Sharp v. Toole County et al

Filing 23

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 19 in full. Plaintiffs Complaint 2 is DISMISSED with prejudice. This dismissal counts as a strike pursuant to 28 U.S.C. Section 1915(g). Any appeal of this decision would not be taken in good faith. Plaintiff's Motion to Set a Scheduling Conference 21 isDENIED as moot. Signed by Judge Brian Morris on 2/20/2015. Mailed to Sharp (TAG, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
GREAT FALLS DIVISION
DARRELL DEAN SHARP,
Plaintiff,

CV-14-62-GF-BM

vs.
CCA, TOOLE COUNTY, and
WARDEN FENDER,

ORDER ADOPTING
FINDINGS AND
RECOMMENDATIONS

Defendants.

Plaintiff Darrell Dean Sharp (Sharp) is a prisoner at Crossroads Correctional
Center (CCA) in Shelby, Montana. He filed a Complaint on August 28, 2014.
Sharp alleges that he was a assaulted by a correctional officer and another inmate at
CCA. He claims that Defendants CCA, Toole County, and Warden Fender are
liable under 42 U.S.C. § 1983 because they failed to protect him from the inmate,
and they refused to bring criminal charges against the officer.
United States Magistrate Judge Keith Strong informed Sharp on November
12, 2014, that his Complaint was subject to dismissal because it failed to state a
viable claim against any of the Defendants. Judge Strong described the deficiencies
in the Complaint. He explained that Sharp had failed to assert a claim against CCA
and Toole County because there was no allegation that CCA or Toole County
violated his constitutional rights by application of an unconstitutional custom,

policy or practice. Judge Strong explained that Sharp had failed to allege a claim
against Warden Fender because there was no allegation that Warden Fender’s
personal actions caused him injury, and there was no allegation that Warden Fender
was subject to supervisory liability.
Judge Strong gave Sharp an opportunity to cure the pleading deficiencies by
filing an Amended Complaint. The deadline for filing the Amended Complaint was
set for December 8, 2014. The deadline was later extended, at Sharp’s request, to
January 9, 2015. No Amended Complaint was filed by Sharp.
United States Magistrate Judge John Johnston issued Findings and
Recommendations in this matter on January 21, 2015. (Doc. 19). Judge Johnston
recommended that the Complaint be dismissed for the reasons stated in Judge
Strong’s Order of November 12, 2014. (Doc. 19 at 2).
Sharp filed objections to Judge Johnston’s Findings and Recommendations
on February 6, 2015. (Doc. 20). Sharp also filed a Motion to Set a Scheduling
Conference. (Doc. 21).
The Court reviews de novo Findings and Recommendations to which
objections are made. 28 U.S.C. § 636(b)(1). The Court finds no error in Judge
Johnston’s Findings and Recommendations, and adopts them in full. The

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Complaint fails to state a claim for relief for the reasons explained by Judge Strong
and Judge Johnston. Dismissal of the Complaint is appropriate.
Accordingly, IT IS HEREBY ORDERED:
1.

Plaintiff’s Complaint (Doc. 2) is DISMISSED with prejudice.

2.

Plaintiff’s Motion to Set a Scheduling Conference (Doc. 21) is

DENIED as moot.
3.

The filing of this action counts as one strike for failure to state a claim.

28 U.S.C. § 1915(g).
4.

Any appeal of this decision would not be taken in good faith as

Plaintiff’s claims are frivolous.
5.

The Clerk is directed to enter judgment accordingly.

DATED this 20th day of February, 2015.

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