Seminole v. Berkebile et al
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS regarding Seminole. Signed by Judge Brian Morris on 7/6/2015. (SLL, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
GREAT FALLS DIVISION
DAVID BERKEBILE, Warden of the
Crossroads Correctional Center,
BRANDY SHERRARD, Classification
Coordinator, CAMILLE WANDLER,
Unit Manager, TIMOTHY ALLRED,
Board of Pardons and Parole, Officer
BURDITT, Institutional Probation and
Parole Office, MIKE BATISTA,
Director of the Department of
Corrections; KARI KINTON, D.O.C.,
Contract Manager, STATE OF
MONTANA, et al.,
ORDER ADOPTING FINDINGS
AND RECOMMENDATIONS OF
United States Magistrate Judge John Johnston entered Findings and
Recommendations in this matter on June 16, 2015. (Doc. 1). Plaintiffs Jeremiah
Worm, Kal Kenfield, Jeremy Seminole, and Thomas Mascarena filed no
objections. When a party makes no objections, the Court need not review de novo
the proposed Findings and Recommendations. Thomas v. Arn, 474 U.S. 140, 149-
52 (1986). This Court will review Judge Johnston’s Findings and
Recommendations, however, for clear error. McDonnell Douglas Corp. v.
Commodore Business Machines Inc., 656 F.2d 1309, 1313 (9th Cir. 1981).
Plaintiffs Jeremiah Worm, Karl Kenfield, Jeremy Seminole, and Thomas
Mascarena signed and filed a joint motion to proceed without paying the filing fee,
a proposed complaint, and a proposed order for a preliminary injunction and
temporary restraining order on April 9, 2015. (Docs. 1, 2, 2-1, 3). Plaintiffs allege
that they were wrongfully denied eligibility for pre-release programs by the
Crossroads Institutional Screening Committee. Id. Plaintiffs are inmates at the
Crossroads Correctional Center and they proceed without counsel. Id.
Judge Johnston denied without prejudice the Plaintiffs’ motion to proceed in
forma pauperis. (Doc. 1). Judge Johnston also ordered that Worm proceed as the
sole plaintiff in CR-15-31-GF-BMM-JTJ. Id. Judge Johnston terminated Kenfield,
Seminole, and Mascarena as plaintiffs in CR-15-31-GF-BMM-JTJ, and severed
their claims. The Clerk of Court opened separate prisoner civil rights actions for
Kenfield in CR-15-48-GF-BMM-JTJ, Seminole in CR-15-49-GF-BMM-JTJ, and
Mascarena in CR-15-50-GF-BMM-JTJ. Id.
Judge Johnston recommends that the Court deny Plaintiffs’ request for class
certification. Judge Johnston also recommends that the Court deny the Plaintiffs’
request for a temporary restraining order and preliminary injunction. Judge
Johnston further recommends that defendant State of Montana should be dismissed
from this action.
The Court finds no clear error and Judge Johnston’s Findings and
Recommendations, and adopts them in full. Denial of Plaintiffs’ request to proceed
as a class action, and their request for injunctive relief and temporary restraining
order is proper. Dismissal of defendant State of Montana also is appropriate.
Plaintiffs request that this case continue as a class action. (Doc. 2). Plaintiffs
proceed without counsel. Id. Pro se plaintiffs generally may not pursue claims on
behalf of others in a representative capacity. Simon v. Hartford Life and Accident
Ins. Co., 546 F.3d 661, 664 (9th Cir. 2008). Plaintiffs cannot pursue this matter as
a class action.
Plaintiffs name as a defendant the State of Montana. The Eleventh
Amendment bars suit in federal court against a state, state agency, or state official
sued in his or her official capacity for money damages absent a valid
Congressional abrogation of immunity or express waiver by the State. See Idaho v.
Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 267-68 (1997). The State of Montana
has not waived immunity for tort claims brought in federal court. See Mont. Code
Ann. § 2-9-101 et seq. Plaintiffs’ claims against the State of Montana are barred.
The Court construes Plaintiffs’ proposed order for a preliminary injunction
as a motion requesting such relief. (Doc. 2-1). A plaintiff seeking a preliminary
injunction must establish that (1) he is likely to succeed on the merits, (2) he is
likely to suffer irreparable harm in the absence of preliminary relief, (3) the
balance of equities tips in his favor, and (4) an injunction is in the public interest.
Winter v. Natural Res. Def. Council, 555 U.S. 7, 20 (2008). Plaintiffs allege
violations of state law that do not qualify as claims under 18 U.S.C. §1983.
Plaintiffs do not appear to have raised a federal question sufficient to invoke this
Court’s subject matter jurisdiction. Plaintiffs fail to establish that they are likely to
succeed on the merits of their claims. Plaintiffs also fail to demonstrate irreparable
harm based on the fact that none of the Plaintiffs’ applications for pre-release
remain pending. Plaintiffs do not qualify for injunctive relief.
The Court construes Plaintiffs’ proposed order for a temporary restraining
order as a motion requesting such relief. (Doc. 2-1). The Court may grant a
temporary restraining order without notice to the adverse party pursuant to Fed. R.
Civ. P. 65, if (1) it appears clearly from the facts shown that immediate and
irreparable, injury, loss, or damage will result to the applicant before the adverse
party or the party’s attorney can be heard in opposition, and if (2) the pro se
applicant certifies in writing the efforts, if any, that have been made to give notice
and the reasons supporting the claim that notice should not be required. Fed. R.
Civ. P. 65(b). Plaintiffs have failed to satisfy either of Rule 65(b)’s requirements.
Plaintiffs likewise do not qualify for a temporary restraining order.
Plaintiffs are prohibited from pursuing this claim as a class action based on
their pro se status. Plaintiffs fail to meet the requirements for preliminary
injunction or a temporary restraining order. The Eleventh Amendment bars
Plaintiffs’ claims against the State of Montana.
IT IS HEREBY ORDERED:
Judge Johnston’s Findings and Recommendations (Doc. 1) is
ADOPTED IN FULL.
Plaintiffs’ request for class certification is DENIED.
Plaintiffs’ request for a temporary restraining order and preliminary
injunction is DENIED.
DATED this 6th day of July, 2015.
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