Poulson v. Attorney General of the State of Montana et al

Filing 30

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 14 in full. Defendants Ken Park, Kalispell Police Department, Judge Lympus, Nick Aemisegger, the Montana Attorney General Tim Fox, Pathways, Kalispell Regional Medical Center, and Sgt. Larry Posha, and all claims against these Defendants, are DISMISSED. Signed by Judge Dana L. Christensen on 10/13/2015. Mailed to Poulson. (TAG, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
CV

KERMIT POULSON,

FILED
OCT 13 2015

Clerk, U.S District Court
District Of Montana
14-185-M-DLC-JCL Missoula

Plaintiff,
ORDER

vs.
ATTORNEY GENERAL ofthe STATE
OF MONTANA, KEN PARK,
KALISPELL POLICE DEPARTMENT,
TED LYMPUS, NICK AEMISEGGER,
and SGT. RICHTER,
Defendants.

United States Magistrate Judge Jeremiah C. Lynch entered his Findings and
Recommendations in this case on April24, 2015, recommending Defendants Ken
Park, Kalispell Police Department, Judge Lympus, Nick Aemisegger, the Montana
Attorney General Tim Fox, Pathways, Kalispell Regional Medical Center, and Sgt.
Larry Posha, and all claims against them, be dismissed. Poulson timely objected
to the Findings and Recommendations and so the Court will conduct de novo
review ofthe record. 28 U.S.C. § 636(b)(l). The portions ofthe Findings and
Recommendations not specifically objected to will be reviewed 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
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conviction that a mistake has been committed." United States v. Syrax, 235 F.3d
422, 427 (9th Cir. 2000). Since the parties are familiar with the facts of this case,
they will only be repeated below as necessary to explain the Court's order. For the
reasons listed below, the Court adopts Judge Lynch's Findings and
Recommendations in full.
Plaintiff objects to Judge Lynch's findings and requests issuance of a
subpoena of Gabe Skibsrud, who Plaintiff alleges is engaged in criminal activity.
Plaintiff appears to wish to subpoena Skibsrud in order to challenge his underlying
arrest. His conviction was based on this arrest and has not been invalidated. As
such, Poulson's claims regarding his arrest and subsequent conviction are barred
by the doctrine set forth inHeckv. Humphrey, 512 U.S. 477 (1994).
Plaintiff also appears to object to Judge Lynch's recommendation that the
claims against all Defendants, except Sgt. Richter, be dismissed. He reiterates his
allegations of mis-treatment at Missoula Sanction and Assessment Center, naming
Mark Johnson, Captain Kowalski, Paul Sells, Sgt. Richter, and other medical staff
as the responsible parties. This is the first mention of these persons, who are not
listed as defendants in this case. It appears that Plaintiff seeks to amend his
amended complaint to add defendants. Plaintiff has repeatedly failed to cure
deficiencies after numerous supplements and an amended complaint. Further, his
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claims against all defendants, except Sgt. Richter, are dismissed and therefore
further amendment would be futile. Foman v. Davis, 371 U.S. 178 (1962);
Sharkey v. O'Neal, 778 F.3d 767 (9th Cir. 20015); Nunes v. Ashcroft, 348 F.3d
815 (9th Cir. 2003).
There being no clear error in Judge Lynch's remaining Findings and
Recommendations,
IT IS ORDERED that Judge Lynch's Findings and Recommendations (Doc.
14) are ADOPTED IN FULL.
IT IS FURTHER ORDERED that Defendants Ken Park, Kalispell Police
Department, Judge Lympus, Nick Aemisegger, the Montana Attorney General Tim
Fox, Pathways, Kalispell Regional Medical Center, and Sgt. Larry Posha, and all
claims against these Defendants, are DISMISSED.
DATED this

J2~day ofOctober,

015.

Dana L. Christensen, Chief Judge
United States District Court

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