Kaestner v. Bergalowski, No. 6:2016cv00009 - Document 7 (D. Mont. 2016)
Court Description: ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 5 in full. This matter is DISMISSED WITH PREJUDICE. This dismissal counts as a strike pursuant to 28 U.S.C. Section 1915(g). Any appeal of this decision would not be taken in good faith. Signed by Judge Dana L. Christensen on 3/31/2016. Mailed to Kaestner. (TAG, )
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA HELENA DIVISION FILED MAR 3 1 2016 Cler!<. District Court D1stnct Of Montana Missoula SHAWN KAESTNER, CV 16-09-H-DLC-JTJ Plaintiff, ORDER Kaestner v. Bergalowski Doc. 7 vs. C/O BERGALOWSKI, Defendan. United States Magistrate Judge John Johnston entered his Order, Findings and Recommendations in this matter on February 25, 2016, recommending dismissal of Shawn Kaestner' s ("Kaestner") Complaint. Kaestner failed to timely object to the Findings and Recommendations, and so waived his right to de novo review of the record. 28 U.S.C. § 636(b)(l)(C). This Court reviews for clear error those findings and recommendations to which no party objects. See McDonnell Douglas Corp. v. Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313 (9th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 149 (1985). 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) (citations omitted). Having reviewed the Findings and Recommendations, the Court finds no -1- Dockets.Justia.com clear error in Judge Johnston's conclusion that Kaestner allegations fail to state a claim upon which relief may be granted. Kaestner alleges that Officer Begowolski verbally harassed him, "flipped [him] off," intimidated him, and threatened him with violence. (Doc. 2 at 6.) However, these allegations are insufficient to state a constitutional violation under§ 1983. Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987); Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir. 1987). Accordingly, IT IS ORDERED that: (1) Judge Johnston's Findings and Recommendations (Doc. 5) are ADOPTED IN FULL. (2) This matter is DISMISSED WITH PREJUDICE. The Clerk of Court is directed to close this matter and enter judgment in favor of Defendant pursuant to Rule 58 of the Federal Rules of Civil Procedure. (3) 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) because the Complaint fails to state a claim upon which relief may be granted. (4) 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. No reasonable person could suppose an appeal would have merit. The record makes -2- plain the instant Complaint lacks arguable substance in law or fact. . ?O Dated this day of March, 2016. Dana L. Christensen, Chief Judge United States District Court -3-
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