Lewis v. Extradition Transport of America
Filing
11
ORDER ADOPTING 10 FINDINGS AND RECOMMENDATIONS in full; denying 3 Motion for Summary Judgment. Signed by Judge Donald W. Molloy on 9/25/2013. Mailed to Lewis. (TAG, )
FILED
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
STANFORD ALLEN LEWIS, JR.,
SEP 2 5 2013
Clerk, u.s. District Court
District Of Montana
Missoula
CV 13-138-M-DWM-JCL
Plaintiff,
ORDER
vs.
EXTRADITION TRANSPORT OF
AMERICA,
Defendant.
This matter comes before the Court on a Motion for Summary Judgment
filed by Plaintiff Stanford Allen Lewis, Jr. Mr. Lewis asserts a claim under 42
U.S.C. § 1983, alleging that Defendant Extradition Transport of America
unlawfully deprived him of his constitutional rights under the Eighth and
Fourteenth Amendments. United States Magistrate Judge Jeremiah C. Lynch
entered Findings and a Recommendation on Mr. Lewis' Motion on July 31,2013.
Pursuant to 28 U.S.C. § 636(b)(1), objections to the Findings and
Recommendation entered by Judge Lynch were due by August 19,2013. No
objections were filed.
The Court reviews the findings and recommendation of a United States
Magistrate Judge for clear error. McDonnell Douglas Corp. v. Commodore Bus.
Mach., Inc., 656 F.2d 1309, 1313 (9th Cir. 1981). Clear error is present only 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).
After a review of Judge Lynch's Findings and Recommendation, I find no
clear error. While Mr. Lewis' allegations are similar to those raised in Avery v.
Extradition Transport ofAmerica, Civil Cause No. 11-153-M-DWM, Mr. Lewis'
Motion is premature. The Court ordered entry ofjudgment in favor of Avery and
against Extradition Transport in that matter because Extradition Transport did not
respond to Avery's complaint. In this case, the deadline for Defendant's
appearance has not yet passed. "Although [Rule 56] allows a motion for summary
judgment to be filed at the commencement of an action, in many cases the motion
will be premature until the nonmovant has had time to file a responsive pleading
or other pretrial proceedings have been had." Fed. R. Civ. P. 56(b) advisory
comm. nn. (2010).
Based on the foregoing, IT IS ORDERED that Judge Lynch's Findings and
Recommendations (doc. 10) are ADOPTED IN FULL. Mr. Lewis' Motion (doc.
3) is DENIED.
II
II
II
DATED this J.'(:!"day of September, 2013.
Hoy, District Judge
istrict Court
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