United States District Court, D. Montana, Helena Division
WILLIAM E. JANNISCH, Plaintiff,
LEROY KIRKEGARD, et al., Defendants.
L. CHRISTENSEN, CHIEF JUDGE
States Magistrate Judge John T. Johnston entered Findings and
Recommendations in this case on August 17, 2017, recommending
that Defendants' motion for summary judgment be denied
and Plaintiff William E. Jannisch's
("Jannisch") October 24, 2016, March 20, 2017, and
August 11, 2017 motions for injunctive relief also be denied.
Defendants timely filed objections to the Findings and
Recommendations with this Court on August 31, 2017.
Consequently, Defendants are entitled to a de novo review of
those findings and recommendations to which they specifically
object. 28 U.S.C. § 636(b)(1)(C). This Court reviews for
clear error those findings and recommendations to which no
party objects. See McDonnell Douglas Corp. v. Commodore
Bus. Mack, Inc., 656 F.2d 1309, 1313 (9th Cir. 1981);
Thomas v. Arn, 474 U.S. 140, 149 (1985). Clear error
exists if the Court is left with a "definite and firm
conviction that a mistake has been committed."
United States v. Syrax, 235 F.3d 422, 427 (9th Cir.
2000) (citations omitted).
the parties are familiar with the factual and procedural
background which Judge Johnston detailed in his Findings and
Recommendations, they will not be restated here.
Johnston concluded, and this Court agrees, that denial of the
motion for summary judgment is appropriate because Defendants
have not met their burden of demonstrating that
administrative remedies were available and that Jannisch
failed to properly utilize those remedies.
object to three analyses Judge Johnston utilized when
deciding to recommend denial of the Defendants' motion
for summary judgment. First, Defendants object to Judge
Johnston's analysis of the second Ross
exhaustion exception and argue that his analysis does not
apply the correct standard. Second, Defendants object to
Judge Johnston's conclusion denying summary judgment
because they believe Judge Johnston used Jannisch's
subjective knowledge when concluding that the exhaustion
remedies were unavailable to Jannisch. Lastly, Defendants
object that Judge Johnston improperly focused on the waiver
of due process rights instead of the exhaustion of remedies.
Second Ross Factor Analysis
first argue that Judge Johnston omitted key language that
would establish that there was an available remedy to
Jannisch. However, Judge Johnston's analysis in the
Findings and Recommendations is analogous to the omitted key
language and the addition of the language would not change
the outcome of the denial.
Prison Litigation Reform Act's ("PLRA")
exhaustion requirement states:
No 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). This means a prisoner must
"complete the administrative review process in
accordance with the applicable procedural rules, including
deadlines, as a precondition to bringing suit in federal
court." Woodford v. Ngo, 548 U.S. 81, 88
(2006). Exhaustion is mandatory. Booth v. Churner,
532 U.S. 731, 741 (2001); Jones v. Bock, 549 U.S.
199, 211 (2007). Under the PLRA, prison regulations define
the exhaustion requirements. Jones, 549 U.S. at 218.
defendant bears the ultimate burden of proving failure to
exhaust. See Brown v. Valoff, 422 F.3d 926, 936 (9th
Cir. 2005). If the defendant initially shows that (1) an
available administrative remedy existed and (2) the prisoner
failed to exhaust that remedy, then the burden of production
shifts to the plaintiff to bring forth evidence "showing
that there is something in his particular case that made the
existing and generally available administrative remedies
effectively unavailable to him." Albino v. Baca,
141 F.3d 1162, 1172 (9th Cir. 2014). Thus, once the
defendant has carried his burden, the prisoner must produce
evidence demonstrating that "the local remedies were
ineffective, unobtainable, unduly prolonged, inadequate, or
obviously futile." Williams v. Paramo, 115 F.3d
1182, 1191 (9th Cir. 2015) (internal citations and quotation
ordinary meaning of the word 'available' is
'capable of use for the accomplishment of a purpose,
' and that which 'is accessible or may be
obtained.'" Ross v. Blake,136 S.Ct. 1850,
1858 (2016) (quoting Booth, 532 U.S. at 737-38).
Therefore, inmates must exhaust those "grievance
procedures that are 'capable of use' to obtain