Keefe v. Kirkegard et al

Filing 8

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 7 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 9/11/2017. Mailed to Keefe. (TAG)

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

CV 17-00047-H-DLC-JTJ

JORDAN KEEFE,
Plaintiff,

ORDER
vs.
LEROY KIRKEGARD and DAN
RIDDLE,
Defendants.
United States Magistrate Judge John T. Johnston entered Findings and
Recommendations in this case on August 16, 201 7, recommending that Plaintiff
Jordan Keefe's ("Keefe") complaint be dismissed. Keefe did not object to the
Findings and Recommendations, and so has waived the right to de novo review
thereof. 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

States v. Syrax, 235 F.3d 422, 427 (9th Cir. 2000) (citations omitted).
Having reviewed the Findings and Recommendations, the Court finds no
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clear error in Judge Johnston's conclusion that Keefe's Complaint should be
dismissed with prejudice. As discussed by Judge Johnston, Keefe's Complaint
does not allege sufficient facts to state a claim for failure to protect or sufficient to
name Defendant Leroy Kirkegard in his supervisory position as Warden of the
Montana State Prison. Additionally, as discussed by Judge Johnston, Keefe's
Complaint seeks to have his conviction set aside which is a form of relief the
Court cannot grant in a civil lawsuit. See Heckv. Humphrey, 512 U.S. 477,
486-87 (1994).
Accordingly, IT IS ORDERED that Judge Johnston's Findings and
Recommendations (Doc. 7) is ADOPTED IN FULL. This matter is DISMISSED
WITH PREJUDICE for failure to state a claim.
IT IS FURTHER ORDERED that the Clerk of Court shall CLOSE this
matter and enter judgment 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 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.
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IT IS FURTHER ORDERED that 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 Mr. Keefe failed to state a claim upon which relief may be granted.
DATED this

~ay of September

Dana L. Christensen, Chief Judge
United States District Court

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