Maier v. Frink et al

Filing 21

ORDER ADOPTING 13 FINDINGS AND RECOMMENDATIONS. 13 Maier's claims of verbal assaults and threats, harassment, failure to protect, due process, right to privacy, equal protection, and all claims brought under the ADA and the Rehabilitation Act are DISMISSED. Defendants Christian, Wandler, Temple, Botts, Crandell, Bowman, and Crum are DISMISSED. Defendants Paul Lucier and C.O. Colbert are stricken from the caption. Signed by Judge Donald W. Molloy on 2/6/2015. Mailed to Maier. (TAG, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
GREAT FALLS DIVISION

FILED
FEB D6 2015
C~s

OistrictCourt
.Ot Montana
MISSOU/a

CV 13-92-GF-DWM-JTJ

LLOYD SCOTT MAIER,
Plaintiff,

ORDER

vs.
MARTIN FRINK, et al.,
Defendants.

Plaintiff Lloyd Maier, appearing prose, alleges in his Amended Complaint
that Defendants harassed and failed to protect him, denied him due process, and
violated his rights under the Eighth Amendment, the Americans with Disabilities
Act ("ADA"), and the Rehabilitation Act. (Doc. 12.) Magistrate Judge Keith
Strong entered Findings and Recommendations on December 5, 2014,
recommending dismissal of the claims against all defendants except Defendants
Ross and Frink regarding Maier's Eighth Amendment claims as to his hearing aid.
(Doc. 13.) Maier has not filed objections to Judge Strong's findings and
recommendations.
The court reviews findings and recommendations on nondispositive motions
for clear error. 28 U.S.C. § 636(b)(l)(A); McDonnell Douglas Corp. v.
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Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313 (9th Cir. 1981). On
dispositive motions, the parties are entitled to de nova review of the specified
findings or recommendations to which they object, 28 U.S.C. § 636(b)(1 );

McDonnell Douglas Corp., 656 F .2d at 1313, and where there are no objections,
the court is to give the level of consideration it deems appropriate, Thomas v. Arn,
474 U.S. 140, 150 (1985) {"It does not appear that Congress intended to require
district court review of a magistrate's factual or legal conclusions, under a de nova
or any other standard, when neither party objects to those findings."). This Court
reviews for clear error. 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).
The Court finds no clear error with Judge Strong's determinations.
Defendant Paul Lucier1 should be stricken from the caption because Maier did not
list him as a defendant in his Amended Complaint. (See Doc. 12.) Although not
addressed by Judge Strong, the same is true for Defendant C.O. Colbert. Maier's
Eighth Amendment claims against Defendants Botts and Crandell do not amount
to constitutional wrongs. See Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir. 1987). As

1

The spelling of some defendants' names are inconsistent throughout the filings in this
case. The Court adopts the spellings used by Judge Strong.
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such, Maier's supervisory claims against Defendants Frink, Temple, and Wandler
also fail. See Jackson v. City ofBremerton, 268 F.3d 646, 653-54 (9th Cir. 2001).
Although not addressed in Judge Strong's analysis, Maier's claim against
Defendant Christian fails for the same reason. Maier has not alleged valid equal
protection and due process claims. See Pierce v. Cnty. of Orange, 526 F.3d 1190,
1225 (9th Cir. 2008); Sandin v. Conner, 515 U.S. 472, 483-84 (1995). Maier has
alleged no facts to support a privacy claim. Finally, Maier has failed to name a
proper defendant under the ADA and the Rehabilitation Act. See Eason v. Clark

Cnty. Sch. Dist., 303 F.3d 1137, 1145 (9th Cir. 2002).
Accordingly, IT IS ORDERED that the Findings and Recommendations
(Doc. 13) are ADOPTED to the extent they are consistent with this Order.
IT IS FURTHER ORDERED that Maier's claims of verbal assaults and
threats, harassment, failure to protect, due process, right to privacy, equal
protection, and all claims brought under the ADA and the Rehabilitation Act are
DISMISSED.
IT IS FURTHER ORDERED that Defendants Christian, Wandler, Temple,
Botts, Crandell, Bowman, and Crum are DISMISSED.
IT IS FURTHER ORDERED that Defendants Paul Lucier and C.O. Colbert
are stricken from the caption. The caption is amended to read "Lloyd Scott Maier
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v. Martin Frink and Mr. Ross."
DATED this

/p-,.._day of February, 2015.

Hoy, District Judge
istrict Court

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