United States District Court, D. Montana, Helena Division
ORDER AND FINDINGS AND RECOMMENDATIONS OF UNITED
STATES MAGISTRATE JUDGE
Johnston United States Magistrate Judge.
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. 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
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
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
on the foregoing, the Court issues the following:
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).
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
* a Waiver of Service of Summons.
for the Montana Department of Corrections will not be served
with a hard copy of these documents.
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 ...