Haithcox v. Dutton et al

Filing 19

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS. This matter is DISMISSED for failure to state a federal claim. Any appeal of this decision would not be taken in good faith. This dismissal counts as a strike pursuant to 28 U.S.C. Section 1915(g). Signed by Judge Dana L. Christensen on 3/1/2018. (APP)

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

TIMOTHY CRAIG HATIHCOX,
CV 16-117-H-DLC-JTJ
Plaintiff,
vs.

ORDER

SHERIFF LEO DUTTON, et al.,
Defendants.
United States Magistrate Judge John T. Johnston entered his Findings and
Recommendations on January 10, 2018, recommending Plaintiff Timothy Craig
Haithcox' s claims be dismissed without further leave to amend and with prejudice
for failure to state a claim. (Doc. 17 at 11-12.) On January 22, 2018, Plaintiff
filed a "Motion to object and Request for Re-fileing [sic] of Amended Complaint,
Motion to Move for Recommendation of Counsil [sic]." (Doc. 18 at 1.) Plaintiff
is entitled to de novo review of those findings and recommendation to which he
specifically objects. 28 U.S.C. § 636(b)(l)(C). Absent objection, this Court
reviews findings and recommendations for clear error. United States v. Reyna-

Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en bane); 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
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422, 427 (9th Cir. 2000) (citations omitted). "A party makes a proper objection by
identifying the parts of the magistrate's disposition that the party finds
objectionable and presenting legal argument and supporting authority, such that the
district court is able to identify the issues and the reasons supporting a contrary
result." Montana Shooting Sports Ass 'n v. Holder, 2010 WL 4102940, at *2 (D.
Mont. Oct. 18, 2010) (citation omitted).
Judge Johnston concluded, and this Court agrees, that Plaintiffs amended
complaint demonstrates an inability to cure the deficiencies iterated in Judge
Johnston's June 12, 2017, Order allowing him an opportunity to amend and again
fails to state a claim upon which relief may be granted. (Doc. 17 at 10.) Plaintiff
objects because he is "legaly [sic] blind" and "need[s] assistance." (Doc. 18 at 1.)
Plaintiff then states "that if allowed to," he will "re-file" an "amended petition"
that would "show cause for constitutional violations and hold merit in this matter"
before requesting the Court appoint counsel to assist him in completing a "proper
fileing [sic]." (Doc. 18 at 1.) Plaintiff has failed to properly object to Judge
Johnston's Findings and Recommendations. Further, to the extent that Plaintiffs
objection requests assistance of appointed counsel in filing an amended complaint
and an extension of time in which to do so, his requests are not properly before the
Court and are untimely. Plaintiff has already been provided an opportunity to
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amend his complaint and an explanation of the deficiencies displayed in his first
complaint. (Doc. 12.) Plaintiffs "objection" with its accompanying requests do
not address the findings of fact or legal conclusions of Judge Johnston and,
consequently, Judge Johnston's Findings and Recommendations are reviewed for
clear error.
Reviewing for clear error and finding none,
IT IS ORDERED that Judge Johnston's Findings and Recommendations
(Doc. 17) are ADOPTED IN FULL.
1. This matter is DISMISSED for failure to state a federal claim.
2. 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.
3. The Clerk of Court is directed to ensure the docket reflects the Court's
certification pursuant to Federal Rule of Appellate Procedure 24(a)(3)(A) that any
appeal of this decision would not be taken in good faith. No reasonable person
could suppose an appeal would have merit as the record makes plain that the
Complaint lacks arguable substance in law or fact.
4. The Clerk of Court is directed to ensure the docket reflects that this
dismissal counts as a strike pursuant to 28 U.S.C. § 1915(g) because Plaintiff failed
to state a claim upon which relief may be granted.
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DATED this

(~{' day of March, 2018.

Dana L. Christensen, Chief Judge
United States District Court

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