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Wick v. Missoula County

United States District Court, D. Montana, Missoula Division

June 4, 2018

RANDY BRYANT WICK, Plaintiff,
v.
MISSOULA COUNTY, et al., Defendants.

          ORDER AND FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

          Jeremiah C. Lynch United States Magistrate Judge

         Plaintiff Randy Wick filed an Amended Complaint pursuant to 42 U.S.C. § 1983 claiming his Fifth, Eighth, and Fourteenth Amendment rights were violated when he was allegedly denied medical care during the course of his arrest on September 13, 2015. (Doc. 8.) The Court has considered whether Wick's Amended Complaint is frivolous, malicious, fails to state a claim, or seeks solely monetary relief from a defendant who is immune. See 28 U.S.C. §§ 1915(e)(2), 1915A(b). It has also considered whether Wick has a reasonable opportunity to prevail on the merits. See 42 U.S.C. § 1997e(g). Dismissal is not appropriate at this time. Defendants Stevenson, Parcell and Burmen will be required to respond to the Amended Complaint. See 42 U.S.C. § 1997e(g)(2) (while Defendants may occasionally be permitted to "waive the right to reply to any action brought by a prisoner confined in any jail, prison, or other correctional facility under section 1983," once the Court has conducted its sua sponte screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b), and thus, has made a preliminary determination based on the face on the pleading alone that plaintiff has a "reasonable opportunity to prevail on the merits," Defendant is required to respond).

         Wick names Missoula County/Sheriff McDermott, the State of Montana, and the Governor of the State of Montana as Defendants in his Amended Complaint but makes no specific allegations against these Defendants. As such, these Defendants should be dismissed. In addition, the State of Montana has Eleventh Amendment immunity from suit in federal court and must be dismissed. Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261, 267-268 (1997); Edelman v. Jordan, 415 U.S. 651, 653 (1974); Puerto Rico Aqueduct & Sewer Authority v. Metcalf & Eddy, Inc., 506 U.S. 139, 144 (1993).

         Further, as Wick was advised in the Court's prior Order, the amended complaint replaces the original complaint, and the original complaint no longer serves a function in the case. Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Wick did not name Mark Kittleson as a Defendant in his Amended Complaint. Therefore, Mark Kittleson will also be recommended for dismissal.

         Based on the foregoing, the Court issues the following:

         ORDER

         1. Pursuant to Fed.R.Civ.P. 4(d), the Court will request Defendants Stevenson, Parcell, and Burmen to waive service of summons of the Amended Complaint by executing, or having counsel execute, the Waiver of Service of Summons. The Waiver must be returned to the Court within 30 days of the entry date of this Order as reflected on the Notice of Electronic Filing. If these Defendants choose to return the Waiver of Service of Summons, their answer or appropriate motion will be due within 60 days of the entry date of this Order as reflected on the Notice of Electronic Filing, pursuant to Fed.R.Civ.P. 12(a)(1)(B). See also 42 U.S.C. § 1997e(g)(2).

         2. The Clerk of Court shall mail the following documents to: Krystal Stevenson, 1801 Stephens Avenue, Missoula MT 59801; Deputy Parcell, 200 West Broadway, Missoula, MT 59802; and State Trooper Burmen, 2550 Prospect Avenue, Helena, MT 59620:

* Complaint (Doc. 1);
* March 8, 2018 Order (Doc. 7);
* Amended Complaint (Doc. 8);
* this Order;
* a Notice of Lawsuit & Request to Waive Service of ...

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