Asselin v. Devine et al

Filing 26

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS in FULL re 25 Findings and Recommendations.; granting 5 Motion to Dismiss for Failure to State a Claim; granting 7 Motion to Dismiss for Failure to State a Claim; granting 12 Motion to Dismiss for Failure to State a Claim. This case is CLOSED. Mailed to Asselin. Signed by Judge Dana L. Christensen on 5/10/2016. (HEG, )

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

PATRICK T. ASSELIN,

FILED
MAY 10 2016
Clerk, U S District Court
District Of Montana
Missoula

CV 15-95-H-DLC-JTJ

Plaintiff,
ORDER
vs.
BRITTANY DEVINE, BRENT
LESHENSKI, PAMELA PONICH,
MICHAEL MENEHAN, and GEORGE
PEARCE,
Defendants.
United States Magistrate Judge John Johnston entered his Findings and
Recommendations in this matter on March 30, 2016, recommending dismissal of
Plaintiff Patrick Asselin's ("Asselin") Complaint. Asselin failed to timely object
to the Findings and Recommendations, and so waived his right to de novo review
of the record. 28 U.S.C. § 636(b)(l)(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) (citations omitted).
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Having reviewed the Findings and Recommendations, the Court finds no
clear error in Judge Johnston's conclusion that Asselin's Complaint should be
dismissed because: (1) this Court should abstain from interfering in the ongoing
state court proceeding pursuant to Younger v. Harris, 401 U.S. 37 (1971); (2) this
Court lacks jurisdiction under 28 U.S.C. § 1332; (3) Judge Menahan is judicially
immune from liability; and (4) Asselin failed to establish that Defendants Ponich
or Pearce acted under the color of state law.
Accordingly, IT IS ORDERED that:
(1) Judge Johnston's Findings and Recommendations (Doc. 25) are
ADOPTED IN FULL.
(2) Defendant Michael Menahan's Motion to Dismiss for Failure to State a
Claim and Lack of Subject Matter Jurisdiction (Doc. 5) is GRANTED.
(3) Defendant George Pearce's Motion to Dismiss for Failure to State a
Claim (Doc. 7) is GRANTED.
(4) Defendant Brittany Devine and Defendant Brent Leshenski's Motion to
Dismiss for Lack of Jurisdiction (Doc. 10) is GRANTED.
(5) Defendant Pamela Ponich's Motion to Dismiss for Failure to State a
Claim (Doc. 12) is GRANTED.
(6) This case is CLOSED.
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Dated this \OJt,day ofMay, 2016.

Dana L. Christensen, Chief Judge
United States District Court

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