Cannady v. Frink et al

Filing 25

ORDER 22 ADOPTING FINDINGS AND RECOMMENDATIONS; denying 18 Motion to Remand. Signed by Judge Brian Morris on 6/17/2014. Mailed to Cannady. (TAG, )

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

CV 14-28-GF-BMM

DEWAYNE TODD CANNADY,
Plaintiff,

ORDER ADOPTING FINDINGS
AND RECOMMENDATIONS

vs.
MARTIN FRINK, THERESA
SCHNEE, CHRISTOPHER ROST,
and CORRECTIONS
CORPORATION OF AMERCA,
Defendants.

Plaintiff DeWayne Todd Cannady (Cannady), a former prisoner proceeding
pro se, filed the complaint in this case against Defendants Martin Frink, Theresa
Schnee, Christopher Rost, and Corrections Corporation of America (collectively
Defendants) in the Ninth Judicial District of Montana, Toole County on February
22, 2013. (Doc. 7 at 1.) Three of the Defendants, Corrections Corporation of
America, Theresa Schnee, and Martin Frink, with the consent of the remaining
Defendant, removed the case on April 17, 2014, based upon federal question
jurisdiction. 28 U.S.C. § 1331; (doc. 1).
Cannady filed a document captioned “Notice of Objection, Notice of Right
to Challenge and Motion for 90 day Stay of Proceedings” on May 15, 2014. (Doc.
1

18.) Defendants responded on May 22, 2014, and characterized Cannady’s May
15, 2014, “notice [a]s a motion to remand to state court.” (Doc. 20 at 3.) As
Cannady filed this case a prisoner proceeding pro se, Local Rules referred the case
to a United States magistrate judge for all pretrial purposes. LOCAL R. 72.2(a)(1).
Judge Strong entered findings and recommendations on May 27, 2014.
(Doc. 22.) Judge Strong construed Cannady’s May 22, 2014, notice as a motion
for remand. (Doc. 22 at 1.) Judge Strong recommended that the Court deny
Cannady’s motion for remand because Cannady has alleged “violation[s] under 42
U.S.C. § 1983,” and has alleged that “Defendants’ actions amounted to cruel and
unusual punishment as defined by the Eighth and Fourteenth Amendments of the
United States Constitution.” (Doc. 22 at 2.) Judge Strong determined that “the
case was properly removed to federal court.” (Doc. 22 at 2.)
Cannady failed to object in a timely fashion to Judge Strong’s Findings and
Recommendations, and, therefore, has waived the right to review de novo of the
record. 28 U.S.C. § 636(b)(1). The Court instead will review the record 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).

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Judge Strong stated correctly the standards applicable to whether a party
may remove a case from state court to federal court. (Doc. 22 at 2.) Judge Strong
analyzed Cannady’s claims under those standards. (Doc. 22 at 2.) Judge Strong
concluded that removal to federal court had been proper due to the federal question
that Cannady had alleged, and that remand to the Ninth Judicial District of
Montana, Toole County, would be inappropriate. (Doc. 22 at 2-3.) No clear error
exists in Judge Strong’s findings or recommendations. Therefore,
IT IS ORDERED,
1. Cannady’s “Notice of Objection, Notice of Right to Challenge and Motion
for 90 day Stay of Proceedings” as construed as a motion to remand (Doc.
18) is DENIED;

Dated the 17th day of June, 2014.

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