United States District Court, D. Montana, Great Falls Division
ORDER AND FINDINGS AND RECOMMENDATIONS OF UNITED
STATES MAGISTRATE JUDGE
JOHNSTON, UNITED STATES MAGISTRATE JUDGE
matter comes before the Court on Defendants' Motion for
Summary Judgment and Brief in Support (Docs. 43 & 44),
and Plaintiff D'Wayne Bailey's Motion for
Copies/Review (Doc. 41), Motion for Injunction (Doc. 50), and
Motion for Production (Doc. 53.)
originally filed an Amended Complaint, Second Amended
Complaint, Third Amended Complaint, Fourth Amended Complaint,
as well as supplements to these complaints, in which he
advanced various constitutional claims. See, (Docs. 9, 13,
16, 17, 19, 20, and 21.) Pursuant to the screening process
mandated by 28 U.S.C. §§1915, 1915A, the Court
dismissed of all of Bailey's claims, except a portion of
Bailey's Equal Protection claim, in which he asserted his
rights were violated by purportedly discriminatory practices
at the Montana State Prison, which resulted in white inmates
receiving preferential treatment in prison program placement
and in their appearances before the Parole Board. See, (Doc.
24 at 19-20). See also, (Doc. 31.) All Defendants were
dismissed, except Batista, Kirkegard, Beeson, Hopkins, and
response to Bailey's surviving claim, the Defendants
moved for summary judgment alleging no genuine issue of
material of fact exists and requesting Bailey's complaint
be dismissed with prejudice. See generally, (Doc. 44.) Bailey
timely responded. (Doc. 47.)
pending motions will be addressed herein.
Motion for Copies/Motion for Review
motion seems to request a copy of everything that has been
filed in this matter, as well as an order directing the State
of Montana to provide him with various documents from state
court proceedings. See generally, (Doc. 41.) But, as Bailey
himself acknowledges, the Clerk of Court provided a copy of
the docket sheet in the present matter and advised Bailey if
he wanted copies of specific documents, he was to inform the
Court which items he sought and the Clerk would advise him of
the cost of furnishing the documents. Id. at 1.
Bailey has not complied with this procedure, but rather
continues to make requests for a voluminous number of
documents. To the extent that this motion is construed as a
request for copies, the request will be denied.
also inquires whether he may move this Court to sanction the
Montana state courts and/or review decisions that have been
made in his state court proceedings. Id. at 2-3.
This Court is unable to provide Bailey the relief sought.
Federal district courts, as courts of original jurisdiction,
do not serve as appellate tribunals to review errors
allegedly committed by state courts. MacKay v.
Pfeil, 827 F.2d 540, 543 (9th Cir. 1987); see
also, Atlantic Coast Line R. Co. v. Brotherhood of
Locomotive Engineers, 398 U.S. 281, 296 (1970)
("lower federal courts possess no power whatever to sit
in direct review of state court decisions"). It would be
entirely inappropriate for this Court to review the state
court rulings as suggested by Bailey. To the extent that the
motion is construed as a Motion for Review, the motion,
likewise, will be denied.
Motion for Injunction
also seeks an order from this Court directing the Montana
Department of Corrections to place him on single-cell status.
(Doc. 50.) Bailey raises several issues that he has already
presented to this court including: denial of property,
housing placement, and he explains various hardships he has
endured while incarcerated in both Montana and California.
Id. at 2-6. Attached to Bailey's motion are
several documents including a special mailing request;
Disciplinary Investigative Notes from April of 2015;
correspondence of June 8, 2015, from the MSP Grievance
Coordinator regarding Bailey's incompatibility issues
with other inmates; and, an April 2015 denial of Bailey's
grievance contesting the denial of his request for copies of
his main file and his medical file. See, (Doc. 50-1 at 1-4.)
the State points out, this Court has already dismissed these
same claims. See, (Doc. 24 at 17-18.) Because the Court has
already advised Bailey that he has no right to placement of
his choosing, including designation on single-cell status,
Bailey's renewed request lacks merit. The Motion for
Injunction will be denied.
Motion for Production
also asks this Court to issue an order, pursuant to Fed.
Rule. Civ. Pro. 34, and Montana state law, requiring the
dissemination of various documents. Specifically, Bailey
requests: records from the Montana Board of Pardons and
Parole, including correspondence between two of its
directors; all documentation concerning Bailey's
program/group placement; records from the Nineteenth Judicial
District Court, including court orders removing the
requirement that Bailey complete anger management and denying
Bailey's 2006 motion to withdraw his guilty plea; a copy
of all MSP treatment records; a copy of all written
statements concerning Bailey; a copy of all the OSR's
Bailey sent to Blair Hopkins and/or the MSP treatment unit;
all medical information on file; a copy of Bailey's 2017
polygraph results; and, a complete copy of his entire medical
file from the California Department of Corrections. (Doc. 53
at 1-3.) Bailey has also filed supplements to his request,
outlining his custodial history and difficulties, including
the perceived racism and discrimination he has experienced
within the Montana Department of Corrections. (Docs. 54, 56,
and 57.) Bailey has previously expressed these concerns in
this case, as well as in his companion habeas
allows a party to request another party to produce, among
other things, documents, electronically stored information,
and other tangible things. It limits the production request,
however, to items in the responding party's possession,
custody, or control. Fed. R. Civ. Pro. 34(a)(1). Annette
Carter and Montana DOC Director Reginald Michael are not
parties to this action. To the extent that Bailey is seeking
production of any documents from these individuals, the
request is denied.
has previously been informed that he is not to file discovery
requests and/or responses with the Court. See e.g., (Doc. 42
at 2) (wherein Bailey acknowledges the Court returned
documents to him and advised the documents needed to be sent
to the Defendants); see also, Local Rule 26.2(a) (documents
produced in discovery and discovery requests are not to be
filed with the Court unless they are relied upon as an
exhibit to a motion). Additionally, to the extent that
Bailey's filing constitutes a discovery request, it is
untimely. See, (Doc. 34 at 8s ¶¶3-4)
(requiring discovery requests to be served by September 3,
2018, and discovery completion by October 1, 2018).
Rule of Civil Procedure 37 states that a party can "move
for an order compelling disclosure or discovery," but
the Rule also provides that the movant must certify that he
has in "good faith conferred or attempted to confer with
the person or party failing to make disclosure or discovery
in an effort to obtain it without court action."
Fed.R.Civ.P. 37(a)(1); see also D. Mont. L.R. 26.3(c).
Defendants state that Bailey has not complied with these
provisions. (Doc. 55 at 2.) In response, Bailey provides
various documents indicating that he has requested items from
different individuals and entities over the
years. But, Bailey's quest to seek
information from various sources does not demonstrate that he
complied with the discovery procedures outlined in this
Court's scheduling order. See, (Doc. 34 at 5-9.)
while Rule 37 does not provide a time limit for filing a
motion to compel, generally a motion to compel should be
filed prior to the discovery cutoff, although courts have
discretion to hear a motion to compel after the discovery
period has ended. See e.g., Garrett v. City and County of
San Francisco, 818 F.2d 1515, 1518 (9th Cir.
1985). As set forth above, this motion to compel has been
made several months after the close of discovery. Further,
Bailey has not made clear what information he seeks and how
it would preclude summary judgment, id. at 1518-19,
to the contrary, he has made a sweeping request for
additional discovery. Bailey's Motion for Production is
Motion for Summary Judgment
considered the parties' arguments and submissions, the
Court finds, as explained below, that Defendants' motion
for summary judgment should be granted.
party is entitled to 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." City of Pomona v. SQM North America
Corp., 750 F.3d 1036, 1049 (9th Cir. 2014)
(quoting Fed.R.Civ.P. 56(a)). "The moving party
initially bears the burden of proving the absence of a
genuine issue of material fact." In re Oracle Corp.
Sec. Litig., 627 F.3d 376, 387 (9th Cir.
2010) (citing Celotex Corp. v. Catrett, 411 U.S.
317, 323 (1986)). The moving party may accomplish this by
"citing to particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations
(including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials"
or by showing that such materials "do not establish the
absence or presence of a genuine dispute, or that the adverse
party cannot produce admissible evidence to support the
fact." Fed.R.Civ.P. 56(c)(1)(A), (B).
the non-moving party bears the burden of proof at trial, the
moving party need only prove that there is an absence of
evidence to support the non-moving party's case."
Oracle Corp., 627 F.3d at 387 (citing
Celotex, 477 U.S. at 325); see also Fed. R.
Civ. P. 56(c)(1)(B). Summary judgment should be entered,
"after adequate time for discovery and upon motion,
against a party who fails to make a showing sufficient to
establish the existence of an element essential to that
party's case, and on which that party will bear the
burden of proof at trial." See Celotex, Ml U.S.
at 322. "[A] complete failure of proof concerning an
essential element of the nonmoving party's case
necessarily renders all other facts immaterial."
Id. at 323. In such a circumstance, summary judgment
should be granted, "so long as whatever is before the
district court demonstrates that the standard for entry of
summary judgment, as set forth in Rule 56(c), is
the moving party meets that burden, the burden then shifts to
the non-moving party to designate specific facts
demonstrating the existence of genuine issues for
trial." Oracle Corp., 627 F.3dat387.
"[T]he non-moving party must come forth with evidence
from which a jury could reasonably render a verdict in the
non-moving party's favor." Id. In
attempting to establish the existence of this factual
dispute, the opposing party may not rely upon the allegations
or denials of its pleadings but is required to tender
evidence of specific facts in the form of affidavits, and/or
admissible discovery material, in support of its contention
that the dispute exists. See Fed. R. Civ. P.
56(c)(1). But "[a] plaintiffs verified complaint may be
considered as an affidavit in opposition to summary judgment
if it is based on personal knowledge and sets forth specific
facts admissible in evidence." Lopez v. Smith,
203 F.3d 1122, 1132 n.14 (9th Cir. 2000) (en banc). The
opposing party must demonstrate that the fact in contention
is material, i.e., a fact "that might affect the outcome
of the suit under the governing law," and that the
dispute is genuine, i.e., "the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party." Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986); T. W. Elec. Serv., Inc. v. Pac.
Elec. Contractors Ass % 809 F.2d 626, 630 (9th Cir.
court must view the evidence in the light most favorable to
the nonmovant and draw all reasonable inferences in the
nonmovant's favor." City of Pomona, 750
F.3d at 1049. It is the opposing party's obligation to
produce a factual predicate from which the inference may be
drawn. See Richards v. Nielsen Freight
Lines, 810 F.2d 898, 902 (9th Cir. 1987).
"Where the record taken as a whole could not lead a
rational there of fact to find for the nonmoving party, there
is no genuine issue for trial." Id. (quoting
Matsuishita Elec. Indus. Co., Ltd. V. Zenith Radio
Corp., 475 U.S. 574, 587 (1986)).
notice provided November 1, 2018 (Doc. 46), Bailey 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).
2005, following a guilty plea to Sexual Intercourse without
Consent, in Montana's Nineteenth Judicial District,
Lincoln County, Bailey was sentenced to a forty-five year
prison sentence. The district court imposed certain parole
restrictions upon Bailey which required that before he be
considered for parole, he must complete Phases 1 and 2 of the
prison Sex Offender Treatment Program ("SOP") and
be compliant with Phase 3 of the aftercare treatment. (Doc.
45-2 at 9, ¶ 3.) Phase 1 of treatment is an educational
phase that lasts approximately 16 weeks, while Phase 2 is a
cognitive and behavioral program for offenders that have
completed Phase 1 and generally takes between 15 to 24 months
to complete. See, Aff. Hopkins (Doc. 45-2 at 2-3,
¶¶ 7; 10.) After an inmate completes Phase 2, he is
required to enter and participate in Phase 3 aftercare until
he is discharged from his custodial sentence. Id. at
serving a portion of his sentence in Montana, Bailey was
transferred to California, pursuant to an Interstate Compact
Agreement. In October 2013, Bailey was advised that he would
not be able to appear before the Parole Board until he
complied with the court-ordered conditions of his sentence
and that it appeared some of the required programs may not be
available in California. (Doc. 2-1 at 28.) Bailey was
informed he would be provided the opportunity to return to
Montana to complete the programs, but that it was his choice
whether or not to complete the treatment programs and, thus,
become parole eligible. Id. at 28-29. In October of
2013, Bailey indicated he intended to return to Montana and
complete SOP. See, (Doc. 47-1 at 15) ("I've
expressed verbally to two CA correctional counselors that I
wish to return to MT to complete the court ordered
program"). In August of 2014, Bailey returned to