Osterhout v. Jenkins

Filing 14

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 13 in full. 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 Dana L. Christensen on 2/11/2015. Mailed to Osterhout. (TAG, )

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

FILED
FEB 11 2015

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CV 14-21-H-DLC-JTJ

DURWOOD OSTERHOUT,
Plaintiff,

ORDER

vs.
DAVE JENKINS,
Defendant.

United States Magistrate Judge John T. Johnston entered his Findings and
Recommendation on January 6, 2015, recommending that Osterhout's Complaint
be dismissed for failure to state a claim. Plaintiff failed to timely object to the
Findings and Recommendation, and so waived the right to de nova review of the
record. 28 U.S.C. § 636(b )(1 ). The Court will therefore review the record for
clear error. McDonnell Douglas Corp. v. Commodore Bus. Mach., Inc., 656 F.2d
1309, 1313 (9th Cir. 1981). Clear error exists if the 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). There is no clear error in Judge Johnston's

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Findings and Recommendation and the Court adopts them in full.
Judge Strong's previous Order in this case (Doc. 11) stated that Osterhout
failed to allege facts sufficiently demonstrating that Dr. Jenkins was deliberately
indifferent to Plaintiff's serious medical need. Pursuant to Judge Strong's Order,
Osterhout could have filed a second amended complaint by December 15, 2014, to
attempt to correct the Complaint's defects with allegations of additional facts.
Judge Johnston did not clearly err in finding that Plaintiff failed to file a second
amended complaint by December 15, 2014. There is no clear error in Judge
Johnston's reliance on Judge Strong's previous finding that Osterhout has failed to
state a claim for which relief may be granted. This finding is so clear no
reasonable person could suppose an appeal would have merit.
Accordingly, IT IS ORDERED that Judge Johnston's Findings and
Recommendation (Doc. 13) are ADOPTED IN FULL. A certificate of
appealability is DENIED.
IT IS FURTHER ORDERED that the Clerk of Court shall close this matter
and enter judgment pursuant to Rule 58 of the Federal Rules of Civil Procedure.
IT IS FURTHER ORDERED that the docket shall 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.
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IT IS FURTHER ORDERED that the docket shall reflect that this dismissal
counts as a strike pursuant to 28 U.S.C. § 1915(g) because Plaintiff has failed to
state a claim and his claims are frivolous.
Dated this

11 ~

day of February,

Dana L. Christensen, Chief Ju ge
United States District Court

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