Schoen v. Bell et al

Filing 13

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 12 in full. This dismissal counts as a strike pursuant to 28 U.S.C. § 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 Schoen (TAG)

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

CV-17-39-GF-BMM-JTJ

TIMOTHY SCHOEN,
Plaintiff,
v.
DARRELL BELL, et al.,
Defendants.

ORDER ADOPTING MAGISTRATE
JUDGE’S FINDINGS AND
RECOMMENDATIONS

United States Magistrate Judge John Johnston entered Findings and
Recommendations in this matter on December 11, 2017. (Doc. 7.) 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 Timothy Schoen filed an Amended Complaint on July 31, 2017.
(Doc. 9.) Judge Johnston issued an Order on November 6, 2017, finding that

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Schoen’s Complaint failed to state a claim upon which relief could be granted.
(Doc. 11.) Judge Johnston’s Order provided Schoen an opportunity to file a second
amended complaint on or before November 30, 2017. (Doc. 11 at 26.) Schoen has
failed to file an amended complaint.
II.DISCUSSION
Judge Johnston recommends dismissal for Schoen’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 Schoen’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 Schoen has made an attempt to comply with Judge Johnston’s order.
Schoen’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. 12) is ADOPTED IN FULL. Schoen’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.
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The Clerk of Court is directed to have the docket reflect that the Court
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 Schoen failed to state a
claim upon which relief may be granted.
DATED this 31st day of January, 2018.

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