Heppler v. Kirkegard et al

Filing 13

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 12 in full. Heppler's Complaint 2 is DISMISSED. This dismissal counts as a strike pursuant to 28 U.S.C. Section 1915(g). Any appeal ofthis decision would not be taken in good faith. Signed by Judge Donald W. Molloy on 12/2/2013. Mailed to Heppler. (TAG, )

FILED
DEC 02 2013
Clerk, u.s District Court
District Of Montana
Missoula

IN THE lJNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
HELENA DIVISION

ROBERT HEPPLER,

CV 13-25-H-DWM-RKS

Plaintiff,
ORDER

vs.

LEROY KIRKEGARD, MR. BASETA,

SHELLYSTYTH,~dROXANNE

WIGERT,

Defendants.

Robert Heppler alleges prison staff violated his federally protected rights
(Doc. 2). After giving Heppler an opportunity to file an amended complaint,
Magistrate Judge Keith Strong recommends this Court dismiss Heppler's
Complaint for failure to state a claim upon which relief can be granted. (Doc. 12.)
Heppler has not filed objections to Judge Strong's Findings
Recommendation. The Court reviews the findings

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recommendations that are

not specifically objected to for clear error. McDonnell Douglas Corp. v.
Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313 (9th Cir. 1981).

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"A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for
the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
In the Complaint, Heppler alleges that prison staff put him in direct danger
by housing him with prisoners with whom he has a history of conflict and that he
was assaulted and had personal property stolen. (Doc. 2 at 6.) Heppler alleges
Mr. Baseta, as Director ofthe Montana Department of Corrections, and Warden
Kirkegard oversee the prison and are therefore responsible for the staff. He further
alleges that Shelly Styth put him in danger and Roxanna Wigert knew he was in
danger but failed to remedy the situation. (Id.) Judge Strong initially determined
that the allegations in Heppler's Complaint were so vague that it failed to state a
claim upon which relief may be granted. Judge Strong gave Heppler the
opportunity to file an amended complaint with additional facts to cure these
defects. (Doc. 9.) No amended complaint was filed.
The Court finds no clear error with Judge Strong's determination that the
Complaint fails to state a claim upon which relief may be granted. Heppler does
not provide any factual support for his claims. In the Order allowing Heppler to
file an amended complaint, Judge Strong even states the relevant caselaw as it

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relates to which specific facts should be provided. (See Doc. 9.)
Accordingly, IT IS ORDERED that the Findings and Recommendation
(Doc. 12) is ADOPTED IN FULL. Heppler's Complaint (Doc. 2) is DISMISSED.
IT IS FURTHER ORDERED that the Clerk of Court is directed to close this
matter and enter judgment pursuant to Rule 58 of the Federal Rules of Civil
Procedure.
IT IS FURTHER ORDERED that the Clerk of Court is directed to have the
docket reflect that the Court certifies pursuant to Fed. R. App. P. 24(a)(3)(A) that
any appeal of this decision would not be taken in good faith. The record makes
plain the instant Complaint is frivolous and lacks arguable substance in law or
fact.
IT IS FURTHER ORDERED that 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)
based on Heppler's
Dated this

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to state a claim.

day of December, 2013.

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