Smith v. Moody et al
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 14 in full. 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 8/17/2017. Mailed to Smith. (TAG)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BENJAMIN KARL SMITH,
JEREMY MOODY, JOSHUA POSTMA,
RYAN DURKIN, MIKE HEBERT,
CORRECTIONAL OFFICER TROLLE,
United States Magistrate Judge John Johnston entered his Findings and
Recommendations on June 28, 2017 (Doc. 14), recommending dismissal of
Plaintiff Benjamin Smith's ("Smith") Complaint. Smith has failed to timely object
to the Findings and Recommendations, and, as a result, has 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) (citations
Having reviewed the Findings and Recommendations and Judge Johnston's
Order dated May 19, 2017 (Doc. 13), the Court finds no clear error in Judge
Johnston's conclusion that the Complaint fails to state a claim upon which relief
may be granted and is subject to dismissal. Essentially, the verbal harassment
Smith alleges in his Complaint, though highly offensive and inappropriate in any
setting, does not rise to the level of a constitutional violation under either the
Eighth or Fourteenth Amendments. See Keenan v. Hall, 83 F.3d 1083, 1092 (9th
Cir. 1996) (verbal harassment generally does not rise to a constitutional violation).
Further, Smith's claims of retaliation, religious discrimination, and provoking
violence are conclusory and fail to allege factual support. Judge Johnston allowed
Smith to supplement these claims though an amended complaint but Smith failed
to do so. Because Smith failed to supplement these claims they will be dismissed.
Accordingly, there being no clear error in the Findings and
Recommendations, IT IS ORDERED that:
(1) Judge Johnston's Findings and Recommendations (Doc. 14) is
ADOPTED IN FULL.
(2) This matter is DISMISSED WITH PREJUDICE for failure to
state a claim.
(3) The Clerk of Court is directed to close this matter and enter judgment in
favor of Defendants pursuant to Rule 58 of the Federal Rules of Civil Procedure.
(4) 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. The record makes
plain the Complaint lacks arguable substance in law or fact.
(5) The Clerk of Court is directed to have the docket reflect that this
dismissal counts as a strike pursuant to 28 U.S.C. § 1915(g) because Smith
failed to state a claim upon which relief may be granted.
Dated thisl-::t*a'ay of August, 2017.
Dana L. Christensen, Chief Judge
United States District Court
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