Smith v. State of Montana et al
Filing
32
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 23 in full. Any claim not raised or Defendant not named in the second amended complaint is DISMISSED. Defendant Leroy Kirkegard is DISMISSED. Counsel for the State of Montana shall notify the Court whe ther he will accept service on behalf of Defendants Lambertson, Fossens, and Machler on or before November 6, 2015. If so, Defendants' Answer shall be due on or before November 20, 2015. Motion for default judgment 29 is DENIED. Signed by Judge Dana L. Christensen on 10/30/2015. Mailed to Smith. (TAG, )
FILED
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
HELENA DIVISION
OCT 30 2015
Clerk, U.S District Court
District Of Montana
Missoula
CV 15-13-H-DLC-JTJ
BENJAMIN KARL SMITH,
Plaintiff,
ORDER
vs.
WARDEN LEROY K.IRKEGARD,
IRL LAMBERTSON, OFFICER
FOSSENS and OFFICER MACHLER
Defendants.
Plaintiff Benjamin Smith ("Smith") filed his complaint in this matter on
March 9, 2015. On July 8, 2015, United States Magistrate Judge John T. Johnston
issued an order identifying various deficiencies in Smith's complaint and granted
leave to file a second amended complaint. Smith filed his second amended
complaint on July 15, 2015, and omitted five parties previously named in the first
complaint. These omitted parties were the State of Montana, the Department of
Corrections, the Montana State Prison, Linda Murphy and Officer Cales.
On July 29, 2015, Judge Johnston issued his order, findings, and
recommendations as to Smith's second amended complaint. In this order, Judge
Johnston found that Smith did not name the above parties in his second amended
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complaint and recommended they be dismissed from the suit. Further, Judge
Johnston found that Smith failed to state a claim against Warden Kirkegard and
recommended that he be dismissed as well. Judge Johnston further determined
that Smith's second amended complaint satisfied the preliminary screening
requirements of28 U.S.C. §§ 1915(e)(2) and 1915A(b), and concluded that
dismissal was not appropriate for Defendants Lambertson, F ossens, and Machler.
Judge Johnston then requested the remaining Defendants waive service of
summons and gave Smith 14 days to file written objections to his findings and
recommendations.
Interestingly, although Smith did not file objections, the State of Montana
did, even though it was not named in the second amended complaint. In its
objections, the State of Montana objects to Judge Johnston's determination that
Smith's second amended complaint satisfied the preliminary screening
requirements of28 U.S.C. §§ 1915(e)(2) and 1915A(b). Specifically, the State of
Montana argues that Smith failed to state claims against Defendants Lambertson,
Fossens, and Machler. Additionally, the State of Montana, apparently on behalf of
all Defendants, previously filed a waiver of reply under 42 U.S.C. § 1997e(g) and
have yet to file an answer. As a result, Smith has since moved for default
judgment in this case.
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As a preliminary matter, the Court declines to review the State of Montana's
objections. The Court does this for two reasons. First, when Smith filed his
second amended complaint, he did not name the State of Montana. It is
"well-established doctrine that an amended pleading supersedes the original
pleading . . . . [T]he original pleading no longer performs any function and is
treated thereafter as non-existent." Ferdik v. Bonzelet, 963 F .2d 1258, 1262 (9th
Cir. 1992) (citation and internal quote marks omitted). The Court thus finds that
because Smith did not name the State of Montana, it is not a party in this suit and
has no standing to file an objection. Second, if the Court reviewed the State of
Montana's objections, it would establish precedent where nonparties could be
heard in matters where they have no standing. This would not be good policy
because it would encourage nonparties to file objections. As such, the Court
declines to review the State of Montana's objections.
Thus, because neither Smith nor Defendants Lambertson, F ossens, and
Machler1 have filed objections to Judge Johnston's proposed findings and
1
The Court acknowledges that there may have been confusion as to whether the State of
Montana was representing these individuals in these pretrial matters. However, the objections
expressly indicate they are filed by the State of Montana, and attorney Doud indicates he
represents the State of Montana (Doc. 25 at 1, 13). The Court takes him at his word that his
client is the State of Montana, an entity no longer named in the complaint, and that he is not
representing the other defendants who remain parties in the case. The Court reminds these
parties that, after they have answered the complaint, they may still move for summary judgment
on their claims.
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recommendations, these findings and recommendations will be reviewed for clear
error. McDonnell Douglas Corp. v. Commodore Bus. Mach., Inc., 656 F.2d 1309,
1313 (9th Cir. 1981). The Court adopts Judge Johnston's findings and
recommendations in full.
As stated above, Judge Johnston found that Smith failed to name the State
of Montana, the Department of Corrections, the Montana State Prison, Linda
Murphy and Officer Cales in his second amended complaint and recommended
they be dismissed. The Court agrees. To the extent that there may be any
confusion as to whether these entities are still parties in this suit, they will be
dismissed. 2 Further, the Court agrees with Judge Johnston's finding that Smith
failed to link Warden Kirkegard to any alleged injury. As such, Smith's claim
against Warden Kirkegard will be dismissed.
Lastly, Smith moves for default judgment in this matter because Defendants
have not yet filed an answer. However, default judgment is not appropriate at this
time. First, Defendants argue that they had a good faith belief that they would not
be required to file an answer until this Court ruled on the State of Montana's
objections. The Court finds this argument persuasive. Second, as a procedural
2
However, as discussed above, because these parties were never named in the second
amended complaint, the Court does believe that they are actually parties requiring a formal
dismissal. However, as a clerical matter, they will be dismissed from this suit.
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matter, Federal Rules of Civil Procedure allow 21 days after service of the
summons and complaint to file a responsive pleading. Fed. R. Civ. P.
12(a)(l)(A)(i). Here, because service has not been perfected, this time has not yet
run. Third, though Smith moved for default judgment, he did not first seek an
entry of default. Fed. R. Civ. P. 55(a). Smith's failure to seek an entry of default
before moving for a default judgment precludes the Court from granting his
motion. As such, the Court will deny Smith's motion for default judgment without
prejudice.
Accordingly, IT IS ORDERED that:
(1) Judge Johnston's findings and recommendations (Doc. 23) are
ADOPTED IN FULL.
(2) Any claim not raised or Defendant not named in the second amended
complaint is DISMISSED.
(3) Defendant Leroy Kirkegard is DISMISSED.
( 4) Counsel for the State of Montana shall notify the Court whether he will
accept service on behalf of Defendants Lambertson, F ossens, and Machler on or
before November 6, 2015. If so, Defendants' Answer shall be due on or before
November 20, 2015.
(5) Plaintiff Benjamin Smith's motion for default judgment (Doc. 29) is
DENIED.
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Dated this "30 ~ay of October, 20
.
Dana L. Christensen, Chief Judge
United States District Court
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