United States District Court, D. Montana, Helena Division
GARY L. QUIGG, Plaintiff,
CHRIS EVANS, et al., Defendants.
ORDER ADOPTING MAGISTRATE JUDGE'S FINDINGS
Morris United States District Court Judge
Gary Quigg, a prisoner proceeding without counsel, filed a
Complaint on September 17, 2019 (Doc. 2.) Quigg seeks
declaratory and injunctive relief. Because Quigg is a
prisoner proceeding in forma pauperis, Magistrate Judge John
Johnston was required to review Quigg's Complaint under
28 U.S.C. §§ 1915, 1915A. Sections 1915A(b) and
1915(e)(2)() require a complaint filed in forma pauperis to
be evaluated before it is served to determine whether 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.
Johnston issued Findings and Recommendations in this matter
on December 26, 2018. (Doc. 8.) Judge Johnston determined
that Quigg's Complaint failed to state a claim, and
accordingly recommended dismissal of Quigg's Complaint
(Doc. 8 at 26.) Judge Johnston further determined that the
Court should decline to exercise supplemental jurisdiction
over Quigg's remaining state law claims. Id.
filed an objection to Judge Johnston's Findings and
Recommendations on February 11, 2019. (Doc. 13.) The Court
reviews de novo findings and recommendations timely objected
to. 28 U.S.C. § 636(b)(1). The Court reviews for clear
error the portions of the findings and recommendations not
specifically objected to. McDonnell Douglas Corp. v.
Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313 (9th
Cir. 1981). “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) (citation omitted). Where a party's
objections constitute perfunctory responses argued in an
attempt to engage the district court in a reargument of the
same arguments set forth in the original response, however,
the Court will review the applicable portions of the findings
and recommendations for clear error. Rosling v.
Kirkegard, 2014 WL 693315 *3 (D. Mont. Feb. 21, 2014)
(internal citations omitted).
first objection relates to Judge Johnston's determination
that Quigg's claims challenging his parole revocation
proceedings are barred by res judicata because the Montana
Supreme Court has already decided the issues raised. Judge
Johnston determined that Quigg's Complaint constitutes an
attempt to raise the same issues that were raised in
Quigg's state habeas proceeding - whether Quigg's
constitutional rights were violated at the on-site hearing.
Quigg's objection asserts that he was not provided a full
and fair hearing in State Court. (Doc. 13 at 2.) Quigg's
argument is both an attempt to reargue this issue decided in
Montana State Court, and a reargument of Quigg's
Complaint. The Court will review Judge Johnston's
Findings and Recommendations, therefore, for clear error. The
Court finds no error in Judge Johnston's Findings and
Recommendations regarding res judicata.
Deprivation of Property
second objection relates to Judge Johnston's
determination that Quigg's Fourteenth Amendment rights
against depravation of property without due process. Judge
Johnston determined that Quigg possesses an adequate
post-deprivation remedy under the Montana Tort Claims Act
regarding his alleged depravation of his car and house keys.
(Doc. 8 at 21.) Quigg asserts that he filed a claim under the
Montana Tort Claims act but no formal decision has been made
on the merits. (Doc. 13 at 5.) Quigg fails to assert that he
was denied a remedy under the Montana Tort Claims Act. Quigg
further alleges that Officer Evans negligently or
intentionally took Quigg's property.
and intentional deprivation of property is actionable under
the Due Process Clause. Hudson v. Palmer, 468 U.S.
517, 532, n. 13 (1984) (citing Logan v. Zimmerman Brush
Co., 455 U.S. 422 (1982)). Quigg alleges that Officer
Evans negligently or intentionally took Quigg's property.
Qugg fails to assert a proper Due Process claim. Quigg's
objection to Judge Johnston's determination that Quigg
was denied his Fourteenth Amendment rights against property
deprivation must be overruled.
Use of the Phone
third objection relates to Judge Johnston's determination
that Quigg was not denied his right to free speech or access
to the courts. Quigg's Complaint asserts that he was
deprived his right to communicate with persons outside of the
jail through telephone and personal visits. Judge Johnston
determined that Quigg was not deprived of all means of
communication. Quigg's objection asserts that Officer
Evans instructed jail staff not to permit use of the phone or
allow any visitation. (Doc. 13 at 5.) Quigg further argues
that he had no writing materials or envelopes. Id.
Quigg contends that his requests for such materials were
denied. Quigg argues that he was denied outside
communications that could have enabled him to seek witnesses
and evidence for use at the on-site hearing. Id.
argument appears to be a reargument of his original
Complaint. Quigg's argument further fails to provide
legal argument or supporting authority sufficient to
adequately object to Judge Johnston's Findings and
Recommendations. The Court will therefore review Judge
Johnston's Findings and Recommendations for clear error
regarding Quigg's assertion of his First Amendment right.
The Court finds no clear error.