Birthmark v. Department of Corrections et al

Filing 10

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 8 in full. Amended Complaint is hereby DISMISSED WITH PREJUDICE. 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 Donald W. Molloy on 3/3/2014. Mailed to Birthmark. (TAG, )

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MONTANA

HELENA DIVISION

MICHAEL BIRTHMARK,

CV 13-22-H-DWM

Plaintiff,
ORDER

vs.
DEPT. OF INSTITUTIONSIDEPT.
OF CORRECTIONS, MONTANA
STATE PRISON AND THE
IMMEDIATE MEMBERS OF THE
BOARD OF PARDONS & PAROLE,
and PRIVATE STUDIES GROUP OF
MIND READING PSYCHICS, et al.,
Defendants.

The Findings and Recommendations of United States Magistrate Judge
Keith Strong are now before the Court. (Doc. 8.) Judge Strong recommends
Plaintiff Michael Birthmark's Amended Complaint be dismissed. (ld. at 7.) Judge
Strong filed his Findings and Recommendations on February 6, 2014. Objections
were due February 22,2014. See 28 U.S.C. § 636; Fed. R. Civ. P. 6(d). No
objections were filed.
The Court reviews the Findings and Recommendations of a United States
Magistrate Judge for clear error. McDonnell Douglas Corp. v. Commodore Bus.
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Mach., Inc., 656 F.2d 1309, 1313 (9th Cir. 1981). Clear error is present only 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).
Judge Strong's Findings and Recommendations are well-reasoned and
absent clear error. Mr. Birthmark's Amended Complaint does not bring specific
claims and factual allegations against the named Defendants, in violation of
Federal Rule of Civil Procedure 8. It accordingly fails to state any claim upon
which relief may be granted and is subject to dismissal under Federal Rule of Civil
Procedure 12(b)(6). See Bell Atlantic Corp. v. Twombly, 550 U.S. 544,556 n.3
(2007). The complaint lacks any arguable basis in law or fact. Dismissal is
appropriate and will be ordered.

Mr. Birthmark's failure to prosecute this action provides additional grounds
for dismissal ofthis action. On two occasions Mr. Birthmark was told of the
requirement that he must advise the Court of any change of address and its
effective date. (Doc. 6 at 15-16; Doc. 8 at 7.) The copy of Judge Strong's
Findings and Recommendations mailed to Mr. Birthmark at his address of record
was returned undeliverable. (Doc. 9.) The Plaintiff has failed to prosecute this
action and dismissal is appropriate pursuant to Federal Rule of Civil Procedure
41(b).
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IT IS ORDERED that Judge Strong's Findings and Recommendations,
(Doc. 8), are ADOPTED IN FULL.
IT IS FURTHER ORDERED that Plaintiff Michael Birthmark's Amended
Complaint is hereby DISMISSED WITH PREJUDICE. The Clerk of Court shall
close this case and enter judgment pursuant to Rule 58 of the Federal Rules of
Civil Procedure.
IT IS FURTHER ORDERED that the Clerk of Court shall ensure the docket
reflects the Court's certification that any appeal of this decision would not be
taken in good faith. See Fed. R. App. P. 24(a)(3)(A). The record makes plain that
Mr. Birthmark's Complaint is frivolous as it lacks any substance in law or fact.
IT IS FURTHER ORDERED that the Clerk of Court shall ensure that the
docket reflects that this dismissal counts as a strike pursuant to 28 U.S.C.

§ 1915(g). Mr. Birthmark failed to state any claim upon which relief may be

granted and his c1aim:J frivolous.
DATED this ~ day of March, 2014.

lloy, District Judge
istrict Court

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