Converse v. Kohut et al

Filing 28

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 15 , 26 in full; granting 16 Motion for Judgment on the Pleadings. Defendant G Scott is DISMISSED WITHOUT PREJUDICE. Signed by Judge Dana L. Christensen on 7/31/2017. Mailed to Converse. (TAG)

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

MATTHEW MICHAEL CONVERSE,

CV 16-39-H-DLC-JTJ

Plaintiff,
vs.
ORDER
TRISTAN KOHUT, et al.,
Defendants.

United States Magistrate Judge John Johnston entered his Findings and
Recommendations on June 27, 2017 (Doc. 25), recommending dismissal of Count
II of Plaintiff Matthew Michael Converse's ("Converse") Complaint.
Additionally, on June 27, 2017, Judge Johnston issued an Order, Findings and
Recommendations (Doc. 26) recommending dismissal of Defendant G Scott from
this suit. Converse has failed to timely object to the Findings and
Recommendations, and, as a result, has waived his right to de novo review of the
record. 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
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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 conclusion that Defendants' motion for judgment
on the pleadings should be granted and Count II of the Complaint should be
dismissed. As discussed by Judge Johnston, Count II of the Complaint, which
alleges an equal protection claim under the Fourteenth Amendment, fails to set
forth any facts alleging that Defendants acted in an intentionally discriminatory
manner, or that he is a member of a protected class. Thus, this claim must be
dismissed.
Additionally, the Court agrees with Judge Johnston that Defendant G Scott
must be dismissed from this suit. Converse has not served Defendant Scott in the
time permitted under the Federal Rules of Civil Procedure. Fed. R. Civ. P. 4(m)
(allowing 90 days for service). Further, Converse has also failed to comply with
the Court's Order dated April 10, 2017, which required that he provide an address
for Defendant Scott by July 7, 2017. Because Converse has failed to provide this
address or request an extension to do so, the Court will adopt Judge Johnston's
recommendation and dismiss Defendant Scott.
Accordingly, there being no clear error in the Findings and
Recommendations, IT IS ORDERED that:

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(1) Judge Johnston's Findings and Recommendations (Docs. 25 and 26) are
ADOPTED IN FULL.
(2) Defendants' Motion for Judgment on the Pleadings (Doc. 16) is
GRANTED and Converse's equal protection claim alleged in Count 2 of the
Complaint is DISMISSED;
(3) Defendant G Scott is DISMISSED WITHOUT PREJUDICE pursuant
to Federal Rule of Civil Procedure 4(m) for failure to effect service.
Dated this 31st day of July, 2017.

Dana L. Christensen, Chief istrict Judge
United States District Court

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