United States District Court, D. Montana. Great Falls Division
FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE TO DENY MOTION FOR SUMMARY JUDGMENT
JOHN JOHNSTON, Magistrate Judge.
Defendants have filed a Motion for Summary Judgment in which they argue that Plaintiff Anthony Dailey failed to exhaust his prison grievance remedies with regard to his failure to protect claims against Defendants Bryce, Miller, Trombley, and the Warden of Cascade County Correctional Facility. (Motion for Summary Judgment, Doc. 12.) Mr. Dailey opposes the motion, arguing that administrative remedies were not available to him because he was assaulted within the time for filing an emergency grievance. He also argues that, to the extent he failed to timely file a grievance, it was because of brain damage and feared retaliation. (Dailey's Response, Doc. 21; Amended Complaint, Doc. 7 at 5.)
Having considered the parties' arguments and submissions, the Court finds that Defendants failed to meet their burden of demonstrating that administrative remedies were available to Mr. Dailey at the Great Falls Regional Prison (GFRP). Accordingly, Defendants' Motion for Summary Judgment should be denied.
I. SUMMARY JUDGMENT STANDARD
The Ninth Circuit in Albino v. Baca, 747 F.3d 1162 (9th Cir. 2014) (en banc), recently held that the proper procedural device for determining whether administrative remedies have been exhausted is a motion for summary judgment. Id. at 1168. The Court shall grant summary judgment if there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). The party moving for summary judgment has the initial burden of showing there is no genuine issue of material fact. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). If the moving party makes a prima facie showing that summary judgment is appropriate, the burden shifts to the opposing party to show the existence of a genuine issue of material fact. Id. On summary judgment, all inferences should be drawn in the light most favorable to the party opposing summary judgment. Id. at 159. Filings by pro se litigants are entitled to special deference and are not held to the standards of attorneys. Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987).
A fact is material if it might affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.
II. FACTUAL BACKGROUND
Mr. Dailey was incarcerated at the GFRP, located in the Cascade County Detention Center, at all times relevant to his Complaint. (Statement of Undisputed Facts, Doc. 14 at ¶ 1.). He alleges that on March 6, 2013, Inmates Nate Swain and Leroy Edwards stole items from his cellmate, and Mr. Dailey gave testimony against these inmates and was later subpoenaed to testify against Mr. Swain. (Dailey Affidavit, Doc. 21-1 at ¶ 12.). Mr. Swain and Mr. Edwards were placed in segregated housing after the theft. About a week later, Mr. Edwards returned to the block where Mr. Dailey was housed. Mr. Edwards began calling Mr. Dailey names such as "rat" and "snitch." (Dailey Affidavit, Doc. 21-1 at ¶ 14.) Fearing for his safety, Mr. Dailey told Lt. Bryce and Correctional Officer Miller that he felt he was in danger because he was housed in the same unit as Mr. Edwards, Mr. Edwards had threatened him, and he had been labeled an informant. Lt. Bryce and Officer Miller refused Mr. Dailey's request to be moved. Within a few days, Mr. Edwards and another inmate entered Mr. Dailey's cell and physically assaulted him. (Complaint, Doc. 2 at 6; Response Brief, Doc. 21 at 2; Dailey Affidavit, Doc. 21-1.)
Mr. Dailey was beaten unconscious and suffered a concussion. He had lacerations on his head and finger, his mouth was split open, and two front teeth were cracked and fractured. He alleges that as a result of the attack he has post traumatic stress disorder, severe head trauma, major depressive disorder, and severe paranoia. (Complaint, Doc. 2 at 7; Response Brief, Doc. 21 at 2.) Mr. Dailey was moved to Montana State Prison approximately three weeks after the assault. (Dailey Affidavit, Doc. 21-1 at 15, ¶ 43.)
Mr. Dailey alleges Lt. Bryce and Officer Miller were deliberately indifferent to his safety when they refused his request to be moved. (Complaint, Doc. 2 at 6.)
The Prison Litigation Reform Act ("PLRA")'s exhaustion requirement states: [n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.
42 U.S.C. § 1997e(a); see also Porter v. Nussle, 534 U.S. 516, 524-25 (2002); Booth v. Churner, 532 U.S. 731, 741 (2001). Exhaustion is mandatory. Booth, 532 U.S. at 741; Jones v. Bock, 549 U.S. 199, 211 (2007). The appropriate means of determining whether a defendant has proved a failure to exhaust is governed by the following burden-shifting regime:
a defendant must first prove that there was an available administrative remedy and that the prisoner did not exhaust that available remedy. Then, the burden shifts to the plaintiff, who must show that there is something particular in his case that made the existing and generally available administrative remedies effectively unavailable to him by showing that the local remedies were ineffective, unobtainable, unduly ...