Tice v. Montana State Prison et al
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 6 in full. Defendants Montana State Prison Medical Department and Montana State Prison are DISMISSED. Motion for injunctive relief is DENIED. Signed by Judge Brian Morris on 11/28/2017. Mailed to Tice (TAG)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
GREAT FALLS DIVISION
JOSEPH WAYNE TICE,
DR. KOHUT, MONTANA STATE
PRISON MEDICAL DEPT. (people
unknown), and MONTANA STATE
PRISON (people unknown),
ORDER ADOPTING MAGISTRATE
JUDGE’S FINDINGS AND
Plaintiff Joseph Tice (“Tice”) filed his Complaint on May 19, 2017. (Doc.
1). The Complaint alleges denial of medical care and seeks emergency injunctive
relief in the form of an order to transfer Tice from Montana State Prison to
Community Hospital in Missoula. (Doc. 1 at 2.)
United States Magistrate Judge John Johnston issued an Order and Findings
and Recommendations in this matter on November 6, 2017. (Doc. 6.) Judge
Johnston found that Tice has a “reasonable opportunity to prevail on the merits” of
his denial of medical care claim and ordered Defendant Kohut to respond. (Doc. 6
Judge Johnston recommended that the Court deny Tice’s motion for
injunctive relief. (Doc. 6 at 7.) Judge Johnston further recommended that the Court
dismiss Defendants Montana State Prison Medical Department and Montana State
Prison (“State Defendants”). (Doc. 6 at 7.)
No party filed objections to Judge Johnston’s Findings and
Recommendations. The Court has thus reviewed the Findings and
Recommendations for clear error. McDonnell Douglas Corp. v. Commodore Bus.
Mach., Inc., 656 F.2d 1309, 1313 (9th Cir. 1981).
Preliminary injunctive relief is an “extraordinary and drastic” remedy.
Munaf v. Geren, 553 U.S. 674, 689-90 (2008) (citations omitted). Specifically, in
the prison litigation context, Congress has instructed the Court to “give substantial
weight to any adverse impact on public safety or the operation of a criminal justice
system.” 18 U.S.C. § 3626(a)(2). As Judge Johnston acknowledged, transferring
Tice from incarceration to a hospital would have “significant adverse impact on
public safety and the operation of the criminal justice system.” (Doc. 6 at 5.) The
Court finds no clear error in Judge Johnston’s recommendation to deny the relief
Judge Johnston further recommends that the Court dismiss the State
Defendants because the State of Montana has not waived its Eleventh Amendment
immunity against suit in federal court. (Doc. 6 at 2.) Montana has specifically
waived its immunity for tort claims brought in state court. Mont. Code Ann. § 2-9311. The State has enacted no corresponding waiver for claims brought in federal
court. The Court finds no error in Judge Johnston’s recommendation to dismiss the
Accordingly, IT IS ORDERED that Magistrate Judge Johnston’s Findings
and Recommendations (Doc. 6) is ADOPTED IN FULL.
Defendants Montana State Prison Medical Department and Montana State
Prison are DISMISSED pursuant to the Eleventh Amendment.
Tice’s motion for injunctive relief is DENIED.
DATED this 28th day of November, 2017.
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