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Stewart v. Berkebile

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

February 22, 2019



          Brian Morris, United States District Court Judge.


         United 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. 111.)


         Montana 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.

         Stewart 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:

         I found 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. Grow up.

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.

         Stewart 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.

         CCC 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 at 8.)

         Stewart's 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.


         I. Findings and Recommendations

         Judge 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.

         CCA 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.)

         The 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) (citation omitted).

         The 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).

         A. Summary Judgment Standard

         A party 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).

         A 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.

         B. First Amendment Analysis

         Judge 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. 2005)).

         Judge 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 factors.

         Judge 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 ...

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