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Stewart v. Berkebile

United States District Court, D. Montana, Great Falls Division

April 6, 2017

LAURENCE STEWART, Plaintiff,
v.
MR. BERKEBILE, MS. ARNOLD, MR. SPIEGLE, MR. WEAVER, MIKE BATISTA, LORAINE WODNIK, COLLEEN AMBROSE, and MR. STEWART; Defendants.

          ORDER ADOPTING MAGISTRATE JUDGE'S FINDINGS AND RECOMMENDATIONS

          Brian Morris United States District Court Judge.

         State Defendants Batista, Wodnick, and Ambrose moved to dismiss this case for failure to state a claim upon which relief can be granted under Rule 12 (b)(6) of the Federal Rules of Civil Procedure. (Doc. 14.) United States Magistrate Judge John Johnston issued Findings and Recommendations in this matter. (Doc. 25.) Judge Johnston recommended that the Court deny State Defendants' motion to dismiss Plaintiff's First Amendment retaliation claim and grant their motion to dismiss Plaintiff's denial of access to the courts claim.

         State Defendants filed an objection to Judge Johnston's Findings and Recommendations because it did not address their motion to dismiss Plaintiff's due process claim based on alleged non-processing of grievances. (Doc. 27.) The Court reviews de novo findings and recommendations to which objections are made. 28 U.S.C. § 636(b)(1)(C). Portions of findings and recommendations not specifically objected to are reviewed for clear error. McDonnell Douglas Corp. v. Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313 (9th Cir. 1981).

         I. BACKGROUND

         Mr. Stewart alleges in his Complaint that the Warden of Montana State Prison (MSP) placed him on a grievance restriction on May 27, 2015. He asserts that he was placed on restriction because he allegedly submitted grievances with abusive language toward staff. MSP transferred him to Crossroads Correctional Center on June 9, 2015. On June 30, 2015, while at Crossroads, Mr. Stewart wrote an informal grievance to MSP which contained sexual, abusive, hostile, and threatening language. On July 2, 2015, Crossroads placed Mr. Stewart in “the hole.” He received a write up for submitting a grievance with threatening, obscene, and obscure language about staff members at MSP.

         At his disciplinary hearing on July 7, 2015, Mr. Stewart argued that pursuant to the case of Brodheim v. Cry, 584 F.3d 1262 (9th Cir. 2009), his grievance was protected by the First Amendment to the United States Constitution. He was nevertheless given twenty days in the hole. He appealed, but his appeal was denied and the discipline upheld. On July 10, 2015, he was informed that the earlier grievance restriction would remain in place at Crossroads and that none of his grievances would be processed. (Doc. 2 at 10-11.)

         In his Complaint, Mr. Stewart made the following allegation: “DOC Director Mike Batista and Deputy Director Lorain Woonik [sic] have allowed this sort of behavior to take place. They are or should be aware that the grievance policy/procedure does not properly reflect the law and is being used improperly to avoid having to answer grievances and does not reflect the protections from disciplinary action in Brodhein v. Cry [sic].” Additionally, he alleged that “DOC Legal Head Colleen Ambrose should be ensuring that policy and practices is in line with the law. A change of policy should have been advised years ago.” (Doc. 2 at 12.)

         II. DISCUSSION

         The Court may dismiss a complaint if it fails to “state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). The Court must consider all allegations of material fact in the complaint as true and construe the pleading in a light most favorable to the plaintiff. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).

         A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). A complaint need not include “detailed factual allegations” to survive a Rule 12(b)(6) motion for dismissal. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). A complaint, however, must contain more than “naked assertions, ” “labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555-57. The complaint must “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A “facially plausible” complaint pleads facts that “allow the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678.

         A. Plaintiff's Denial of Access to the Courts Claim

         Judge Johnston stated in his Findings and Recommendations that Mr. Stewart has conceded that he cannot prevail on a denial of access to the court claim. (Doc. 25 at 4.) He recommended that the Court dismiss this claim. Id. State Defendants filed no objection to this recommendation. Mr. Stewart filed no objection. The Court determines no clear error exists in this recommendation.

         B. Plaintiff's First Amendment Retaliation Claim

         Judge Johnston recommended that the Court deny State Defendants' motion to dismiss Plaintiff's First Amendment retaliation claim. Mr. Stewart alleges the grievance policy promulgated by State Defendants was unconstitutional pursuant to Brodheim v. Cry, 584 F.3d 1262 (9th Cir. 2009). A supervisor may be held liable under § 1983 if he or she implemented a policy so deficient that the policy itself is a repudiation of constitutional rights and is the moving force of a constitutional violation. Redman v. County of San Diego, 942 F.2d 1435, 1446 (9th Cir. 1991) (abrogated on other grounds by Farmer v. Brennan, 511 U.S. 825 (1994)). State Defendants filed no objection to this ...


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