United States District Court, D. Montana, Helena Division
L. Christensen, Chief Judge
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.
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).
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.
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."
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.
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.
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.)
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.)
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
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).
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 ...