Smith v. State of Montana et al

Filing 83

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 81 in full; denying without prejudice 56 Motion for Summary Judgment. Signed by Judge Dana L. Christensen on 10/31/2016. Mailed to Smith. (TAG, )

COURT~

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

BENJAMIN KARL SMITH,

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CV 15-13-H-DLC-JTJ

Plaintiff,
ORDER
vs.
IRL LAMBERTSON, OFFICER
FOSNESS, and OFFICER MACHLER,
Defendants.

United States Magistrate Judge John Johnston entered his Order, Findings
and Recommendations in this matter on October 5, 2016, recommending denial of
Defendants' motion for summary judgment without prejudice. The parties failed
to timely object to the Findings and Recommendations, and so waived their 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). 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

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omitted).
Having reviewed the Findings and Recommendations, the Court finds no
clear error in Judge Johnston's conclusion that Defendants' motion for summary
judgment should be denied without prejudice in order to allow Plaintiff to conduct
additional discovery. The Court further agrees that following the completion of
discovery, Defendants may refile their motion for summary judgment.
There being no clear error in Judge Johnston's Findings and
Recommendations, IT IS ORDERED that:
(1) Judge Johnston's Findings and Recommendations (Doc. 6) are
ADOPTED IN FULL.
(2) Defendants' Motion for Summary Judgment (Doc. 56) is DENIED
without prejudice and subject to renewal after the completion of the discovery
period provided to Plaintiff.
Dated this 31 ~day of October, 2016

Dana L. Christensen, Chief Judge
United States District Court

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