Wallace v. U.S. A.A. Office

Full title: GREGORY L. WALLACE, Plaintiff, v. UNITED STATES A.A. OFFICE, B.I.A…

Court: UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA HELENA DIVISION

Date published: Dec 9, 2016

CV 16-85-H-DLC-JTJ (D. Mont. Dec. 9, 2016)

Opinion

CV 16-85-H-DLC-JTJ

12-09-2016

GREGORY L. WALLACE, Plaintiff, v. UNITED STATES A.A. OFFICE, B.I.A. CORRECTIONS PERSONNEL, U.S.B.O.P., MONTANA STATE PRISON INFIRMARY, Defendants.

Dana L. Christensen, Chief Judge United States District Court

ORDER

United States Magistrate Judge John T. Johnston entered his Findings and Recommendations on November 15, 2016, recommending denial of Plaintiff Gregory L. Wallace's ("Wallace") motion to proceed in forma pauperis in this matter. Wallace is not entitled to object to the Findings and Recommendations. See Minetti v. Port of Seattle, 152 F.3d 1113, 1114 (9th Cir. 1998) (providing that an application to proceed in forma pauperis is not a nondispositive matter under 28 U.S.C. § 636 (b)(1)(A)). As a result, the Court reviews the Findings and Recommendations for clear error. 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).

Having reviewed the Findings and Recommendations, the Court finds no clear error in Judge Johnston's conclusion that Wallace is subject to the three strikes provision of 28 U.S.C. § 1915(g) and fails to meet the "imminent danger of serious physical injury" exception. Accordingly, the Court agrees with Judge Johnston that Wallace should not be allowed to proceed in forma pauperis. As such, Wallace must pay the $400.00 filing fee required by 28 U.S.C. § 1914(a). If Wallace fails to pay the filing fee within 21 days from the date of this Order, the Clerk of Court is instructed close this case and enter judgment in favor of Defendants.

There being no clear error in Judge Johnston's Findings and Recommendations, IT IS ORDERED that:

(1) Judge Johnston's Findings and Recommendations (Doc. 6) are ADOPTED IN FULL.

(2) Wallace's Motion to Proceed in Forma Pauperis (Doc. 1) is DENIED pursuant to Local Rule 3.1(d)(4).

(3) This matter is to be closed if Mr. Wallace fails to pay the $400.00 filing fee within 21 days of this Order.

Dated this 9^th day of December, 2016.

/s/_________

Dana L. Christensen, Chief Judge

United States District Court