Poulson v. Kirkegard

Filing 92

ORDER granting 91 Findings and Recommendations in full. Motion for Summary Judgment for Failure to Exhaust Administrative Remedies 70 is GRANTED, and this matter is DISMISSED with prejudice. Motion for Summary Judgment 66 and Cross Motion for Summary Judgment 82 are DENIED AS MOOT. Any appeal of this decision would not be taken in good faith. Signed by Judge Dana L. Christensen on 9/6/2016. Mailed to Poulson. (TAG, )

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

CV 14-43-H-DLC-JTJ

KERMIT POULSON,
Plaintiff,

ORDER
vs.

FILED

DERICK BUDD, BEAU BALTEZAR,
GARRETT KENT, SAM SHORT,
JOSH SWEENEY, AND JASON
TRUDEAU,

SEP 0 6 2016
Clerk, U.S District Court
District Of Montana
Missoula

Defendants.
United States Magistrate Judge John Johnston entered his Order, Findings
and Recommendations in this matter on August 11, 2016, recommending that
Defendants' Motion for Summary Judgment for Failure to Exhaust Administrative
Remedies (Doc. 70) be granted, the remaining Motions for Summary Judgment
(Docs. 66, 82) be denied as moot, and this action dismissed. Plaintiff Kermit
Poulson ("Poulson") failed to timely object to the Findings and Recommendations,
and so waived his right to de novo review of the record. 28 U.S.C. § 636(b)(l)(C).
This Court reviews for clear error those findings and recommendations to which
no party objects. See McDonnell Douglas Corp. v. Commodore Bus. Mach., Inc.,
656 F.2d 1309, 1313 (9th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 149 (1985).
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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).
Having reviewed the Findings and Recommendations, the Court finds no
clear error in Judge Johnston's conclusions that: (1) the Inmate Grievance
Program was available to Poulson; (2) he was aware of the program; and (3) he
failed to complete the grievance process. As such, Poulson has failed to exhaust
the administrative remedies available to him and Defendants' motion will be
granted.
Two additional motions for Summary Judgment are also pending. Because
the Court will adopt the recommendation to dismiss this case with prejudice, the
Court will deny these motions as moot.
Accordingly, IT IS ORDERED that:
(1) Judge Johnston's Findings and Recommendations (Doc. 91) are
ADOPTED IN FULL.
(2) Defendants' Motion for Summary Judgment for Failure to Exhaust
Administrative Remedies (Doc. 70) is GRANTED, and this matter is DISMISSED
with prejudice. The Clerk of Court is directed to close this matter, and enter
judgment in favor of the Defendants pursuant to Rule 58 of the Federal Rules of
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Civil Procedure.
(3) Poulson's Motion for Summary Judgment (Doc. 66) and Defendants'
Cross Motion for Summary Judgment (Doc. 82) are DENIED AS MOOT.
(4) The Clerk of Court is directed to have the docket reflect that the
Court certifies pursuant to Rule 24(a)(3)(A) of the Federal Rules of Appellate
Procedure that any appeal of this decision would not be taken in good faith. No
reasonable person could suppose an appeal would have merit. The record makes
plain the instant Complaint lacks arguable substance in law or fact.
Dated this ~ day of September, 2016.

Dana L. Christensen, Chief Judge
United States District Court

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