McGuire v. Mercer et al

Filing 8

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 6 in full. 1 Motion for Leave to Proceed in forma pauperis filed by John Patrick McGuire is DENIED, and the 2 Complaint is DISMISSED WITH PREJUDICE. Any appeal would not be taken in good faith. Signed by Judge Richard F. Cebull on 9/16/2011. Mailed to McGuire. (TAG, )

FILED
BILLINGS DIV.

2011 SfP 16 AfTJ 11 18
PAT RIC Jt; E n I • ~.~ \I '
. uu " r I .. '-'- .,
(i~' ",

BY

DEPUTY-C~

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MONTANA

BILLINGS DIVISION

JOHN PATRICK McGUIRE,

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CV-11-17-BLG-RFC

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Plaintiff,

)
)

vs.

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)
)

ORDER ADOPTING FINDINGS
AND RECOMMENDATIONS OF
U.S. MAGISTRATE JUDGE

MICHAEL COTTER; JAMES
)
SEYKORA; FEDERAL BUREAU )
OF INVESTIGATION,
)
)

Defendants

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On June 7, 2011, United States Magistrate Judge Carolyn Ostby entered her

Findings and Recommendations in this case. Magistrate Judge Ostby recommends
this Court (1) deny Plaintiff's Motion to proceed in forma pauperis (doc. 1) and
(2) dismiss Plaintiff's Complaint with prejudice as frivolous. Plaintiff's

1

Complaint seeks the return of property that was seized by the Cheyenne Police
Department in 1995.
Magistrate Judge Ostby further notes that the Plaintiffs arguments have
been previously litigated in his criminal case as well as a subsequent civil case. In
both prior cases, this Court and the Ninth Circuit Court of Appeals have ruled
against him. l
Upon service of a magistrate judge's findings and recommendation, a party
has 14 days to file written objections. 28 U.S.C. § 636(b)(1). The Court notes
that Plaintiff's objections were filed on July 5, 2011, well after the 14 day deadline
had passed. Moreover, in granting a previous request for extension of time, and
McGuire was notified that further extensions would not be granted absent
compelling reasons. Doc. 5. As such, this Court concludes that the objections
were not timely filed and this Court need not consider the arguments raised by
Plaintiff's objections. Failure to timely object to a magistrate judge's findings and
recommendation waives all objections to the findings of fact. Turner v. Duncan,
158 F.3d 449,455 (9th Cir. 1999). Failure to object, however, does not relieve
this Court of its burden to review de novo the magistrate judge's conclusions of
law. Barilla v. Ervin, 886 F.2d 1514, 1518 (9th Cir. 1989).

lSee United States v. Schweitzer, et al., CR 95-117-BLG-JCC; McGuire v. United States,
CV 09-46-BLG-DWM; and In re John Patrick McGuire, No. 07-80055 (9th Cir. July 28, 2009).
2

The crux of Magistrate Ostby's Findings and Recommendations are that
because this present action is a civil action for the return of property, the six year
statute of limitations pursuant to 28 U.S.C. § 240 1(a) applies. Under that statute,
"every civil action commenced against the United States shall be barred unless the
complaint is filed within six years after the right of action first accrues." Id. Given
that the Plaintiff was convicted of the crime that resulted in the seizure of his
property by the Cheyenne Police Department on May 14, 1999, Magistrate Ostby
correctly concluded that the statute of limitations for Plaintiff to seek recovery of
his property ran by May 2005. Plaintiffs present action seeking the return of his
property some fifteen years ago is time-barred.
Assuming arguendo, that Plaintiffs objections had been timely filed, his
objections do not overcome the bar set by the statute of limitations. After an
extensive review of the record and applicable law, this Court finds Magistrate
Judge Ostby's Findings and Recommendation are well grounded in law and fact
and adopts them in their entirety.
Finally, because the statute of limitations precludes any further recourse
regarding the property at issue, this Court concurs with Magistrate Ostby's
conclusion that any appeal from this Court's decision would be taken in bad faith.
Accordingly, IT IS HEREBY ORDERED that,
1.

Plaintiffs Motion to proceed inJormapauperis (doc. 1) is DENIED;
3

2.

Plaintiffs Complaint (doc. 2) is DISMISSED WITH PREJUDICE.
Pursuant to Fed.R.App.P. 24(a)(4)(B), this Court certifies that any

appeal of this Order would be taken in bad faith.

The Clerk of Court shall notifY the parties of the entry of this Order.
DATED the 16th day of September, 201 .

.icHARD F. CEBULL
CHIEF U.S. DISTRlCT JUDGE

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