Smart v. Kirkegard et al
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 14 in full. Defendants Kirkegard, Beeson, Strutzel, Doe 1, Doe 2, Herman, McMahon, Redfern, Kremer, and Hart are DISMISSED. Counts I and III of the 2 Complaint are DISMISSED WITHOUT PREJUDICE. Signed by Judge Dana L. Christensen on 10/4/2017. Mailed to Smart. (TAG)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
FORREST SCOTT SMART,
LEROY KIRKEGARD, et al.,
United States Magistrate Judge John T. Johnston entered Findings and
Recommendations in this case on June 17, 2016, recommending that Defendants
Kirkegard, Beeson, Strutzel, Doe 1, Doe 2, Herman, McMahon, Redfern, Kremer,
and Hart be dismissed. Judge Johnston also recommended that Counts I and III of
Plaintiff Forrest Scott Smart's ("Smart") Complaint (Doc. 2) be dismissed without
prejudice. Smart 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 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)
Having reviewed the Findings and Recommendations, the Court finds no
clear error in Judge Johnston's conclusion that Smart failed to state claims upon
which relief could be granted in Counts I and III of his Complaint. As a result, the
Defendants responsive to Counts I and III alone should be dismissed.
Accordingly, IT IS ORDERED that Judge Johnston's Findings and
Recommendations (Doc. 14) is ADOPTED IN FULL. Defendants Kirkegard,
Beeson, Strutzel, Doe 1, Doe 2, Herman, McMahon, Redfern, Kremer, and Hart
IT IS FURTHER ORDERED that Counts I and III of the Complaint (Doc.
2) are DISMISSED WITHOUT PREJUDICE.
'f ~day of October,
Dana L. Christensen, Chief Judge
United States District Court
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