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Bailey v. DOC Director Mike Batista

United States District Court, D. Montana, Great Falls Division

February 21, 2019

D'WAYNE BAILEY, Plaintiff,
v.
DOC Director Mike Batista, et. al., Defendants.

          ORDER AND FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

          JOHN JOHNSTON, UNITED STATES MAGISTRATE JUDGE

         This 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.)

         Bailey 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 Odden.

         In 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.)

         All pending motions will be addressed herein.

         I. Motion for Copies/Motion for Review

         Bailey's 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.

         Bailey 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.

         II. Motion for Injunction

         Bailey 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.)

         But, as 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.

         III. Motion for Production

         Bailey 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 cases.[1]

         Rule 34 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.

         Bailey 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).

         Federal 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.[2] 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.)

         Additionally, 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 denied.

         IV. Motion for Summary Judgment

         Having considered the parties' arguments and submissions, the Court finds, as explained below, that Defendants' motion for summary judgment should be granted.

         A. Standard

         "A 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).

         "Where 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 satisfied." Id.

         "Where 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. 1987).

         "The 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)).

         By 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).

         B. Background

         In 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.)[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 4, ¶16.

         After 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 Montana. ...


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