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Jannisch v. Kirkegard

United States District Court, D. Montana, Helena Division

November 16, 2017

LEROY KIRKEGARD, et al., Defendants.



         United 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).


         Because 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.

         I. Defendants' Objections

         Judge 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.

         Defendants 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.

         A. Second Ross Factor Analysis

         Defendants 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.

         The 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.

         The 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 marks omitted).

         "The 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 ...

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