Spencer v. Hill et al

Filing 30

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 29 in full. Any appeal would not be taken in god faith. Signed by Judge Brian Morris on 11/8/2019. Transmitted electronically to prison for delivery to Plaintiff. (TAG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
HELENA DIVISION
TIMOTHY EDWARD SPENCER,
Plaintiff,

CV 18-28-H-BMM-JTJ

vs.
DR. VIRGINIA HILL, DR. STEVEN
PALMERI, NURSE LORI
SWANSON, NURSE JACK
PRESTON, RICHARD OPPER, JOHN
GLUCKERT, and DR. PERINEAN,

ORDER ADOPTING MAGISTRATE
JUDGE’S FINDINGS AND
RECOMMENDATIONS

Defendants.

Plaintiff Timothy Edward Spencer (“Spencer”) filed a Motion to Proceed in
Forma Pauperis and submitted an affidavit in support on February 8, 2018.
(Doc. 1.) Spencer filed a Complaint on February 8, 2018. (Doc. 2.) Defendants
filed a motion to compel discovery on August 5, 2019. (Doc. 26.) United States
Magistrate Judge John Johnston ordered Spencer to file a response to Defendants’
motion to compel on or before September 13, 2019. (Doc. 28.) Judge Johnston
advised Spencer that a failure to file a response may result in a recommendation
that the matter be dismissed. (Id. at 2.) Spencer did not respond.

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Judge John Johnston issued Findings and Recommendations on October 4,
2019. (Doc. 29.) Judge Johnston recommended that the Court dismiss the matter
pursuant to Rule 41(b) of the Federal Rules of Civil Procedure for failure to
prosecute and failure to comply with a Court order. (Id. at 2, 5.)
Neither party filed objections to the Findings and Recommendations. The
parties have waived the right to de novo review thereof. 28 U.S.C. § 636(b)(1)(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 banc);
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) (citations omitted). Reviewing
for clear error and finding none,
IT IS ORDERED that Judge Johnston’s Findings and Recommendations
(Doc. 29) are ADOPTED IN FULL.
IT IS FURTHER ORDERED that this matter is DISMISSED WITH
PREJUDICE pursuant to Rule 41(b) of the Federal Rules of Civil Procedure.
The Clerk of Court is directed to terminate all pending motions, close this
matter, and enter judgment pursuant to Rule 58 of the Federal Rules of Civil
Procedure.
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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.
DATED this 8th day of November, 2019.

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