United States District Court, D. Montana, Helena Division
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS
Morris, United States District Court Judge.
Neal L. Gray (“Mr. Gray”) brought suit against
Defendants David Harris and Mr. Harding
(“Defendants”) alleging that Defendants
retaliated against him in violation of the First Amendment.
(Doc. 2). United States Magistrate Judge John Johnston
entered Findings and Recommendations in this matter on
February 12, 2019. (Doc. 47). Judge Johnston determined that
there was a “question of fact regarding whether Mr.
Gray adequately exhausted his administrative remedies with
regard to his disciplinary write-ups at issue in this
case.” Id. at 13-14. Defendants timely filed
an objection on February 26, 2019. (Doc. 50).
Court reviews de novo Findings and Recommendations
to which a party timely objects. 28 U.S.C. § 636(b)(1).
The Court reviews for clear error portions of Judge
Johnston's Findings and Recommendations to which the
parties specifically objected. McDonnell Douglas Corp. v.
Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313 (9th
Plaintiff is currently an inmate at Montana State Prison
(“MSP”) and was an inmate at MSP at all times
relevant to the Complaint. (Statement of Undisputed Facts,
Doc. 30 at ¶ 1). When inmates arrive at MSP, they are
required to attend orientation. Orientation includes an
explanation of the process and procedures of the grievance
program. Id. at ¶ 2. Mr. Gray completed
orientation - including the orientation on the grievance
process - at MSP on November 30, 2016. Id. at ¶
4. Inmates are informed that if they do not first exhaust
their administrative remedies for classifications,
grievances, or disciplinary decisions, they will be unable to
challenge the issue in court. Id. at ¶ 5.
Procedure 3.3.3, which implements DOC Policy 3.3.3, dictates
the process whereby inmates may make complaints on grievable
issues to MSP administration. Id. at ¶ 9. All
the necessary procedures explaining the grievance process,
including MSP Procedure 3.3.3 and DOC Policy 3.3.3, are
available to inmates in the MSP inmate library. Id.
at ¶ 10. The forms essential to file a grievance are
available in the units, through case managers, or from Billie
Reich, the program manager of the grievance and disciplinary
departments at MSP. Id. at ¶ 11; Reich
Affidavit (Doc. 30-1 at 2, ¶ 3).
to MSP Procedure 3.3.3, an inmate must file a grievance for
any “issues including, but not limited to . . . staff
conduct . . . and other standard grievance matters . .
.” (Statement of Undisputed Facts, Doc. 30 at ¶
12). The only exceptions, or “non-grievable issues,
” are “actions by outside entities not under the
jurisdiction of the DOC, ” and “classification,
disciplinary, and any other decision which is subject to a
separate appeal procedure or administrative review
process.” Id. at ¶ 13.
are three steps to the grievance procedure for staff conduct
and policy and operational procedure grievances: (1) informal
resolution, (2) formal grievance, and (3) appeal to the DOC
director. Id. at ¶ 14. A “staff
conduct” or other general grievance must be submitted
to MSP within five working days of the grievable incident or
conduct, and each appeal step possesses timelines.
Id. at ¶ 15. A grievance alleging retaliation
by MSP staff typically is considered a “staff
conduct” grievance. Id. at ¶ 16. MSP
Procedure 3.3.3 expressly notifies each inmate that, if he
fails “to advance to the next level of the grievance
program within the stated time limit, he will be considered
to have forfeited the opportunity to exhaust his
administrative remedies under the inmate grievance
program.” Id. at ¶ 17.
Gray's grievance file at MSP shows that he filed
complaints under the grievance program numerous times on
issues involving staff conduct, scheduling, prescription of
medicine, legal mail, medical attention, disciplinary issues,
the need for a fan for his cell, and loss of property. Most
of his grievances concern allegations relating to staff
conduct. Id. at ¶ 22. Mr. Gray has not
exhausted any of his grievances submitted under the grievance
policy. Id. at ¶ 23. Mr. Gray submitted an
informal grievance, a formal grievance, and another informal
grievance making allegations against Officer Harris with
respect to claimed retaliation. Id. at ¶ 24.
Mr. Gray's first informal and his formal grievance,
submitted in March of 2017, were returned to him with
instructions that he could resubmit the grievances with
April 13, 2017, Mr. Gray submitted an informal grievance
containing allegations of retaliation by Officer Harris, and
this grievance was denied by Unit Manager Daniels.
Id. Mr. Gray signed the grievance following denial
by Unit Manager Daniels, but he did not appeal the denial of
the grievance to the formal level. Mr. Gray could have
advanced and exhausted his grievance alleging retaliation
against Officer Harris, but he did not. Id. at
Gray did not file an informal resolution against Officer
Harding and has not filed any complaint under the grievance
procedure alleging that any MSP officer retaliated against
him by reprimanding him for communications with other inmates
outside the day room. Id. at ¶ 25.
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
July 13, 2018 (Doc. 32), Mr. Gray was advised of the
requirements for opposing a ...