Pryor v. Batista et al
Filing
9
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 8 in full. Pryor's Complaint 1 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 Dana L. Christensen on 5/1/2015. Mailed to Pryor. (TAG, )
FILED
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
HELENA DIVISION
APR 3 0 2015
Clelf<, U.S District Court
District Of Montana
Missoula
CV 14-70-H-DLC-JTJ
JESSE THOMAS PRYOR,
Plaintiff,
ORDER
vs.
MIKE BATISTA, LEROY KIRKEGARD,
TOM WOODS, LEONARD MIHELICH,
BILLIE REICH, KRISTY COBBAN,
ROBERT HARMON, LAVONNE
PERKINS,GLENISFRATZKE,DAN
WIGERT, KENNETH COZBY, and
DAVE PENTLIN,
Defendants.
United States Magistrate Judge John T. Johnston entered his order, findings,
and recommendations in this case on March 23, 2015, granting Plaintiff Pryor's
motion to amend the caption in this case but recommending that his Complaint be
dismissed for failing to state a claim. Pryor failed to timely object to the findings
and recommendations, 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). The Court adopts Judge Johnston's findings and
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recommendations in full.
Judge Johnston found, and this Court agrees, that the circumstances
surrounding and consequences flowing from Pryor's possession of a weapon 1
while incarcerated at Montana State Prison do not give rise to a constitutional
violation under any theory. Pryor fails to allege a Fourth Amendment claim
because his status as a prisoner translates to a diminished expectation of privacy in
his personal effects. See Hudson v. Palmer, 468 U.S. 517, 525-526 (1984). Pryor
fails to state a First Amendment retaliation claim because he fails to describe his
own protected conduct, against which prison officials allegedly retaliated. See
Brodheim v. Cry, 584 F.3d 1262, 1271 (9th Cir. 2009) ("[t]o prevail on a
retaliation claim, a plaintiff must show that his protected conduct was the
substantial or motivating factor behind the defendant's conduct") (citations
omitted). Finally, Pryor fails to allege a Fourteenth Amendment due process claim
because the discipline he received for possessing the weapon neither "affect[ed]
the sentence imposed [upon him] in an unexpected manner," nor "impose[d] a
hardship that is atypical and significant in relation to the ordinary incidents of
prison life." Sandin v. Conner, 515 U.S. 472, 484 (1995). Pryor's claims are
fatally deficient, and cannot be cured by restyling or inclusion of additional facts.
1. Pryor possessed a temple piece from a pair of eyeglasses with a razorblade affixed to one end.
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Accordingly, IT IS ORDERED that Judge Johnston's findings and
recommendations (Doc. 8) are ADOPTED IN FULL. Pryor' s Complaint (Doc. 1)
is DISMISSED. 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 Clerk of Court shall 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.
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). Pryor
failed to state a claim upon which relief may be granted and his claims are
frivolous.
DATED this )0#tday of April, 2015.
Dana L. Christensen, Chief Judge
United States District Court
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