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Lowry v. Reginald

United States District Court, D. Montana, Helena Division

July 19, 2019

BOBBY FRANCIS LOWRY, Plaintiff,
v.
MICHAEL D. REGINALD, MONTANA DEPARTMENT OF CORRECTIONS, UNKNOWN OWNERS OF MONTANA BASED PRE-RELEASE CENTERS, Defendants.

          ORDER AND FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

          John Johnston United States Magistrate Judge.

         Plaintiff Bobby Lowry, a prisoner proceeding without counsel, filed a Complaint alleging he has been denied entry into pre release programs based upon his hearing disability. The Court has considered whether Mr. Lowry's 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 Mr. Lowry has a reasonable opportunity to prevail on the merits. See 42 U.S.C. § 1997e(g). Dismissal is not appropriate at this time. The Court finds that Mr. Lowry's allegations “are sufficient to warrant ordering [defendants] to file an answer.” Wilhelm v. Rotman, 680 F.3d 1113, 1116 (9th Cir. 2012). Defendant Reginald Michael, as Director of the Montana Department of Corrections will be required to respond to the Complaint.[1] 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).

         The Montana Department of Corrections, however, should be dismissed. The Eleventh Amendment bars suit in federal court against a state and/or state agencies absent a valid abrogation of immunity by Congress or an express waiver of immunity by the State. 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). The State of Montana has waived immunity only for tort claims brought in state court. Mont. Code Ann. § 2-9-101 et seq. As an agency of the State of Montana, the Montana Department of Corrections is entitled to Eleventh Amendment immunity and should be dismissed.

         As Mr. Lowry has not specifically identified the “unknown owners of Montana based pre-release centers”, the Court is unable to serve those Defendants. Should Mr. Lowry discover the names of these Defendants through discovery, he may seek to amend his Complaint within the amended pleadings deadline.

         Based on the foregoing, the Court issues the following:

         ORDER

         1. Pursuant to Fed.R.Civ.P. 4(d), the Court will request Director Michael to waive service of summons of the 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 Director Michael chooses to return the Waiver of Service of Summons, his 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 e-mail the following document to Legal Counsel for the Montana Department of Corrections:

* the Complaint (Doc. 2);
* this Order;
* a Notice of Lawsuit & Request to Waive Service of Summons; and
* a Waiver of Service of Summons.

         Counsel for the Montana Department of Corrections will not be served with a hard copy of these documents.

         3. Any party's request that the Court grant relief, make a ruling, or take an action of any kind must be made in the form of a motion, with an appropriate caption designating the name of the motion, served on all parties to the litigation, pursuant to Federal Rules of Civil Procedure 7, 10, and 11. If a party wishes to give the Court information, such information must be presented ...


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