Lawrence v. Parker et al
Filing
12
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 11 in full. Lawrence's Complaint 2 is DISMISSED. 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 9/26/2014. Mailed to Lawrence. (TAG, )
FILED
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
HELENA DIVISION
DAVID LAWRENCE,
SEP 2 6 2014
Clerk. u.s. District COU/1
District Of Montana
Missoula
CV 13-060-H-DWM-RKS
Plaintiff,
ORDER
vs.
JOHN PARKER, DOUG MAHLUM,
BRUCE MCDERMOTT, FRANK
DONATO, BOB EDWARDS, and BRAD
CUSTER,
Defendants.
Plaintiff David Lawrence alleged that defendants conspired to fabricate
evidence, bring false charges, and maliciously prosecute him in violation of his
Fourteenth Amendment due process rights and his Eighth Amendment right to
freedom from cruel and unusual punishment. (Complaint, Doc. 2.) On April 22,
2014, United States Magistrate Judge Keith Strong determined Lawrence failed to
state a federal claim for relief and gave Lawrence until May 26, 2014, to file an
amended complaint. (Doc. 7.) Lawrence moved for and was granted an extension
until July 25, 2014, to file an amended complaint. (Doc 10.) Lawrence has not
filed any amended complaint or further request for additional time. Judge Strong
1
recommends dismissal of Lawrence's Complaint and that such dismissal should
count as a strike pursuant to 28 U.S.C. § 1915(g). (Doc. 11.)
Lawrence has not filed objections to Judge Strong's Findings and
Recommendations. The Court reviews the fmdings and 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). Clear error
exists ifthe 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).
The Court finds no clear error with Judge Strong's determination that
Lawrence has failed to state a cognizable claim for violation ofhis Fourteenth
Amendment due process rights and his Eighth Amendment right to freedom from
cruel and unusual punishment. The Court finds no clear error with Judge Strong's
determination that the dismissal counts as a strike pursuant to 28 U.S.C. § 1915(g).
Accordingly, IT IS ORDERED that the Findings and Recommendation,
(Doc. 11), are ADOPTED IN FULL.
IT IS FURTHER ORDERED that Lawrence'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
2
Procedure.
IT IS FURTHER ORDERED that the Clerk of Court is directed to have the
docket reflect that this dismissal counts as a strike against Lawrence pursuant to
28 U.S.C. § 1915(g).
IT IS FURTHER ORDERED that the Clerk of Court is directed to have the
docket 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 the instant Complaint is frivolous as it lacks
arguable substance in law or fact.
Dated thisJ..{,7ay of September, 2014.
J
L
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