Wombolt v. Montana State Prison et al, No. 6:2015cv00060 - Document 30 (D. Mont. 2016)
Court Description: ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 26 in full. Defendants Larry Burke, Todd Boese, Cynthia Davenport, Jill Buck and Katherine Flynn's Motion to Dismiss 15 is GRANTED. Signed by Judge Dana L. Christensen on 9/28/2016. Mailed to Wombolt. (TAG, )
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Wombolt v. Montana State Prison et al Doc. 30 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA HELENA DIVISION CV 15-060-H-DLC-JTJ SCOTT WOMBOLT, Plaintiff, ORDER vs. MONTANA STATE PRISON & EMPLOYEES LARRY BURKE, TODD BOESE, CYNTHIA DAVENPORT, JILL BUCK, KATHERINE FLYNN, DOCTOR KOHUT, and CINDY HINER, Defendants. United States Magistrate Judge John T. Johnston entered findings and recommendations in this case on August 15, 2016, recommending dismissal of Plaintiff Scott Wombolt's ("Wombolt") case as to Defendants Larry Burke, Todd Boese, Cynthia Davenport, Jill Buck and Katherine Flynn, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Wombolt did not object to the findings and recommendations, and so has waived the right to de novo review thereof. 28 U.S.C. ยง 636(b )(1 )(C). This Court reviews for clear error those findings and recommendations to which no party objects. See McDonnell Douglas 1 Dockets.Justia.com Corp. v. Commodore Bu~. Mach., Inc., 656 F.2d 1309, 1313 (9th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 149 (1985). Clear error exists ifthe 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 consideration of Title II of the ADA and the applicable case law. This Court agrees that Title II of the ADA does not provide for individual capacity suits against state officials. Vinson v. Thomas, 288 F.3d 1145, 1156 (9th Cir. 2002). Consequently, Defendants Larry Burke, Todd Boese, Cynthia Davenport, Jill Buck and Katherine Flynn's motion to dismiss is granted. The proper defendant in this case is the Montana State Prison. Accordingly, IT IS ORDERED that Judge Lynch's Findings and Recommendations (Doc. 26) are ADOPTED IN FULL. Defendants Larry Burke, Todd Boese, Cynthia Davenport, Jill Buck and Katherine Flynn's Motion to Dismiss (Doc. 15) is GRANTED. DATED this Le~ay of September, 2016. Dana L. Christensen, Chief Ju ge United States District Court 2
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