Nordholm v. Barkell et al

Filing 46

ORDER granting in part and denying in part 35 Motion for Summary Judgment Signed by Magistrate Judge Jeremiah C. Lynch on 10/23/2018. (TCL) Modified on 10/24/2018: mailed to Nordholm (TAG).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BUTTE DIVISION
CV 17-11-BU-JCL

WILLIAM NORDHOLM,
Plaintiff,

ORDER

vs.
TIM BARKELL, et al.,
Defendants.

I. Introduction
Plaintiff William Nordholm brings this action under 42 U.S.C. § 1983
against Defendant Anaconda-Deer Lodge County and that entity’s law
enforcement officers Tim Barkell, Bill Sather, Richard Pasha, Mark Durkin, and
Brandon Staley, alleging they violated the rights secured him by the First, Fifth,
and Fourteenth Amendments to the United States Constitution. Nordholm seeks
injunctive and declaratory relief as well as monetary compensation.
Nordholm advances three claims for relief: Count I asserts a due process
violation resulting from the policy of Anaconda-Deer Lodge County (“ADLC”)
charging pretrial detainees “booking” and “bonding”/“holding” fees. Count II

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asserts a due process violation stemming from an alleged conspiracy on the part of
Pasha – and an unknown officer – to file false criminal charges against Nordholm.
Finally, Count III advances a claim against various ADLC detention officers for
allegedly violating his First Amendment rights by failing to provide him with
grievance forms, failing to respond to his grievances and medical requests, and
failing to forward his mail.
Before the Court is Defendants’ consolidated motion for partial summary
judgment seeking dismissal of Count I on the ground that Nordholm has failed to
exhaust the administrative remedies purportedly available as required by the Prison
Litigation Reform Act (“PLRA”) at 42 U.S.C. § 1997e(a). Defendants also allege
those aspects of Count I seeking declaratory and injunctive relief are moot because
Nordholm is no longer incarcerated at ADLC. Nordholm opposes Defendants’
motion.1
II. Factual Background
Nordholm lists three separate instances in which he allegedly incurred fees
as a pretrial detainee at ADLC and before being released on bond. Nordholm

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Nordholm’s response in opposition to Defendants’ motion for partial summary
judgment requests a cross-motion for summary judgment on all issues relating to
administrative exhaustion. (Doc. 42-1 at 4.) Nordholm’s response, however,
contains opposition only and does not constitute an independent cross-motion for
summary judgment sufficient to satisfy the requisites of Fed. R. Civ. P. 56.
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complains that on each instance he was charged a “booking” and “bonding” fee.
Nordholm challenges the constitutional validity of the fees, emphasizing he was
never provided notice or hearing to contest the fees.
Defendants admit to charging Nordholm $285 for “booking and holding
fees.” (Doc. 37 at 2.) In this regard, ADLC admits it received $23 directly from
Nordholm. But with respect to the remaining $262 of the fees, ADLC simply
states, without explanation, that amount was paid by a bonding company. (Doc.
37-22.)
For the reasons discussed below, Defendants’ motion for partial summary
judgment for failure to exhaust administrative remedies is denied. 2 Defendant’s
motion asserting Nordholm’s claims are moot is denied with respect to his claim
for declaratory relief, but granted as to his claim for injunctive relief.
III. Discussion
Summary judgment is to be granted only when there are no genuine issues of
material fact and the moving party is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(a). Because Nordholm is proceeding pro se, the Court must
construe his documents liberally and give them “the benefit of the doubt” with

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At this juncture, the Court need not address the correlative issue of whether the
fees at issue constitute a “prison condition” within the contemplation of the PLRA.
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respect to Defendants’ motion for partial summary judgment. Frost v. Symington,
197 F.3d 348, 352 (9th Cir. 1999). See also Erickson v. Pardus, 551 U.S. 89, 94
(2007).
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. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986); Betz v. Trainer Wortham & Co., Inc., 504 F.3d 1017, 1020-21 (9th Cir.
2007). On summary judgment, all inferences should be drawn in the light most
favorable to the party opposing summary judgment. Anderson, 477 U.S. at 255.
A. Exhaustion of Administrative Remedies
The Prison Litigation Reform Act (“PLRA”)’s exhaustion requirement
states:
[n]o action shall be brought with respect to prison conditions under section
1983 of this title, or any other Federal law, by a prisoner confined in any jail,
prison, or other correctional facility until such administrative remedies as are
available are exhausted.
42 U.S.C. § 1997e(a); see also Porter v. Nussle, 534 U.S. 516, 524-25 (2002);
Booth v. Churner, 532 U.S. 731, 741 (2001). This means 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). Exhaustion is mandatory.
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Booth, 532 U.S. at 741; Jones v. Bock, 549 U.S. 199, 211 (2007). Under the PLRA,
prison regulations define the exhaustion requirements. Jones, 549 U.S. at 218.
The defendant may assert a plaintiff’s failure to exhaust as an affirmative
defense. Id. at 204. If the defendant initially shows that (1) an available
administrative remedy existed and (2) the prisoner failed to exhaust that remedy,
then the burden of production shifts to the plaintiff to bring forth evidence
“showing that there is something in his particular case that made the existing and
generally available administrative remedies effectively unavailable to him.” Albino
v. Baca, 747 F.3d 1162, 1172 (9th Cir. 2014).
Defendants have failed to provide sufficient evidence to demonstrate that an
available administrative remedy existed. “Relevant evidence . . . would include
statutes, regulations, and other official directives that explain the scope of the
administrative review process; documentary or testimonial evidence from prison
officials who administer the review process; and information provided to the
prisoner concerning the operation of the grievance procedure[.]” Brown v. Valoff,
422 F.3d 926, 937 (9th Cir. 2005). Defendants attempt to demonstrate the
existence of administrative remedies through Plaintiff’s own use of the jail’s
purported grievance system. (Defs.’ Br. in Support of Mot. for Partial Summ. J.,
Doc. 36 at 4.) But Defendants do not present a formally adopted grievance

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procedure sufficient to sustain their initial burden to show an administrative
remedy actually existed at the time pertinent to Plaintiff’s claim. By contrast,
Plaintiff alleges that he asked and never received a copy of the ADLC grievance
procedure. (Resp. to Defs.’ Mot. for Partial Summ. J., Doc. 42-1 at 2; see also Doc
37-1 at 4.)
This Court cannot discern whether Plaintiff exhausted his administrative
remedies through the ADLC grievance procedure because the ADLC grievance
procedure remains a mystery.
In order to address the totality of Defendants’ arguments, we may suppose
for a moment that Defendants had established the existence of administrative
remedies. Defendants then contend that Plaintiff could not have exhausted such
remedies because Plaintiff “did not submit an inmate grievance request asking for
further procedures in regard to booking or bonding fees or asserting that any of his
prior booking or bonding fees were improper.” (Doc. 36 at 6.) Instead, Plaintiff’s
repeated grievances inquired under what authority the ADLC jail charges booking
and bonding fees (Doc. 37-3, 37-4, & 37-5). “The level of detail necessary in a
grievance to comply with the grievance procedures will vary from system to
system and claim to claim, but it is the prison's requirements, and not the PLRA,
that define the boundaries of proper exhaustion.” Akhtar v. Mesa, 698 F.3d 1202,

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1211 (9th Cir. 2012) (citing Jones v. Bock, 549 U.S. 199, 218 (2007)). Again,
without the formal ADLC grievance procedure, it is difficult for the Court to
establish what level of detail was needed for Plaintiff’s complaint to comply with
the ADLC grievance procedure. Defendants therefore have not sustained their
burden in establishing that Plaintiff’s complaint was insufficient. 3
B. Mootness
Defendants next argue that Nordholm’s requests for declaratory and
injunctive relief are moot. “A claim is moot when the issues presented are no
longer live or the parties lack a legally cognizable interest in the outcome.” Alvarez
v. Hill, 667 F.3d 1061, 1064 (9th Cir. 2012) (quoting U.S. Parole Comm'n v.
Geraghty, 445 U.S. 388, 396 (1980)). Because Nordholm is no longer detained at
the ADLC jail, his claims for injunctive relief are no longer live and therefore
moot. 4 However, Nordholm maintains a claim for declaratory relief.

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Akhtar goes on to say that grievances submitted under grievance procedures that
do not contain instructions regarding the detail necessary to form a complaint must
at least “alert the prison to the nature of the wrong for which redress is sought.”
698 F.3d 1202, 1211. Such instructions presume that a formal grievance procedure
is present, which is yet to be demonstrated here.

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Defendants urge the Court to rule consistent with Montana District Court with
respect to Nordholm’s claims for injunctive relief. But the claims before the
Montana District Court were separate and distinct from the claims presented here
and have no bearing on this Court’s ruling.
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Construing the complaint liberally, Nordholm seeks declaratory relief in the
form of a declaration that ADLC’s booking and bonding fee are unconstitutional
and have deprived him of procedural due process. This Court may issue
declaratory judgment in “any case of actual controversy within its jurisdiction” to
“declare the rights and other legal relations of any interested party seeking such
declaration, whether or not further relief is or could be sought.” Declaratory
Judgment Act, 28 U.S.C. § 2201(a); see also Unif. Declaratory Judgments Act § 2
(1922) (permitting the Court to construe a municipal ordinance to determine its
validity and issue a declaration of rights). “The purpose of the Declaratory
Judgment Act is to give litigants an early opportunity to resolve federal issues to
avoid ‘the threat of impending litigation.’” Biodiversity Leg. Found. v. Badgley,
309 F.3d 1166, 1172 (9th Cir. 2002) (quoting Seattle Audubon Soc'y v. Moseley, 80
F.3d 1401, 1405 (9th Cir.1996)).
Nordholm’s claim for declaratory relief is not moot. He seeks monetary
damages based on the booking fees he believes are unconstitutional. The “test for
mootness in the context of a case, like this one, in which a plaintiff seeks
declaratory relief ... is whether the facts alleged, under all the circumstances, show
that there is a substantial controversy, between parties having adverse legal
interests, of sufficient immediacy and reality to warrant the issuance of a

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declaratory judgment.” Biodiversity Leg. Found. 309 F.3d at 1174-75 (internal
quotations omitted). Because a substantial controversy still exists between
Nordholm and ADLC, his pursuit of a declaratory judgment cannot be rendered
moot.
Furthermore, the controversy at issue remains if ADLC’s booking and
bonding fees are “capable of repetition but evading review.” See Schafer v.
Townsend, 215 F.3d 1031, 1033 (9th Cir. 2000). Defendants contend that the
booking and bonding fees were proper. (Doc. 36 at 6, n.2). To render Nordhom’s
claim moot because he had been transferred to another facility would foreclose
almost any plaintiff’s challenge to the ADLC booking and bonding fees given the
short timeframe most inmates are detained in a county jail. Presently, this Court
does not have sufficient information to decide whether ADLC continues to charge
booking and bonding fees. Therefore, we cannot say whether Nordholm’s claims
regarding their constitutionality can be repeated. Accordingly, Nordholm’s claim
for declaratory judgment is not rendered moot at this time.
IV. Conclusion
Based on the forgoing, IT IS HEREBY ORDERED Defendants’ motion for
partial summary judgment is DENIED with respect to Nordholm’s exhaustion of
administrative remedies and his claim for declaratory relief. But the motion is

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GRANTED with respect to Nordholm’s claim for injunctive relief, and the claim is
DISMISSED.
DATED this 23rd day of October, 2018.

Jeremiah C. Lynch
United States Magistrate Judge

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