Stewart v. Mr. Berkebile et al

Filing 8

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 7 in full. All John Doe Defendants are DISMISSED WITHOUT PREJUDICE. Signed by Judge Brian Morris on 3/15/2016. Mailed to Stewart. (TAG, )

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

CV 15-89-GF-BMM

LAURENCE STEWART,
Plaintiff,

ORDER ADOPTING MAGISTRATE
JUDGE’S FINDINGS AND
RECOMMENDATIONS

vs.
MR. BERKEBILE, MS. ARNOLD,
MR. SPIEGLE, MR. WEAVER,
MIKE BATISTA, LORAINE
WOONIK, COLLEEN AMBROSE,
MR. STEWART, and JOHN DOES #
1-4,
Defendants.

Laurence Stewart filed a Complaint pursuant to 42 U.S.C. § 2983. (Doc. 2.)
Stewart alleges that Defendants violated his First Amendment right to free speech
and access to the court and his Fourth Amendment due process right.
United States Magistrate Judge John Johnston entered Findings and
Recommendations in this matter on February 19, 2016. (Doc. 7.) Judge Johnston

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considered whether the Complaint proved frivolous or malicious, or failed to state
a claim pursuant to 28 U.S.C. § 1915(e)(2), 1915A(b). (Doc. 7 at 1.) Judge
Johnston determined that the Court should not dismiss the action at this time. Id.
Judge Johnston recommended, however, that all John Doe Defendants should be
dismissed without prejudice. (Doc. 7 at 5.)
Neither party filed an objection to Judge Johnston’s Findings and
Recommendations. 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). The Court will review Judge Johnston’s Findings and
Recommendations, however, for clear error. McDonnell Douglas Corp. v.
Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313 (9th Cir. 1981).
The Court finds no clear error in Judge Johnston’s Findings and
Recommendations. Courts do not favor the use of “John Doe” to identify a
defendant. Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980). A plaintiff may
move to file an amended complaint to add defendants pursuant to Federal Rule of
Civil Procedure 15 when the plaintiff learns of identities of parties he wishes to
serve. The Court adopts Judge Johnston’s Findings and Recommendations in full.

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Accordingly, IT IS ORDERED that
1. Judge Johnston’s Findings and Recommendations (Doc 7.) is
ADOPTED IN FULL.
2. All John Doe Defendants are DISMISSED WITHOUT PREJUDICE.
DATED this 15th day of March, 2016.

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