Wombolt v. Montana State Prison et al

Filing 30

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 26 in full. Defendants Larry Burke, Todd Boese, Cynthia Davenport, Jill Buck and Katherine Flynn's Motion to Dismiss 15 is GRANTED. Signed by Judge Dana L. Christensen on 9/28/2016. Mailed to Wombolt. (TAG, )

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

CV 15-060-H-DLC-JTJ

SCOTT WOMBOLT,
Plaintiff,

ORDER
vs.
MONTANA STATE PRISON &
EMPLOYEES LARRY BURKE, TODD
BOESE, CYNTHIA DAVENPORT, JILL
BUCK, KATHERINE FLYNN,
DOCTOR KOHUT, and CINDY HINER,
Defendants.

United States Magistrate Judge John T. Johnston entered findings and
recommendations in this case on August 15, 2016, recommending dismissal of
Plaintiff Scott Wombolt's ("Wombolt") case as to Defendants Larry Burke, Todd
Boese, Cynthia Davenport, Jill Buck and Katherine Flynn, pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure. Wombolt did not object to the
findings and recommendations, and so has waived the right to de novo review
thereof. 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

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Corp. v. Commodore Bu~. Mach., Inc., 656 F.2d 1309, 1313 (9th Cir. 1981);
Thomas v. Arn, 474 U.S. 140, 149 (1985). 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) (citations omitted).
Having reviewed the findings and recommendations, the Court finds no
clear error in Judge Johnston's consideration of Title II of the ADA and the
applicable case law. This Court agrees that Title II of the ADA does not provide
for individual capacity suits against state officials. Vinson v. Thomas, 288 F.3d
1145, 1156 (9th Cir. 2002). Consequently, Defendants Larry Burke, Todd Boese,
Cynthia Davenport, Jill Buck and Katherine Flynn's motion to dismiss is granted.
The proper defendant in this case is the Montana State Prison.
Accordingly, IT IS ORDERED that Judge Lynch's Findings and
Recommendations (Doc. 26) are ADOPTED IN FULL. Defendants Larry Burke,
Todd Boese, Cynthia Davenport, Jill Buck and Katherine Flynn's Motion to
Dismiss (Doc. 15) is GRANTED.
DATED this

Le~ay of September, 2016.

Dana L. Christensen, Chief Ju ge
United States District Court
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