Haithcox v. Gilbertson et al, No. 6:2016cv00059 - Document 28 (D. Mont. 2018)
Court Description: ORDER adopting Findings and Recommendations 27 in full. The Court CERTIFIES that any appeal of this decision would not be taken in good faith. This dismissal counts as one strike because Plaintiff failed to state a claim upon which relief may be granted. Signed by Judge Dana L. Christensen on 6/22/2018. (ASG)
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Haithcox v. Gilbertson et al Doc. 28 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA HELENA DIVISION TIMOTHY CRAIG HAITHCOX, CV 16-59-H-DLC-JTJ Plaintiff, ORDER vs. LEO DUTTON, ERIC GILBERTSON, ALAN HUGHES, DAN O'MALLEY, WILLIAM P ANUS, and ARLEEN HIBBARD, Defendants. United States Magistrate Judge John T. Johnston entered his Findings and Recommendations on April 9, 2018, recommending that this matter be dismissed for failure to state a federal claim. (Doc. 27 at 2.) Plaintiff failed to timely object to the Findings and Recommendations and so has waived the right to de novo review thereof. 28 U.S.C. § 636(b)(1 )(C). Absent objection, this Court reviews findings and recommendations for clear error. United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en bane); 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). -1- Dockets.Justia.com After reviewing for clear error and finding none, IT IS ORDERED that Judge Johnston's Findings and Recommendations (Doc. 27) are ADOPTED IN FULL. I. This matter is DISMISSED for failure to state a federal claim. 2. The Clerk of Court is directed to close this matter and enter judgment in favor of Defendants pursuant to Rule 58 of the Federal Rules of Civil Procedure. 3. The Clerk of Court is directed to ensure the docket reflects the Court's certification pursuant to Federal Rule of Appellate Procedure 24(a)(3)(A) that any appeal of this decision would not be taken in good faith. No reasonable person could suppose an appeal would have merit as the record makes plain that the Complaint lacks arguable substance in law or fact. 4. The Clerk of Court is directed to ensure the docket reflects that this dismissal counts as a strike pursuant to 28 U.S.C. § 1915(g) because Plaintiff failed to state a claim upon which relief may be granted. DATED this 22.~ay of June, 2018. Dana L. Christensen, Chief Judge United States District Court -2-
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