Wallace v. United States A.A. Office et al

Filing 7

ORDER ADOPTING 6 FINDINGS AND RECOMMENDATIONS; denying 1 Motion for Leave to Proceed in forma pauperis. This matter is to be closed if Mr. Wallace fails to pay the $400.00 filing fee within 21 days of this Order. Signed by Judge Dana L. Christensen on 12/9/2016. Mailed to Wallace. (TAG)

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

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GREGORY L. WALLACE,

CV 16-85-H-DLC-JTJ

Plaintiff,
ORDER

vs.
UNITED STATES A.A. OFFICE,
B.1.A. CORRECTIONS
PERSONNEL, U.S.B.O.P.,
MONTANA STATE PRISON
INFIRMARY,
Defendants.

United States Magistrate Judge John T. Johnston entered his Findings and
Recommendations on November 15, 2016, recommending denial of Plaintiff
Gregory L. Wallace's ("Wallace") motion to proceed in forma pauperis in this
matter. Wallace is not entitled to object to the Findings and Recommendations.
See Minetti v. Port of Seattle, 152 F.3d 1113, 1114 (9th Cir. 1998) (providing that
an application to proceed in forma pauperis is not a nondispositive matter under 28
U.S.C. § 636 (b)(l)(A)). As a result, the Court reviews the Findings and
Recommendations for clear error. See McDonnell Douglas Corp. v. Commodore
Bus. Mach., Inc., 656 F.2d 1309, 1313 (9th Cir. 1981); Thomas v. Arn, 474 U.S.

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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).
Having reviewed the Findings and Recommendations, the Court finds no
clear error in Judge Johnston's conclusion that Wallace is subject to the three
strikes provision of 28 U.S.C. § 1915(g) and fails to meet the "imminent danger of
serious physical injury" exception. Accordingly, the Court agrees with Judge
Johnston that Wallace should not be allowed to proceed in forma pauperis. As
such, Wallace must pay the $400.00 filing fee required by 28 U.S.C. § 1914(a). If
Wallace fails to pay the filing fee within 21 days from the date of this Order, the
Clerk of Court is instructed close this case and enter judgment in favor of
Defendants.
There being no clear error in Judge Johnston's Findings and
Recommendations, IT IS ORDERED that:
(1) Judge Johnston's Findings and Recommendations (Doc. 6) are
ADOPTED IN FULL.
(2) Wallace's Motion to Proceed in Forma Pauperis (Doc. 1) is
DENIED pursuant to Local Rule 3.l(d)(4).
(3) This matter is to be closed if Mr. Wallace fails to pay the $400.0b filing
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fee within 21 days of this Order.
Dated this

'f ~day of December, 2

Dana L. Christensen, Chief Judge
United States District Court

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