Spinks v. Fode et al, No. 6:2016cv00092 - Document 10 (D. Mont. 2017)

Court Description: ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 8 in full. 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 8/31/2017. Mailed to Spinks. (TAG)
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Spinks v. Fode et al Doc. 10 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA HELENA DIVISION FILED AUG 3 1 2017 I:'· S Diarict Court D1stnct Of Montana Missoula CV 16-92-H-DLC-JTJ BRIAN J. SPINKS, Plaintiff, ORDER vs. ALVIN FODE, AMIE DANIELS, DIANNE JACOBS, DAVID PENTLAND, and MYRON BEESON, Defendants. United States Magistrate Judge John T. Johnston entered his Findings and Recommendations in this case on July 28, 2017, recommending dismissal of Petitioner Brian J. Spinks's ("Spinks") Complaint. Spinks timely filed objections to the Findings and Recommendations. Consequently, Spinks is entitled to a de novo review of those findings and recommendations to which he specifically objects. 28 U.S.C. § 636(b)(1 )(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 ifthe Court is left with a "definite and firm conviction that a mistake has been committed." United -1- Dockets.Justia.com States v. Syrax, 235 F.3d 422, 427 (9th Cir. 2000) (citations omitted). Judge Johnston first found that Spinks presented insufficient facts in his Complaint to establish that the sanctions issued from MSP regarding Spinks' disciplinary write- up constituted an "atypical or significant hardship" sufficient to trigger a liberty interest. The Court agrees that Spinks did not allege the deprivation of a protected liberty interest and, therefore, his due process claims regarding his disciplinary write-up and reclassification fail to state a claim. Judge Johnston allowed Spinks to file an amended complaint within 30 days to cure the defects. He states in his objections that "there has never been a shred of evidence to support the findings of guilt in this matter." (Doc. 9 at 1.) Whether this assertion has merit, Spinks did not amend his Complaint and, therefore, dismissal is appropriate. Accordingly, IT IS ORDERED that Judge Johnston's Findings and Recommendations (Doc. 8) is ADOPTED IN FULL. This action is DISMISSED WITH PREJUDICE. IT IS FURTHER ORDERED that 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. IT IS FURTHER ORDERED that the Clerk of Court is directed to have the docket reflect that the Court certifies under Rule 24(a)(3)(A) of the Federal Rules -2- of Appellate Procedure that any appeal of this decision would not be taken in good faith. IT IS FURTHER ORDERED that the Clerk of Court is directed to have the docket reflect that this dismissal counts as a strike under 28 U.S.C. § 1915(g) because Spinks failed to state a claim upon which relief may be granted. DATED this 31 of August, 201 7. Dana L. Christensen, Chief Judge United States District Court -3-