IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA BUTTE DIVISION

DUSTIN COLBY MILSTID, CV-21-81-BU-BMM-JTJ

Plaintiff, ORDER vs.

MARK JOHNSON, JAMIE TREGARD, and BUTTE SILVER BOW COUNTY DETENTION CENTER,

Defendants. United States Magistrate Judge John Johnston entered his Findings and Recommendations in this case on October 28, 2021. (Doc. 5). Judge Johnston recommended that this matter should be DISMISSED; that the Clerk of Court should be directed to close this matter and enter judgment pursuant to Rule 58 of the Federal Rules of Civil Procedure; that Plaintiff’s filing of this action should count as one strike against him, pursuant to

(e)(2)(B)(ii); and that the Clerk of Court should have the docket reflect that the Court certifies pursuant to Rule 24(a)(3)(A) of the Federal Rules of Appellate Procedure that any appeal of this decision would not be taken in good faith.

. Dustin Colby Milstid (“Milstid”) filed an objection to the Findings and Recommendations. (Docs. 5 & 7). The Court reviews de novo those findings and recommendations to which an objection is made.

(b)(1)(C). Where a party’s objections constitute perfunctory responses argued in an attempt to engage the district court in a re-litigation of the same arguments set forth in the

complaint, however, the Court reviews for clear error the applicable portions of the findings and recommendations. Rosling v. Kirkegard,

, at *3 (D. Mont. Feb. 21, 2014) (internal citations omitted). The Court also reviews for clear

error the portion of the Findings and Recommendations to which the party did not specifically object. McDonnell Douglas Corp. v. Commodore Bus. Mach., Inc.,

(9th Cir. 1981). The Court reviewed Judge Johnston’s Findings and Recommendations and adopts them in full for the reasons discussed

below. BACKGROUND Milstid, a pretrial detainee at Butte-Silver Bow Detention Center (BSBDC), filed a pro se complaint on the U.S. District Court form for prisoner civil rights

complaints pursuant to

alleging that Jamie Tregard, a female correctional officer, violated the Prison Rape Elimination Act (PREA) by having another inmate remove his pants in front of her and other inmates, including Milstid. (Doc. 2 at 5). Milstid also alleged that his constitutional rights were

violated because the grievances he filed with BSBDC did not produce the results that he desired.

. Milstid named Tregard, BSBDC, and BSBDC Commander Mark Johnson as defendants in this action.

. ANALYSIS

Judge Johnston began his analysis by explaining how the Prison Rape Elimination Act includes no private right of action for enforcement. (Doc. 5 at 6). Milstid did not challenge this finding. (Doc. 7). Milstid instead repeated the claim

he that made in his Complaint (Doc. 2 at 5) that Tregard had abused her power as a correctional officer by forcing an inmate to remove his pants in the presence of Milstid and other inmates and that this behavior violated the PREA. (Doc. 7 at 1- 2). Nowhere in the objection (Doc. 7) did Milstid address the issue of whether he,

as a witness to Tregard’s alleged behavior, has a private right of action under the PREA. Therefore, the Court reviews this question for clear error. Rosling, 2014 WL at *3.

Judge Johnston addressed whether Milstid’s constitutional rights had been violated in Defendant’s resolution of Milstid’s grievances. (Doc. 5 at 6-7). Judge Johnston explained in his findings that a constitutional right to file a grievance with

correctional officials exists, but that no constitutional right exists to have a grievance resolved a particular way or in a particular manner.

Milstid merely restated in his objection his problems with the way Defendants had handled his

grievances and made conclusory statements about how his constitutional rights had been violated. (Doc. 7 at 4-6). Therefore, the standard of review for this Court is clear error. Rosling, 2014 WL at *3. This Court determines that Judge Johnston made no clear error in his findings regarding this issue.

Furthermore, Judge Johnston explained how BSBDC could not be a defendant in this action because BSBDC is a building rather than a government

entity. (Doc. 5 at 7-8). Milstid noted in his objection that he meant to include the Sherriff’s Office that runs BSBDC as a defendant in this case rather than BSBDC itself. (Doc. 7 at 7). Milstid raises no objection to anything about the substance of Judge Johnston’s finding that BSDBC is a building and, therefore, cannot be a

party to this action. Judge Johnston concluded that Mark Johnson could not be a defendant in this

action. (Doc. 5 at 8-10). Both Judge Johnston’s Findings and Recommendations and Milstid’s objection cited Starr v. Baca,

(9th Cir. 2011), as the controlling authority governing when a supervising correctional officer can be held liable for constitutional violations carried out by a subordinate. (Docs. 5 at 8 & 7 at

7). A supervisor can be held liable for constitutional violations carried out by a subordinate only if they are either personally involved in the deprivation or there exists a causal connection between wrongful conduct done by the supervisor and

the constitutional violation. Starr

. Milstid claimed in his objection that a causal connection existed between Johnson and Tregard’s alleged conduct. (Doc. 7 at 7). For there to be a causal

connection, the supervisor must have had prior knowledge of unconstitutional conduct committed by subordinates. Howell v. Earl,

(D. Mont. 2014) (citing Starr,

). Milstid provided no facts in his objection

indicating that Johnson knew about Tregard’s alleged acts. (Doc. 7). Judge Johnston correctly determined that Johnson cannot be a defendant in this matter. Additionally, Milstid claimed that he suffered mental anguish as a result of

Tregard’s alleged conduct in the original complaint (Doc. 2 at 7) and objected to Judge Johnston’s finding that Milstid did not allege any sort of harm to himself in the complaint that sufficed as an injury. (Docs. 5 at 6 & 7 at 3). This Court adopts

Judge Johnston’s finding that Milstid did not allege an injury. IT IS THUS ORDERED that Judge Johnston’s Findings and Recommendations (Doc. 5) are ADOPTED IN FULL.

1. This matter is DISMISSED for failure to state a federal claim. 2. The Clerk of Court is directed to close this matter and enter judgement

pursuant to Rule 58 of the Federal Rules of Civil Procedure. Pursuant to

(e)(2)(B)(ii), Milstid’s filing of this action counts as one strike against him. 3. The Clerk of Court is directed to have the docket reflect that the Court certifies pursuant to Rule 24(a)(3)(A) of the Federal Rules of Appellate Procedure that any appeal of this decision would not be taken in good faith. The record makes plain the instant Complaint is frivolous as it lacks arguable substance in law or fact.

DATED this 19th day of January, 2022.

“) ( A wa / if 4

Brian Morris, Chief District Judge United States District Court