Taylor v. Kirkegard et al

Filing 14

ORDER ADOPTING 13 FINDINGS AND RECOMMENDATIONS in full. Defendants' 10 Motion to Dismiss is GRANTED. This case is DISMISSED WITHOUT PREJUDICE. The Court certifies that any appeal of this decision would not be taken in good faith. Signed by Judge Dana L. Christensen on 9/23/2012. Mailed to Taylor. (TAG, )

FILED

SEP H 2012
:ATRICK E. DUFFY. CLERK
OEPt.ITY CLERK. MiSSOOl.A

IN TIlE UNITED STATES DISTRICT COURT

FOR TIlE DISTRICT OF MONTANA

HELENA DIVISION

KEVIN MARK TAYLOR,

)
)
Plaintiff,
)
)
vs.
)
)
LEROY KIRKEGARD, ROSS
)
SWANSON, and MAJOR WOODS, )
)
Defendants.
)

CV 12-16-H-DLC-RKS

ORDER

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United States Magistrate Judge Keith Strong entered Findings and
Recommendation on July 30, 2012, and recommended granting Defendants'
motion to dismiss for failure to exhaust administrative remedies. Plaintiff did not
timely object to the Findings and Recommendation, and so has waived the right to
de novo review of the record. 28 U.S.c. § 636(b)(I). This Court will review the
Findings and Recommendation for clear error. McDonnell Douglas Corp. v.

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Commodore Bus, Mach" Inc" 656 F .2d 1309, 1313 (9th Cir. 1981), Clear error
exists if the Court is left with a "definite and firm conviction that a mistake has
been committed," United States v. Syrax, 235 F.3d 422,427 (9th Cir, 2000).
Taylor alleges the prison librarian removed all Wiccan religious
publications from the library leaving all Christian, Judaism, Odinism, Islamism,
and other religious books on the shelves, and that Defendants Kirkegard,
Swanson, and Wood approved and implemented this policy. Judge Strong found
there is no evidence that Taylor filed any grievance regarding the issue presented
in this lawsuit and did not properly exhaust the available administrative remedies
for his claims. After a review of Judge Strong's Findings and Recommendation, I
find no clear error. Accordingly,
IT IS HEREBY ORDERED that Judge Strong's Findings and
Recommendation (doc. 13) are adopted in full. Defendants' Motion (doc. 10) is
GRANTED and this case is DISMISSED WITHOUT PREJUDICE.
The Clerk of Court is directed to enter judgment pursuant to Rule 58 ofthe
Federal Rules of Civil Procedure and close this case.
IT IS FURTHER ORDERED that the docket shall reflect that the Court
certifies pursuant to Fed.R.App.P. 24(aX3)(A) that any appeal ofthis decision
would not be taken in good faith.
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DATED this rrtayofSeptember, 012.

Dana L. Christensen, District
United States District Court

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