Albert v. Abbott et al

Filing 34

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 21 in full. Motion to Dismiss 15 granted in part and denied in part. Signed by Judge Brian Morris on 7/18/2018. (TAG)

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

MICHAEL ALBERT,
CV-17-69-H-BMM-JTJ
Plaintiff,

v.
ORDER ADOPTING MAGISTRATE
JUDGE’S FINDINGS AND
RECOMMENDATIONS

HEIDI ABBOT, et. al.,

Defendants.

Plaintiff Michael Albert (“Albert”) filed a complaint on June 12, 2017,
alleging six civil rights and sexual harassment claims arising under the Eighth and
Fourteenth Amendments. (Doc. 2.) Defendants Alvin Fode, Jim Salmonsen, Steve
Kremer, Russ Dahaher, and Leroy Kirkegard moved to Dismiss Count IV of the
Complaint with prejudice because Albert cannot assert claims against them
individually under the Americans with Disabilities Act. (Doc. 15.)
United States Magistrate Judge John Johnston issued Findings and
Recommendations in this matter on May 3, 2018. (Doc. 21.) Judge Johnston found
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that because Albert had titled Count IV an Eighth Amendment claim but raised
allegations that could be construed as ADA claims, the Court must liberally
construe Count IV to raise claims under both the ADA and the Eighth Amendment.
(Doc. 21 at 2.) Judge Johnston further found that the ADA does not provide for
suits against state officials in their individual capacity. Id. at 3.
Judge Johnston recommended that Defendants’ motion should be granted as
to ADA claims raised in Count IV against Defendants in their individual
capacities, and as to ADA claims raised in Count IV against Defendants Fode,
Kremer, Dahaher, and Kirkegard in their official capacities. Id. at 4-5. Judge
Johnston further recommended that the Court should deny the motion as to
Albert’s Eighth Amendment claims raised in Count IV and as to ADA claims
raised in Count IV against Defendant Salmonsen. Id. at 5.
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). The Court finds no error in
Judge Johnston’s Findings and Recommendations, and adopts them in full.
I.ORDER
Accordingly, IT IS ORDERED that Magistrate Judge Johnston’s Findings
and Recommendations (Doc. 21) is ADOPTED IN FULL.
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IT IS FURTHER ORDERED that Defendants Fode, Salmonsen, Kremer,
Danaher, and Kirkegard’s Motion to Dismiss Count IV of the Complaint (Doc. 15)
is GRANTED IN PART as to Albert’s ADA claims raised in Count IV against
Defendants in their individual capacities and as to Defendants Fode, Kremer,
Dahaher, and Kirekegard in their official capacities.
IT IS FURTHER ORDERED that Defendants’ Motion to Dismiss Count
IV of the Complaint (Doc. 15) is DENIED IN PART as to Albert’s Eighth
Amendment claims raised in Count IV, and as to Albert’s ADA claims raised in
Count IV against Defendant Salmonsen in his official capacity as Interim Warden
of Montana State Prison. These Defendants are required to respond to these claims.
DATED this 18th day of July, 2018.

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