Winne v. Knight et al

Filing 82

ORDER ADOPTING 76 FINDINGS AND RECOMMENDATIONS in full; denying 81 Motion. Case is DISMISSED WITH PREJUDICE. Any appeal of this decision would not be taken in good faith. Signed by Judge Dana L. Christensen on 5/23/2017. Mailed to Winne (TAG)

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

MICHAEL WINNE,

MAY 2 3 2017
Clerk, U S District Court
District Of Montana
Missoula

CV 15-44-H-DLC-JTJ

Plaintiff,
ORDER
vs.
CORRECTIONAL OFFICER JOSH
KNIGHT, SERGEANT WEBER, and
CANDICE NEUBAUER,
Defendant.
United States Magistrate Judge John T. Johnston entered findings and
recommendations in this case on April 14, 2017, recommending that Defendants'
motion for summary judgment be granted and this matter be dismissed. Plaintiff
Michael Winne ("Winne") timely filed objections to the findings and
recommendations. Consequently, Winne is entitled to a 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.
Arn, 474 U.S. 140, 149 (1985). Clear error exists if the Court is left with a
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"definite and firm conviction that a mistake has been committed." United States v.

Syrax, 235 F.3d 422, 427 (9th Cir. 2000) (citations omitted).
Judge Johnston concluded, and this Court agrees, that dismissal is
appropriate because Winne did not exhaust the grievance process in relation to his
claims against Defendants Knight and Weber, and because he did not exhaust his
administrative remedies in relation to his claim against Defendant Neubaur.
Winne's first two objections (Docs. 77 and 78) reiterate the same facts and
arguments already made and properly rejected by Judge Johnston. Winne fails to
present any new evidence that proves he exhausted the grievance process and his
administrative remedies.
Winne's third objection cites multiple cases that he contends warrants a
denial of Judge Johnston's conclusion. The cases cited are: Crawford-El v.

Britton, 523 U.S. 574 (1998); Danzer v. Norden Sys., Inc., 151F.3d50 (2d Cir.
1998); Hamm v. Groose, 15 F.3d 110 (8th Cir. 1994); Cooper v. Pate, 378 U.S.
546 (1964); City Mgmt. Corp. v. US. Chem. Co., 43 F.3d 244 (6th Cir. 1994);

Yerdon v. Henry, 91F.3d370 (2d Cir. 1996); and Adickes v. S. H Kress & Co.,
398 U.S. 144 (1970). After reviewing these cases, the Court does not find that
Judge Johnston's conclusion is in error. Pursuant to the legal standard for
summary judgment, there still exists no genuine issue of material fact that Winne
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did not exhaust the remedies available to him at MSP. Even after reviewing all
evidence in favor of Winne, he is unable to satisfy this under the minimum
preponderance of evidence standard.
Winne also moves the Court to enter default judgment under Fed. R. Civ. P.
55 due to Defendants' failure to plead or otherwise defend the case. Under Rule
55, a Court can enter default and then enter default judgment "[w]hen a party
against whom a judgment for affirmative relief is sought has failed to plead or
otherwise defend, and that failure is shown by affidavit or otherwise[.]" Fed. R.
Civ. P. 55(a) and (b). Here, after Judge Johnston entered his findings and
recommendations, both parties were allowed 14 days to object. Filing an
objection is not mandatory. Nonetheless, Defendants did timely respond to
Winne's objections on May 9, 2017 (Doc. 80). Therefore, Winne's Rule 55
motion is without merit and is improper given the circumstances.
Accordingly, IT IS ORDERED that Judge Johnston's findings and
recommendations (Doc. 76) are ADOPTED IN FULL. This case is DISMISSED
WITH PREJUDICE. The Clerk of Court shall CLOSE this case and enter
judgment pursuant to Rule 58 of the Federal Rules of Civil Procedure.
IT IS FURTHER ORDERED that Winne's Rule 55 Motion (Doc. 81) is
DENIED.
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IT IS FURTHER ORDERED that 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.
DATED this

l?~Jaay ofMay, 2017.

United States District Court

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