Gallardo Thunder Hawk v. 2 USM's Names Unknown

Filing 12

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 10 in full. Defendant Dana Rossmiller and Defendant State of Montana are DISMISSED. Signed by Judge Brian Morris on 7/31/2017. Mailed to Gallardo. (TAG)

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

FRANK GALLARDO-THUNDER
HAWK,

CV-17-00004-GF-BMM-JTJ

Plaintiff,
vs.

ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS

TWO USM’S NAMES UNKNOWN,
Defendants.

Plaintiff Frank Gallardo-Thunder Hawk, a federal prisoner, filed a
Complaint and an Amended Complaint pro se alleging violations of his
constitutional rights during his confinement in a holding cell at the Missouri River
Federal Courthouse in Great Falls, Montana. (Doc. 1, 9.) Gallardo-Thunder Hawk
named the following Defendants in his Amended Complaint: the United States of
America, the State of Montana, United States Deputy Marshal Dana Rossmiller,
and two unknown United States Marshals. (Doc. 9 at 3-4, 9.) Gallardo-Thunder
Hawk alleges that the two Defendant United States Marshals unlawfully left him in
a holding cell for nearly five hours without giving him an opportunity to use the
bathroom. (Doc. 1.) Gallardo-Thunder Hawk further alleges that the United States

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Marshals’ neglect caused him to urinate and defecate on himself, resulting in
severe physical and emotional pain. (Doc. 9 at 10.) United States Magistrate Judge
John Johnston entered Findings and Recommendations in this matter on July 10,
2017. (Doc. 10.) Neither party filed 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 Bus. Mach.,
Inc., 656 F.2d 1309, 1313 (9th Cir. 1981).
Judge Johnston acknowledged that the Court must screen Gallardo-Thunder
Hawk’s Amended Complaint and dismiss it or portions thereof if it is “frivolous,”
“fails to state a claim upon which relief may be granted,” or “seeks monetary relief
from a defendant who is immune.” (Doc. 10 at 3-5.) Judge Johnston determined
that Gallardo-Thunder Hawk improperly named the State of Montana and Dana
Rossmiller as Defendants. Id. at 9, 11. Judge Johnston accordingly recommends
that the Court dismiss these Defendants and allow the remainder of GallardoThunder Hawk’s claims to proceed. Id. at 15.
Judge Johnston determined that the State of Montana stands immune from
Gallardo-Thunder Hawk’s claims on the basis that the Eleventh Amendment
generally bars suit in federal court against a state. Id. at 9. The State of Montana
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has declined to waive its immunity. Mont. Code Ann. § 2-9-101 et seq. Judge
Johnston determined that Dana Rossmiller also stands immune from GallardoThunder Hawk’s claims. (Doc. 10 at 11.) Judge Johnston reasoned that GallardoThunder Hawk failed to allege that Rossmiller played an affirmative role in the
deprivation of his constitutional rights. Id. The law requires this showing in order
to maintain a claim against an individual on a theory of supervisory liability. King
v. Atiyeh, 814 F.2d 565, 568 (9th Cir. 1987).
The Court has reviewed Judge Johnston’s Findings and Recommendations
for clear error. The Court finds no error in Judge Johnston’s Findings and
Recommendations, and adopts them in full.
IT IS ORDERED that Judge Johnston’s Findings and Recommendations
(Doc. 10), is ADOPTED IN FULL.
IT IS FURTHER ORDERED that Defendant Dana Rossmiller and
Defendant State of Montana are DISMISSED.
DATED this 31st day of July, 2017.

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