Anderson v. Montana Department of Corrections et al

Filing 17

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 4 in full. Defendant Montana Department of Corrections is DISMISSED. Signed by Judge Dana L. Christensen on 8/7/2015. Mailed to Anderson. (TAG, )

FILED
AUG 0 7 2015
Clerk, u.s 0 . .
District Of Mistrict Court
ontana
.
MISSOu/a

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
HELENA DIVISION
CV 15-31-H-DLC-JTJ

THOMAS SCOTT ANDERSON,
Plaintiff,
vs.

ORDER

MONTANA DEPARTMENT OF
CORRECTIONS, MIKE BATISTA,
Director of the Montana Department of
Corrections, LEROY KIRKEGARD,
Warden of the Montana State Prison,
and DR. KOHUT, individually and in
their official capacities,
Defendants.

United States Magistrate Judge John T. Johnston entered Findings and
Recommendations on May 12, 2015, recommending that Defendant Montana
Department of Corrections be dismissed. Plaintiff failed to timely object to the

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Findings and Recommendations, and so waived the right to de novo review of the
record. 28 U.S.C. § 636(b)(l). The Court will therefore review the record for
clear error. McDonnell Douglas Corp. v. Commodore Bus. Mach., Inc., 656 F.2d
1309, 1313 (9th Cir. 1981). Clear error exists ifthe 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.
There is no clear error in Judge Johnston's finding that the Montana
Department of Corrections is not a proper party in this action pursuant to the
Eleventh Amendment of the United States Constitution. The Eleventh Amendment
bars suit in federal court against state agencies, absent a Congressional abrogation
of immunity or express waiver by the State. The Montana Department of
Corrections is an agency of the State of Montana. Congress has not abrogated
Eleventh Amendment immunity and the State of Montana has not waived the
immunity.
IT IS ORDERED that Judge Johnston's Findings and Recommendation
(Doc. 4) are ADOPTED IN FULL. Defendant Montana Department of
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Corrections is DISMISSED.
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Dated this 1- day of August, 2015.

Dana L. Christensen, Chief Judge
United States District Court

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