Witherall v. Bell et al

Filing 25

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 23 in full. 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 Signed by Judge Brian Morris on 1/31/2018. Mailed to Witherall (TAG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
GREAT FALLS DIVISION

ALLEN WITHERALL,
Plaintiff,

CV-17-38-GF-BMM-JTJ

v.
DARRELL BELL, et al.,

ORDER ADOPTING MAGISTRATE
JUDGE’S FINDINGS AND
RECOMMENDATIONS

Defendants.
United States Magistrate Judge John Johnston entered Findings and
Recommendations in this matter on December 11, 2017. (Doc. 23.) No party filed
objections.
Given that no objections were filed, the Court has reviewed Judge
Johnston’s Findings and Recommendations for clear error. McDonnell Douglas
Corp. v. Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313 (9th Cir. 1981). The
Court finds no error in Judge Johnston’s Findings and Recommendations, and
adopts them in full.
I.BACKGROUND
Plaintiff Allen Witherall filed an Amended Complaint on May 16, 2017.
(Doc. 7.) Judge Johnston issued an Order on November 6, 2017, finding that
Witherall’s Complaint failed to state a claim upon which relief could be granted.
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(Doc. 22.) Judge Johnston’s Order provided Witherall an opportunity to file a
second amended complaint on or before November 30, 2017. (Doc. 22 at 28.)
Witherall has failed to file a second amended complaint.
II.DISCUSSION
Judge Johnston recommends dismissal for Witherall’s failure to file a second
amended complaint. (Doc. 12 at 2.) Federal Rule of Civil Procedure 41(b) provides
that the Court may dismiss an action for failure to comply with a court order.
Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992).
The Court notes Witherall’s pro se status. The Court must “liberally
construe” pro se filings. Erickson v. Pardus, 551 U.S. 89, 94 (2007). Nothing in
the record indicates that Witherall has made an attempt to comply with Judge
Johnston’s order. Witherall’s pro se status cannot overcome his failure to file a
second amended complaint.
III.ORDER
Accordingly, IT IS ORDERED that Magistrate Judge Johnston’s Findings
and Recommendations (Doc. 23) is ADOPTED IN FULL. Witherall’s Complaint
is DISMISSED for failure to state a federal claim.
The Clerk of Court is directed to close this matter and enter judgment in
favor of Defendants pursuant to Rule 58 of the Federal Rules of Civil Procedure.
The Clerk of Court is directed to have the docket reflect that the Court
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certifies pursuant to Rule 24(a)(3)(A) of the Federal Rules of Appellate Procedure
that any appeal of this decision would not be taken in good faith. No reasonable
person could suppose an appeal would have merit. The record makes plain the
Complaint lacks arguable substance in law or fact.
The Clerk of Court is directed to have the docket reflect that this dismissal
counts as a strike pursuant to 28 U.S.C. § 1915(g) because Witherall failed to state
a claim upon which relief may be granted.
DATED this 31st day of January, 2018.

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