United States District Court, D. Montana, Great Falls Division
Morris, United States District Court Judge.
States Magistrate Judge John Johnston entered Findings and
Recommendations on August 30, 2018, on the following motions:
Defendants Colleen Ambrose, Mike Batista, and Loraine
Wodnik's (“State Defendants”) Motion for
Summary Judgment (Doc. 70); Stewarts's Motion for Summary
Judgment (Doc. 76); Defendants Mr. Berkebile, Ms. Arnold, Mr.
Spiegle, and Mr. Weaver's (“CCA Defendants”)
Motion for Summary Judgment (Doc. 80); and Stewart's
Motion for Protective Order (Doc. 100). (Doc. 104.) Stewart
filed a Motion for Extension to File Objection to Findings
and Recommendations on September 19, 2018. (Doc. 106.)
Stewart further filed a Revised Motion for Extension of Time
to File Objection to Findings and Recommendations on
September 24, 2018. (Doc. 107.) Stewart also filed a Motion
for Investigation and Sanctions on October 1, 2018. (Doc.
State Prison (“MSP”) Warden Leroy Kirkegard
served Stewart a memorandum in regard to Stewart's abuse
of the grievance procedure on May 27, 2015. (Doc. 77-1 at 1.)
The memorandum notified Stewart that an abuse of the
grievance procedure “may include, but is not limited
to, use of profanity, threats, abusive or demeaning language;
submitting an excessive number of grievances; or, submitting
multiple grievances in reference to the same issues.”
Id. The memorandum explained that Stewart's past
and current grievances demonstrated “a pattern of
abusive and demeaning language, condescending comments,
issues that have been previously addressed, and grievances
where [Stewart] attempt[ed to] use the process in a
retaliatory manner when [Stewart] disagree[d] with a prior
level response.” Id. The memorandum warned
Stewart that future or current grievances that continued to
demonstrate this “pattern of abuse of the grievance
procedure [would] be returned to [Stewart] unanswered and may
result in further restrictions per MSP 3.3.3.”
Id. at 3.
was transferred from MSP to Crossroads Correctional Center
(“CCC”) on June 9, 2015. (Doc. 72-3 at 1.)
Stewart filed an Informal Resolution Form at CCC on July 2,
2015. (Doc. 77-1 at 5.) Stewart's Informal Resolution
Form, however, was directed to MSP staff. Id.
Stewart's Informal Resolution Form provided as follows:
a very interesting case: Brodheim v. Cry 584 F.3d 1262 (9th
Cir. 2009). Please read this case. It states that an I/M
cannot be punished for hostile, abusive, threatening or
sexual language in a grievance. This is the law. All of those
grievances not processed and my “restriction” was
all illegal. Now I know I can say that the warden is a little
bitch who is too afraid to come to the high side and confront
me like a man. He knows if he came to the high side, someone
would probably punch him in that stupid fucking mouth of his.
Anyone else who follows the warden's illegal instructions
is a cunt. A dirty diseased cunt, to be more accurate. To the
warden, I am only glad I am not black or you racist sheep
fucking hicks would really be giving me the shaft. Start
doing your job and stop looking for reasons to not process
grievances based solely on the fact I called you mean names.
Id. Stewart wrote the following in the “Action
Requested” section of his Informal Resolution Form:
“Please learn the fucking law and follow it. Stop being
childish uneducated hicks and investigate issues even if they
are presented to you in a less than robotic way. Cunt Cunt Cunt Cunt.” Id.
received a Disciplinary Infraction Report/Notice of Hearing
(“Disciplinary Infraction Report”) from CCC
Grievance Coordinator Arnold on July 2, 2015. (Doc. 77-1 at
9.) The Disciplinary Information Report charged Stewart with
violating Rule No. 4235. Id. Rule 4235 provides as
follows: “Threatening any other person to include,
staff, volunteers, visitors, vendors, members of the public,
etc. with bodily harm. Verbal or written statements or
engaging in physical conduct causing fear in another
person.” Id. Defendant Weaver determined that
Stewart had violated Rule 4235. (Doc. 104 at 7.) Weaver
sentenced Stewart to twenty days disciplinary detention with
time served. Id. Stewart filed a disciplinary appeal
on July 7, 2015. Id. CCC affirmed Weaver's
decision. Id. at 8.
placed Stewart on a grievance restriction on July 10, 2015.
Id. The notice of grievance restriction stated:
You were under a grievance restriction while at MSP.
According to MSP Policy 3.3.3 when an inmate is transferred
while on a grievance restriction, the new facility at which
they arrive can decide to continue or discontinue that
restriction. We have decided to continue that grievance
restriction. This means that: You are on a grievance
restriction until further notice; all grievances that you
file will not be processed due to the restriction.
(Doc. 77-1 at 28.) CCC subsequently returned several
unprocessed informal resolution forms to Stewart. (Doc. 104
infraction imposed by CCC increased Stewart's custody
level to maximum. Id. Stewart was transferred back
to MSP on August 25, 2015. Id. Stewart filed his
Complaint on October 6, 2015. (Doc. 2.) Stewart ultimately
alleges that the CCA Defendants and the State Defendants
violated Stewart's right to free speech and right to
access the courts when the Defendants placed Stewart on a
grievance restriction. Id. at 8.
Findings and Recommendations
Johnston determined that the action by CCA Defendants and
State Defendants (collectively “Defendants”) to
discipline Stewart based on his written grievance failed to
constitute a violation of Stewart's First Amendment
rights. (Doc. 104 at 20.) Judge Johnston further concluded
that Defendants are entitled to qualified immunity even if
Defendants violated Stewart's constitutional rights.
Id. at 23. Judge Johnston likewise determined that
even if Defendants action in placing Stewart on a grievance
restriction violated Stewart's First Amendment rights,
the Defendants still would be entitled to summary judgment on
the basis of qualified immunity. Id. Judge Johnston
recommended that this Court grant both the State
Defendants' Motion for Summary Judgment and the CCA
Defendants' Motion for Summary Judgment. Id. at
30. Judge Johnston recommended that this Court deny
Stewart's Motion for Summary Judgment and Stewart's
Motion for Protective Order. Id.
Defendants timely filed an objection to a limited portion of
Judge Johnston's Findings and Recommendations on
September 12, 2018. (Doc. 105.) Stewart likewise timely filed
his objections to Judge Johnston's Findings and
Recommendations on October 1, 2018. (Doc. 110.)
Court reviews de novo Findings and Recommendations to which a
party timely objects. 28 U.S.C. § 636(b)(1). A party
makes a proper objection by identifying the parts of the
magistrate's disposition that the party finds
objectionable, and presenting legal argument and supporting
authority, such that the district court is able to identify
the issues and the reasons supporting a contrary
result.” Montana Shooting Sports Ass'n v.
Holder, 2010 WL 4102940, at *2 (D. Mont. Oct. 18, 2010)
Court reviews findings and recommendations to which no party
objects for clear error. McDonnell Douglas Corp. v.
Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313 (9th
Cir. 1981). 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).
Summary Judgment Standard
may move for summary judgment on all or part of a claim.
Fed.R.Civ.P. 56(a). If no genuine dispute of material fact
exists, then summary judgment is proper, and the moving party
is entitled to judgment as a matter of law. Fed.R.Civ.P.
56(a). The Court will grant summary judgment where the
documentary evidence produced by the parties only permits one
conclusion. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 250 (1986).
moving party, who does not carry the burden of proof at
trial, carries the “initial burden of production”
on a summary judgment motion. Nissan Fire & Marine
Insurance Company, LTD v. Fritz Companies, Inc., 210
F.3d 1099, 1102 (2000). The movant may fulfill her initial
burden of production in one of two ways. Id., at
1106. The movant may produce “affirmative evidence
negating an essential element of the nonmoving party's
claim.” Id., at 1103. The movant alternatively
may show that the “nonmoving party did not have enough
evidence to carry” her burden of proof at trial.
Id. If the movant meets her burden of production,
the nonmovant must produce evidence to support her claim.
Id. Rule 56 mandates summary judgment where the
nonmovant's production of evidence fails to create a
genuine issue of material fact. Id. If the movant
fails to meet her initial burden of production, then the
nonmovant may defeat the motion for summary judgment without
producing any evidence. Id.
First Amendment Analysis
Johnston correctly stated that Stewart must satisfy the
following five elements to assert a viable First Amendment
retaliation claim: “(1) An assertion that a state actor
took some adverse action against an inmate (2) because of (3)
that prisoner's protected conduct, and that such action
(4) chilled the inmate's exercise of his First Amendment
rights, and (5) that action did not reasonably advance a
legitimate correctional goal.” (Doc. 104 at 10) (citing
Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir.
Johnston determined that Stewart satisfied the first, second,
and fourth elements of the Rhodes test. (Doc. 104 at
10-11, 14.) The Court will review for clear error Judge
Johnston's analysis on the first, second, and fourth
elements of the Rhodes test. See McDonnell Douglas
Corp., 656 F.2d at 1313. The Court finds no error and
will adopt Judge Johnston's reasoning on those three
Johnston determined, however, that Stewart had failed to
satisfy the third and fifth elements of the Rhodes
test. (Doc. 104 at 14, 20.) Stewart objects only to Judge
Johnston's determinations on those elements. (Doc. 110 at
6-11.) The Court will review de novo Judge Johnston's
findings on the protected conduct and ...