O'Rourke v. State of Montana et al
Filing
10
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 9 in full. The Complaint is DISMISSED WITH PREJUDICE for failure to state a claim. 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 7/30/2014. Mailed to O'Rourke. (TAG, )
FILED
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
HELENA DIVISION
JUl 3 0 20f~
Cle~. I:'.S District Court
DlStrict.Of Montana
MISSOula
PATRICK SEAN O'ROURKE,
CV 13-68-H-DWM-RKS
Plaintiff,
vs.
ORDER
STATE OF MONTANA
DEPARTMENT OF CORRECTIONS,
MONTANA STATE PRISON
MEDICAL DEPARTMENT, LEROY
KIRKEGARD, DR. SCHAEFFER,
and JOHN DOES 1-20,
Defendants.
This matter comes before the Court on the proposed Findings and
Recommendations entered by United States Magistrate Judge Keith Strong, (Doc.
9), regarding the civil rights Complaint brought pursuant to 42 U.S.C. § 1983 by
Plaintiff Patrick Sean O'Rourke, (Doc. 2). Because O'Rourke is incarcerated,
upon filing, this matter was referred to Judge Strong. See L.R. 72.2(a). Judge
Strong conducted the prescreening required by 28 U.S.C. § 1915, and found that
O'Rourke's Complaint failed to state a claim upon which relief can be granted.
(Doc. 8.) O'Rourke was ordered to file an amended complaint by May 27,2014.
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(Id.) O'Rourke did not respond to the Court's Order. Following O'Rourke's
failure to respond, Judge Strong filed proposed Findings and Recommendations
regarding the Complaint on June 19,2014. (Doc. 9.) "Within fourteen days after
being served with a copy, any party may serve and file written objections to such
proposed findings and recommendations as provided by rules of court." 28 U.S.C.
§ 636(b)(1). Because the statutory objections period states that a party may file
objections within a specified time after service of the findings and
recommendations, and service of the Findings and Recommendations at issue was
made by mail and electronic means, three days are added after the period would
otherwise expire. See Fed. R. Civ. P. 6(d). Accordingly, written objections to
Judge Strong's proposed Findings and Recommendations were due July 7, 2014.
O'Rourke did not timely file written objections to the proposed Findings and
Recommendations.
Judge Strong's proposed Findings and Recommendations are reviewed for
clear error. When no party objects, the Court reviews the proposed findings and
recommendations of a United States Magistrate Judge for clear error. McDonnell
Douglas Corp. v. Commodore Bus. 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
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422, 427 (9th Cir. 2000).
Judge Strong's report contains no mistake of fact or law and will be adopted
in-full. The proposed Findings and Recommendations incorporate by reference
the Court's rationale for finding that O'Rourke's Complaint fails to state a claim
upon which relief can be granted. (Doc. 9 at 1.) The Court found dismissal under
Federal Rule of Civil Procedure 12(b)(6) warranted. (Doc. 8 at 7-9.) The Court
granted O'Rourke leave to file an Amended Complaint to attempt to cure these
deficiencies. (ld. at 9-10.) O'Rourke did not respond to the Court's Order. The
Court warned O'Rourke that his failure to timely file an Amended Complaint
would result in dismissal of this action for failure to comply with any order of the
Court. (ld. at 11.) Dismissal on these grounds is appropriate. The record is plain
that O'Rourke's Complaint fails to state any viable claim for relief. The
Complaint is frivolous, as it lacks any arguable substance in law or fact.
Therefore, any appeal of this decision would not be taken in good-faith.
IT IS ORDERED:
(1) The proposed Findings and Recommendations entered by United
States Magistrate Judge Keith Strong, (Doc. 9), are ADOPTED IN
FULL.
(2) The Complaint filed by Plaintiff Patrick Sean O'Rourke, (Doc. 2), is
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DISMISSED WITH PREJUDICE for failure to state a claim.
(3) The Clerk of Court shall ensure that the docket reflects this Court's
certification, pursuant to Federal Rule of Appellate Procedure
24(a)(3)(A), that any appeal ofthis decision would not be taken in
good faith.
(4) The Clerk of Court shall ensure the docket reflects that the dismissal
of this action counts as a strike pursuant to 28 U.S.C. § 1915(g).
(5) The Clerk of Court shall enter judgment by a separate document,
pursuant to Federal Rule of Civil Procedure 58, and close this case.
DATED this.1-day of July, 2014.
o oy, District Judge
tes D strict Court
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