Smith v. State of Montana et al

Filing 11

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 10 in full. Smith'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 5/12/2014. Mailed to Smith. (TAG, )

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

BENJAMIN KARL SMITH,

FILED
MAY t 2 2014
Clerk, u.s District Court

District Of Montana

Missoula

CV 13-77-H-DWM-RKS

Plaintiff,
ORDER

vs.
STATE OF MONTANA; MONTANA

STATE PRISON; JOHN DOE,

DIRECTOR OF CORRECTIONS; JOHN

DOE, WARDEN; SGT. WEBBER,

PRISON GUARD; ROBERT SHAW,

UNIT MANAGER; AND JOI-IN DOE,

PRISON GUARD,

Defendants.

Plaintiff Benjamin Karl Smith, appearing pro se, brings this action under 42
U.S.C. § 1983 alleging his Federal Constitutional rights were violated when he
was denied access to legal materials. Magistrate Judge Keith Strong recommends
dismissing Smith Complaint for failure to state a claim. (Doc. 10.)
Smith has not filed objections to Judge Strong's Findings and
Recommendation. The Court reviews the findings 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
1

exists if the Court is left with a "definite and finn 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 detennination that Smith's
Complaint fails to state a claim upon which relief can be granted. (See Doc. 9
(giving Smith a chance to amend his Complaint to cure deficiencies).)
Accordingly, IT IS ORDERED that the Findings and Recommendation
(Doc. 10) are ADOPTED IN FULL.
IT IS FURTHER ORDERED that Smith'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 this dismissal counts as a strike pursuant to 28 U.S.C. §
1915(g). Smith failed to state a claim upon which relief may be granted.
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

2

plain the instant Complaint is frivolous and lacks arguable substance in law or
fact.
Dated this '~day of May, 2014.

Hoy, District Judge
istrict Court

3