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Ellison v. State

United States District Court, D. Montana, Helena Division

January 31, 2018

LIONEL SCOTT ELLISON, Plaintiff,
v.
STATE OF MONTANA WARDENS, et al., 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 ("F&R") entered on June 21, 2017 (Doc. 10), and December 15, 2017 (Doc. 40). Judge Johnston recommends that Ellison's First and Sixth Amendment claims regarding his legal mail go forward, as well as Ellison's First Amendment retaliation claim. Judge Johnston recommends dismissing Ellison's due process and access to the courts claims, dismissing certain Defendants, and dismissing Ellison's motions for injunctive relief. Ellison timely objected and is accordingly entitled to de novo review of those findings 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 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 detailed in Judge Johnston's F&Rs and the numerous filings before the Court, it will not be restated here.

         Ellison's objections fall into three categories: (1) objections that rehash similar arguments that Ellison has made throughout this litigation; (2) objections specifically directed towards Judge Johnston's F&Rs, and (3) objections that allege new facts related to claims and Defendants not contained in the initial Complaint.[1] Consequently, the Court will address Ellison's objections regarding Judge Johnston's legal analysis by de novo review, and will address all other objections for clear error.

         Legal Standard

         Under 28 U.S.C. § 1915, a court should dismiss a complaint filed in forma pauperis by a prisoner against a governmental defendant before it is served if it is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. A complaint is frivolous if it "lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 3 1 9, 325 (1 989). A complaint fails to state a claim upon which relief may be granted when it fails to allege the "grounds" entitling the plaintiff to relief. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).

         Rule 8(a)(2) requires a complaint to "contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). "A document filed pro se is to be liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotation marks omitted); see also Fed. R. Civ. P. 8(e) ("Pleadings must be construed as to do justice.").

         I. Legal Mail

         Judge Johnston recommended that Ellison had set forth sufficient facts to state both First and Sixth Amendment claims against Defendant Daniels for opening and removing vital documentation from his legal mail. (Doc. 10 at 9-11.) Although Ellison has alleged additional facts supporting his claim, the Court does not construe these as an objection. Therefore, reviewing for clear error, the Court finds none and adopts the recommendation.

         II. Retaliation

         Similarly, Judge Johnston recommended that Ellison's First Amendment retaliation claim go forward, finding that the threats and subsequent disciplinary consequences plausibly resulted from Ellison's exercise of his First Amendment rights. (Doc. 10 at 16.) Ellison does not object. Having reviewed for clear error and finding none, the Court adopts this recommendation.

         III. Due Process and ...


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