Albert v. Abbott et al

Filing 68

ORDER ADOPTING 56 FINDINGS AND RECOMMENDATIONS in full; granting in part and denying in part 36 Motion to Dismiss for Failure to State a Claim; granting in part and denying in part 50 Motion to Dismiss for Failure to State a Claim. Signed by Judge Brian Morris on 4/16/2019. (TAG)

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

CV 17-69-H-BMM

MICHAEL ALBERT,
Plaintiff,

ORDER ADOPTING MAGISTRATE
JUDGE’S FINDINGS AND
RECOMMENDATIONS

vs.
MONTANA DEPARTMENT OF
CORRECTIONS, REGINALD D.
MICHAEL, MISSOULA COUNTY,
CORRECTIONAL HEALTH
PARTNERS, PAUL REES, HEIDI
ABBOTT, MELISSA SCHARF,
ALLY CARL, TRISTAN KOHUT,
CONNIE WINNER, KIMBERLY
FISK, JORDEN MCDONALD,
ALVIN FODE, JIM SALMONSEN,
STEVEN WEBER, MIKE HERBERT,
PATRICK MARTIN, STEVE
KREMER, RUSS DANAHER,
LEROY KIRKEGARD, ABBY
MARTIN, and LESLIE THORNTON,
Defendants.

United States Magistrate Judge John Johnston entered Findings and
Recommendations in this case on March 14, 2019. (Doc. 56.) Judge Johnston
recommended Defendant Missoula County’s Motion to Dismiss (Doc. 36) should
be granted in part and denied part. (Doc. 56 at 22-23.) Judge Johnston
recommended that State Defendants Motion to Dismiss (Doc. 50) likewise should
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be granted in part and denied in part. (Doc. 56 at 23-24.)
Neither party filed objections. The Court reviews findings and
recommendations not objected to for clear error. McDonnell Douglas Corp. v.
Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313 (9th Cir. 1981). 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). The Court finds no error in Judge Johnston’s Findings and
Recommendations and adopts them in full.
Accordingly, IT IS ORDERED:
1. Judge Johnston’s Findings and Recommendations (Doc. 56) is
ADOPTED IN FULL.
2. Missoula County’s Motion to Dismiss (Doc. 36) is GRANTED IN
PART and DENIED IN PART.
a. Albert’s § 1983 Monell claims against Missoula County, ADA
claim, Rehabilitation Act claim, negligence per se claim, and
Montana Constitutional claim of right to individual dignity as
alleged in Counts I, II, IV, V, VII, and IX is DISMISSED
WIHTOUT PREJUDICE.
b. Albert’s medical malpractice claim against Missoula County as
alleged in Count X is DISMISSED WITH PREJUDICE.
3. State Defendants’ Motion to Dismiss (Doc. 50) is GRANTED IN
PART and DENIED IN PART.
a. Defendants Reginald D. Michael and Leroy Kirkegard are
DISMISSED from Albert’s § 1983 claims alleged in Counts I,
II, and III.
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b. Defendant Jim Salmonsen is DISMISSED from Albert’s § 1983
claims alleged in Counts II and III.
c. Defendants Montana Department of Corrections, Michael,
employees or agents of MSP and the Montana Department of
Corrections, and Wardens Salmonsen and Kirkegard are
DISMISSED from Counts IV and V. The State of Montana is
SUBSTITUTED as the sole defendant in Counts IV and V.

d. All individual named State Defendants are DISMISEED WITH
PREJUDICE from state law claims in Counts VI through X.
The State of Montana is SUBSTITUED in their place.

e. Albert’s Montana State Constitutional right to individual
dignity claim in Count IX is DISMISSED.

f. Count XI is DISMISED as a separate count. Albert is allowed
to seek punitive damages as a form of relief.
DATED this 16th day of April, 2019.

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