Hoven v. Montana State Prison

Filing 8

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 5 in full. Complaint 2 DISMISSED WITH PREJUDICE; motion for relief from paying the filing fee 7 DENIED. 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 1/5/2016. Mailed to Harper. (TAG, )

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

JAN 0 5 2016
C~, y.s. District Court
strict.Of Montana
Mrssoula

CV 15-72-H-DLC-JTJ

ZACHAR\OGLEN HOVEN,
Plaintiff,

ORDER
vs.
MONTANA STATE PRISON,
Defendant.
United States Magistrate Judge John T. Johnston entered an order, findings,
and recommendations in this case on September 3, 2015, granting Plaintiff
Zachary Glen Hoven's ("Hoven") motion to proceed in forma pauperis, but
recommending dismissal of his Complaint for seeking monetary relief solely from
a defendant who is immune from such relief. Hoven filed a motion with the Court
on September 16, 2015 seeking relief from paying the filing fee in this matter, but
did not otherwise object to the order or to the findings and recommendations.
Thus, Hoven waived the right to de novo review of the latter. 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.
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Arn, 474 U.S. 140, 149 (1985). Clear error exists ifthe 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) (citations omitted).
Having reviewed the findings and recommendations, the Court finds no
clear error in Judge Johnston's conclusions regarding: (1) the Montana State
Prison's Eleventh Amendment immunity, and (2) the futility of Hoven amending
his Complaint, given the nature of his allegations. Furthermore, considering
Hoven signed and submitted a motion to proceed in forma pauperis, in which he
acknowledged his responsibility for paying the filing fee and the terms of fee
collection, the Court declines to afford Hoven relief from payment. (See Doc. 1 at
5.)
Accordingly, IT IS ORDERED that Judge Johnston's findings and
recommendations (Doc. 5) are ADOPTED IN FULL. Hoven's Complaint (Doc. 2)
is DISMISSED WITH PREJUDICE, and his motion for relief from paying the
filing fee (Doc. 7) 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 Clerk of Court shall have the docket
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reflect that this dismissal counts as a strike pursuant to 28 U.S.C. § 1915(g), based
upon Hoven's failure to state a claim upon which relief may be granted.
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. The record makes plain that Hoven's Complaint is frivolous, as it
lacks arguable substance in law or fact.
DATED this 5#lday of January, 2016.

Dana L. Christensen, Chief Judge
United States District Court

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