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Conner v. Kirkegard

United States District Court, D. Montana, Helena Division

February 12, 2018

WARDEN LEROY KIRKEGARD, et al., Defendants.


          Dana L. Christensen, Chief Judge

         United States Magistrate Judge John T. Johnston entered his Findings and Recommendations in this case on October 16, 2017, recommending Plaintiff Andrew David Conner's ("Conner") Complaint be dismissed because there is no genuine dispute of material fact and the Inner Perimeter Security ("IPS") Defendants did not use excessive force on January 30, 2015. (Doc. 77.) Judge Johnston further recommended Defendants' Motions for Summary Judgment be granted. (Docs. 64, 66.) Conner timely filed an objection to the Findings and Recommendations. (Doc. 80.) Thus, Conner is entitled to a de novo review of those findings and recommendations to which he has "properly objected to." Fed.R.Civ.P. 72(b)(3); see also 28 U.S.C. § 636(b)(1)(C).

         The portions of the findings and recommendations not specifically objected to will be reviewed for clear error. 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." McMillan v. United States, 112 F.3d 1040, 1044 (9th Cir. 1997) (citations omitted).

         "A party makes a proper objection by identifying the parts of the magistrate's disposition that the party finds objectionable and presenting legal argument and supporting authority, such that the district court is able to identify the issues and the reasons supporting a contrary result." Montana Shooting Sports Ass 'n v. Holder, 2010 WL 4102940, at *2 (D. Mont. Oct 18, 2010). "It is not sufficient for the objecting party to merely restate arguments made before the magistrate or to incorporate those arguments by reference." Id. Congress created magistrate judges to provide district judges "additional assistance in dealing with a caseload that was increasing far more rapidly than the number of judgeships." Thomas, 474 U.S. at 153.

         There is no benefit to the judiciary "if the district court[] is required to review the entire matter de novo because the objecting party merely repeats the arguments rejected by the magistrate. In such situations, this Court follows other courts that have overruled the objections without analysis." Hagberg v. Astrue, 2009 WL 3386595, at *1 (D. Mont. Oct. 14, 2009). In short, an objection to a magistrate's findings and recommendations "is not a vehicle for the losing party to relitigate its case." Id.

         The Court finds that Conner's objections generally attempt to rehash arguments already raised in Conner's Amended Complaint. However, the Court will analyze Conner's remaining objections under a de novo review. For the reasons explained below, the Court adopts Judge Johnston's Findings and Recommendations in full.


         Conner is an inmate at the Montana State Prison ("MSP"). Conner filed a Complaint pursuant to 42 U.S.C. § 1983 against Defendants Leroy Kirkegard, Thomas Wood, Robert Shaw, Toni Barclay, Dawn Phillpott, Daniel Fossness, Garrett Kent, Joshua Sweeney, Mitchell Cales, and Samuel Short alleging Defendants used excessive force when they utilized OC spray during a cell extraction even though Conner has asthma. (Doc. 2.) Defendants filed motions for summary judgment arguing there are no genuine issues of material fact regarding Conner's allegations and that they are entitled to judgment as a matter of law. (Docs. 64, 66.) On August 4, 2017, the Court notified Conner of the requirements for opposing a motion brought pursuant to Rule 56 of the Federal Rules of Civil Procedure. (Docs. 69; 70.) Conner responded on September 21, 2017, arguing that Defendants violated his constitutional rights by utilizing OC spray during his cell extraction. (Doc. 73.) Judge Johnston entered Findings and Recommendations on October 16, 2017, recommending that Defendants' Motions for Summary Judgment be granted. (Doc. 77.)

         Conner filed objections to Judge Johnston's Findings and Recommendations on November 6, 2017. (Doc. 80.) Conner submitted nine objections, arguing that: (1) his mental health issues were not acknowledged; (2) it was deliberately indifferent for the IPS Defendants to apply OC spray to him due to his mental illness; (3) the IPS Defendants threatened to harm him on the way to locked housing; (4) he is unknowledgeable of the law and therefore cannot properly raise triable issues; (5) he has asked for counsel on several occasions due to being unknowledgeable of the law; (6) he asserts he complied with the IPS Defendants' orders to "cuff up" before they pepper sprayed him; (7) Defendants had access to his mental and medical files at any given time; (8) the IPS Defendants would have had knowledge of his asthma had IPS followed policy and procedure and called medical to clear him; and (9) MSP Registered Nurse Bruce Squires admitted he did not recall any call to clear him for use of OC spray. (Id.)

         Defendants filed a Reply to Conner's objections, arguing that: (1) Conner did not comply with the Federal Rules of Criminal Procedure and the District of Montana Local Rules in filing his objections because he did not cite to the magistrate's findings and recommendations to which he objects, did not arrange to transcribe any of the record, did not identify the record evidence he relies on to contradict each finding to which he objects, and did not set forth the authority he relies on to contradict each recommendation; and (2) Conner's objections are without merit as Conner has cited no evidence contradicting Judge Johnston's legal findings. (Doc. 81.)


         Summary judgment is appropriate when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). Under summary judgment, "[t]he moving party initially bears the burden of proving the absence of a genuine issue of material fact." In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477U.S. 317, 323 (1986)). Summary judgment should be entered, "after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 744 U.S. at 322. If the party moving for summary judgment meets its initial responsibility, the burden shifts to the nonmovant to demonstrate the existence of a factual dispute, that the fact in contention is material, and that the dispute is genuine. Id. at 323-24.

         To demonstrate the existence of a factual dispute, the opposing party may not rely upon the allegations or denials of its pleadings, but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. See Fed. R. Civ. P. 56(c)(1); Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 n. 11 (1986). The nonmoving party need not establish a material issue of fact conclusively in its favor. First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288 (1968). However, the nonmoving party must "come forward with specific facts showing that there is a genuine issue for trial. " Matsushita, 475 U.S. at 586 (internal citation omitted); accord Fed. R. Civ. P. 56(c)(1). "In evaluating the evidence to determine whether there is a genuine issue of fact, " the court draws "all inferences supported by the evidence in favor of the non-moving party." Walls v. Cent. Costa Cnty. Transit Auth, 653 F.3d 963, 966 (9th Cir. 2011). Finally, to demonstrate a genuine issue, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586 (citations omitted).

         A party who wishes to object to the magistrate judge's findings and recommendations may serve and file specific written objections. Fed. R. Crim. P 59(b)(2). "Unless the district judge directs otherwise, the objecting party must promptly arrange for transcribing the record, or whatever portions of it the parties agree to or the magistrate judge considers sufficient. Failure to object in accordance with this rule waives a party's right to review." Id. The District of Montana ...

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