Maier v. Frink et al

Filing 8

ORDER ADOPTING IN FULL 6 FINDINGS AND RECOMMENDATIONS. 1 Motion for Leave to Proceed in forma pauperis is DENIED. Signed by Judge Donald W. Molloy on 1/6/2014. Mailed to Maier. (TAG, )

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MONTANA
GREAT FALLS DIVISION

FILED

JAN 06 2fJl;

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CV 13-92-GF-DWM-RKS

LLOYD SCOTT MAIER,
Plaintiff,

ORDER

vs.
MARTIN FRINK, MS. CHRISTIAN,
MS WANDLER, MS. TEMPLE, C.O.
BOTTS, C.O. COLBERT, and PAUL
LUCER,
Defendants.

This matter comes before the Court on review of the Findings and
Recommendations ofUnited States Magistrate Judge Keith Strong, (Doc. 6),
regarding a pro se Complaint filed by Lloyd Scott Maier, (Doc. 2). Maier seeks to
proceed informa pauperis. (Doc. I.) Because he is an inmate subject to the threestrikes rule, (see Doc. 4 at 4), he may only do so upon showing he is in imminent
danger of serious physical injury, 28 U.S.C. § 1915(g). Because his Complaint
fails to make that showing, Judge Strong granted Maier leave to file a brief in
which he might specifically allege sufficient facts to meet that standard. (Doc. 4.)
Maier filed a supplemental briefin accordance with Judge Strong's Order. (Doc.

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5.) After review ofMaier's submission, Judge Strong finds that Maier has failed
to demonstrate that he is not subject to the three-strikes rule and recommends
Maier's Motion for Leave to proceed in forma pauperis be denied. (Doc. 6 at 4.)
Maier did not formally object to Judge Strong's Findings and Recommendations.
The Court reviews the 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).
After a review of Judge Strong's Findings and Recommendations, I find no
clear error. Maier responded to Judge Strong's Findings and Recommendations.
(Doc. 7.) In his response, Maier notes his agreement with Judge Strong. (Id.) He
also presents a factual development which came to light after he submitted his
supplemental brief alleging imminent physical danger. (Id.) These new facts do
not disturb Judge Strong's findings in support of his conclusion that the three­
strikes rule applies. Maier's statement that he and the gang leader are now in
custody in the same facility does not amount to a showing of imminent danger of
serious physical injury. Even after this factual development, "Mr. Maier does not
allege he is at risk in administrative segregation where he currently held." (Doc. 6
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at 3.)
Therefore, IT IS ORDERED that Judge Strong's Findings and
Recommendations, (Doc. 6), are ADOPTED IN FULL. Maier's Motion for Leave
to proceed in forma pauperis, (Doc. 1), is DENIED.
DATED this 1day of January, 2014.

olloy, District Judge
United States istrict Court

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