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Gray v. Harris

United States District Court, D. Montana, Helena Division

February 12, 2019

NEAL LEWIS GRAY, Plaintiff,
v.
DAVID HARRIS and C/O HARDING, Defendants.

          FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

          JOHN JOHNSTON UNITED STATES MAGISTRATE

         Pending are Plaintiff Neal Gray's claims that Defendants Harris and Harding retaliated against him in violation of the First Amendment. Defendants have filed a motion for summary judgment arguing that Mr. Gray failed to exhaust his administrative remedies with regard to these issues. (Doc. 29.) The Court finds that there are genuine issues of material fact regarding whether Mr. Gray exhausted administrative remedies regarding his claims and as such Defendants' motion should be denied.

         I. MOTION FOR SUMMARY JUDGMENT STANDARD

         Summary judgment is appropriate if there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). The party moving for summary judgment has the initial burden of showing there is no genuine issue of material fact. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). If the moving party makes a prima facie showing that summary judgment is appropriate, the burden shifts to the opposing party to show the existence of a genuine issue of material fact. Id. On summary judgment, all inferences should be drawn in the light most favorable to the party opposing summary judgment. Id. at 159.

         By notice provided on July 13, 2018 (Doc. 32), Mr. Gray was advised of the requirements for opposing a motion brought pursuant to Rule 56 of the Federal Rules of Civil Procedure. See Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998)(en banc); Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988).

         II. FACTS [1]

         Plaintiff Neal Lewis Gray is currently an inmate at Montana State Prison (MSP) and was an inmate at MSP at all times relevant to the Complaint. (Statement of Undisputed Facts, Doc. 30 at ¶ 1.) When inmates arrive at MSP, they are required to attend orientation, which includes an explanation of the process and procedures of the grievance program. (Statement of Undisputed Facts, Doc. 30 at ¶ 2.) Mr. Gray completed orientation - including the orientation on the grievance process - at MSP on November 30, 2016. (Statement of Undisputed Facts, Doc. 30 at ¶ 4.) During orientation, inmates are informed that if they do not first exhaust their administrative remedies for classifications, grievances, or disciplinary decisions, they will be unable to challenge the issue in court. (Statement of Undisputed Facts, Doc. 30 at ¶ 5.)

         MSP Procedure 3.3.3, which implements DOC Policy 3.3.3, dictates the process whereby inmates may make complaints on grievable issues to MSP administration. (Statement of Undisputed Facts, Doc. 30 at ¶ 9.) All the necessary procedures explaining the grievance process, including MSP Procedure 3.3.3 and DOC Policy 3.3.3, are available to inmates in the MSP inmate library. (Statement of Undisputed Facts, Doc. 30 at ¶ 10.) The forms essential to file a grievance are available in the units, through the case managers, or from Billie Reich, the program manager of the grievance, disciplinary departments at MSP. (Statement of Undisputed Facts, Doc. 30 at ¶ 11; Reich Affidavit (Doc. 30-1 at 2, ¶ 3.)

         According to MSP Procedure 3.3.3, an inmate must file a grievance for any “issues including, but not limited to . . . staff conduct . . . and other standard grievance matters . . .” (Statement of Undisputed Facts, Doc. 30 at ¶ 12.) The only exceptions, or “non-grievable issues, ” are “actions by outside entities not under the jurisdiction of the DOC, ” and “classification, disciplinary, and any other decision which is subject to a separate appeal procedure or administrative review process.” (Statement of Undisputed Facts, Doc. 30 at ¶ 13.)

         There are three steps to the grievance procedure for staff conduct and policy and operational procedure grievances: (1) informal resolution, (2) formal grievance, and (3) appeal to the DOC director. (Statement of Undisputed Facts, Doc. 30 at ¶ 14.) A staff conduct or other general grievance must be submitted to MSP within five working days of the grievable incident or conduct, and each appeal step has timelines. (Statement of Undisputed Facts, Doc. 30 at ¶ 15.) A grievance alleging retaliation by MSP staff typically is considered a staff conduct grievance. (Statement of Undisputed Facts, Doc. 30 at ¶ 16.) MSP Procedure 3.3.3 expressly notifies each inmate that, if he fails “to advance to the next level of the grievance program within the stated time limit, he will be considered to have forfeited the opportunity to exhaust his administrative remedies under the inmate grievance program.” (Statement of Undisputed Facts, Doc. 30 at ¶ 17.)

         Mr. Gray's grievance file at MSP shows that he filed complaints under the grievance program numerous times on issues involving staff conduct, scheduling, prescription of medicine, legal mail, medical attention, disciplinary issues, the need for a fan for his cell, and loss of property. Most of his grievances concern allegations relating to staff conduct. (Statement of Undisputed Facts, Doc. 30 at ¶ 22.) Mr. Gray has not exhausted any of his grievances submitted under the grievance policy. (Statement of Undisputed Facts, Doc. 30 at ¶ 23.)

         Mr. Gray submitted an informal grievance, a formal grievance, and another informal grievance making allegations against Officer Harris with respect to claimed retaliation. Mr. Gray's first informal and his formal grievance, submitted in March of 2017, were returned to him with instructions that he could resubmit the grievances with corrections. On April 13, 2017, he submitted an informal grievance containing allegations of retaliation by Officer Harris, and this grievance was denied by Unit Manager Daniels. Mr. Gray signed the grievance following denial by Unit Manager Daniels, but he did not appeal the denial of the grievance to the formal level. Mr. Gray could have advanced and exhausted his grievance alleging retaliation against Officer Harris, but he did not. (Statement of Undisputed Facts, Doc. 30 at ¶ 24.)

         Mr. Gray did not file an informal resolution against Officer Harding and has not filed any complaint under the grievance procedure alleging that any MSP officer retaliated against him by reprimanding him for communications with other inmates ...


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