United States District Court, D. Montana, Helena Division
L. CHRISTENSEN, CHIEF JUDGE UNITED STATES DISTRICT COURT
January 26, 2018 Magistrate Judge John T. Johnston entered
his Findings and Recommendations, recommending that all of
Plaintiff Richard Junious Hill's ("Hill")
claims be dismissed for failure to state a claim upon which
relief may be granted. (Doc. 13.) Hill timely objected (Doc.
15) and then filed a Formal Request for Production Court
Mandate (Doc. 16). Hill's objection entitles him to de
novo review of those findings to which he specifically
objects. 28 U.S.C. § 636(b)(1)(C). The Court reviews for
clear error those findings and recommendations to which no
party objects. United States v. Reyna-Tapia, 328
F.3d 1114, 1121 (9th Cir. 2003); Thomas v. Am, 474
U.S. 140, 150 (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).
Notwithstanding 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 [complaint], 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 Findings and
Recommendations it will only be restated here as necessary to
understand the Court's order. For the reasons stated
below, the Court adopts Judge Johnston's recommendations
Under 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. 319, 325 (1989). 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 dismissing Hill's claim of excessive
use of force under the Eighth Amendment, finding that Hill
alleged nothing more than negligence. (Doc. 13 at 4.) Hill
objects and provides greater factual development for the
the standard required by the Eighth Amendment, a prisoner
must show that a government employee used force
"maliciously and sadistically" with the purpose to
cause harm. Hudson v. McMillian, 503 U.S. 1, 6
Hill alleges that Officer Rowling "deliberately
disregarded plaintiffs (sic) safety and security" by
violating prison protocol which requires a guard to monitor
the unit control cages. Hill opines that anyone who leaves
their post in order to "grab a cup of coffee or a
donut" violates the attentiveness required by the prison
staff. He alleges that Officer Rowling's actions must
amount to intentional acts designed to cause harm because
"the officer was not even at the control panel when
[Hill] was attempting to get her attention to open the door
so he could get loose." (Doc. 15 at 10.)
argument alleges the factual basis for a classic negligence
claim. While the Court is sympathetic to Hill's continued
pain resulting from the incident, Hill has alleged no facts
indicating "force ... applied maliciously and
sadistically for the purpose of causing harm."
Hudson, 503 U.S. at 6.
reviewed the allegations de novo, the Court adopts Judge
Johnston's recommendation and will dismiss this claim.
Deliberate Indifference to Safety
Johnston recommended dismissing Hill's complaint that
prison officials were deliberately indifferent to his safety
when they placed him in the top bunk. As Judge Johnston
points out, Hill has not attributed the allegedly indifferent
act to any single person. Because Hill does not object, the
Court will review for clear error. Finding none, the Court
affirms Judge Johnston's recommendation to dismiss.