United States District Court, D. Montana, Helena Division
FINDINGS AND RECOMMENDATIONS OF UNITED STATES
JOHNSTON, UNITED STATES MAGISTRATE.
Jacob Banschbach filed a Complaint pursuant to 42 U.S.C.
§ 1983 alleging Defendant Beckwith sexually assaulted
him during a pat-down search and thereafter harassed and
retaliated against him. (Doc. 2.) Defendant filed a Motion
for Summary Judgment arguing that Mr. Banschbach's claims
are barred by the applicable statute of limitations, there
are no genuine disputes of facts material to Mr.
Banschbach's allegations, and he is entitled to judgment
as a matter of law. (Doc. 53.) Mr. Banschbach opposes the
motion (Doc. 60) but failed to file a statement of disputed
issues as required by Local Rule.
Banschbach's sexual assault claim is barred by the
applicable statute of limitations. His other claims fail as a
matter of law. The motion for summary judgment should be
granted and this matter dismissed.
Banschbach raises an Eighth Amendment cruel and unusual
punishment claim and Fourteenth Amendment equal protection
clause claim alleging that Defendant Beckwith “would
grab my penis and testicles, he would move his hand up and
down and up and down my penis during pat searches and if I
refused to let him he would throw me in the hole and harass
and threaten me. He would wink at me and make sexual comments
to me when I was in my cell in the hole as well. This went on
for 3 years.” (Complaint, Doc. 2 at 6.)
deposition, Mr. Banschbach clarified his allegations by
stating Officer Beckwith waved and winked at him, kicked his
door, called him “girlfriend, ” and retaliated
against him by writing him up when he refused clothed body
searches or got into arguments with Defendant. (Deposition,
Doc. 54-16 at 92-93, 117.)
Banschbach is currently an inmate at Montana State Prison
(MSP). (Defendant's Statement of Undisputed Facts, Doc.
54-1 (“SUF”) at ¶ 1.) He has been
incarcerated at MSP since February 22, 2011. (SUF at ¶
2.) Officer Beckwith was employed as a correctional officer
at MSP from April 1995 to October 13, 2013. (SUF at ¶
Banschbach's allegations concerning Officer Beckwith are
based on one clothed body search “sometime between June
and mid August of 2011.” (SUF at ¶ 4.) On March
29, 2012 and July 12, 2012, Mr. Banschbach refused to submit
to a clothed body search when ordered by Officer Beckwith.
(SUF at ¶ 63.) When Mr. Banschbach refused to submit to
a clothed body search, Officer Beckwith put him in cuffs,
took him to the sergeant or command post, transported him to
a lock-down unit, and gave him a write-up. (SUF at ¶
64.) On November 14, 2012 and November 15, 2012, Officer
Beckwith wrote Mr. Banschbach up for insolence after Mr.
Banschbach yelled obscenities at Officer Beckwith. (SUF at
Sexual Assault Claim is Barred by the Statute of
United States Supreme Court in Wilson v. Garcia, 471
U.S. 261 (1985), determined the applicable statute of
limitations for claims filed pursuant to 42 U.S.C. §
1983 is the state statute of limitations governing personal
injury actions. In Montana, that period is three years after
the action accrues. Mont. Code. Ann. § 27-2-204(1).
Banschbach's Complaint is dated November 17, 2015,
therefore all claims accruing prior to November 17, 2012 are
barred by the applicable statute of limitations. However, the
“statute of limitations must be tolled while a prisoner
completes the mandatory exhaustion process.” Brown
v. Valoff, 422 F.3d 926, 943 (9th Cir. 2005). The Court
previously held that Mr. Banschbach exhausted Grievance No.
3977 when he appealed to the warden, and exhausted informal
grievances he filed on July 16, 2012; August 27, 2012;
February 14, 2013; and August 20, 2013, when those grievances
were granted. (Doc. 22 at 13-14.)
statute of limitations was therefore tolled between July 16,
2012 when Mr. Banschbach filed his first informal grievance
and August 10, 2012 when that grievance was granted for a
total of 25 days. It was tolled between August 27, 2012 when
he filed another grievance and the September 18, 2012
response for an additional 12 days. It was tolled between the
February 14, 2013 filing of a grievance until the March 15,
2013 response for an additional 29 days. It was then tolled
between Mr. Banschbach's August 20, 2013 grievance until
the August 26, ...