Banschbach v. Dr. Kohut

Filing 31

ORDER ADOPTING 24 FINDINGS AND RECOMMENDATIONS in full; granting in part and denying in part 8 Motion for Summary Judgment; denying 19 Motion for TRO. Banschbach's claim that Dr. Kohut sexually assaulted him is DISMISSED. Banschbach's denial of medical care claim is allowed to proceed. Signed by Judge Dana L. Christensen on 9/27/2016. Mailed to Banschbach (TAG, )

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IN THE UNITED STATES DISTRICT COURT q, S('p
FOR THE DISTRICT OF MONTANA
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HELENA DIVISION
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CV 15-107-H-DLC-JTJ
JACOB BANSCHBACH,
Plaintiff,

ORDER

vs.
DR.KOHUT,
Defendant.
United States Magistrate Judge John Johnston entered his Findings and
Recommendations in this matter on August 18, 2016, recommending that
Defendant's motion for summary judgment be granted in part and denied in part.
Plaintiff Jacob Banschbach ("Banschbach") 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 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). The parties are familiar
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with the facts of this case and they will not be repeated here.
In his objections, Banschbach clarifies that he does not actually object to
Judge Johnston's Findings and Recommendations. As such, the Court will review
the Findings and Recommendations for clear error. McDonnell Douglas Corp.,
656 F.2d at 1313. Upon review, the Court finds no clear error in Judge Johnston's
recommendation that Defendant Dr. Kohut's motion for summary judgment should
be partially granted as to the claim of sexual assault because Banschbach failed to
exhaust his administrative remedies. Banschbach filed his Complaint before the
formal grievance process was completed and thus failed to exhaust the grievance
process before bringing this claim.
Further, the Court finds no clear error in the recommendation to allow
Banschbach to pursue his denial of medical care claim. Banschbach lodged an
appropriate grievance for this claim and properly exhausted his administrative
remedies. This claim will be allowed to move forward.
Lastly, the Court finds no clear error in the recommendation to deny
Banschbach's motion for a temporary restraining order. Banschbach's motion
fails to meet the high standard warranting the issuance of a temporary restraining
order and likewise fails to satisfy the factors outlined in Winter v. Natural
Resources Defense Council, Inc., 555 U.S. 7, 24 (2008). In particular,
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Banschbach's motion fails to show that his claim is likely to succeed on the merits.
As discussed in the Findings and Recommendations, the grievances submitted by
Banschbach appear to merely show a disagreement concerning which medications
were appropriate to treat his medical condition, not that Dr. Kohut was
deliberately indifferent to an excessive risk to Banschbach's health. As such, the
Court will adopt the recommendation to deny the motion for a temporary
restraining order.
Accordingly, the Court reviews the remainder of Judge Johnston's Findings
and Recommendations for clear error and, finding none,
IT IS ORDERED that:
(1) Judge Johnston's Findings and Recommendations (Doc. 24) are
ADOPTED IN FULL.
(2) Defendant's Motion for Summary Judgment (Doc. 8) is
GRANTED IN PART and DENIED IN PART. Banschbach's claim that Dr.
Kohut sexually assaulted him is DISMISSED. Banschbach's denial
of medical care claim is allowed to proceed.
(3) Banschbach's Motion for Temporary Restraining Order (Doc. 19)
is DENIED.

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DATED this

l-=t'~ay of September, 2016.

Dana L. Christensen, Chief Judge
United States District Court

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