Petersen v. State of Montana et al, No. 6:2010cv00057 - Document 8 (D. Mont. 2011)

Court Description: ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 6 in full. This action is DISMISSED WITH PREJUDICE 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. Signed by Judge Donald W. Molloy on 4/29/2011. Mailed to Peterson. (TAG, )
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Petersen v. State of Montana et al Doc. 8 FILED APR 292011 PATRICK E, DUFfY, CLERK By'-=oe=P""'urv=C""lEC::::R1(;-C,t.M"'SSOUlA=~- IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA HELENA DIVISION DALE PETERSEN, ) ) ) ) ) ) ) ) ) Plaintiff, vs. STATE OF MONTANA, et aI., Defendants. CV 10-57-H-DWM-RKS ORDER ------------------------) Plaintiff Dale Petersen filed his Complaint on December 13,2010. Magistrate Judge Keith Strong entered an Order on February 8, 2011 which detennined the Complaint was subject to dismissal for failing to state a claim upon which relief can be granted, Judge Strong identified defects which could potentially be cured by the allegation of additional facts and gave Peterson until March 11, 2011 to file an amended complaint. Petersen did not comply. Judge -1­ Dockets.Justia.com Strong entered Findings and Recommendation on April 5, 2011 and recommended dismissing Petersen's Complaint for failure to state a claim on which relief may be granted. Plaintiff did not timely object to the Findings and Recommendation, and so has waived the right to de novo review ofthe record. 28 U.S.c. § 636(b)(1). This Court will review the Findings and Recommendation for clear error. McDonnell Doujilas 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." United States v. Syrax, 235 F.3d 422, 427 (9th Cir. 2000). After a review of Judge Strong's Findings and Recommendation, I find no clear error. Accordingly, IT IS HEREBY ORDERED that Judge Strong's Findings and Recommendation (dkt #6) are adopted in full. This action is DISMISSED WITH PREJUDICE for failure to state a claim on which relief may be granted. 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 this dismissal counts as a strike pursuant to 28 U.S.C. § 1915(g). The Clerk of Court is directed to have the docket reflect that the Court certified pursuant to Rule 24( a)(3)(A) of the Federal Rules of -2­ Appellate Procedure that any appeal of this decision would not be taken in good faith. Dated this ).1J-of April, 2011. day loy, District J ge istrict Court -3­