Cole v. State of Montana et al
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 5 in full. Complaint is DISMISSED. Signed by Judge Dana L. Christensen on 5/30/2017. Mailed to Cole. (TAG)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
STATE OF MONTANA,
HON. KAREN TOWNSEND, and
United States Magistrate Judge Jeremiah C. Lynch entered his Order,
Findings and Recommendations on April 27, 2017, recommending that this action
be dismissed. Plaintiff Elizabeth Cole ("Cole") failed to timely object to the
Findings and Recommendations, and so waived her right to de novo review of the
record. 28 U.S.C. § 636(b )(1 )(C). This Court reviews for clear error those
findings and recommendations to which no party objects. See McDonnell Douglas
Corp. v. Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313 (9th Cir. 1981);
Thomas v. Arn, 474 U.S. 140, 149 (1985). 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). Because the
parties are familiar with the facts of this case, they will not be repeated here.
Having reviewed the Findings and Recommendations, the Court finds no
clear error in Judge Lynch's conclusion that this matter should be dismissed
because Cole's claims under 42 U.S.C. § 1983 fail as a matter of law. First, Cole
fails to plead any facts which would suggest that Defendant the State of Montana
violated her constitutional rights. Second, Defendant Jane Cowley was not acting
as a state actor when she obtained a restraining order against Cole and thus is not
subject to liability under§ 1983. Third, Cole's claims against Defendant Judge
Townsend also fail due to judicial immunity.
Accordingly, there being no clear error in Judge Lynch's Findings and
Recommendations, IT IS ORDERED that:
(1) Judge Lynch's Findings and Recommendations (Doc. 5) are ADOPTED
(2) Plaintiff Elizabeth Cole's Complaint is DISMISSED without leave to
Dated this ~O day ofMay, 2017.
Dana L. Christensen, Chief Judge
United States District Court
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