Smith v. State of Montana et al
ORDER ADOPTING 99 FINDINGS AND RECOMMENDATIONS; granting 91 Motion for Summary Judgment. Matter DISMISSED. Any appeal of this decision would not be taken in good faith. Signed by Judge Dana L. Christensen on 5/17/2017. Mailed to Smith. (TAG)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BENJAMIN KARL SMITH,
OFFICER FOSSENS and OFFICER
United States Magistrate Judge John Johnston entered his Findings and
Recommendations in this matter on April 17, 2017, recommending granting
Defendants' motion for summary judgment. Plaintiff Benjamin Karl Smith
("Smith") failed to timely object to the Findings and Recommendations, and so
waived his right to de novo review of the record. 28 U.S.C. § 636(b)(l)(C). This
Court reviews for clear error those findings and recommendations to which no
party objects. See McDonnell Douglas Corp. v. Commodore Bus. Mach., Inc., 656
F.2d 1309, 1313 (9th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 149 (1985). 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)
Having reviewed the Findings and Recommendations, the Court finds no
clear error in its conclusion that Smith's claims are barred by the doctrine of res
judicata. The parties and issues raised in this case are the exact same as those
brought forward in the action filed by Smith in the Third Judicial District Court
for Powell County. Smith could have raised his constitutional claims in that
matter and failed to do so. Consequently, his claims in this matter are now barred.
Accordingly, there being no clear error in Judge Johnston's Findings and
Recommendations, IT IS ORDERED that:
(1) Judge Johnston's Findings and Recommendations (Doc. 99) are
ADOPTED IN FULL.
(2) Defendants' Motion for Summary Judgment (Doc. 91) is GRANTED
and this matter DISMISSED. The Clerk of Court is directed to close the case and
enter judgment in favor of Defendants pursuant to Rule 58 of the Federal Rules of
(3) The Clerk of Court is directed to 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. No
reasonable person could suppose an appeal would have merit.
Dated this 13:_ day of May, 2017.
Dana L. Christensen, Chief Judge
United States District Court
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