Ford v. Michael et al

Filing 8

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 6 in full. This dismissal counts as a strike pursuant to 28 U.S.C. Section 1915(g). Any appeal would not be taken in good faith. Signed by Judge Brian Morris on 1/29/2019. Mailed to Ford (TAG)

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

EUGENE FORD,

CV-18-60-H-BMM-JTJ

Plaintiff,
vs.
ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS

REGINALD MICHAEL, et al.,
Defendants.

Plaintiff Eugene Ford (“Mr. Ford”), a state prisoner proceeding without
counsel, alleges that his rights under the Fifth, Eighth, and Fourteenth
Amendments were violated when he was recommended for various treatment
programs and when he was asked to complete a MORRA-PIT (Montana Offender
Reentry & Rsk Assessment System-Prison-Intake Tool) questionnaire. (Doc. 2).
United States Magistrate Judge John Johnston entered Findings and
Recommendations in this matter on November 8, 2018. (Doc. 6). Judge Johnston
recommended that this matter be dismissed for failure to state a federal claim upon
which relief may be granted. Id. at 10.
Judge Johnston determined first that Mr. Ford’s Fifth Amendment due
process claim is inapplicable because the Fifth Amendment “only applies to the
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federal government.” Bingue v. Prunchak, 512 F.3d 1169, 1174 (9th Cir. 2008);
(Doc. 6 at 5). Mr. Ford’s allegations are against the State of Montana, therefore,
Mr. Ford’s claims under the Fifth Amendment were correctly dismissed.
Judge Johnston determined further that Mr. Ford’s Eighth Amendment
allegations should be denied. (Doc. 6 at 5). Judge Johnston found that requiring
Mr. Ford to take programming classes did not rise to the level of a denial of “the
minimal civilized measure of life’s necessities” required for an Eighth Amendment
claim. Farmer v. Brennan, 511 U.S. 825, 832-3 (1994); (Doc. 6 at 5).
Judge Johnston similarly recommends that Mr. Ford’s Fourteenth
Amendment claims be dismissed because the claims are barred by the applicable
statute of limitations. (Doc. 6 at 8). Mr. Ford complains of having been required
to take sex offender treatment in the year 2000. The statute of limitations for
claims filed pursuant to 42 U.S.C. § 1983 is three years. Id. at 7. All claims
accruing prior to April 19, 2015, are therefore barred by the applicable statute of
limitations.
The Court reviews de novo Findings and Recommendations timely objected
to. 28 U.S.C. § 636(b)(1). The Court reviews for clear error the portions of the
Findings and Recommendations not specifically objected to. McDonnell Douglas
Corp. v. Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313 (9th Cir. 1981). Where
a party’s objections constitute perfunctory responses argued in an attempt to
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engage the district court in a rehashing of the same arguments set forth in the
original response, however, the Court will review for clear error the applicable
portions of the findings and recommendations. Rosling v. Kirkegard, 2014 WL
693315 *3 (D. Mont. Feb. 21, 2014) (internal citations omitted).
Mr. Ford timely filed objections to Magistrate Judge Johnston’s Findings
and Recommendations. (Doc. 7). These objections attempt to engage the Court in
a debate of the same arguments that Judge Johnston addressed in the Findings and
Recommendations. (Doc. 6). Mr. Ford’s objections simply restate what Judge
Johnston already addressed and the Court finds no clear error in Judge Johnston’s
Findings and Recommendations. Id.
ORDER
Accordingly, IT IS ORDERED that Magistrate Judge Johnston’s Findings
and Recommendations (Doc. 6) are ADOPTED IN FULL.
It is ORDERED that this matter be DISMISSED for failure to state a
federal claim.
The Clerk of the Court is directed to close this matter and enter judgement in
favor of Defendant pursuant to Rule 58 of the Federal Rules of Civil Procedure.
The Clerk of the 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
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person could suppose an appeal would have merit. The record makes plain the
Complaint lacks arguable substance in law or fact.
The Clerk of the 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. Ford
failed to state a claim upon which relief may be granted.
DATED this 29th day of January, 2019.

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