Payne v. Marks et al

Filing 12

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 10 in full. Complaint 2 DISMISSED WITHOUT PREJUDICE. Signed by Judge Donald W. Molloy on 8/4/2014. Mailed to Payne. (TAG, )

FILED

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

AUG 0 4 201~
Clerk. u.s District Court
District Of Montana
Missoula

CV 13-219-M-DWM-JCL

TYRONE EVERETT PAYNE,
Plaintiff,
vs.

ORDER

JASON MARKS, JAMIE
MERIFIELD, and MONTANA
MUNICIPAL INSURANCE
AUTHORITY,
Defendants.

This matter comes before the Court on the proposed Findings and
Recommendations entered by United States Magistrate Judge Jeremiah C. Lynch,
(Doc. 10), regarding the civil rights Complaint brought pursuant to 42 U.S.C.
§ 1983 by Plaintiff Tyrone Everett Payne, (Doc. 2). Because Payne was
incarcerated, upon filing, this matter was referred to Judge Lynch. See L.R.
72.2(a). Judge Lynch conducted the pre screening required by 28 U.S.C. § 1915,
and found that Payne's Complaint failed to state a claim upon which relief can be
granted. (Doc. 8.) Payne was ordered to file an amended complaint by May 23,
2014. (Id.) Payne did not respond to the Court's Order. Following Payne's

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failure to respond, Judge Lynch filed proposed Findings and Recommendations
regarding the Complaint on July 8, 2014. (Doc. 10.) "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 court." 28 U.S.C.
§ 636(b)(1). 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 July 25,2014.
Payne did not timely file written objections to the proposed Findings and
Recommendations.
Judge Lynch's proposed Findings and Recommendations are reviewed for
clear error. 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 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).
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Judge Lynch's report contains no mistake of fact or law and will be adopted
in-full. The proposed Findings and Recommendations incorporate by reference
the Court's rationale for finding that Payne's Complaint fails to state a claim upon
which relief can be granted. (Doc. 9 at 1.) The Court found dismissal under
Federal Rule of Civil Procedure 12(b)(6) may be warranted without the filing of an
Amended Complaint by the Plaintiff. (Doc. 8 at 7-8.) The Court granted Payne
leave to file an Amended Complaint to attempt to cure these deficiencies. (ld. at
8.) Payne did not respond to the Court's Order. Furthermore, Payne has failed to
comply with the Court's directive that he immediately advise the Court of any
change of address and its effective date. (See Doc. 8 at 8, Doc. 10 at 2.) The
Court warned Payne that his failure to timely file an Amended Complaint and
failure to advise the Court of an address change would result in dismissal of this
action. (Doc. 8 at 8.) Dismissal on these grounds is now appropriate.
IT IS ORDERED:
(1) The proposed Findings and Recommendations entered by United
States Magistrate Judge Jeremiah C. Lynch, (Doc. 10), are
ADOPTED IN-FULL.
(2) The Complaint filed by Plaintiff Tyrone Everett Payne, (Doc. 2), is
DISMISSED WITHOUT PREJUDICE.
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(3)

The Clerk of Court shall enter judgment by a separate document,
pursuant to Federal Rule of Civil Procedure 58, and close this case.

DATED this

~ay of August, 2014.

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