Evans v. Swanson et al

Filing 12

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS; ORDER DISMISSING PARTIES re: Findings and Recommendations 5 ; Montana State Prison is dismissed from this lawsuit. The Clerk of Court is directed to enter judgment in favor of the Prison by separate document Signed by Judge Donald W. Molloy on 1/25/2012. (hard copy of Order to Evans) (CDH, )

RECEIVED

JAN 252012
Q.ERI(, u.s. DISTRICT COURT

DISTRICT OF MONTANA

lIISSouLA

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
HELENA DIVISION
ANTHONY EVANS

)
)
Plaintiff,
)
)
vs.
)
)
ROSS SWANSON, TOM WOOD,
)
DENISE DEYOTT, MATTHEW 1.
)
SAVILLE, MONTANA STATE PRISON, )
)
Defendants.
)

CV 11-65-H-DWM-RKS

ORDER

-------------)
Anthony Evans filed a complaint against the defendants, alleging that they
violated his constitutional rights by prohibiting him from obtaining certain books
and corresponding with white supremacy organizations. He is proceeding pro se.
Mr. Evans moved to proceed in forma pauperis. Magistrate Judge Strong granted
the motion and ordered that Mr. Evans' complaint not be dismissed under 28
U.S.C. § 1915. Judge Strong, however, recommends dismissing the Montana State
Prison under the Eleventh Amendment to the United States Constitution.
1

Mr. Evans did not object to Judge Strong's Findings and Recommendation.
The Court therefore reviews them 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 and agrees with Judge Strong's Findings and
Recommendation, adopting them in full.
In particular, the Court agrees that the Montana State Prison should be
dismissed under the Eleventh Amendment. The Eleventh Amendment bars
lawsuits against a state or an "arm ofthe state," unless (1) Congress has abrogated
state sovereign immunity under its power to enforce the Fourteenth Amendment,
(2) the state waives its sovereign immunity, or (3) the lawsuit is for prospective
injunctive relief against individual state officials acting in their official capacity.
Johnson v. Rancho Santiago Community College Dist., 623 F.3d 1011, 1021 n.4
(9th Cir. 2010); Pittman v. Or., Emp!. Dept., 509 F.3d 1065,1071 (9th Cir. 2007).
Neither ofthese exceptions apply to the Montana State Prison. The prison is
therefore entitled to sovereign immunity under the Eleventh Amendment.
Accordingly, IT IS ORDERED THAT the Court adopts in full Judge
Strong's Findings and Recommendations (dkt # 5).
IT IS FURTHER ORDERED that the Montana State Prison is dismissed
from this lawsuit. The Clerk of Court is directed to enter judgment in favor ofthe
Prison by separate document.
2

DATED this

~of January 2012.

Hoy, District Judge
istrict Court

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