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Banschbach v. Beckwith

United States District Court, D. Montana, Helena Division

February 7, 2018

JACOB BANSCHBACH, Plaintiff,
v.
M.S.P. CORRECTIONAL OFFICER CARL BECKWITH, Defendant.

          FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

          JOHN JOHNSTON, UNITED STATES MAGISTRATE.

         Plaintiff 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.

         Mr. 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.

         I. ALLEGATIONS

         Mr. 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.)

         In his 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.)

         II. FACTS[1]

         Mr. 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 ¶ 3.)

         Mr. 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 ¶ 66.)[2]

         III. ANALYSIS

         A. Sexual Assault Claim is Barred by the Statute of Limitations

         The 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).

         Mr. 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.)

         The 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, ...


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