United States District Court, D. Montana, Helena Division
L. CHRISTENSEN, CHIEF JUDGE.
States Magistrate Judge John T. Johnston entered Findings and
Recommendations in this case on October 11, 2017,
recommending that this matter be dismissed. Plaintiff Paul
Hartson Fletcher ("Fletcher") filed a timely
objection to the Findings and Recommendations, 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. Mack,
Inc., 656 F.2d 1309, 1313 (9th Cir. 1981); Thomas v.
Am, 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
Johnston concluded, and this Court agrees, that dismissal is
appropriate because Fletcher has failed to produce expert
testimony as required under Montana law regarding his claims
of medical malpractice and lack of informed consent. In his
first objection, Fletcher states his disagreement with Judge
Johnston's findings, believes Judge Johnston's
opinions are "tainted, biased, and prejudicial, "
and contends that he is at a grave disadvantage in
prosecuting his case because he is incarcerated and is
without representation. (Doc. 41 at 2-3.) Defendant United
States of America filed a response to Fletcher's
objection. (Doc. 42.) Defendant contends that Judge
Johnston's Findings and Recommendations should be adopted
in full because it is supported by the record and the law,
and that Fletcher's motions for appointment of counsel
were properly denied. Fletcher filed his second objection on
November 13, 2017, and claims that he understands it is his
burden to produce an expert witness but that he is unable to
do so because of his incarceration and pro se status. (Doc.
43 at 1.) He also asserts that the photo attached to his
objection makes plain the fact that his surgeon, Dr. Katie J.
Kovacich-Smith was negligent.
Fletcher has failed to comply with Local Rule 72.3. He does
not identify the specific factual findings of Judge Johnston
to which he objects, nor does he set forth the proper
authority to contradict Judge Johnston's recommendation.
His objections are nothing more than general statements that
he disagrees with Judge Johnston's conclusions.
Regardless of his noncompliance with Rule 72.3,
Fletcher's claims fail on the merits. He failed to submit
any expert witness testimony to support his claims of
malpractice regarding the standard of care for podiatrists
and whether that standard has been breached. Even though it
was not the Defendant's burden to produce such expert
testimony, the United States provided expert testimony
regarding the standard of care for podiatrists and that no
violation of the standard of care occurred here. (Doc. 31-3.)
Thus, Judge Johnston correctly concluded based on this expert
testimony that Dr. Kovacich-Smith did not violate the
standard of care.
second objection rehashes his res ipsa loquitur
argument. He contends that the photo depicting his injury and
infection post-surgery (marked as Exhibit 100B) indicates
that his doctor was negligent and breached the standard of
care. However, this Court agrees with Judge Johnston's
conclusion that under Montana law, res ipsa loquitur
may not be used to replace the Plaintiffs burden to provide
expert testimony regarding the standard of care and breach in
a malpractice case. Estate of Nielsen v. P cordis,
878 P.2d 234, 236 (Mont. 1994) (citing Dalton v.
Kalispell Reg. Hospital, 846 P.2d 960, 963 (Mont.
1993)). Judge Johnston also properly denied Fletcher's
motions for appointment of counsel. Fletcher objects to this
finding. (Doc. 41 at 3.) However, Fletcher does not provide
any additional reasons for the appointment of counsel. Thus,
he has not met his burden to prove that "exceptional
circumstances" exist in this case or that he is likely
to succeed on the merits. Terrell v. Brewer, 935
F.2d 1015, 1017 (9th Cir. 1991).
Fletcher contends the Judge Johnston is biased because he
erroneously reviewed the notes from Dr. Harkless, who made a
reference to Fletcher's felony sex offense in the
"social history" portion of his expert report.
However, Judge Johnston makes no mention of Dr. Harkless in
his Findings and Recommendations, but instead relies on Dr.
Ericksen's expert report which identifies Fletcher's
post-operative smoking and alcohol abuse as factors that
directly impacted the healing process following surgery.
Thus, there is no indication that Judge Johnston was biased
whatsoever in relation to Fletcher's prior felony sex
offense when he issued his Order in this case.
IT IS ORDERED that Judge Johnston's Findings and
Recommendations (Doc. 40) are ADOPTED IN FULL. This case is
FURTHER ORDERED that the Clerk of Court is directed to close
the case and enter judgment in favor of Defendant pursuant to
Rule 58 of the Federal Rules of Civil Procedure.
FURTHER ORDERED that the Clerk of Court is directed to have
the docket reflect that the Court certifies pursuant to Rule
24(a)(3)(A) of the Federal Rules of Appellate Procedure that
any appeal of this decision would not be taken in good faith.
No reasonable person could suppose an appeal would have
 Fletcher filed two objections to the
Findings and Recommendations. (Docs. ...