McGovern v. Woods et al
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 7 in full. Count Five of the Complaint and Defendant David Pentland are DISMISSED WITH PREJUDICE. Signed by Judge Dana L. Christensen on 6/21/2017. Mailed to McGovern (TAG)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
~.s-~ ''70 ~'C
TOM WOODS, SHERIE BILODEAU,
CONNIE WINNER, DAVID
PENTLAND, and JOHN AND JANE
United States Magistrate Judge John Johnston entered his Findings and
Recommendations on June 1, 2017, recommending dismissal of Defendant David
Pentland and Count five of Plaintiff Tom McGovern's Complaint ("McGovern").
The parties failed to timely object to the Findings and Recommendation, and, as a
result, have waived their 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 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). Because the parties
are familiar with the facural background of this case, it will not be repeated here.
Having reviewed the Findings and Recommendations, the Court finds no
clear error in Judge Johnston's conclusion that Defendant David Pentland and
Count five of the Complaint should be dismissed. Count five, which is the only
count asserted against Defendant Pentland, fails to state a cognizable due process
claim and is otherwise barred under the doctrine discussed in Heck v.
Humphrey, 512 U.S. 477, 486-487 (1994). Consequently, because Count five is
essentially challenging the fact or duration of McGovern's confinement and is
brought under section 1983, the claim, as well as Defendant Pentland, must be
dismissed from this case. Wilkinson v. Dotson, 544 U.S. 74, 79-81 (2005) (writ of
habeas corpus is proper vehicle to obtain release from unlawful confinement).
Accordingly, there being no clear error in Judge Johnston's Findings and
Recommendations, IT IS ORDERED that:
(1) Judge Johnston's Findings and Recommendations (Doc. 7) are
ADOPTED IN FULL; and
(2) Count Five of the Complaint and Defendant David Pentland are
DISMISSED WITH PREJUDICE.
ll~tday of June, 2017.
Dana L. Christensen, Chief Judge
United States District Court
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