Wells v. Van Ausdol et al
Filing
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ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 6 in full. The Complaint 1 is DISMISSED WITH PREJUDICE. Any appeal of this decision would not be taken in good faith. Signed by Judge Donald W. Molloy on 4/10/2014. Mailed to Wells. (TAG, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BUTTE DIVISION
CV 13-90-BU-DWM
GLORIA WELLS,
Plaintiff,
ORDER
vs.
LORRAINE VAN AUSDOL, HOLLY
BROWN, GALLATIN COUNTY
SHERIFF'S DEPARTMENT,
GALLATIN COUNTY TREASURER
ARLETA DERLETH, GALLATIN
COUNTY COMMISSIONERS, and
JANE AND JOHN DOES,
Defendants.
This matter comes before the Court on the proposed Findings and
Recommendations entered by United States Magistrate Judg~ Jeremiah C. Lynch,
(Doc. 6), regarding the civil rights Complaint brought pursuant to 42 U.S.C.
§ 1983 by Plaintiff Gloria Wells, (Doc. 1). Because Wells is proceeding pro se,
upon filing, this matter was referred to Judge Lynch. See L.R. 72.2(a). Judge
Lynch conducted the pre screening required by 28 U.S.C. § 1915, finding that
Wells' Complaint failed to state a claim upon which relief can be granted and
ordered Wells to file an amended complaint by March 7,2014. (Doc. 5.) Wells
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did not respond to the Court's Order. Following Wells' failure to respond, Judge
Lynch filed proposed Findings and Recommendations regarding the Complaint on
March 10,2014. (Doc. 6 at 2.) "Within fourteen days after being served with a
copy, any party may serve and file written objections to such proposed findings
and recommendations as provided by rules of court." 28 U.S.C. § 636(b)(1).
Because the statutory objections period states that a party may file objections
within a specified time after service of the findings and recommendations, and
service of the Findings and Recommendations at issue was made by mail and
electronic means, three days are added after the period would otherwise expire.
See Fed. R. Civ. P. 6(d). Accordingly, written objections to Judge Lynch's
proposed Findings and Recommendations were due March 27,2014.
Judge Lynch's proposed Findings and Recommendations are reviewed for
clear error. No party timely filed written objections to the proposed Findings and
Recommendations. When no party objects, the Court reviews the proposed
findings and recommendations of a United States Magistrate Judge for clear error.
McDonnell Douglas Corp. v. Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313
(9th Cir. 1981). Clear error is present only ifthe 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).
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Judge Lynch's report contains no mistake of fact or law and will be adopted
in-full. The proposed Findings and Recommendations incorporate by reference
the Court's rationale for finding that Wells' Complaint fails to state a claim upon
which relief can be granted. (Doc. 6 at 1.) The Court found dismissal under
Federal Rule of Civil Procedure 12(b)(6) warranted based on Wells' failure to
assert specific claims and factual allegations against specific Defendants,
inadequate statement of her procedural due process claims, and the doctrine of
judicial immunity. (Doc. 5 at 4-8.) The Court granted Wells leave to file an
Amended Complaint to attempt to cure these deficiencies. (Id. at 8-9.) Wells did
not respond to the Court's Order. The Court warned Wells that her failure to
timely file an Amended Complaint would result in dismissal ofthis action for
failure to comply with any order of the Court. (Id. at 9-10.) Dismissal on these
grounds is appropriate. The record is plain that Wells' Complaint fails to state any
viable claim for relief. The Complaint is frivolous in that it lacks any arguable
substance in law or fact. Therefore, any appeal of this decision would not be taken
in good-faith.
IT IS ORDERED:
(1) The proposed Findings and Recommendations entered by United
States Magistrate Judge Jeremiah C. Lynch, (Doc. 6), are ADOPTED
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IN-FULL.
(2) The Complaint filed by Plaintiff Gloria Wells, (Doc. 1), is
DISMISSED WITH PREJUDICE for failure to state a claim.
(3) The Clerk of Court shall ensure that the docket reflects this Court's
certification, pursuant to Federal Rule of Appellate Procedure
24(a)(3)(A), that any appeal ofthis decision would not be taken in
good faith.
(4) The Clerk of Court shall enter judgment by a separate document,
pursuant to Federal Rule of Civil Procedure 58, and close this case.
DATED this I'D-day of April, 2014.
lloy, District Judge
istrict Court
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