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Gunderson v. McLean

United States District Court, D. Montana, Missoula Division

April 3, 2014

BRIAN DAVID GUNDERSON, Plaintiff,
v.
ED McLEAN, SUZY BOYLAN, and JANETERB, Defendants.

ORDER

DANA L. CHRISTENSEN, Chief District Judge.

United States Magistrate Judge Jeremiah C. Lynch entered Findings and Recommendations on February 2, 2014, recommending that Plaintiffs complaint be dismissed, that the clerk of court should close the matter and enter judgment, that the clerk of court have the docket reflect that this dismissal counts as a strike pursuant to 28 U.S.C. § 1915, and that the clerk of court have the docket reflect that the Court certifies pursuant to Fed.R.App. P. 24(a)(3)(A) that any appeal of this decision would not be taken in good faith.

Plaintiff did not timely object to the Findings and Recommendations, and so has waived the right to de novo review of the record. 28 U.S.C. § 636(b)(1). This Court will review the Findings and Recommendations for clear error. McDonnell Douglas Corp. v. Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313 (9th Cir. 1981). 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).

There is no clear error in Judge Lynch's Findings and Recommendations. Plaintiffs claims are barred by the doctrine set forth in Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). Judge McLean is entitled to judicial immunity. Ms. Boylan is entitled to prosecutorial immunity. Plaintiff fails to state a plausible claim against Ms. Erb. Plaintiff's complaint should be dismissed.

In addition, the dismissal of this case should constitute a strike under 28 U.S.C. § 1915(g). Plaintiffs claims are Heck barred, barred by judicial and prosecutorial immunities, and fail to state a claim.

Finally, Plaintiffs complaint is frivolous because it lacks arguable substance in law or fact. Accordingly, any appeal of this matter would not be taken in good faith.

IT IS ORDERED that

1. Judge Lynch's Findings and Recommendations (Doc. 5) are ADOPTED IN FULL.
2. Plaintiffs complaint (Doc. 2) is DISMISSED.
3. The Clerk of Court shall have the docket reflect that this dismissal counts as a strike pursuant to 28 U.S.C. § 1915(g).
4. The Clerk of Court shall have the docket reflect that the Court certifies pursuant to Fed.R.App. P. 24(a)(3)(A) that any appeal of this decision would not be taken in good faith.
5. Judgment shall be entered pursuant to Rule 58 of the Federal Rules of Civil Procedure.
6. This case is CLOSED.

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