Lanham v. Kirkegard et al

Filing 8

ORDER. Judge Johnston's Findings and Recommendation 6 are ADOPTED. This case is DISMISSED. Any appeal of this decision would not be taken in good faith. Plaintiff/s motion for a temporaryrestraining order and preliminary injunction 4 is DENIED. This dismissal counts as a strike pursuant to 28 U.S.C. § 1915(g). Signed by Judge Dana L. Christensen on 3/23/2015. Mailed to Lanham. (TAG, )

f\\...E.0
~I<\\ 1.'!.

!

Co"'

us o~~~a

~~~(j. ~
o~ ~,Ss<>U

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
HELENA DIVISION
CV 15-9-H-DLC-JTJ

THOMAS CREEL LANHAM,
Plaintiff,

ORDER

vs.
LEROY KIRKEGARD, SAM
JOVANOVICH, RONALD
MCDONALD, and DAVE
PENTLAND,
Defendants.

United States Magistrate Judge John T. Johnston entered Findings and
Recommendations on February 24, 2015, recommending that this matter be
dismissed. Plaintiff 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)(l).
The Court will therefore review the record for clear error. McDonnell DouglfAi~>

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 , . ,
"' 'lt':~

mistake has been committed." United States v. Syrax, 235 F.3d 422, 427 (9th Cir.
-1-

2000). There is no clear error in Judge Johnston's Findings and Recommendation
and the Court adopts them in full. Because the parties are familiar with the facts
of this case they will only be included here as necessary to explain the Court's
order.
There is no clear error in Judge Johnston's finding that Lanham's claim for
verbal harassment does not constitute a constitutional violation. There is no clear
error in Judge Johnston's finding that Lanham's 15 days in administrative
segregation as a result of his disciplinary hearing was not an atypical or significant
hardship and therefore does not implicate a protected liberty interest. Similarly,
Judge Johnston did not clearly err in finding that a temporary deprivation of
property as a result of being reclassified, as alleged in the Complaint, is not an
atypical or significant hardship.
Judge Johnston ordered that Lanham may file an amended complaint by
March 16, 2015 in order to cure the deficiencies regarding his due process claims
related to his reclassification. Judge Johnston included specific details regarding
the deficiencies in the current Complaint and the information required to cure
those deficiencies. Lanham failed to file an amended complaint, and so this Court
will deny Lanham' s due process claims regarding his reclassification for failure to
state a claim upon which relief may be granted.
-2-

Lastly, Judge Johnston did not clearly err in recommending that Lanham's
one-page motion for a temporary restraining order and a preliminary injunction
asking to be placed in protective housing (S.M.I) be denied. Lanham has neither
issued notice to the adverse parties nor complied with Federal Rule of Civil
Procedure 65(b). As stated above, and as outlined in Judge Johnston's Findings
and Recommendation, Lanham is not likely to succeed on the merits. Winter v.
Natural Resources Defense Council, Inc., 555 U.S. 7 (2008). Further, Lanham has

been placed in administrative segregation, in part for his own protection. Lanham
does not show that he is in danger while in administrative segregation and has
failed to show that he is likely to suffer irreparable harm. Id.
IT IS ORDERED that Judge Johnston's Findings and Recommendation
(Doc. 6) are ADOPTED. This case is DISMISSED.
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.
IT IS FURTHER ORDERED that Plaintiffs motion for a temporary
restraining order and preliminary injunction (Doc. 4) is DENIED.
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
-3-

state a claim and his claims are frivolous.

n

Dated this 23'' day of March, 2015.

~l.
Dana L. Christensen, Chief Judge
United States District Court

-4-