Kelly v. Hunt

Filing 8

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 6 in full. Kelly's Complaint is DISMISSED for lack of jurisdiction. Kelly's motion for temporary restraining order and/or preliminary injunction is DENIED as moot. Signed by Judge Donald W. Molloy on 9/4/2008. Copy mailed to Kelly. (TAG, )

FILED
SEP 0 4 2008
PATRICK E. DWFY. CLERK BY
DEPUTY CLERK. MISSWLA

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA MISSOULA DIVISION STEPHEN P. KELLY, Plaintiff, vs. BERNICE HUNT, Defendant.
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CV 08-94-M-DWM-JCL

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ORDER

Plaintiff Kelly has filed a Complaint against Defendant Hunt seeking the return of Kelly's cat, which he alleges is in Hunt's possession. Kelly, who is proceeding pro se and in forma

pauperis, has also filed a motion for temporary restraining order and/or preliminary injunction seeking the return of his cat. United States Magistrate Judge Jeremiah C. Lynch conducted preliminary screening of the Complaint as required by 28 U.S.C. 1915(e) ( 2 ) . Under that statute, the court engages in a
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preliminary screening to assess the merits of the claims and identify cognizable claims, or dismiss the complaint or any portion thereof if the complaint is frivolous, malicious, or fails to state a claim upon which relief can be granted.

Judge Lynch issued Findings and Recommendations in which he recommends dismissal of the Complaint for lack of jurisdiction. Judge Lynch explains that Defendant Hunt is a private citizen and not a state actor, foreclosing jurisdiction under 42 U.S.C. 1983.
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The Court does not have diversity jurisdiction, Judge

Lynch concludes, because the parties are both residents of the State of Montana and the amount in controversy does not exceed $75,000.00. The Magistrate finds that these jurisdictional

defects cannot be cured with the filing of an amended complaint. Plaintiff Kelly did not timely object and so has waived the right to de novo review of the record. 28 U.S.C.
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636(b) (1).

This Court will review the Findings and Recommendation for clear error. McDonnell Doualas C o w . v. Commodore Bus. Mach.. Inc., Clear error exists if the

656 F.2d 1309, 1313 (9th Cir. 1981).

Court is left with a "definite and firm conviction that a mistake has been committed." (9th Cir. 2000). United States v. Svrax, 235 F.3d 422, 427

I can find no clear error with Judge Lynch's

Findings and Recommendations and therefore adopt them in full. Accordingly, IT IS HEREBY ORDERED that the Complaint is DISMISSED for lack of jurisdiction, and the motion for temporary restraining order and/or preliminary injunction (Doc. NO. 4) is DENIED as moot. DATED this day of September, 2008.

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lloy, District Judge District Court