Smith v. King

Filing 7

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS re; 5 - Complaint IFP/Prisoner filed by Jose Smith - case dismissed. Signed by Judge Dana L. Christensen on 4/4/2016. (CDH, ) Modified on 4/4/2016 to reflect copy mailed to Smith (CDH, ).

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

JOSE SMITH,

APR 0 ~ 2016
Cler!<, l:J.S. District Court
District Of Montana
Missoula

CV 15-174-M-DLC-JCL
Plaintiff,
ORDER

vs.
NANCY C. KING,
Defendant.
United States Magistrate Judge Jeremiah C. Lynch entered findings and
recommendations in this case on January 21, 2016, recommending that Plaintiff
Jose Smith's ("Smith") complaint be dismissed for failure to state a claim and lack
of jurisdiction. Smith filed objections to the findings and recommendations on
February 3, 2016, and so is entitled to de novo review of those findings and
recommendations to which he specifically objects. 28 U.S.C. § 636(b )(1 )(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).
-1-

Notwithstanding the above, "[w]here a [party's] objections constitute
perfunctory responses argued in an attempt to engage the district court in a
rehashing of the same arguments set forth in the original [complaint], the
applicable portions of the findings and recommendations will be reviewed for
clear error." Roslingv. Kirkegard, 2014 WL 693315 at *3 (D. Mont. Feb. 21,
2014) (citations omitted).
Having reviewed Smith's objections, the Court finds that he fails to
articulate any specific issue with Judge Lynch's reasoning, and instead once again
pleads with the Court to accept jurisdiction of his Indiana state civil case. As
Judge Lynch explained in his findings and recommendations, there is simply no
authority by which the Court may effect a change of venue for the referenced
proceeding. Accordingly, the Court reviews Judge Lynch's findings and
recommendations for clear error and, finding none,
IT IS ORDERED that Judge Lynch's findings and recommendations (Doc.
5) are ADOPTED IN FULL. Smith's case is DISMISSED for failure to state a
claim and lack of jurisdiction.
DATED this

4 ~day of April, 201

Dana L. Christensen, Chief dge
United States District Court
-2-