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Anderson v. Delten

United States District Court, D. Montana, Helena Division

February 14, 2019

MICHAEL HENRY ANDERSON, Plaintiff,
v.
DAN DELTEN, TOM SIMKINS, DAN JOHNSON, and BEN BOULEY, Defendants.

          ORDER AND FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

          JOHN JOHNSTON UNITED STATES MAGISTRATE JUDGE.

         Plaintiff Michael Anderson, a prisoner proceeding without counsel, filed three actions which have been consolidated. (Civil Action Nos. CV 17-00063-H-BMM-JTJ, CV 17-00070-H-BMM-JTJ, and CV 18-00004-H-BMM-JTJ.) He first alleged that Defendants Dan Delten, Tom Simkins, and Dan Johnson were deliberately indifferent to his safety when on February 22, 2017 they allegedly disclosed his sex offender status and sexual orientation to other inmates resulting in other inmates assaulting and harassing Mr. Anderson. (Civil Action No. CV 17-00063, Doc. 12.) In a consolidated action, CV-18-CV-04, Mr. Anderson alleged Defendant Ben Bouley, his unit manager, also disclosed Mr. Anderson's sex offender status, sexual orientation, and gender identity to other inmates and disciplined him in retaliation for Mr. Anderson's alleged refusal to have sex with UM Bouley. (Civil Action No. 18-CV-04, Doc. 2.)

         The Court issued an order directing Defendants to respond to the failure to protect claims in all three cases and the retaliation claim against UM Bouley. (Doc. 13.)

         Defendants Simkins, Johnson, and Bouley waived service and filed an Answer on April 2, 2018. (Doc. 21.) Counsel for these Defendants, however, did not waive service, enter an appearance, or file an answer on behalf of Defendant Delten indicating that he could not locate a current or former Montana State Prison (MSP) employee with that name. While the Court has the duty to serve a complaint that passes the statutory screening requirements, see 28 U.S.C. § 1915(d), a plaintiff proceeding in forma pauperis (IFP) still must provide accurate and sufficient information to effect service. Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994)(overruled on other grounds, Sandin v. Conner, 515 U.S. 472, 483-84 (1995)); see also Fed.R.Civ.P. 4. When a plaintiff fails to provide the Court with accurate and sufficient information to effect service of the summons and complaint, it is appropriate for the Court to sua sponte dismiss the unserved defendant. Walker, 14 F.3d at 1422. Counsel for Defendants indicated in his February 15, 2018 Notice of Appearance that Defendant Delten could not be located (Doc. 16) and thereafter Mr. Anderson did not provide sufficient information to serve Defendant Delten. Defendant Delten should therefore be dismissed without prejudice.

         Defendants Simkins, Johnson, and Bouley have filed a motion for summary judgment arguing that Mr. Anderson failed to exhaust his administrative remedies with regard to his failure to protect claims against Defendants Simkins, Johnson and Bouley. (Doc. 33.)

         The Court finds that Mr. Anderson failed to exhaust his administrative remedies regarding his failure to protect claims and those claims and Defendants Simkins and Johnson should be dismissed. Mr. Anderson has also filed a document construed as a motion to compel which will be denied.

         I. MOTION FOR SUMMARY JUDGMENT

         A. 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 August 31, 2018 (Doc. 36), Mr. Anderson 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).

         B. Undisputed Facts [1]

         Michael Anderson is an inmate of the Montana Department of Corrections (DOC) currently housed at the Montana State Prison (MSP). (Defendants' Statement of Undisputed Facts, Doc. 35 at ¶ 1.) At all times relevant to the Complaints, Mr. Anderson was housed at MSP in High Security Unit 2 (HSU-2) where Defendant Bouley was Mr. Anderson's unit manager. (Defendants' Statement of Undisputed Facts, Doc. 35 at ¶ 2-4.)

         MSP has a grievance program which is available to address all issues that adversely affect an inmate “including, but not limited to, health care, staff conduct, written policy or procedures, and other standard grievance matters.” The grievance program specifically allows inmates to grieve staff conduct. (Defendants' Statement of Undisputed Facts, Doc. 35 at ¶ 6.) The grievance program excludes only two categories of complaints: (1) those falling under the jurisdiction of “outside entities not under the jurisdiction of the Department of Corrections” and (2) “[c]lassification, disciplinary, and any other decision which is subject to a separate appeal procedure or administrative review process.” (Defendants' Statement of Undisputed Facts, Doc. 35 at ¶ 7.)

         The grievance program provides a “broad” “scope of available administrative remedies” to “be applied on a case-by-case” basis so as to afford grievants a “meaningful remedy to valid grievances.” The only remedy that may be requested regarding staff conduct is an investigation. (Defendants' Statement of Undisputed Facts, Doc. 35 at ¶ 8.) Except for emergency grievances, healthcare grievances, certain staff conduct grievances, and policy request grievances, the MSP grievance process consists of four steps: (1) an informal resolution form directed to the unit manager (or designee), (2) a formal grievance directed to the Grievance Coordinator, (3) an appeal to the Warden, and (4) an appeal to the DOC Director. Grievances raising certain staff conduct issues and policy requests are forwarded to the Warden at step two. (Defendants' Statement of Undisputed Facts, Doc. 35 at ¶ 10.)

         Except in emergency situations, inmates must begin the grievance process with an informal resolution form submitted to their assigned unit manager or designee. (Defendants' Statement of Undisputed Facts, Doc. 35 at ¶ 20.) Inmates must present the informal resolution form to their unit manager within five working days of the action or omission that caused the complaint. (Defendants' Statement of Undisputed Facts, Doc. 35 at ¶ 21.) An inmate who is unsatisfied with the response to an informal resolution may submit a formal grievance within five working days of the date he received the informal resolution response. (Defendants' Statement of Undisputed Facts, Doc. 35 at ¶ 22.)

         Formal grievances are collected weekly by the grievance coordinator staff from a locked collection box in each housing unit. Unit managers are not involved in collecting or processing formal grievances. (Defendants' Statement of Undisputed Facts, Doc. 35 at ¶ 24.) Inmates may file a formal grievance even if their informal resolution is returned as not processed. The grievance coordinators will consider a procedurally proper formal grievance even when the informal resolution form was not processed by the unit manager or other staff. (Defendants' Statement of Undisputed Facts, Doc. 35 at ¶ 25.)

         Mr. Anderson was educated about the grievance program and its requirements as part of his PREA orientation on November 20, 2008. (Defendants' Statement of Undisputed Facts, Doc. 35 at ¶ 30.) In addition, all grievance procedures and policies are available to inmates in the MSP inmate library and grievance coordinators are available during regular working hours to answer questions on the grievance process at MSP. If an inmate indicates to a grievance coordinator that they have a question on the grievance process, grievance coordinators attempt to answer their questions or provide copies of the applicable policies or forms. Grievance coordinators assist inmates with appropriately filling out grievance forms and answer questions from housing unit case managers and sergeants about the process. Case managers and sergeants are asked to direct inmates to the grievance office with questions they may have. If a case manager, sergeant, or inmate were to indicate to the grievance coordinators that an inmate was so confused about the process to require a re-orientation, grievance coordinators offer that inmate the option of attending another orientation in their current housing unit. (Defendants' Statement of Undisputed Facts, Doc. 35 at ¶¶ 27, 28.)

         Between November 19, 2008 and December 8, 2017, Mr. Anderson filed at least 29 formal grievances and more than 94 informal resolutions. Of those, he appealed at least seven to the Director of the Department of Corrections, the final step of the grievance ...


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