Fournier v. Kirkegard et al, No. 6:2016cv00105 - Document 11 (D. Mont. 2018)

Court Description: ORDER ADOPTING FINDINGS AND RECOMMENDATIONS. This matter is DISMISSED for failure to state a federal claim. Any appeal of this decision would not be taken in good faith. This dismissal counts as a strike pursuant to 28 U.S.C. Section 1915(g). Signed by Judge Dana L. Christensen on 3/1/2018. (APP)

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Fournier v. Kirkegard et al Doc. 11 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA HELENA DIVISION SEAN LANCE FOURNIER, CV 16-105-H-DLC-JTJ Plaintiff, vs. ORDER LEROY KIRK.GARD, et al., Defendants. United States Magistrate Judge John T. Johnston entered his Findings and Recommendations on January 11, 2018, recommending Plaintiff Sean Lance Fournier's claims be dismissed without further leave to amend and with prejudice for failure to state a claim. (Doc. 10 at 4.) 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). After reviewing for clear error and finding none, Page 1of2 Dockets.Justia.com IT IS ORDERED that Judge Johnston's Findings and Recommendations (Doc. 10) are ADOPTED IN FULL. 1. 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 I st day of March, 2018. Dana L. Christensen, Chief Judge United States District Court Page 2 of2

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