Martindale v. Montana D.O.C. et al

Filing 39

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 37 in full. This matter is DISMISSED. Any appeal of this decision would not be taken in good faith. Signed by Judge Dana L. Christensen on 3/21/2017. Mailed to Martindale at MSP address listed on DOC website. (TAG)

FILED
IN THE UNITED STATES DISTRICT COURT
MAR 21 2017
FOR THE DISTRICT OF MONTANA
CleD~t~~~· District Court
HELENA DIVISION
M;:{0~:ntana

CV 15-111-H-DLC-JTJ

MICHAEL MARTINDALE,
Plaintiff,

ORDER
vs.
LEROY KIRKEGARD and MIKE
BATISTA,
Defendants.
United States Magistrate Judge John Johnston entered his Findings and
Recommendations in this matter on February 9, 2017, recommending dismissal of
this matter pursuant to Rule 41(b) of the Federal Rules of Civil Procedure.
Plaintiff Michael Martindale ("Martindale") 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)(1 )(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) (citations omitted).
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Having reviewed the Findings and Recommendations, the Court finds no
clear error in Judge Johnston's finding that Martindale has failed to comply with
previous Orders of this Court and his Complaint must be dismissed pursuant to
pursuant to Federal Rule of Civil Procedure 41(b) as a result. (See Docs. 24, 31,
34, 35.) Further, the Court notes that Judge Johnston has expressly warned
Martindale that his case would be dismissed if he failed to respond to Court
Orders or update his address. Because Martindale has failed to do either, this case
will be dismissed.
There being no clear error in Judge Johnston's Findings and
Recommendations, IT IS ORDERED that:
(1) Judge Johnston's Findings and Recommendations (Doc. 37) are
ADOPTED IN FULL.
(2) This matter is DISMISSED pursuant to Rule 41(b) of the Federal
Rules of Civil Procedure. The Clerk of Court is directed to close this
matter, enter judgment pursuant to Rule 58 of the Federal Rules of Civil
Procedure, and terminate all pending motions.
(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

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Dated this

:l-1 stay of March, 201 7.

Dana L. Christensen, Chief Judge
United States District Court

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