MadPlume v. Montana State Prison, No. 6:2010cv00039 - Document 13 (D. Mont. 2011)

Court Description: ORDER ADOPTING FINDINGS AND RECOMMENDATIONS for 12 Findings and Recommendations. cc: Brian Madplume Signed by Judge Donald W. Molloy on 2/25/2011. (CDH, )
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MadPlume v. Montana State Prison Doc. 13 FILED FEB 25 20ft IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA HELENA DIVISION BRIAN MADPLUME, ) ) ) ) ) ) ) ) ) Plaintiff, vs. MONTANA STATE PRISON, Defendant. CV 10-39-H-DWM-RKS ORDER -----------------------) Plaintiff Brian Madplume filed a Complaint in this matter on August 10, 2010. On September 15,2010, United States Magistrate Judge Keith Strong found that the Complaint failed to state a claim upon which relief may be granted. Additionally, Judge Strong identified a number of defects which could potentially be cured by Madplume and gave him until October 1,2010 to do so. During the interim Madplume requested and received two extensions of time to file an -1­ Dockets.Justia.com amended complaint, the last extension giving him until December 31, 20 10. To date, Madplmne has failed to file an amended complaint. United States Magistrate Judge Keith Strong entered Findings and Recommendation (dkt # 12) in this case on January 18, 2011. Judge Strong recommended, for the reasons set forth in his Order dated September 15, 2010, that the Complaint be dismissed with prejudice. Plaintiff did not timely object and so has waived the right to de novo review ofthe record. 28 U.S.C. § 636(b)(I). This Court reviews the Findings and Recommendation for clear error. McDonnell Douglas CoW. v. Commodore Bus. Mach., Inc., 656 F.2d l309, 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 fmd no clear error with Judge Strong's Findings and Recommendation. Accordingly, IT IS HEREBY ORDERED that Judge Strong's Findings and Recommendation (dkt # 12) is adopted in full and the Complaint is DISMISSED WITH PREJUDICE. The Clerk of Court is directed to close this case and enter judgment pursuant to Rule 58 ofthe Federal Rules of Civil Procedure. IT IS FURlHER ORDERED that the Clerk of Court is directed to have the -2­ docket reflect that this dismissal counts as a strike pursuant to 28 U.S.c. § 1915(g) because Madplume's Complaint fails to state a claim upon which relief may be granted. Finally, IT IS ORDERED that the Clerk of Court is directed to have the docket reflect that the Court certifies pursuant to Rule 24(a)(3)(A) of the Federal Rules of Appellate Procedure that any appeal of this decision would not be taken in good faith. ~ Dated this bday of February, 2011. -3­