Macy v. Post et al
Filing
9
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 7 in full. Complaint 2 DISMISSED. This dismissal counts as a strike pursuant to 28 U.S.C. Section 1915(g). Any appeal would not be taken in good faith. Signed by Judge Dana L. Christensen on 1/7/2015. Mailed to Macy. (TAG, )
FILED
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
HELENA DIVISION
MARKMACY,
JAN 0 7 2015
CIeri<, u.s. District Court
District Of Montana
Missoula
CV 14-18-H-DLC-RKS
Plaintiff,
ORDER
vs.
SGT. POST, ALVIN FODE, and
KRISTY COBBEN,
Defendants.
United States Magistrate Judge Keith Strong entered his findings and
recommendations in this case on November 17,2014, recommending that Plaintiff
Macy's Complaint be dismissed. Macy timely objected to the findings and
recommendations on November 25,2014, and so is entitled to de novo review of
the record. 28 U.S.C. § 636(b)(1). The portions of the findings and
recommendations not specifically objected to will be reviewed for clear error.
McDonnell Douglas Corp. v. Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313
(9th Cir. 1981). "Where a petitioner's objections constitute perfunctory responses
argued in an attempt to engage the district court in a rehashing of the same
arguments set forth in the original habeas petition, the applicable portions of the
findings and recommendations will be reviewed for clear error." Rosling v.
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Kirkegard, 2014 WL 693315 *3 (D. Mont. Feb. 21, 2014 ) (citations omitted). For
the reasons listed below, the Court adopts Judge Strong's findings and
recommendations in full.
In his Complaint, Macy pled violations of his rights under the Eighth and
Fourteenth Amendments to the U.S. Constitution stemming from the alleged
denial of toilet paper on three occasions over the course of less than two months.
Judge Strong found that such a sporadic denial did not constitute a cruel and
unusual condition of confinement because it did not "result in the denial of the
minimal civilized measures of life's necessities." Farmer v. Brennan, 511 U.S.
825, 834 (1994) (citations and internal quotation marks omitted). Furthermore,
Judge Strong found that Macy's Fourteenth Amendment claim failed "because
inmates lack a separate constitutional entitlement to a specific prison grievance
procedure." Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003). Judge Strong
ultimately found that Macy's Complaint failed to state a claim upon which relief
may be granted.
In his objections, Macy insists that the denial of toilet paper rises to level of
an Eighth Amendment violation, and states that while he would be willing to
amend his Complaint "to omit the due process claim, ... the cruel and unusual
punishment claim should be heard by a jury." (Doc. 8.) Macy's contention is
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unavailing - there simply is no indication that Defendants' alleged conduct, even
taken as true, proceeded from a "state of mind ... of deliberate indifference to
inmate health or safety." Farmer, 511 U.S. at 834 (citations and internal quotation
marks omitted). The record indicates that Montana State Prison officials
distributed toilet paper to Macy at regular intervals each week, that adequate
amounts of toilet paper were consistently provided, and that additional toilet paper
was available for purchase if rationed amounts proved inadequate. Defendants'
actions did not constitute indifference to inmate health, and did not foster cruel
and unusual conditions of confinement. Because Macy indicates in his objections
that he will persist with his Eighth Amendment claim, it is clear to the Court that
the defects associated with his Complaint cannot and will not be cured.
Accordingly, IT IS ORDERED that Judge Strong's findings and
recommendations (Doc. 7) are ADOPTED IN FULL. Macy's Complaint (Doc. 2)
is DISMISSED. The Clerk of Court shall CLOSE this case and enter judgment in
favor of Defendants pursuant to Rule 58 of the Federal Rules of Civil Procedure.
IT IS FURTHER ORDERED that the Clerk of Court shall have the docket
reflect that this dismissal counts as a strike pursuant to 28 U.S.C. § 1915(g). The
docket shall further reflect, pursuant to Rule 24(a)(3)(A) of the Federal Rules of
Appellate Procedure, that an appeal of this decision would not be taken in good
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faith.
DATED this
r -kt day of January, 2
Dana L. Christensen, Chief Judge
United States District Court
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