Hinman v. State of Montana et al
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 5 in full. This matter is DISMISSED with prejudice. 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 1/17/2017. Mailed to Hinman. (TAG)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
RICHARD DENVER HINMAN,
STATE OF MONTANA, et al.,
United States Magistrate Judge John T. Johnston entered his Findings and
Recommendations in this matter on December 16, 2016, recommending dismissal
of Plaintiff Richard Hinman's ("Hinman") Complaint1 filed pursuant to 42 U.S.C.
§ 1983. 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).
Hinman filed a document entitled "Complaint Violation of Due Process of Law" (Doc.
1), which was liberally construed by Judge Johnston as a proposed Complaint filed pursuant to
42 U.S.C. § 1983.
Notwithstanding the above, where a party's "objections constitute
perfunctory responses argued in an attempt to engage the district court in a
rehashing of the same arguments set forth in the original [pleading] the applicable
portions of the findings and recommendations will be reviewed for clear error."
Roslingv. Kirkegard, 2014 WL 693315 at *3 (D. Mont. Feb. 21, 2014) (citations
Having reviewed Hinman's objection, the Court finds that he fails to
articulate any specific issue with Judge Johnston's reasoning, and instead attempts
to reargue the contentions raised in his Complaint where he asserts that individuals
involved with his 1994 criminal case violated his due process rights. Because
Hinman fails to specify objections to the Findings and Recommendations, it will
be reviewed for clear error. 28 U.S.C. § 636(b)(l)(C). Accordingly, the Court
finds no clear error in Judge Johnston's conclusion that Hinman's claims should
be dismissed because they are barred by the applicable statue of limitations and by
the doctrine established inHeckv. Humphrey, 512 U.S. 477, 486-487 (1994).
Accordingly, IT IS ORDERED that:
(1) Judge Johnston's Findings and Recommendations (Doc. 5) are
ADOPTED IN FULL.
(2) This matter is DISMISSED with prejudice.
(3) The Clerk of Court is directed to close this matter and enter
judgment pursuant to Rule 58 of the Federal Rules of Civil Procedure.
(4) 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) based upon
Hinman's failure to file within the applicable statute of limitations and the
repetitive nature of this litigation.
(5) 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. The
record makes plain the instant Complaint is frivolous as it lacks arguable
substance in law or fact.
Dated this \ 1- day of January, 201
Dana L. Christensen, Chief Judge
United States District Court
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