Martindale v. Montana D.O.C. et al

Filing 23

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 22 in full; denying 15 Motion to Dismiss for Failure to State a Claim. Signed by Judge Dana L. Christensen on 8/15/2016. Mailed to Martindale. (TAG, )

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

CV 15-111-H-DLC-JTJ

MICHAEL MARTINDALE,
Plaintiff,

ORDER
vs.
LEROY KIRKEGARD and MIKE
BATISTA,
Defendants.
United States Magistrate Judge John Johnston entered his Order, Findings
and Recommendations in this matter on July 15, 2016, recommending denial of
Defendants' motion to dismiss for failure to state a claim. Defendants failed to
timely object to the Findings and Recommendations, and so waived their 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 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).
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SCANNED

Having reviewed the Findings and Recommendations, the Court finds no
clear error in Judge Johnston's conclusion that Defendants' motion should be
denied. Plaintiff Michael Martindale has stated a plausible claim of supervisory
liability against Defendants; (2) his claims for both monetary and injunctive relief
survived the prescreening process; and (3) his claims for injunctive relief are not
moot, to the extent that he is still subject to the Department of Corrections policies
in terms of medical care.
There being no clear error in Judge Johnston's Findings and
Recommendations, IT IS ORDERED that:
(1) Judge Johnston's Findings and Recommendations (Doc. 22) are
ADOPTED IN FULL.
(2) Defendants' Motion to Dismiss for Failure to State a Claim (Doc. 15)
is DENIED.
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Dated this __l_2_ day of August, 2016.

C~t~n~

DanaL.
United States District Court

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