Lanham v. Ferriter et al

Filing 33

ORDER DISMISSING CASE WITHOUT PREJUDICE. Motions terminated: 29 MOTION to Dismiss filed by Thomas Creel Lanham, 32 FINDINGS AND RECOMMENDATIONS re 29 MOTION to Dismiss filed by Thomas Creel Lanham. Judge Magistrate Keith Strong termed case no longer referred. 23 MOTION to Dismiss for Lack of Jurisdiction - Failure to Exhaust and Judgment on the pleadings filed by Sherry Glovan, Billie Reich, Benjamin Bouley, Michele L. Steyh, Mike Ferriter, Richard Collins. Signed by Judge Donald W. Molloy on 6/13/2012. (dle)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
HELENA DIVISION
THOMAS CREEL LANHAM,

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Plaintiff,
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vs.
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MIKE FERRITER, MICHELE LEE
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STEYH, BILLIE REICH, BENJAMIN
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BOULEY, SHERRY GLOVAN,
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RICHARD COLLINS, and LARRY
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TENDAL,
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Defendants.
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___________________________________ )

CV 12-08-H-DWM-RKS

ORDER

Pending are Motions to Dismiss filed by both parties. United States
Magistrate Judge Keith Strong entered Findings and Recommendation on May 18,
2012 and recommended granting Plaintiff Thomas Creel Lanham’s motion to
dismiss. Defendants did not timely object to the Findings and Recommendation,
and so has waived the right to de novo review of the record. 28 U.S.C. §
636(b)(1). This Court will review the Findings and Recommendation for clear
error. McDonnell Douglas Corp. v. Commodore Bus. Mach., Inc., 656 F.2d 1309,
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1313 (9th Cir. 1981). 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).
Defendants raised two arguments in support of their request that the
dismissal be with prejudice. They contended that they have expended substantial
time and resources in defending this action, and that they have a pending motion
to dismiss for failure to exhaust. Judge Strong found that Defendants failed to
demonstrate legal prejudice, and that this matter should be dismissed without
prejudice. After a review of Judge Strong’s Findings and Recommendation, I find
no clear error. Accordingly,
IT IS HEREBY ORDERED that Judge Strong’s Findings and
Recommendation (doc. 32) are adopted in full. Lanham’s motion (doc. 29) is
GRANTED and this matter is DISMISSED WITHOUT PREJUDICE.
The Clerk of Court is directed to terminate all other pending motions and to
enter, by separate document, a judgment of dismissal.
Dated this 13th day of June, 2012.

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