Edmundson v. Kirkegard et al

Filing 10

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 9 in full. Plaintiff's due process claims are DISMISSED WITH PREJUDICE. Defendants Kirkegard, LaMoure, andHealthcare Supervisor Cathy are DISMISSED. Signed by Judge Dana L. Christensen on 3/17/2015. Mailed to Edmundson. (TAG, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
HELENA DIVISION
RODNEY ARNETTE EDMUNDSON,

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Plaintiff,
ORDER

vs.
WARDEN LEROY KIRKEGARD,
SERGEANT A. GRAHAM, JANE
LaMOURE, HEAL THCARE
SUPERVISOR CATHY (last name
unknown), ALISHIA HANNA
(NURSE), and SERGEANT
MICHEAL HOTCHKISS,
Defendants.

United States Magistrate Judge John T. Johnston entered Findings and
Recommendations on February 24, 2015, recommending that Plaintiffs due
process claims and Defendants Kirkegard, LaMoure, and Healthcare Supervisor
Cathy be dismissed. Plaintiff failed to timely object to the Findings and
Recommendations, and so waived the right to de nova review of the record. 28
U.S.C. § 636(b )(1 ). The Court will therefore review the record for clear error.
McDonnell Douglas Corp. v. Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313

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(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). There is no clear error in Judge Johnston's Findings and
Recommendation and the Court adopts them in full. Because the parties are
familiar with the facts of this case they will only be included here as necessary to
explain the Court's order.
Judge Johnston did not clearly err in finding that a prison official's review
and denial of an inmate's grievances, without more, cannot serve as the basis for
liability under 42 U.S.C. § 1983. Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir.
2003). There is no clear error in Judge Johnston's determination that Healthcare
Supervisor Cathy and Jane LaMoure were responding to grievances regarding
alleged past violations and therefore cannot be held liable for causing the alleged
constitutional violations. Similarly, Judge Johnston did not clearly err by finding
that Edmundson's inclusion of Warden Kirkegard, absent any allegations in the
body of the Complaint, indicates an allegation of denial of due process regarding
the review of grievances. There is no clear error in the finding that Edmundson
has failed to state a claim upon which relief may be granted as it relates to the
allegation of denial of due process regarding the review of his grievances as
applied to Healthcare Supervisor Cathy, Jane LaMoure, and Warden Kirkegard.
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This Court agrees that the deficiencies could not be cured by the allegation of
additional facts.
Accordingly, IT IS ORDERED that Judge Johnston's Findings and
Recommendation (Doc. 9) are ADOPTED IN FULL.
IT IS FURTHER ORDERED that Plaintiffs due process claims are
DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that Defendants Kirkegard, LaMoure, and
Healthcare Supervisor Cathy are DISMISSED.
Dated this

\ 1-

th

day of March,

Dana L. Christensen, Chie Judge
United States District Court

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