Asselin v. Devine et al, No. 6:2015cv00095 - Document 26 (D. Mont. 2016)

Court Description: ORDER ADOPTING FINDINGS AND RECOMMENDATIONS in FULL re 25 Findings and Recommendations.; granting 5 Motion to Dismiss for Failure to State a Claim; granting 7 Motion to Dismiss for Failure to State a Claim; granting 12 Motion to Dismiss for Failure to State a Claim. This case is CLOSED. Mailed to Asselin. Signed by Judge Dana L. Christensen on 5/10/2016. (HEG, )

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Asselin v. Devine et al Doc. 26 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA HELENA DIVISION PATRICK T. ASSELIN, FILED MAY 10 2016 Clerk, U S District Court District Of Montana Missoula CV 15-95-H-DLC-JTJ Plaintiff, ORDER vs. BRITTANY DEVINE, BRENT LESHENSKI, PAMELA PONICH, MICHAEL MENEHAN, and GEORGE PEARCE, Defendants. United States Magistrate Judge John Johnston entered his Findings and Recommendations in this matter on March 30, 2016, recommending dismissal of Plaintiff Patrick Asselin's ("Asselin") Complaint. Asselin failed to timely object to the Findings and Recommendations, and so waived his right to de novo review of the record. 28 U.S.C. § 636(b)(l)(C). This Court reviews for clear error those findings and recommendations to which no party objects. See McDonnell Douglas Corp. v. Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313 (9th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 149 (1985). 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) (citations omitted). -1- Dockets.Justia.com Having reviewed the Findings and Recommendations, the Court finds no clear error in Judge Johnston's conclusion that Asselin's Complaint should be dismissed because: (1) this Court should abstain from interfering in the ongoing state court proceeding pursuant to Younger v. Harris, 401 U.S. 37 (1971); (2) this Court lacks jurisdiction under 28 U.S.C. § 1332; (3) Judge Menahan is judicially immune from liability; and (4) Asselin failed to establish that Defendants Ponich or Pearce acted under the color of state law. Accordingly, IT IS ORDERED that: (1) Judge Johnston's Findings and Recommendations (Doc. 25) are ADOPTED IN FULL. (2) Defendant Michael Menahan's Motion to Dismiss for Failure to State a Claim and Lack of Subject Matter Jurisdiction (Doc. 5) is GRANTED. (3) Defendant George Pearce's Motion to Dismiss for Failure to State a Claim (Doc. 7) is GRANTED. (4) Defendant Brittany Devine and Defendant Brent Leshenski's Motion to Dismiss for Lack of Jurisdiction (Doc. 10) is GRANTED. (5) Defendant Pamela Ponich's Motion to Dismiss for Failure to State a Claim (Doc. 12) is GRANTED. (6) This case is CLOSED. -2- Dated this \OJt,day ofMay, 2016. Dana L. Christensen, Chief Judge United States District Court -3-

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