Tice v. Montana State Prison et al
Filing
22
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 20 in full. Signed by Judge Brian Morris on 5/10/2018. Mailed to Tice (TAG)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
GREAT FALLS DIVISION
JOSEPH WAYNE TICE,
CV-17-58-H-BMM-JTJ
Plaintiff,
v.
ORDER ADOPTING MAGISTRATE
JUDGE’S FINDINGS AND
RECOMMENDATIONS
DR. KOHUT,
Defendant.
United States Magistrate Judge John Johnston entered Findings and
Recommendations in this matter on April 11, 2018. (Doc. 20.) No party filed
objections.
Given that no objections were filed, the Court has reviewed Judge
Johnston’s Findings and Recommendations for clear error. McDonnell Douglas
Corp. v. Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313 (9th Cir. 1981). The
Court finds no error in Judge Johnston’s Findings and Recommendations, and
adopts them in full.
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I.BACKGROUND
Plaintiff Joseph Tice (“Tice”) filed his Amended Complaint on June 14,
2017. (Doc. 3). Defendant Dr. Tristan Kohut (“Dr. Kohut”) filed his Answer on
January 5, 2018. (Doc. 11.) The Clerk of Court mailed a consent form to Tice on
January 12, 2018. (Doc. 13.) The consent form was returned undeliverable to the
Clerk on January 26, 2018. (Doc. 14.)
Dr. Kohut filed a motion to dismiss on March 8, 2018. (Doc. 15.) Dr. Kohut
cited as grounds for dismissal Tice’s failure to advise the Court of his change of
address in accordance with Rule 41(b) of the Federal Rules of Civil Procedure and
Local Rule 5.2. Id.
This Court referred the case to United States Magistrate Judge John Johnston
on March 14, 2018. (Doc. 18.) The Clerk of Court mailed the referral order to Tice.
That mail was returned undeliverable on March 29, 2018. (Doc. 19.) Judge
Johnston issued his Findings and Recommendations on April 11, 2018. (Doc. 20.)
The Clerk mailed a copy of the Findings and Recommendations to Tice. The
Findings and Recommendations were returned as undeliverable on April 18, 2018.
(Doc. 21.)
II.DISCUSSION
Judge Johnston recommends dismissal without prejudice for Tice’s failure to
notify the Court of his change of address. (Doc.20 at 2.)
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This District’s Local Rule 5.2(b) provides that the Court may dismiss a
complaint without prejudice when a document has: (1) been returned as
undeliverable, and (2) the Court does not receive within 60 days of the return a
written communication updating the party’s address for service.
The 60 day period in which Tice was to file such notice lapsed on March 27,
2018. Nothing in the record indicates that Tice has filed a written notice informing
the Court of his change of address.
III.ORDER
Accordingly, IT IS ORDERED that Magistrate Judge Johnston’s Findings
and Recommendations (Doc. 20) is ADOPTED IN FULL. Tice’s Complaint is
DISMISSED WITHOUT PREJUDICE pursuant to L.R. 5.2(b).
DATED this 10th day of May, 2018.
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