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Bearchild v. Cobban

United States District Court, D. Montana, Helena Division

April 18, 2017

DEWAYNE BEARCHILD, Plaintiff,
v.
KRISTY COBBAN, LARRY PASHA, SAM JOVANOVICH, DAN JOHNSON, BRUNO KRAUS, RON MCDONALD, Defendants.

          ORDER

          DANA L. CHRISTENSEN, CHIEF JUDGE UNITED STATES DISTRICT COURT

         Before the Court are United States Magistrate Judge John T. Johnston's Findings and Recommendations in this case entered on November 30, 2016, and January 18, 2017. (Docs. 190, 212.) Judge Johnston recommends the following: all motions to strike be denied; Plaintiff Dewayne Bearchild's ("Bearchild") motions for injunctive relief be denied; Bearchild's discovery motions be denied; all Defendants' motions for summary judgment be granted except for Defendant Larry Pasha ("Sergeant Pasha"); and Bearchild's requests for a protective order and court intervention be denied.

         Bearchild timely filed his objection with this Court on December 14, 2016, and February 3, 2017, and so is entitled to de novo review of those findings and recommendations to which he specifically objects. 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).

         Notwithstanding the above, "[w]here a petitioner's objections constitute perfunctory responses argued in an attempt to engage the district court in a rehashing of the same arguments set forth in the original habeas petition, the applicable portions of the findings and recommendations will be reviewed for clear error." Rosling v. Kirkegard, 2014 WL 693315 at *3 (D. Mont. Feb. 21, 2014) (citations omitted).

         DISCUSSION

         Because the parties are familiar with the factual and procedural background, which Judge Johnston detailed in his very thorough 54-page Findings and Recommendations, they will not be restated here.

         Bearchild's objections fall into two categories: (1) objections that rehash similar arguments that Bearchild has made throughout this litigation; and (2) objections specifically directed toward Judge Johnston's Findings and Recommendations. Consequently, the Court will address the objections Bearchild makes regarding Judge Johnston's legal analysis under de novo review, and then will review Bearchild's rehashed arguments under a clear error standard. Defendant Pasha also objected to Judge Johnston's legal analysis and the Court will review those objections under de novo review.

         I. Motions to Strike

         Judge Johnston recommended denial of all of the motions to strike (Docs. 122, 139, 142, 144, 146, 148, 176, 181) because the court considered all pleadings and evidence in its analysis. Sergeant Pasha takes issue with this ruling for two reasons: first, because the denial of the motion could be determinative of Bearchild's ability to use the subject exhibits and declarations in further hearings and motions; and second, because there was confusion in the docketing on CM/ECF that was not the fault of Defendant Pasha, and because the Local Rules of this Court do not permit sur-reply briefs without prior leave of court. The Court agrees that Defendant Pasha is entitled to the full benefit of the denial of the motions to strike without prejudice; thus, even though Judge Johnston considered all of the evidence in his findings and recommendations, Defendant Pasha may renew his motions to strike in any future hearings or motions.

         As to Sergeant Pasha's second argument, the Court finds that Plaintiff Bearchild's sur-reply briefs were filed in violation of the Local Rules. Thus, Defendants' motion to strike the sur-reply briefs (Doc. 139) should be granted. Under this district's L.R. 7.1(d)(1)(D), no further briefing after the reply brief is permitted without prior leave. The Court agrees with Sergeant Pasha that while there may have been a mishap regarding the document filing system at some point in time, the record is now clear that Defendants sought to strike all of Bearchild's sur-reply briefs. (See Docs. 139, 140.) The Court finds that because Bearchild did not seek leave of court to file his additional sur-reply briefs, and because these sur-reply briefs are entirely redundant of Bearchild's initial arguments, Documents 134, 135, 136, 137, and 138 will be stricken.

         II. Motions for Injunctive Relief

         The Court agrees with Judge Johnston that Bearchild's motions for injunctive relief (Docs. 159, 166, and 169) should be denied. No party objects to this finding and recommendation. Thus, reviewing for clear error, the Court finds none and these motions will be denied.

         III. Discovery Motions

         A. Defendants ...


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