Albert v. Montana Department of Corrections et al

Filing 68

ORDER ADOPTING 62 , 65 FINDINGS AND RECOMMENDATIONS; granting 55 Motion for Summary Judgment, denying 60 Motion for Preliminary Injunction. Any appeal of this decision would not be taken in good faith. Signed by Judge Brian Morris on 8/2/2022. Transmitted electronically to prison for delivery to inmate. (TAG)

Case 6:21-cv-00016-BMM Document 68 Filed 08/02/22 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
HELENA DIVISION
MICHAEL DEAN ALBERT,
Plaintiff,

CV 21-16-H-BMM-KLD

vs.
PAUL REES, et al.,

ORDER ADOPTING MAGISTRATE
JUDGE’S FINDINGS AND
RECOMMENDATIONS

Defendants.

Plaintiff Michael Dean Albert (“Albert”) filed this action against the several
individual defendants under 42 U.S.C. § 1983, alleging deprivation of medical care
during his incarceration. (Doc. 2). Defendants Heidi Abbott, Alishia Jameson, Paul
Rees, Melissa Scharf, and Connie Winner moved for summary judgment on
August 11, 2022. (Doc. 55.) Albert moved for a temporary injunction on April 13,
2022, alleging difficulties accessing discovery provided by Defendants. (Doc. 60.)
Magistrate Judge DeSoto issued Findings and Recommendations on May 2,
2022. (Doc. 62.) Magistrate Judge DeSoto ordered Albert to respond to
Defendants’ Motion for Summary Judgment. Magistrate Judge DeSoto further
recommended that the Court deny Albert’s Motion for a Temporary Injunction.
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(Id.) Albert filed a single brief to serve as both his response to Defendants’ Motion
for Summary Judgment and an objection to Magistrate Judge DeSoto’s Findings
and Recommendations. (Doc. 63.) Magistrate Judge DeSoto subsequently issued a
second Findings and Recommendations in which she recommended granting
Defendants’ Motion for Summary Judgment. (Doc. 65.) Albert objected to
Magistrate Judge DeSoto’s Findings and Recommendations. (Doc. 66.)
The Court reviews de novo those Findings and Recommendations to which a
party timely objected. 28 U.S.C. § 636(b)(1). The Court reviews for clear error the
portions of the Findings and Recommendations to which the party did not
specifically object. McDonnell Douglas Corp. v. Commodore Bus. Mach., Inc.,
656 F.2d 1309, 1313 (9th Cir. 1981). Where a party’s objections constitute
perfunctory responses argued in an attempt to engage the district court in a
reargument of the same arguments set forth in the original response, however, the
Court will review the applicable portions of the findings and recommendations for
clear error. Rosling v. Kirkegard, 2014 WL 693315 *3 (D. Mont. Feb. 21, 2014)
(internal citations omitted).
Albert labeled his brief responding to Defendants’ Motion for Summary
Judgment as a “Motion Opposing Summary Judgment, Court’s Findings,
Recommendation and Order.” (Doc. 63.) Nowhere within his brief does he actually
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address, however, Magistrate Judge DeSoto’s arguments regarding his Motion for
a Temporary Injunction. See (Id.) Albert’s subsequent objection to Magistrate
Judge DeSoto’s recommendation that the Court should grant Defendants’ summary
judgment motion similarly fails to advance any new arguments. (Doc. 66.) Albert
objects generally to the outcome of Magistrate Judge DeSoto’s recommendation,
but he fails to raise any legal arguments. (Id.) The Court will not engage in
Albert’s attempt to reargue the same issues. The Court reviewed Magistrate Judge
DeSoto’s Findings and Recommendations for clear error. The Court finds no error.
Accordingly, IT IS ORDERED that:
1.

Magistrate Judge DeSoto’s Findings and Recommendations (Doc. 62;

Doc. 65) are ADOPTED IN FULL.
2.

Albert’s motion for a temporary injunction (Doc. 60) is DENIED.

3.

Defendants’ Motion for Summary Judgment (Doc. 55) is GRANTED.

4.

The Clerk of Court shall close this matter and enter judgment pursuant

to Rule 58 of the Federal Rules of Civil Procedure.
5.

The Clerk of Court shall have the docket reflect that the Court

certifies pursuant to Rule 24(a)(3)(A) of the Federal Rules of Appellate Procedure
that any appeal of this decision would not be taken in good faith.

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6.

At all times during the pendency of this action, Albert must

immediately advise the Court of any change of address and its effective date.
Failure to file a notice of change of address may result in the dismissal of the
action for failure to prosecute pursuant to Fed. R. Civ. P. 41(b).
DATED this 2nd day of August, 2022.

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