Wright v. Busby et al

Filing 38

AMENDED ORDER ADOPTING 34 FINDINGS AND RECOMMENDATIONS in full; granting 18 Motion for Summary Judgment, denying 27 Motion for Summary Judgment. Defendant Stewart is DISMISSED WITHOUT PREJUDICE. Any appeal would not be taken on good faith. Signed by Judge Brian Morris on 4/17/2019. Mailed to Wright (TAG)

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

CV 16-98-GF-BMM

TIMOTHY WRIGHT,
Plaintiff,

AMENDED ORDER ADOPTING
MAGISTRATE JUDGE’S FINDINGS AND
RECOMMENDATIONS

vs.
CROSSROADS CORRECTIONAL
CENTER, (FNU) BERKEBILE;
(FNU) FENDER; (FNU) BUSBY;
(FNU) STEWART; AND (FNU)
WEAVER,
Defendants.

United States Magistrate Judge John Johnston entered Findings and
Recommendations in this case on February 12, 2019. (Doc. 34.) Judge Johnston
determined that Plaintiff Timothy Wright failed to exhaust his administrative
remedies. Id. at 1, 8. Judge Johnston recommended that that Court grant
Defendants Crossroads Correctional Center, Berkebile, Fender, Busby, and
Weaver’s Motion for Summary Judgment. Id. at 9. Judge Johnston likewise
recommended that the Court deny Wright’s Motion for Summary Judgment. Id.
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Judge Johnston ultimately recommended that this matter and Defendant Stewart
both be dismissed without prejudice. Id. The Court adopted in full Judge
Johnston’s Findings and Recommendations on March 6, 2019. (Doc. 35.)
Wright filed his objection to Judge Johnston’s Findings and
Recommendations on March 11, 2019. (Doc. 37.) The United States Code
authorizes a party to object to the Court’s Findings and Recommendations within
fourteen days of being served. 28 U.S.C. § 636(b)(1). Federal Rule of Civil
Procedure 6(d) provides a party an additional three days “after the period would
otherwise expire” when a party is served by mail. The Court mailed Judge
Johnston’s Findings and Recommendations to Wright on February 12, 2019. (Doc.
33.) Wright signed and dated his objection on February 26, 2019. (Doc. 37 at 4.)
Therefore, the Court will treat Wright’s objections as timely filed.
The Court reviews de novo Findings and Recommendations timely objected
to. 28 U.S.C. § 636(b)(1). “A party makes a proper objection by identifying the
parts of the magistrate’s disposition that the party finds objectionable and
presenting legal argument and supporting authority, such that the district court is
able to identify the issues and the reasons supporting a contrary result.” Montana
Shooting Sports Ass’n v. Holder, 2010 WL 4102940, at *2 (D. Mont. Oct. 18,
2010) (citation omitted). Where a party’s objections constitute perfunctory
responses argued in an attempt to engage the district court in a rehashing of the
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same arguments set forth in the original response, however, the Court will review
the applicable portions of the findings and recommendations for clear error.
Rosling v. Kirkegard, 2014 WL 693315 *3 (D. Mont. Feb. 21, 2014) (internal
citations omitted). 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) (citations omitted).
Wright objects to Judge Johnston’s recommendation that Defendant Stewart
be dismissed without prejudice. (Doc. 37 at 2.) Wright claims that he received a
document that stated that “all Defendants were to be electronically servered [sic]
and as such [he] had no need to worry about this process.” (Doc. 37 at 2.) Wright
provides no “legal argument and supporting authority” for this objection. Montana
Shooting Sports Ass’n, 2010 WL 4102940, at * 2. The Court reviews for clear error
Wright’s objection regarding Judge Johnston’s recommendation that Stewart be
dismissed without prejudice from the instant action. See McDonnell Douglas Corp.
v. Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313 (9th Cir. 1981). The Court
finds no error.
Wright further objects to Judge Johnston’s recommendation that Defendants
Crossroads Correctional Center, Berkebile, Fender, Busby, and Weaver’s
(collectively “Defendants”) Motion for Summary Judgment (Doc. 18) should be
granted, and that Wright’s Motion for Summary Judgment (Doc. 27) should be
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denied. (Doc. 37 at 1.) Wright contends that he “did not fail to exhaust is
administrative [r]emedies as none were available to him.” Id. Wright’s objection
advances the same arguments made by Wright both in his response to Defendants
Motion for Summary Judgment and in his brief in support of his Motion for
Summary Judgment. (Docs. 23, 28.) Judge Johnston considered these arguments in
making his recommendation to the Court. The Court determines that no specific
objections exist that do not attempt to relitigate the same arguments. See Rosling,
2014 WL 693315 *3. The Court will review Judge Johnston’s recommendation
that Defendants Motion for Summary Judgment be granted and Stewart’s Motion
for Summary Judgment be denied for clear error. See id. The Court finds no error.
Accordingly, IT IS ORDERED:
1. Judge Johnston’s Findings and Recommendations (Doc. 34) is
ADOPTED IN FULL.
2. Defendant Stewart is DISMISSED WITHOUT PREJUDICE.
3. Defendants Crossroads Correctional Center, Berkebile, Fender, Busby,
and Weaver’s Motion for Summary Judgment (Doc. 18) is GRANTED.
4. Wright’s Motion for Summary Judgment (Doc. 27) is DENIED.
5. The Clerk of Court shall close this case and enter judgment in favor of
Defendants pursuant to Federal Rule of Civil Procedure 58.
6. The Clerk of Court shall have the docket reflect that the Court certifies
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pursuant to Federal Rule of Appellate Procedure 24(a)(3)(A) that any
appeal of this decision would not be taken in good faith.
DATED this 17th day of April, 2019.

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