFICERS LEE BLAZER ) and MILLIS A LESMEISTER, LINDA S ) ) LINDSTROM, and PAT LINDSTROM, ) Defendants. ) CV 09­54­H­DWM­RKS ORDER ­­­­­­­­­­­­­­­­­­­­­­­­) PlaintiffVem Gayle Grey applied to proceed injorrnapauperis with this action. He contends that Defendants Linda and Pat Lindstrom moved guns and ammunition into his home to frame him, resulting in his conviction for being a felon in possession of firearms and ammunition. The Lindstroms are not state actors. United States Magistrate Judge Keith Strong conducted preliminary ­1Dockets.Justia.com 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 c an be granted. Judge Strong issued Findings and Recommendations in which he determined that the Complaint should be dismissed on preliminary screening for failure to allege deprivation offederal rights by a state actor. Judge Strong also notes that because Plaintiff Grey's conviction remains valid, his claim is barred by the doctrine set forth in Heck v. Humphrey, 512 U.S. 477,486­76 (1994). This Court reviews the Findings and Recommendation for clear error. McDonnell Douglas Com. v. Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313 (9th Cir. 1981). Clear error exists ifthe Court is left with a "definite and firm conviction that a mistake has been committed." United States v. Syrax, 235 F.3d 422, 427 (9th Cir. 2000). I can find no clear error with Strong's recommendation and adopt it in full. It is therefore HEREBY ORDERED that Plaintiff Grey's application to proceed in forma pauperis (Doc. No.1) is DENIED, and the Complaint is DISMISSED WITIfOUT PREJUDICE for failure to state a claim upon which relief may be granted. -2- The Clerk of ourt shall close this matter and enter judgment pursuant to C Rule 58 of the Federal Rules of Civil Procedure, and shall have the docket reflect that the Court certifies pursuant to Fed. R. App. P. 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 friVOIou::r t lacks arguable substance in law or fact. i DATED this L day of December, 2009. United States -3- , District Judge trict Court

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