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

RYAN DENNY,

CV 22-32-H-BMM-KLD Petitioner,

vs. ORDER

WARDEN PETE BLUDWORTH, MONTANA BOARD OF PARDONS AND PAROLE,

Respondents.

United States Magistrate Judge Kathleen DeSoto entered her Findings and Recommendations in this case on June 21, 2022. (Doc. 4.) Judge DeSoto made the following recommendations: that Mr. Denny’s petition (Doc. 1) should be DISMISSED under Fed. R. Civ. P. 41(b) for failure to prosecute and that the motion to proceed in forma pauperis (Doc. 2) should be DENIED based upon Mr. Denny’s failure to submit his inmate account statement; that the Clerk of Court should be directed to enter a judgment of dismissal by separate document; and that a certificate of appealability should be DENIED. (Doc. 4 at 5). Neither party filed objections to the Findings and Recommendations. The parties have waived the right to de novo review thereof.

(b)(1)(C). Absent objection, this Court reviews findings and recommendations for clear error. McDonnell Douglas Corp. v. Commodore Bus. Mach., Inc.,

(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,

(9th Cir. 2000) (citations omitted). Judge DeSoto applied the five-factor test in Carey v. King,

(9th Cir. 1988) (quoting Henderson v. Duncan,

(9th Cir. 1986)), to determine that Denny’s failure to prosecute warrants dismissal of his case. (Doc. 4 at 2-4). In determining that a certificate of appeal should be denied, Judge DeSoto concluded that no reasonable jurist would suggest that the Court

should go forward in further proceedings without Mr. Denny’s participation. (Id. at 4). The Court finds no error in Judge DeSoto’s Findings and Recommendations and adopts them in full.

ORDER Accordingly, IT IS ORDERED: 1. Mr. Denny’s petition (Doc. 1) is DISMISSED under Fed. R. Civ. P. 41(b)

for failure to prosecute. The motion to proceed in forma pauperis (Doc. 2) is DENIED based upon Mr. Denny’s failure to submit his inmate account statement. 2. The Clerk of Court is directed to a judgment of dismissal by separate document. 3. A certificate of appealability is DENIED. DATED this 4th day of August, 2022.

wr” “bo + Vu,

Brian Morris, Chief District Judge United States District Court