von Koenigsberg-Tyrvaldssen v. Kohut et al
ORDER ADOPTING 50 FINDINGS AND RECOMMENDATIONS in full; granting 29 Motion for Summary Judgment. Any appeal of this decision would not be taken in good faith. Signed by Judge Dana L. Christensen on 3/13/2017. Mailed to Tyrvaldssen. (TAG)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MAR 13 2017
Clerk, U.S OiaVict Court
District Of Montana
YMIR-JULE von KOENIGSBERGTYRVALDSSEN,
TRISTAN KOHUT and LEROY
United States Magistrate Judge John Johnston entered his Findings and
Recommendations in this matter on January 20, 2017, recommending granting
Defendants' Motion for Summary Judgment. PlaintiffYmir-Jule von
Koenigsberg-Tyrvaldssen1 filed objections and is therefore entitled to de novo
review of those findings and recommendations to which he specifically objects.
28 U.S.C. § 636(b)(1 )(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.
Judge Johnston notes that Plaintiff is incarcerated in the Montana State Prison under the
name "Arthur Rochelle." (Doc. 50.) Despite this, Plaintiff insists his birth name is Ymir-Jule
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).
Upon de novo review of the objections, the Court finds that Plaintiff has
lodged at least 5 objections to the Findings and Recommendations. The first four
of these objections take issue with several factual findings in the Findings and
Recommendations and argue that Judge Johnston: (1) failed to note that Plaintiffs
medical records use "[h]is actual-name [sic] from birth onwards"; (2) erred by
finding that Plaintiff refused laboratory work; (3) erred by finding that Plaintiff
refused the use of"Depends"; and (4) erred by finding that the prison should be
credited with his "[t]ransport for evaluation."
Nevertheless, these objections fail to undercut Judge Johnston's primary
finding that Plaintiff has consistently refused to allow Dr. Kohut to treat or
examine him. Even in his objections, Plaintiff acknowledges that he refused
medical treatment by Dr. Kohut. (Doc. 51 (stating that he "refuse[d] to be abused
by Tristan Kohut").) Thus, because it is undisputed that Plaintiff refused medical
treatment, the Court agrees with Judge Johnston that Plaintiff has failed to raise a
viable claim of deliberate indifference under the Eight Amendment. Plaintiffs
first four objections are overruled.
Lastly, Plaintiffs fifth objection argues that Judge Johnston erred by
disregarding an early request to "withdraw" this suit. Plaintiff claims that he
previously indicated to Judge Johnston that he wanted to dismiss the suit until he
was released from prison so he could retain professional counsel to argue his
claims. The Court has reviewed the record and can find no evidence of a motion
or a request by Plaintiff to dismiss this suit. 2 Nevertheless, the Court recognizes
that Plaintiff did previously move to hold this case in abeyance until he was
released from prison. (Doc. 39) However, Plaintiffs request was denied by Judge
Johnston on November 7, 2016. (Doc. 47.) As such, any objection to this ruling
at this point in the litigation would exceed the time allowed to raise objections to
nondispositive orders under the Magistrates Act. 28 U.S.C. § 636(b)(l)(C)
(allowing fourteen days to file objections to proposed findings and
recommendations). The Court thus finds that Plaintiffs objection is untimely and
overrules it as such.
Accordingly, the Court reviews the remainder Judge Johnston's Findings
and Recommendations for clear error and, finding none,
IT IS ORDERED that:
The Court notes that Plaintiff did previously move to dismiss Defendants Reich and
Strutzl from this suit. (Doc. 39) The Court adopted Judge Johnston's recommendation to grant
this motion and dismissed these Defendants on December 19, 2016. (Doc. 49.)
(1) Judge Johnston's Findings and Recommendations (Doc. 50) are
ADOPTED IN FULL.
(2) Defendants' Motion for Summary Judgment (Doc. 29) is
(3) The Clerk of Court is directed to close this matter, enter judgment
pursuant to Rule 58 of the Federal Rules of Civil Procedure, and terminate all
(4) The Clerk of Court shall 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.
t'3~day of March, 2017.
Dana L. Christensen, Chief Judge
United States District Court
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