Lawrence v. Marble et al

Filing 24

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 21 in full. Complaint 2 is DISMISSED without prejudice. Any appeal of this decision would not be taken in good faith. Signed by Judge Dana L. Christensen on 1/27/2016. Mailed to Lawrence. (TAG, )

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

FILED
JAN 2 7 2016
Clerk, U.S. District Court
District Of Montana
Missoula

CV 15-85-M-DLC-JCL

JOSEPH E. LAWRENCE,
Plaintiff,

ORDER
vs.
STATE OF MONTANA, et al.,
Defendants.

United States Magistrate Judge Jeremiah C. Lynch entered his Findings and
Recommendations on December 3, 2015, recommending dismissal of Plaintiff
Joseph E. Lawrence's ("Lawrence") Complaint. Lawrence failed to timely object
to the Findings and Recommendations, and so waived the right to de novo review
of the record. 28 U.S.C. § 636(b)(l)(C). This Court reviews for clear error those
findings and recommendations to which no party objects. See McDonnell Douglas
Corp. v. Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313 (9th Cir. 1981);
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).

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As a preliminary matter, this Court must first address an appeal filed by
Lawrence. On December 28, 2015, Lawrence filed a notice of appeal seeking
Ninth Circuit review of Judge Lynch's Findings and Recommendations. This
notice of appeal was filed before the Court reviewed Judge Lynch's Findings and
Recommendations. Generally, "the filing of a notice of appeal divests a district
court of jurisdiction over those aspects of the case involved in the appeal." Stein
v. Wood, 127 F.3d 1187, 1189 (9th Cir. 1997). However, there is an exception to

the general rule when the appeal is frivolous. Marks v. Clarke, 102 F.3d 1012,
1017 n. 8 (9th Cir. 1996) (citations omitted). Here, Lawrence did not appeal from
an appealable final order. As such, his appeal is frivolous. See 28 U.S.C. § 1291.
This Order shall serve as certification that Lawrence's appeal is frivolous.
Next, having reviewed the Findings and Recommendations, the Court finds
no clear error in Judge Lynch's conclusion that Lawrence, as a prose litigant,
lacks the authority to represent the interests of someone other than himself.
Because his mother's estate has at least one other beneficiary, Lawrence must
obtain counsel and cannot proceed in this case without attorney representation.
There being no clear error in Judge Lynch's Findings and
Recommendations, IT IS ORDERED that:
(1) Judge Lynch's Findings and Recommendations (Doc. 21) are
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ADOPTED IN FULL.
(2) Lawrence's Complaint (Doc. 2) is DISMISSED without prejudice. The
Clerk of Court is directed to close this matter and enter judgment
pursuant to Rule 58 of the Federal Rules of Civil Procedure.
(3) 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. The
record makes plain the instant Complaint is frivolous as it lacks arguable
substance in law or fact.
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Dated this l '-=t- day of January, 20

Dana L. Christensen, Chief Judge
United States District Court

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