United States District Court, D. Montana, Helena Division
L. CHRISTENSEN, CHIEF JUDGE UNITED STATES DISTRICT COURT.
States Magistrate Judge John Johnston entered his Findings
and Recommendations in this case on July 31, 2018,
recommending that the Court: (1) grant the Defendants'
Motion for Summary Judgment (Doc. 32) and dismiss this
matter; (2) deny Plaintiff Jory Strizich's Motion for
Leave to File Third Amended Complaint (Doc. 47); (3) deny
Strizich's Motion for Leave to File Supplemental
Complaint; and (4) direct the Clerk of Court to have the
docket reflect that the Court certifies that any appeal of
this decision would not be taken in good faith, pursuant to
Federal Rule of Appellate Procedure 24(a)(3)(A). Strizich
timely filed objections. (Doc. 56.) Consequently, Strizich is
entitled to de novo review of those findings and
recommendations to which he has specifically objected. 28
U.S.C. § 636(b)(1)(C). Absent objection, this Court
reviews findings and recommendations for clear error.
United States v. Reyna-Tapia, 328 F.3d 1114, 1121
(9th Cir. 2003) (en banc); 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).
matter arises from a June 20, 2013 assault on Strizich by
another inmate at Montana State Prison in Deer Lodge,
Montana. Strizich seeks damages and injunctive relief from
the Defendants, prison officials, for their failure to
prevent the assault, which Strizich claims to have been
caused by the prison's policy of not segregating members
of rival gangs. Judge Johnston found that Strizich failed to
exhaust his administrative remedies and that Strizich's
amended complaints cannot cure the defect. Strizich objects,
contending that he did in fact fully exhaust his
de novo, the Court concludes that Judge Johnston correctly
read the administrative record and interpreted the law.
Consistent with the Prison Litigation Reform Act, "[n]o
action shall be brought with respect to prison conditions ...
by a prisoner... until such administrative remedies as are
available are exhausted." 42 U.S.C. § 1997e(a). To
the extent that Strizich's April 14, 2014 grievance arose
from the assault, it was filed well after the applicable
deadline, and prison officials did not violate a protected
right by denying the grievance on this basis. See
Woodford v. Ngo, 548 U.S. 81, 88 (2006). Accordingly,
Strizich cannot now seek remedy for his assault-related
damages in this Court.
objections, Strizich contends that he is nonetheless entitled
to relief because his April 14, 2014 grievance arose from the
prison's general policy of housing rival gang members
together rather than from the 2013 assault. (Doc. 56 at
9-17.) However, this contention, if true, does not cure the
defect correctly identified by Judge Johnston. Because this
matter arises from the 2013 assault, the relevant issue is
whether Strizich exhausted his administrative remedies as to
that incident. Thus, Judge Johnston appropriately recommended
granting the Defendants' motion for summary judgment.
Similarly, because the allegations in Strizich's proposed
third amended complaint also arise from the 2013 assault, the
Court will deny Strizich's motion for leave to file it.
will the Court grant Strizich's motion for leave to file
a supplemental complaint. First, because the Court grants the
Defendants' motion for summary judgment and denies
Strizich's motion to file a third amended complaint,
there is nothing left to supplement. Additionally, Strizich
does not seek to add to his original claim but rather
"to introduce a separate, distinct and new cause of
action." Planned Parenthood of S. Ariz. v.
Neely, 130 F.3d 400, 402 (9th Cir. 1997) (internal
quotation marks and citation omitted).
the Court finds that any appeal would "not [be] taken in
good faith" and that Strizich therefore may not
"proceed on appeal in forma pauperis without further
authorization." Fed. R. App. P. 24(a)(3)(A).
Strizich's claims are barred by the Prison Litigation
Reform Act, and he is unable to cure that defect. Any appeal
would be frivolous.
the remaining portions of Judge Johnston's Findings and
Recommendations for clear error and finding none, IT IS
(1) Judge Johnston's Findings and Recommendations (Doc.
50) are ADOPTED;
(2) The Defendants' Motion for Summary Judgment (Doc. 32)
is GRANTED, and this matter is DISMISSED;
(3) Strizich's Motion for Leave to File Third Amended
Complaint (Doc. 47) is DENIED;
(4) Strizich's Motion for Leave to File Supplemental
Complaint (Doc. 48) is DENIED;
(5) The Defendants' Motion to Strike Response to Motion
(Doc. 58) is DENIED as moot; and
(6) The Clerk of Court shall have the docket reflect that the
Court certifies pursuant to Federal Rule of Appellate
Procedure 24(a)(3)(A) that any appeal of this ...