Lewis v. Extradition Transport of America, No. 9:2013cv00138 - Document 11 (D. Mont. 2013)

Court Description: ORDER ADOPTING 10 FINDINGS AND RECOMMENDATIONS in full; denying 3 Motion for Summary Judgment. Signed by Judge Donald W. Molloy on 9/25/2013. Mailed to Lewis. (TAG, )

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Lewis v. Extradition Transport of America Doc. 11 FILED IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA MISSOULA DIVISION STANFORD ALLEN LEWIS, JR., SEP 2 5 2013 Clerk, u.s. District Court District Of Montana Missoula CV 13-138-M-DWM-JCL Plaintiff, ORDER vs. EXTRADITION TRANSPORT OF AMERICA, Defendant. This matter comes before the Court on a Motion for Summary Judgment filed by Plaintiff Stanford Allen Lewis, Jr. Mr. Lewis asserts a claim under 42 U.S.C. § 1983, alleging that Defendant Extradition Transport of America unlawfully deprived him of his constitutional rights under the Eighth and Fourteenth Amendments. United States Magistrate Judge Jeremiah C. Lynch entered Findings and a Recommendation on Mr. Lewis' Motion on July 31,2013. Pursuant to 28 U.S.C. § 636(b)(1), objections to the Findings and Recommendation entered by Judge Lynch were due by August 19,2013. No objections were filed. The Court reviews the findings and recommendation of a United States Magistrate Judge for clear error. McDonnell Douglas Corp. v. Commodore Bus. Dockets.Justia.com Mach., Inc., 656 F.2d 1309, 1313 (9th Cir. 1981). Clear error is present only 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 a review of Judge Lynch's Findings and Recommendation, I find no clear error. While Mr. Lewis' allegations are similar to those raised in Avery v. Extradition Transport ofAmerica, Civil Cause No. 11-153-M-DWM, Mr. Lewis' Motion is premature. The Court ordered entry ofjudgment in favor of Avery and against Extradition Transport in that matter because Extradition Transport did not respond to Avery's complaint. In this case, the deadline for Defendant's appearance has not yet passed. "Although [Rule 56] allows a motion for summary judgment to be filed at the commencement of an action, in many cases the motion will be premature until the nonmovant has had time to file a responsive pleading or other pretrial proceedings have been had." Fed. R. Civ. P. 56(b) advisory comm. nn. (2010). Based on the foregoing, IT IS ORDERED that Judge Lynch's Findings and Recommendations (doc. 10) are ADOPTED IN FULL. Mr. Lewis' Motion (doc. 3) is DENIED. II II II DATED this J.'(:!"day of September, 2013. Hoy, District Judge istrict Court

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