United States District Court, D. Montana, Helena Division
L. Christensen, Chief Judge.
the Court is Defendant Sam Jovanovich's
("Jovanovich") Motion for Summary Judgment (Doc.
74), and Plaintiff Laurence Stewart's
("Stewart") Cross-Motion for Summary Judgment (Doc.
87). Additionally, Stewart has filed a Motion for a
Protective Order or Injunctive Relief (Doc. 91). On May 9,
2018 United States Magistrate Judge John T. Johnston entered
his Findings and Recommendations, recommending that both
motions for summary judgment be denied upon finding several
disputes of material fact. (Doc. 92.) Additionally, on July
11, 2018 Judge Johnston recommended that Stewart's Motion
for a Protective Order be denied. (Doc. 96.) Because
Jovanovich timely objects, the Court will review de novo
those findings and recommendations to which he specifically
objects. 28 U.S.C. § 636(b)(1)(C). The Court reviews for
clear error those findings and recommendations to which no
party objects. United States v. Reyna-Tapia, 328
F.3d 1114, 1121 (9th Cir. 2003); Thomas v. Arn, 474
U.S. 140, 150 (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).
reasons explained below, the Court adopts in full Judge
Johnston's recommendation to deny both motions for
summary judgment and deny the request for a preliminary
injunction. Because the parties are familiar with the facts
and procedural background of the case it will only be
restated as necessary to understand the Court's order.
court shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law." Fed.
R. Civ. P 56(a). The movant bears the initial burden of
informing the Court of the basis for its motion and
identifying those portions of "the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, which it believes
demonstrate the absence of a genuine issue of material
fact." Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986) (internal quotation marks omitted). The
movant's burden is satisfied when the documentary
evidence produced by the parties permits only one conclusion.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
251-52 (1986). Where the moving party has met its initial
burden, the party opposing the motion "may not rest upon
the mere allegations or denials of his pleading, but... must
set forth specific facts showing that there is a genuine
issue for trial." Id. at 248 (internal
quotation marks omitted).
Johnston recommended denying both motions for summary
judgment, upon finding several disputes of material fact in
reference to Stewart's First Amendment retaliation claim.
A First Amendment claim for retaliation in the prison context
requires a plaintiff to prove each of the following five
elements: "(1) An assertion that a state actor took some
adverse action against an inmate (2) because of (3) that
prisoner's protected conduct, and that such action (4)
chilled the inmate's exercise of his First Amendment
rights, and (5) the action did not reasonably advance a
legitimate correctional goal." Rhodes v.
Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005).
Johnston denied summary judgment, finding that there was a
dispute as to whether: (1) Jovanovich was responsible for
terminating Stewart; (2) Stewart was removed from his
position because of his engagement in protected activity; and
(3) Stewart was removed from his post absent a legitimate
penological reason. (Doc. 92 at 16-17.) Lastly, Judge
Johnston recommended that qualified immunity did not apply.
(Id. at 20.)
response, Jovanovich raises four objections. He first argues
that Judge Johnston erred in determining that
"Stewart's alleged encouraging other inmates to file
grievances regarding laundry issues bears on [his]
retaliation claim." (Doc. 94 at 3.) Relatedly, he argues
that absent this fact, only timing remains to support an
inference of retaliatory intent. (Id.)
Penultimately, Jovanovich argues that Stewart cannot preclude
summary judgment by making bare, conclusory statements that
he was terminated absent a legitimate penological reason.
(Id.) Finally, he argues that Judge Johnston
improperly denied qualified immunity. (Id.)
argues that Judge Johnston erred when he determined that the
six grievances filed by other inmates at Stewart's behest
had any bearing on Stewart's retaliation claim. The Court
Stewart was hired in the prison's laundry room, he filed
numerous grievances alerting prison staff to a clothing
shortage, particularly in the larger garment sizes. (Doc.
88-1 at 15-23.) Though this issue predated Stewart's
tenure in the laundry room, Stewart used his position of
authority to identify and recommend that the prison stock
certain items. (Doc. 76-4 at 1.) Despite his efforts, Stewart
was unable to make headway on the issue, and because a number
of inmates were similarly concerned, Stewart placed a stack
of informal grievance forms in the dayroom and recommended
that those who were unhappy could submit grievances on their
own behalf. (Doc. 11 at 31.) Approximately six inmates took
the suggestion and filed informal grievances. (Doc. 88-1 at
not entirely clear why Jovanovich believes that Stewart's
encouraging others to file grievances so that a shared issue
could be brought to the forefront of the prison's
administration is irrelevant to his retaliation claim.
Jovanovich cites the general principal that "[i]nmates
do not have a constitutional right to a specific grievance
procedure" and observes that the prison's internal
procedures specify that "an inmate may not submit a
grievance form on behalf of another inmate." (Doc. 94 at
4-5 (citing Ramirez v. Galaza,334 F.3d 850, ...