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Gray v. Harris

United States District Court, D. Montana, Helena Division

April 8, 2019

NEAL LEWIS GRAY, Plaintiff,
v.
DAVID HARRIS and C/O HARDING, Defendants.

          ORDER ADOPTING FINDINGS AND RECOMMENDATIONS

          Brian Morris, United States District Court Judge.

         Plaintiff 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).

         The 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 Cir. 1981).

         I. Undisputed

         Facts 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.

         MSP 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).

         According 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.

         There 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.

         Mr. 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 corrections. Id.

         On 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 ¶ 24.

         Mr. 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.

         II. Legal Standard

         Summary 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 ...


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