Latray v. Schuler
ORDER adopting 55 FINDINGS AND RECOMMENDATIONS in full. Findings and Recommendations 57 withdrawn and replaced with this Order. Any appeal of this decision would not be taken in good faith. Signed by Judge Susan P. Watters on 10/20/2017. Mailed to Latray at MSP. (TAG)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
OCT (. J 2017
Clerk, U.S. District Court
District Of Montana
RONALD 0. LATRAY.,
OFFICER NEGEL, and SHERIFF
Before the Court are United States Magistrate Judge Timothy Cavan's
Findings and Recommendations filed on August 21, 2017. (Doc. 55). Judge
Cavan recommends that this Court grant the Defendants' motion for summary
judgment (Doc. 30).
Because Plaintiff Ronald Latray did not file objections, the Court previously
reviewed and adopted Judge Cavan's Findings and Recommendations under the
clear error standard. (Doc. 57). However, it is apparent that Latray' s receipt of
Judge Cavan's Findings and Recommendations was substantially delayed due to
Latray's incarceration. Latray has since filed objections to Judge Cavan's Findings
and Recommendations. (Doc. 59).
The Court may correct a judgment which contains a mistake arising from an
oversight or omission. Fed. R. Civ. P. 60(a). The Court holds its review of Judge
Cavan's Findings and Recommendations under the clear error standard was a
mistake based on an oversight and hereby corrects its previous order. Latray is
entitled to a de novo review of those portions of Judge Cavan's Findings and
Recommendations to which he objects. 28 U.S.C. § 636(b)(l); Fed. R. Civ. P.
Judge Cavan recommended this Court grant the Defendants' motion for
summary judgment because Latray had not exhausted his administrative remedies.
Latray argues Judge Cavan erred because the record shows the administrative
procedure was not available to Latray until three days after the incident. (Doc. 59
Under the Prison Litigation Reform Act, a prisoner must "complete the
administrative review process in accordance with the applicable procedural rules,
including deadlines, as a precondition to bringing suit in federal court." Woodford
v. Ngo, 548 U.S. 81, 88 (2006); 42 U.S.C. § 1997e(a).
The Court disagrees with Latray. Latray admits he received a copy of the
prisoner handbook, which contained the process for filing a grievance. (Doc. 28 at
3). Latray also admits he filed fifteen other grievances using this procedure. (Doc.
51 at 9). Although the injury complained of occurred three days prior to Latray
being given the prisoner handbook, nothing in the grievance procedure indicates
Latray is time barred from filing a grievance. (Doc. 46-1 at 33). Latray offers no
facts to suggest the administrative procedure is unavailable to him. He is therefore
required to exhaust his administrative remedies before filing his complaint in
federal court. Woodford, 548 U.S. at 88.
IT IS ORDERED that the Court's previous Order adopting Judge Cavan's
Findings and Recommendations (Doc. 57) is hereby withdrawn and replaced with
IT IS FURTHER ORDERED that Judge Cavan's Findings and
Recommendations (Doc. 55) are ADOPTED IN FULL.
IT IS FURTHER ORDERED that Latray's objection (Doc. 59) to Judge
Cavan's Findings and Recommendations is OVERRULED.
IT IS FURTHER ORDERED that the Defendants' motion for summary
judgment (Doc. 30) is GRANTED and this matter is DISMISSED.
IT IS FURTHER ORDERED that the Clerk of Court is directed to close this
matter and enter judgment in favor of the Defendants pursuant to Rule 58 of the
Federal Rules of Civil Procedure.
IT IS FURTHER ORDERED that the Clerk of Court is directed to reflect in
the docket that the Court certifies pursuant to Rule 24(a)(3)(A) of the Federal
Rules of Appellate Procedure that any appeal of this decision would not be taken in
DATED this~ day of October, 2017.
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