Lout v. Jovanovich et al

Filing 51

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 40 in full. Defendants Samuel Jovanovich, Denise Deyott, Roxanne Wigert, Daniel Riddle, Leonard Mihelich, Myron Beeson, Billie Reich, Kristy Cobban, Tristan Kohut, Scott Pirinian, G. Mark Henderson, D avid Pentland, and Daniel Chladex and Count I (excessive force), Count III (failure to report), Counts IV & V ("settlement offer"), Count VI (mail), Count VII (nutrition and vitamins), and Count IX Gob dismissal) are DISMISSED WITHOUT PREJU DICE. All federal claims raised in Count VIII are DISMISSED WITH PREJUDICE. "Petition for a Permanent Order of Protection" 31 is DENIED. Motion to Dismiss Defendant Reese 38 is GRANTED. Motion to Strike 47 is GRANTED. Signed by Judge Dana L. Christensen on 8/5/2016. Mailed to Lout. (TAG, )

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

CV 15-55-H-DLC-JTJ
JEFFERY J. LOUT,
Plaintiff,

ORDER

vs.
ROXANNE TUSS, et al.,
Defendants.
United States Magistrate Judge John Johnston entered his Order, Findings
and Recommendations in this matter on May 27, 2016, recommending dismissal of
multiple Defendants and claims raised in Plaintiff Jeffery Lout's ("Lout")
Amended Complaint. Lout timely 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. 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).
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Notwithstanding the above, "[w]here a [party's] objections constitute
perfunctory responses argued in an attempt to engage the district court in a
rehashing of the same arguments set forth in the original [pleading], the applicable
portions of the findings and recommendations will be reviewed for clear error."

Rosling v. Kirkegard, 2014 WL 693315 at *3 (D. Mont. Feb. 21, 2014) (citations
omitted).
Following Lout's objections, Defendants filed a response arguing that the
objections fail to properly object to the Findings and Recommendations and must
be reviewed for clear error. (Doc. 42 at 3 (citing 28 U.S.C. § 636(b)(l)(C); Fed.
R. Civ. P. 72(b)(2)).) Lout subsequently filed a reply to Defendants' response
where he further clarified his objections to the Findings and Recommendations
and also raised issues not presented in his initial objections. (Doc. 44.)
Defendants then moved to strike this reply as untimely and as expressly violating
this District's Local Rules.
Before reviewing Lout's objections, the Court will address Defendant's
motion to strike. This District's Local Rules provide that:
(a) An objection filed pursuant to 28 U.S.C. § 636(b)(l) must itemize:
( 1) each factual finding of the magistrate judge to which
objection is made, identifying the evidence in the record the party
relies on to contradict that finding; and
(2) each recommendation of the magistrate judge to which
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objection is made, setting forth the authority the party relies on to
contradict that recommendation.
(b) An objection must be filed within 14 days of service of the
magistrate judge's order or findings and recommendation. A response
must be filed within 14 days of service of the objection. Objection
and response are limited to 6500 words. A reply is not permitted.
D. Mont. R. 72.3 (emphasis added).
The Ninth Circuit has stated that "[l]ocal rules have the 'force of law' and
are binding upon the parties and upon the court .... " Prof Programs Group v.
Dept. of Com., 29 F.3d 1349, 1353 (9th Cir. 1994) (quoting Martel v. County of
Los Angeles, 21F.3d940, 946-947 (9th Cir. 1994). Nonetheless, district courts
enjoy "broad discretion to depart from the strict terms of the local rules where it
makes sense to do so and substantial rights are not at stake." Id.
Here, although the Court is sympathetic to Lout's status as a prose litigant,
Defendants are correct that the Local Rules expressly forbid the filing of a reply
brief following objections to the Findings and Recommendations. Further,
allowing the filing of a reply brief in this situation appears to run counter to
Federal Rule of Civil Procedure 72(b). See Fed. R. Civ. P. 72(b)(2) (allowing
fourteen days to file "specific written objections" and allowing another fourteen
days for the other party to respond, but failing to provide for a reply brief). Lastly,
in this case, the Court is persuaded not to depart from the Local Rules because of
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the prejudicial effect it would have on Defendants. In his reply brief, Lout raises
new arguments he failed to raise in his objections. The Defendants would be
prejudiced if the Court were to consider these arguments because they did not
have the initial opportunity to respond. As such, the Court will grant Defendants'
motion and strike Lout's reply brief.
Turning to Lout's objections (Doc. 41), the Court agrees with Defendants
that this document fails to specify objections to the Findings and
Recommendations and should be reviewed for clear error. In his objections, Lout
fails to articulate any specific issue with Judge Johnston's reasoning, and, instead,
reiterates the arguments raised in his Amended Complaint concerning Count VIII.
Accordingly, the Court agrees with Judge Johnston that Count VIII fails to raise
any recognized constitutional violations and should be dismissed with prejudice.
Additionally, the Court agrees with Judge Johnston that Count I (excessive
force), Count III (failure to report), Counts IV and V (settlement offer), Count VI
(mail), Count VII (nutrition and vitamins), and Count IX (laundry job dismissal),
were withdrawn by Lout and should be dismissed without prejudice.
Consequently, Defendants Samuel Jovanovich, Denise Deyott, Roxanne Wigert,
Daniel Riddle, Leonard Mihelich, Myron Beeson, Billie Reich, Kristy Cobban,
Tristan Kohut, Scott Pirinian, G. Mark Henderson, David Pentland, and Daniel
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Chladex will also be dismissed from this suit.
Further, the Court agrees with the Findings and Recommendations that
Lout's Motion for a Permanent Order of Protection should be denied because: (1)
Lout's allegations are vague and conclusory; (2) his requested relief would
interfere with the internal operations of the prison; and (3) his motion is unrelated
to his retaliation (Count II) and religious (count X) claims.
Accordingly, the Court reviews the remaining Findings and
Recommendations for clear error and, finding none,
IT IS ORDERED that:
(1) Judge Johnston's Findings and Recommendations (Doc. 40) are
ADOPTED IN FULL.
(2) Defendants Samuel Jovanovich, Denise Deyott, Roxanne Wigert, Daniel
Riddle, Leonard Mihelich, Myron Beeson, Billie Reich, Kristy Cobban, Tristan
Kohut, Scott Pirinian, G. Mark Henderson, David Pentland, and Daniel Chladex
and Count I (excessive force), Count III (failure to report), Counts IV & V
("settlement offer"), Count VI (mail), Count VII (nutrition and vitamins), and
Count IX Gob dismissal) are DISMISSED WITHOUT PREJUDICE.
(3) All federal claims raised in Count VIII are DISMISSED WITH
PREJUDICE.
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(4) Lout's "Petition for a Permanent Order of Protection" (Doc. 31)
is DENIED.
(5) Lout's Motion to Dismiss Defendant Reese (Doc. 38) is
GRANTED.
(6) Defendants' Motion to Strike (Doc. 47) is GRANTED. Lout's reply
brief is stricken.
·~

DATED this _5__ day of August, 2 16.

Dana L. Christensen, Chief Judge
United States District Court

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