United States District Court, D. Montana, Great Falls Division
ORDER ADOPTING MAGISTRATE
JUDGE'S FINDINGS AND
Morris United States District Court Judge.
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.
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
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.
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.)
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.)
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).
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.
Plaintiff's Denial of Access to the Courts Claim
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.
Plaintiff's First Amendment Retaliation Claim
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