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Warner v. Curry

United States District Court, D. Montana, Missoula Division

June 1, 2018

DANNY LEE WARNER, Plaintiff,
v.
CHUCK CURRY, JENNIFER ROOT, JAMES DUSING, TAMMY BOWEN, SGT. SCHUELEN, and CBM MANAGED SERVICES, Defendants.

          ORDER

          DANA L. CHRISTENSEN, CHIEF JUDGE UNITED STATES DISTRICT COURT.

         United States Magistrate Judge Jeremiah C. Lynch entered four Findings and Recommendations in this case on February 7, 2018 (Doc. 12), March 23, 2018 (Doc. 19), April 17, 2018 (Doc. 28), and May 1, 2018 (Doc. 36) recommending that certain claims be dismissed for failure to state a claim, that Warner's Request for Entry of Judgment (Doc. 27) and Motion for Default Judgment (Doc. 26) be denied, and that Warner's Emergency Motion for TRO, Injunction and Order to Show Cause (Doc. 31) be denied. Plaintiff Danny Lee Warner ("Warner") failed to timely object to all four of Judge Lynch's findings and recommendations, and so waived the right to de novo review of the record. 28 U.S.C. § 636(b)(1). The Court will therefore review the record for clear error. McDonnell Douglas Corp. v. Commodore Bus. Mack, Inc., 656 F.2d 1309, 1313 (9th Cir. 1981).

         The Court has reviewed the record in this case and has identified the following sequence of events related to Judge Lynch's Findings and Recommendations. Judge Lynch first recommended on February 7, 2018, that the following claims pled by Warner should be dismissed:

1. Warner's medical care claims regarding his hip, neck, and back injuries and associated pain to the extent those claims are pled against Bowen, Root, and Curry;
2. Warner's claims regarding his "punitive isolation" to the extent the claims are pled against Curry; and
3. Warner's claims regarding searches, shakedowns, seizures, and confiscation of his "legal materials."

(Doc. 12 at 25.) Judge Lynch afforded Warner the opportunity to amend his complaint and cure the deficiencies related to the following claims:

1. Warner's medical care claims regarding his eye treatment to the extent those claims are pied against Dusing, Bowen, Root, and Curry;
2. Warner's claims alleging his right of access to the courts was violated by unspecified acts or omissions of unspecified Defendants;
3. Warner's claims alleging he was deprived of his mail and publications by unspecified acts or omissions of unspecified Defendants.

(Doc. 12 at 26-27.) Judge Lynch further explained that in the event Warner did not file amended complaint by March 7, 2018, that the claims would be dismissed. Judge Lynch also identified the following viable claims and ordered certain Defendants to file a response:

1. Defendant Dusing shall respond to Warner's medical care claims regarding his hip, neck, and back injuries and associated pain;
2. Defendants CBM Managed Services, Root and Curry shall respond to Warner's claims alleging they violated his right to adequate nutrition to maintain health; and
3. Defendants Schuelen and Root shall respond to Warner's claims alleging they imposed "punitive isolation" ...

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