Ockert v. State of Montana, Department of Commerce et al, No. 6:2012cv00023 - Document 40 (D. Mont. 2012)

Court Description: ORDER ADOPTING IN FULL FINDINGS AND RECOMMENDATIONS for 33 Findings and Recommendations ; adopting Findings and Recommendations re 33 Findings and Recommendations; granting 12 Motion to Dismiss for Failure to State a Claim granting in part 10 Motion to Dismiss for Failure to State a Claim; (a)Plaintiff's claims against Defendants Schwinden and Craigle are DISMISSED WITHOUT PREJUDICE;(b) Plaintiff's claims against individual Defendants in their official capacities are DISM ISSED WITHOUT PREJUDICE; (c) Plaintiff's substantive due process claim is DISMISSED WITHOUT PREJUDICE; and (d) The State of Montana and the Department of Commerce are DISMISSED from this case WITHOUT PREJUDICE. Signed by Judge Dana L. Christensen on 9/19/2012. (HEG, )

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Ockert v. State of Montana, Department of Commerce et al Doc. 40 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA HELENA DIVISION SUSAN OCKERT, Plaintiff, vs. STATE OF MONTANA, DEPT OF COMMERCE, DORE SCHWINDEN, ANDY POOLE, MARY CRAIGLE and MARTY ROOS, individually and as agents of the Dept. of Commerce, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) CV 12-23-H-DLC-RKS ORDER FILED SEP 1 9 20f2 PATRICK E. DUFFY CLERK By , DEP\JTY CLERK, MISSauu. -----------------------) Defendants have two motions to dismiss for failure to state a claim pending in this matter. United States Magistrate Judge Keith Strong entered Findings and Recommendation on June 22, 2012, and recommended granting the motions in part. The parties did not timely object to the Findings and Recommendation, and so have waived the right to de novo review ofthe record. 28 U.S.C. § 636(bXl). -1­ Dockets.Justia.com This Court will review the Findings and Recommendation 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). After briefing the motions to dismiss, the parties agreed that some claims should be dismissed. Judge Strong found that the finite remaining issues as to whether the Amended Complaint states a claim under 42 U.S.C. § 1983 against Defendants Schwinden and Craigie, and whether Plaintiffs claim for prospective relief apart from reinstatement states a claim under 42 U.S.C. § 1983 could be resolved in the form of Findings and Recommendations. Judge Strong recommended that the motions be granted. He concluded this matter is early in the discovery period, and that it is appropriate to dismiss some claims without prejudice to allow Plaintiff to state a claim by amendment. After a review of Judge Strong's Findings and Recommendation, I find no clear error. Accordingly, IT IS HEREBY ORDERED that Judge Strong's Findings and Recommendation (doc. 33) are adopted in full. Defendants' Motion to Dismiss for Failure to State a Claim (doc. 12) is GRANTED. Defendants' Partial Motion to Dismiss - § 1983 Claims (doc. 10) is GRANTED IN PART as follows: -2­ (a) Plaintiffs claims against Defendants Schwinden and Craigie are DISMISSED WITHOUT PREJUDICE; (b) Plaintiff s claims against individual Defendants in their official capacities are DISMISSED WITHOUT PREJUDICE; (c) Plaintiff's substantive due process claim is DISMISSED WITHOUT PREJUDICE; and (d) The State of Montana and the Montana Department of Commerce are DIMISSED from this case WITHOUT PREJUDICE. DATED this ,Aay of September NIAAAlI-k. ana L. Christensen, District Judge United States District Court -3­

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