United States District Court, D. Montana, Helena Division
L. CHRISTENSEN, CHIEF JUDGE UNITED STATES DISTRICT COURT
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.
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).
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)
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.
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.
Motions to Strike
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.
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
Motions for Injunctive Relief
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.