Haeker v. Linder, No. 1:2016cv00026 - Document 16 (D. Mont. 2016)
Court Description: ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 15 . Linder's Motion to Dismiss for Failure to State a Claim 11 is GRANTED as follows: Count 1 is DISMISSED with prejudice; Count 2 is DISMISSED with prejudice; Count 3 is DISMISSED with leave to a mend as to the claim under the Fourteenth Amendment's Equal Protection Clause. Amended Complaint is due by September 7, 2016. If an amended complaint is not filed, the Court will direct the Clerk to enter judgment and close the case. Signed by Judge Susan P. Watters on 8/18/2016. (Mailed to Haeker; cp) (NOB)
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Haeker v. Linder Doc. 16 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONT ANA BILLINGS DIVISION FILED AUG l 8 2016 Clerk, U S District Court D1stnct Of Montana Billings KURT HAEKER, CV 16-26-BLG-SPW-CSO Plaintiff, ORDER vs. MIKE LINDER, Yellowstone County Sheriff, Defendant. Before the Court are United States Magistrate Judge Carolyn Ostby's Findings and Recommendations that were filed on July 22, 2016. In the Findings and Recommendations, Judge Ostby recommends that this Court grant Defendant Mike Linder's motion to dismiss. Judge Ostby concludes that Count 2 and the due process claim in Count 1 should be dismissed with prejudice, and the equal protection claim in Count 1 should be dismissed with leave to amend. Pursuant to 28 U.S.C. § 636(b)(l), the parties were required to file written objections within 14 days of the filing of Judge Ostby's Findings and Recommendations. No objections were filed. When neither party objects, this Court reviews Judge Ostby's conclusions for clear error. 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). After 1 Dockets.Justia.com reviewing the Findings and Recommendations, this Court does not find that Judge Ostby committed clear error. Accordingly, IT IS HEREBY ORDERED: 1. Judge Ostby's Findings and Recommendations (Doc. 15) are ADOPTED IN FULL. 2. Linder's Motion to Dismiss under Fed. R. Civ. P. 12(b)(6) for Failure to State a Claim (Doc. 11) is GRANTED as follows: a. Count 1 is DISMISSED with prejudice as to the claim under the Fourteenth Amendment's Due Process Clause. b. Count 2 is DISMISSED with prejudice. c. Count 3 is DISMISSED with leave to amend as to the claim under the Fourteenth Amendment's Equal Protection Clause. 3. IfHaeker wishes to proceed on his equal protection claim, he must file an amended complaint by September 7, 2016. Ifan amended complaint is not filed, the Court will direct the Clerk of Court to enter judgment and close the case. '-/4'~ DATED this LL day of August, 2016 .. ,J . -.~··<-<->a-7 '-- . L ':0 fc,,('"/a~"'< /susAN P. WATTERS United States District Judge 2 ".
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