Marble v. Strecker et al

Filing 10

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 7 in full. Identified claims DISMISSED WITH PREJUDICE. Defendants Devin Erickson and the City of Missoula DISMISSED. Signed by Judge Donald W. Molloy on 4/10/2014. Mailed to Marble. (TAG, )

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

FILED
APR 10 2014
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CV 13-186--M-DWM

CODY WILLIAM MARBLE,
Plaintiff,
vs.

ORDER

MELISSA STRECKER, ANDREA

BETHEL, JARED POOLE,

HEATHER SMITH, DEVIN

ERICKSON, and THE CITY OF

MISSOULA,

Defendants.

This matter comes before the Court on the proposed Findings and
Recommendations entered by United States Magistrate Judge Jeremiah C. Lynch,
(Doc. 7), regarding the Complaint filed by Plaintiff Cody William Marble.
Because Marble is a prisoner proceeding in forma pauperis, upon filing, this
matter was referred to Judge Lynch for prescreening. See 28 U.S.C. § 1915; L.R.
72.2(a). Judge Lynch conducted the required prescreening and filed his proposed
Findings and Recommendations on February 26, 2014. (Doc. 7 at 27.) "Within
fourteen days after being served with a copy, any party may serve and file written
objections to such proposed findings and recommendations as provided by rules of
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court." 28 U.S.C. § 636(b)(I). Because the statutory objections period states that
a party may file objections within a specified time after service of the findings and
recommendations, and service of the Findings and Recommendations at issue was
made by mail and electronic means, three days are added after the period would
otherwise expire. See Fed. R. Civ. P. 6(d). Accordingly, written objections to
Judge Lynch's proposed Findings and Recommendations were due March 17,
2014.
Judge Lynch's proposed Findings and Recommendations are reviewed for
clear error. No party timely filed written objections to the proposed Findings and
Recommendations. When no party objects, the Court reviews the proposed
findings and recommendations of a United States Magistrate Judge for clear error.
McDonnell Douglas Corp. v. Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313
(9th Cir. 1981). Clear error is present only ifthe 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).
Judge Lynch ordered Marble's claims regarding the search of his vehicle,
due process at his preliminary parole revocation hearing, and retaliation be served
on Defendants Strecker, Bethel, Smith, and Poole. (Doc. 7 at 24.) Plaintiff's
claims regarding the seizure of his marijuana and medical marijuana card, reports
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of violation made without probable cause, false arrest, false imprisonment,
malicious prosecution, and the search of his person on September 8, 2011 were
reviewed by Judge Lynch and found to fail to state a claim upon which relief may
be granted. Judge Lynch recommends these claims be dismissed. (Jd. at 27.)
Judge Lynch's report contains no mistake of fact or law and it will be
adopted in full. Plaintiffs claims regarding the seizure of his marijuana and
medical marijuana card, reports of violation made without probable cause, false
arrest, false imprisonment, malicious prosecution, and the search of his person on
September 8, 2011 do not state a ground for relief before this Court.
IT IS ORDERED:
(1) Judge Lynch's proposed Findings and Recommendations, (Doc. 7),
are ADOPTED IN FULL.
(2) Claims regarding the seizure ofmarijuana and a medical marijuana
card, reports of violation made without probable cause, false arrest,
false imprisonment, malicious prosecution, and unlawful search of his
person on September 8, 2011 advanced by Plaintiff Cody William
Marble are DISMISSED WITH PREJUDICE.
(3) Defendants Devin Erickson and the City of Missoula are
DISMISSED. The caption of this matter shall be amended
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accordingly.

'"

DATED this ~ day of April, 2014.

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