Hussar v. Lewis and Clark County Detention Center

Filing 5

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 4 in full. 3 MOTION for Leave to Proceed in forma pauperis denied. The Clerk of Court is directed to close this case and enter judgment should Hussar not pay the $400.00 filing fee within 30 days Signed by Judge Dana L. Christensen on 6/21/2017. Mailed to Hussar. (TAG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
HELENA DIVISION
WAYNE A. HUSSAR, II,
Plaintiff,
ORDER
vs.
LEWIS AND CLARK COUNTY
DETENTION CENTER,
Defendant.
United States Magistrate Judge John Johnston entered his Findings and
Recommendation on June 12, 2017, recommending denial of Plaintiff Wayne
Hussar's ("Hussar") motion to proceed in forma pauperis in this matter. Hussar is
not entitled to object to the Findings and Recommendation. 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 Recommendation 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. 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)

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(citations omitted).
Having reviewed the Findings and Recommendation, the Court finds no
clear error in Judge Johnston's conclusion that Hussar 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 Hussar should not be allowed to proceed in forma pauperis. As
such, Hussar must pay the $400.00 filing fee required by 28 U.S.C. § 1914(a). If
Hussar fails to pay the filing fee within 30 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
Recommendation, IT IS ORDERED that:
(1) Judge Johnston's Findings and Recommendation (Doc. 4) are
ADOPTED IN FULL.
(2) Hussar's Motion to Proceed in Forma Pauperis (Doc. 1) is DENIED
pursuant to 28 U.S.C. § 1915(g).
(3) The Clerk of Court is directed to close this case and enter judgment
pursuant to Rule 58 of the Federal Rules of Civil Procedure should Hussar not pay
the $400.00 filing fee within 30 days from the date of this Order.
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Dated this 1\ ~"tay of June, 2017.

Dana L. Christensen, Chief Judge
United States District Court

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