Smith v. Fox et al
Filing
10
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 9 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 6/18/2018. Mailed to Smith (TAG)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
GREAT FALLS DIVISION
BRIAN D. SMITH,
CV-17-119-GF-BMM-JTJ
Plaintiff,
ORDER ADOPTING MAGISTRATE
JUDGE’S FINDINGS AND
RECOMMENDATIONS
v.
TIMOTHY FOX, ATTORNEY
GENERAL, STATE OF MONTANA;
HON. MIKE MCGRATH, CHIEF
JUSTICE, THE SUPREME COURT,
STATE OF MONTANA, et. al.,
Defendants.
Plaintiff Brian D. Smith (“Smith”), a state prisoner appearing pro se,
proceeds in forma pauperis under 28 U.S.C. § 1915(a)(1). The Court must conduct
a preliminary screening of the allegations set forth in the pleading as required
under 28 U.S.C. § 1915(e)(2). Section 1915(e)(2) requires dismissal of the action if
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the allegations fail to state a claim upon which relief could be granted. 28 U.S.C. §
1915(e)(2)(B)(ii).
Judge Johnston entered Findings and Recommendations in this matter on
May 2, 2018. (Doc. 9.) Judge Johnston determined that Smith’s allegations in his
Complaint proved insufficient to state a claim upon which relief could be granted.
Id. Judge Johnston further determined that leave to amend the Complaint would be
futile. Id. No objection has been filed. When a party makes no objections, the
Court need not review de novo the proposed Findings and Recommendations.
Thomas v. Arn, 474 U.S. 140, 149-52 (1986). The Court will review Judge
Johnston’s Findings and Recommendations, however, for clear error. McDonnell
Douglas Corp. v. Commodore Bus. Machs. Inc., 656 F.2d 1309, 1313 (9th Cir.
1981).
Judge Johnston determined that the Supreme Court’s decision in Heck v.
Humphrey, 512 U.S. 477, 486-87 (1994), barred the civil rights allegations that
Smith raises in his complaint. (Doc. 9 at 7.) Smith contends that he was charged,
and subsequently convicted, following irregular and unconstitutional charging
practices. (Doc. 9 at 7.) The Supreme Court determined in Heck that “a § 1983
plaintiff must prove that the conviction or sentence has been reversed on direct
appeal” in order to recover damages for allegedly unconstitutional conviction or
imprisonment. 512 U.S. at 486-87.
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Smith’s previous challenge to his aggravated assault conviction was
unsuccessful. (Doc. 9 at 4-5.) Smith’s pending civil rights action seeking to
undermine his charge and conviction will remain barred, unless and until, his
conviction is called into question. Id. at 8. Smith has failed to state a claim upon
which relief could be granted.
The Court has reviewed Judge Johnston’s Findings and Recommendations
for clear error. The Court finds no error, and adopts the Findings and
Recommendations in full.
Accordingly, IT IS ORDERED that Magistrate Judge Johnston’s Findings
and Recommendations (Doc. 9) are ADOPTED IN FULL.
IT IS ORDERED that the Clerk shall close this matter and enter judgment
pursuant to Rule 58 of the Federal Rules of Civil Procedure.
IT IS ORDERED that the docket shall 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. The record makes plain
that the Complaint is frivolous as it lacks arguable substance in law or fact.
IT IS FURTHER ORDERED that the docket shall reflect that this
dismissal counts as a strike pursuant to 28 U.S.C. § 1915(g) because Smith failed
to state a claim upon which relief may be granted and his pleadings present an
“obvious bar to securing relief.”
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DATED this 18th day of June, 2018.
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