Smith v. State of Montana et al

Filing 97

ORDER ADOPTING 90 FINDINGS AND RECOMMENDATIONS ; granting 63 Motion for Summary Judgment. Signed by Judge Dana L. Christensen on 2/7/2017. Mailed to Smith. (TAG)

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

CV 15-13-H-DLC-JTJ

BENJAMIN KARL SMITH,
Plaintiff,

ORDER
vs.
WARDEN LEROY KIRKEGARD,
IRL LAMBERTSON, OFFICER
FOSNESS, and OFFICER MACHLER,
Defendants.

United States Magistrate Judge John Johnston entered his Findings and
Recommendations in this matter on January 6, 2017, recommending that
Defendant Lambertson's Motion for Summary Judgment be granted. The parties
failed to timely object to the Findings and Recommendations, and so waived their
right to de novo review of the record. 1 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
1

The Court notes that Plaintiff Benjamin Smith did file a response to Defendant Officer
Fossens and Officer Machler's Motion for Summary Judgment (Doc. 95), but failed to object to
the Findings and Recommendations.
-1-

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 conclusion that Defendant Lambertson's Motion
for Summary Judgment should be granted because Plaintiffs claims against him
are barred by the doctrine of res judicata. Further, the Court finds no clear error in
Judge Johnston's finding that there is insufficient conduct to support a claim under
42 U.S.C. § 1983 because, at most, Defendant Lambertson acted negligently.
Accordingly, there being no clear error in Judge Johnston's Findings and
Recommendations, IT IS ORDERED that:

(1) Judge Johnston's Findings and Recommendations (Doc. 90) are
ADOPTED IN FULL.
(2) Defendant Lambertson's Motion for Summary Judgment (Doc. 63) is
GRANTED.
Dated this

1-#i day of February, 20f17
J

Dana L. Christensen, Chief Judge
United States District Court
-2-