Louvar v. Ravalli County Sheriff's Office, No. 9:2008cv00101 - Document 7 (D. Mont. 2008)

Court Description: ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 5 in full. Louvar's Complaint is DISMISSED WITH PREJUDICE for failure to state a claim. The filing of this action counts as one strike pursuant to 28 USC 1915(g). Signed by Judge Donald W. Molloy on 9/4/2008. Copy mailed to Louvar. (TAG, ) Modified on 12/8/2008 to add portion of text re strike. (ASG, ).
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Louvar v. Ravalli County Sheriff's Office Doc. 7 FILED SEP 0 4 2'"; PATRICK E. M r . L-L:AK BY DEPU" C E MlSSOULA LW IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA MISSOULA DIVISION JOHN LOUVAR, Plaintiff, vs . RAVALLI COUNTY SHERIFF'S OFFICE, et al., Defendants. ) ) ) ) ) ) ) ) ) ) CV 08-101-M-DWM-JCL ORDER Plaintiff Louvar has filed a Complaint under 42 U.S.C. ยง 1983 alleging that the police failed to act after his house was burglarized while he was incarcerated. United States Magistrate Judge Jeremiah C. Lynch conducted preliminary screening of the Complaint as required by 28 U.S.C. 5 1915(e)(2). Under that statute, the court engages in a preliminary screening to assess the merits of the claims and identify cognizable claims, or dismiss the complaint or any Dockets.Justia.com portion thereof if the complaint is frivolous, malicious, or fails to state a claim upon which relief can be granted. Judge Lynch issued Findings and Recommendations in which he recommends dismissal of the Complaint with prejudice for failure to state a claim upon which relief can be granted. Judge Lynch explained that no constitutional provision requires the state to protect the life, liberty and property of citizens against private actors, unless there exists a special relationship arising from the state's restriction of an individual's freedom to act on his own behalf. The fact that the Plaintiff may have been incarcerated at the time of the break-in does not create such a special relationship, Judge Lynch concludes. Plaintiff Louvar did not timely object and so has waived the right to de novo review of the record. 28 U.S.C. 5 636(b)(1). This Court will review the Findings and Recommendation for clear error. McDonnell Doualas C o r ~ .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." (9th Cir. 2000). United States v. Svrax, 235 F.3d 422, 427 I can find no clear error with Judge Lynch's Findings and Recommendations and therefore adopt them in full. Accordingly, IT IS HEREBY ORDERED that the Complaint is DISMISSED WITH PREJUDICE for failure to state a claim. IT IS FURTHER ORDERED that Plaintiff Louvar's filing of this action constitutes a strike for purposes of 28 U.S.C. S 1915(g). The Court certifies pursuant to Fed. R. App. P. 24 (a)(3)(A) -2- t h a t a n y a p p e a l from t h i s d i s p o s i t i o n would n o t be t a k e n i n good faith. DATED t h i s d a y of S e p t e m b e r ,