Howell v. Great Falls Pre-Release Services, Inc. et al, No. 4:2020cv00064 - Document 11 (D. Mont. 2020)
Court Description: ORDER ADOPTING 10 FINDINGS AND RECOMMENDATIONS in full. Defendants Great Falls Pre-Release Services, Inc. and Montana Department of Corrections are DISMISSED. Signed by Judge Brian Morris on 12/9/2020. Mailed to Howell (TAG)
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Howell v. Great Falls Pre-Release Services, Inc. et al Doc. 11 Case 4:20-cv-00064-BMM-JTJ Document 11 Filed 12/10/20 Page 1 of 3 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA GREAT FALLS DIVISION JOSHUA JAMES LEE HOWELL, Plaintiff, vs. CV-20-64-GF-BMM-JTJ ORDER ANDRE CARRETHERS, DHO; GREAT FALLS PRE-RELEASE SERVICES, INC.; ALAN SCANLON, TREATMENT SERVICE DIRECTOR; and the MONTANA DEPARTMENT OF CORRECTIONS, Defendants. Plaintiff Joshua James Lee Howell (“Howell”) filed an Amended Complaint alleging his constitutional rights were violated when he was removed from the Great Falls Pre-Release Center and returned to prison for talking to, encouraging, and helping other residents file grievances. Doc. 9. United States Magistrate Judge John Johnston considered whether Howell’s Amended Complaint was frivolous, malicious, fails to state a claim, or solely seeks monetary relief from a defendant who is immune to monetary damages. See 28 U.S.C. §§ 1915(e)(2), 1915A(b). Judge Johnston determined that dismissal of the case does not prove appropriate at this time. Doc. 10 at 1. Judge Johnston ordered Defendants Carrethers and Scanlon Dockets.Justia.com Case 4:20-cv-00064-BMM-JTJ Document 11 Filed 12/10/20 Page 2 of 3 to respond to the Amended Complaint. Id. at 3. Judge Johnston recommended that the Court dismiss Defendant’s Great Falls Pre-Release and Montana Department of Corrections. Id. The Court conducts de novo review of the portions of a magistrate judge’s findings and recommendations to which a party properly objects. 28 U.S.C. § 636(b)(1). A party makes a proper objection by “identifying the parts of the magistrate’s disposition that the party finds objectionable and presenting legal argument and supporting authority, such that the Court is able to identify the issues and the reasons supporting a contrary result.” Montana Shooting Sports Ass’n v. Holder, 2010 WL 4102940, at *2 (D. Mont. Oct. 18, 2010). This Court will review for clear error the portions of a magistrate judge’s findings and recommendations to which a party’s objections constitute only perfunctory responses argued in an attempt to rehash the same arguments set forth in the original response. Rosling v. Kirkegard, 2014 WL 693315, at *3 (D. Mont. Feb. 21, 2014). Clear error exists if the Court is left with a “definite and firm conviction that a mistake has been committed.” United States v. Syraz, 235 F.3d 422, 427 (9th Cir. 2000). No party filed objections to Judge Johnston’s findings and recommendations. The Court will review for clear error Judge Johnston’s findings and recommendations. Rosling, 2014 WL 693315, at *3. 2 Case 4:20-cv-00064-BMM-JTJ Document 11 Filed 12/10/20 Page 3 of 3 The Court finds no clear error in Judge Johnston’s Findings and Recommendations. See Syraz, 235 F.3d at 427. Judge Johnston correctly determined that Howell’s allegations are insufficient to establish entity liability under § 1983 against Great Falls Pre-Release Services, Inc. Doc. 10 at 2. Howell makes no reference to an expressly adopted official policy, a long-standing practice or custom, or a decision of a final policymaker that was the moving force behind any alleged constitutional violation. Id. Judge Johnston correctly determined that Howell omitted Montana Department of Corrections from his Amended Complaint. Judge Johnston also correctly noted that the Eleventh Amendment bars suit in federal court against a state and/or a state agency absent a valid abrogation of immunity by Congress or an express waiver of immunity by the State. Id. (citing Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 267−68 (1997)). The Court adopts Judge Johnston’s Findings and Recommendations (Doc. 10) in full. ORDER Accordingly, IT IS ORDERED that Defendants Great Falls PreRelease Services, Inc. and Montana Department of Corrections are DISMISSED. Dated the 9th day of December, 2020. 3
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