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
("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).
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).
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
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. 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.
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).
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.").
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.
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.
Due Process and ...