Spinks v. Fode et al
Filing
10
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 8 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 8/31/2017. Mailed to Spinks. (TAG)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
HELENA DIVISION
FILED
AUG 3 1 2017
Cle~.
I:'· S Diarict Court
D1stnct Of Montana
Missoula
CV 16-92-H-DLC-JTJ
BRIAN J. SPINKS,
Plaintiff,
ORDER
vs.
ALVIN FODE, AMIE DANIELS,
DIANNE JACOBS, DAVID
PENTLAND, and MYRON BEESON,
Defendants.
United States Magistrate Judge John T. Johnston entered his Findings and
Recommendations in this case on July 28, 2017, recommending dismissal of
Petitioner Brian J. Spinks's ("Spinks") Complaint. Spinks timely filed objections
to the Findings and Recommendations. Consequently, Spinks is entitled to a de
novo review of those findings and recommendations to which he specifically
objects. 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 ifthe Court is left
with a "definite and firm conviction that a mistake has been committed." United
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States v. Syrax, 235 F.3d 422, 427 (9th Cir. 2000) (citations omitted).
Judge Johnston first found that Spinks presented insufficient facts in his
Complaint to establish that the sanctions issued from MSP regarding Spinks'
disciplinary write- up constituted an "atypical or significant hardship" sufficient to
trigger a liberty interest. The Court agrees that Spinks did not allege the
deprivation of a protected liberty interest and, therefore, his due process claims
regarding his disciplinary write-up and reclassification fail to state a claim. Judge
Johnston allowed Spinks to file an amended complaint within 30 days to cure the
defects. He states in his objections that "there has never been a shred of evidence
to support the findings of guilt in this matter." (Doc. 9 at 1.) Whether this
assertion has merit, Spinks did not amend his Complaint and, therefore, dismissal
is appropriate.
Accordingly, IT IS ORDERED that Judge Johnston's Findings and
Recommendations (Doc. 8) is ADOPTED IN FULL. This action is DISMISSED
WITH PREJUDICE.
IT IS FURTHER ORDERED that 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.
IT IS FURTHER ORDERED that the Clerk of Court is directed to have the
docket reflect that the Court certifies under Rule 24(a)(3)(A) of the Federal Rules
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of Appellate Procedure that any appeal of this decision would not be taken in good
faith.
IT IS FURTHER ORDERED that the Clerk of Court is directed to have the
docket reflect that this dismissal counts as a strike under 28 U.S.C. § 1915(g)
because Spinks failed to state a claim upon which relief may be granted.
DATED this
31 ~tay of August, 201 7.
Dana L. Christensen, Chief Judge
United States District Court
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