Pinner v. Fox et al

Filing 6

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 4 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 6/20/2018. Mailed to Pinner (TAG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
GREAT FALLS DIVISION
CHARLES HENRY PINNER,
CV-18-18-GF-BMM-JCL
Plaintiff,
v.

ORDER ADOPTING MAGISTRATE
JUDGE’S FINDINGS AND
RECOMMENDATIONS

TIMOTHY FOX, JOEL THOMPSON,
DANIEL GUZYNSKI, DAVID
CYBULSKI, THE FIFTEENTH
JUDICIAL DISTRICT COURT,
RALPH PATCH, et. al.,

Defendants.
Plaintiff Charles Henry Pinner (“Pinner”), 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
the allegations fail to state a claim upon which relief could be granted. 28 U.S.C. §
1915(e)(2)(B)(ii).
Judge Lynch entered Findings and Recommendations in this matter on May
3, 2018. (Doc. 4.) Judge Lynch determined that Pinner’s allegations in his
Complaint proved insufficient to state a claim upon which relief could be granted.
Id. Judge Lynch further determined that leave to amend the Complaint would be
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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 Lynch’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 Lynch determined that the Supreme Court’s decision in Heck v.
Humphrey, 512 U.S. 477, 486-87 (1994), barred the civil rights allegations that
Pinner raises in his Complaint. (Doc. 4 at 7.) Pinner contends that he was
wrongfully convicted following irregular and unconstitutional charging practices.
(Doc. 4 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.
Pinner has a direct appeal pending at the Montana Supreme Court that
challenges his sexual intercourse without consent and aggravated kidnapping
convictions. (Doc. 4 at 5.) Pinner has not yet filed his opening brief. Id. Pinner’s
pending civil rights action seeking to undermine his convictions will remain
barred, unless and until, his convictions have been called into question. Id. at 8.
Pinner has failed to state a claim upon which relief could be granted.

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The Court has reviewed Judge Lynch’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 Lynch’s Findings and
Recommendations (Doc. 4) 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 Pinner failed
to state a claim upon which relief may be granted and his pleadings present an
“obvious bar to securing relief.”
DATED this 20th day of June, 2018.

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