Goldsmith v. Batista et al

Filing 10

ORDER ADOPTING 9 FINDINGS AND RECOMMENDATIONS in full. This matter is DISMISSED for failure to state a federal claim. 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. This dismissal counts as a strike pursuant to 28 U.S.C. Section 1915(g). Signed by Judge Dana L. Christensen on 3/2/2018. (NOS)

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

MAR 02 2018
Clerk., U.S
District Of MCourts
Missoula o,.ontana
v1
s1on

DARREN DEE GOLDSMITH, SR.,
CV 17-60-H-DLC-JTJ
Plaintiff,
vs.

ORDER

MIKE BATISTA, LARRY PASHA,
SCOTT WEBER, DANNY RIDDLE,
and LEROY KIRKEGARD,
Defendants.
United States Magistrate Judge John T. Johnston entered his Findings and
Recommendations in this case on January 26, 2018, recommending that this action
be dismissed for failure to state a claim.

Plaintiff Darren Dee Goldsmith

("Goldsmith") failed to timely object to the findings and recommendations, and so
waived the right to de novo review of the record.

28 U.S .C. § 636(b)(l ). The

Court will therefore review the record for clear error.

McDonnell Douglas Corp.

v. Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313 (9th Cir. 1981).

After reviewing the record and finding no clear error, this Court agrees with
Judge Johnston that the Complaint, as currently pled, fails to state a federal claim
upon which relief may be granted.

Goldsmith was given an opportunity to fil e an

amended complaint, but failed to cure the deficiencies.
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Accordingly, IT IS ORDERED that Judge Johnston' s Findings and
Recommendations (Doc. 9) 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

pursuant to Rule 58 of the Federal Rules of Civil Procedure.
(3)

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.
person could suppose an appeal would have merit.

No reasonable

The record makes plain the

instant Complaint lacks arguable substance in law or fact.
(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) because Goldsmith
failed to state a claim upon which relief may be granted.
DATED this

'1..,J..

day of March, 2018.

Dana L. Christensen, Chief Judge
United States District Court

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