Stewart v. Mr. Berkebile et al

Filing 126

ORDER denying 80 MOTION for Summary Judgment, 123 Motion for Reconsideration. Signed by Judge Brian Morris on 9/23/2019. Mailed to Stewart (TAG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
GREAT FALLS DIVISION

CV-15-89-GF-BMM

LAURENCE STEWART,
Plaintiff,
vs.

ORDER
MR. BERKEBILE, MS. ARNOLD,
MR. SPIEGLE, MR. WEAVER, MIKE
BATISTA, LORAINE WODNIK, and
COLLEEN AMBROSE,
Defendants.

FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff Laurence Stewart (“Stewart”) is currently serving a life sentence in
the Montana prison system for several counts of attempted deliberate homicide.
(Doc. 83 at 2.) The Montana Department of Corrections (“DOC”) transferred
Stewart from Montana State Prison (“MSP”) to Crossroads Correctional Center
(“CCC”) on June 9, 2015. (Id. at 3.) Stewart filed an Informal Resolution Form at
CCC on July 2, 2015. (Doc. 77-1 at 5.) The 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
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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 who
follows the warden’s illegal instructions is a cunt. A dirty diseased
cunt, to be more accurate. To the warden, the grievance dept and
Jovanovich, God finger fuck your assholes. I am only glad that 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 not to
process grievances based solely on the fact that I called you mean
names. Grow up.
(Id.) Stewart wrote the following in the “Action Requested” section of the 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 less
than robotic way. Cunt Cunt Cunt Cunt.” (Id.)
CCC Grievance Coordinator Arnold issued a Disciplinary Infraction
Report/Notice of Hearing (“Disciplinary Infraction Report”) to Stewart on July 2,
2015. (Id. at 9.) The Disciplinary Infraction 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.) Arnold asserted that Stewart violated Rule 4235 when
he submitted the Informal Resolution Form containing “obscene” language about
MSP staff members. (Id.)
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Defendant Weber conducted Stewart’s disciplinary hearing on July 7, 2015.
(Doc. 104 at 7.) Stewart defended his statements in the Informal Resolution Form
at the hearing. (Id. at 7.) Stewart asserted that the statements did not constitute
threats and that the First Amendment protects these statements in the Informal
Resolution Form. (Doc. 77-1 at 12.) Weaver determined that Stewart had violated
Rule 4235. (Id.) Weaver imposed a twenty-day disciplinary detention with time
served. (Id.) Stewart filed a disciplinary appeal on July 7, 2015. (Id. at 14.) CCC
affirmed Weaver’s decision. (Id.)
CCC placed Stewart on a grievance restriction on July 10, 2015. (Doc. 104
at 8.) The notice of grievance restriction provides as follows:
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 Rule 4235 infraction
increased his custody level to maximum. (Id.) DOC transferred Stewart back to
MSP on August 25, 2015. (Id.)
Stewart filed his Complaint in this case on October 6, 2015. (Doc. 2.)
Stewart ultimately alleges that CCA Defendants violated his right to free speech
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and right to access the courts when they punished him pursuant to Rule 4235 and
placed him on a grievance restriction. (Id. at 8.) Defendants Ambrose, Batista, and
Wodnick (“State Defendants”) filed a Motion for Summary Judgment on January
10, 2018. (Doc. 70.) Stewart filed a Motion for Summary Judgment on January 16,
2018. (Doc. 76.) Defendants Berkebile, Arnold, Spiegle, and Weaver (“CCA
Defendants”) filed a Motion for Summary Judgment on January 29, 2018. (Doc.
80.)
United States Magistrate Judge John Johnston issued Findings and
Recommendations regarding the parties’ motions on August 30, 2018. (Doc. 104.)
Judge Johnston reasoned that the language found in Stewart’s Informal Resolution
Form constituted a criminal threat and, as such, was not protected by the First
Amendment. (Id. at 11.) Judge Johnston further determined that State Defendants
and CCA Defendants proved entitled to qualified immunity even if they violated
Stewart’s First Amendment rights. (Id. at 23.)
CCA Defendants filed an objection to the qualified immunity portion of
Judge Johnston’s Findings and Recommendations. (Doc. 105 at 2.) CCA
Defendants observed well-settled Supreme Court precedent holding that they, as
private prison guards, may not invoke qualified immunity in the same manner as
afforded to government prison guards. (Id.) (citing Richardson v. McKnight, 521
U.S. 399, 412 (1997)). CCA Defendants noted that the Supreme Court left open in
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Richardson the possibility that private prison employees may, however, rely on a
“good-faith” defense. (Id. at 3) (citing Richardson, 521 U.S. at 413). CCA
Defendants broadly asserted that they met all requirements of a good-faith defense.
(Id. at 3.) CCA Defendants argued, therefore, that they were still entitled to
summary judgment based on the undisputed facts of this case. (Id.)
The Court issued an order that adopted, in part, and overruled, in part, Judge
Johnston’s Findings and Recommendations on February 22, 2019. (Doc. 114.) The
Court determined that no reasonable person could interpret the language in
Stewart’s Informal Resolution Form as a criminal threat and concluded that the
First Amendment protected Stewart’s statements. (Id. at 12-13.) The Court granted
State Defendants’ Motion for Summary Judgment (Doc. 70); denied Stewart’s
Motion for Summary Judgment (Doc. 76); and granted, in part, and denied, in part,
CCA Defendants’ Motion for Summary Judgment (Doc. 80). (Id. at 26.)
The Court agreed with CCA Defendants that their status as private prison
guards did not entitle them to qualified immunity pursuant to Richardson. (Id. at
21-23.) The Court noted that CCA Defendants were entitled to assert a good-faith
defense for having sanctioned Stewart under Rule 4235. (Id. at 23, 26.) It remained
unclear whether CCA Defendants’ good-faith defense shielded them from liability.
(Id. at 23.) The Court deferred its ruling on the issue pending supplemental
briefing. (Id. at 24.)
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The Court ordered CCA Defendants and Stewart to file supplemental
briefing on CCA Defendants’ good-faith defense. (Id. at 26.) The Court ordered
CCA Defendants to file their brief, and accompanying affidavits, within thirty days
of its February 22, 2019 order. (Id.) The Court ordered Stewart to file his response
brief, and accompanying affidavits, within thirty days of Stewart’s receipt of CCA
Defendants’ brief. (Id.)
CCA Defendants filed a Motion for Extension of Time to File Supplemental
Briefing on March 8, 2019. (Doc. 115.) The Court granted CCA Defendants’
motion on March 11, 2019. (Doc. 116.) The Court ordered CCA Defendants to file
their supplemental brief, and accompanying affidavits, on April 8, 2019. (Id. at 12.) The Court inadvertently ordered Stewart to file his supplemental brief, and
accompanying affidavits, on April 8, 2019. (Id.) CCA Defendants filed their
supplemental brief, and accompanying affidavits, on April 8, 2019. (Doc. 117.)
Stewart likewise filed his supplemental brief, and accompanying affidavits, on
April 8, 2019. (Doc. 118.) Stewart labeled his supplemental brief as a Motion for
Reconsideration on the Grievance Restriction for CCA Defendants. (Id. at 1.)
The Court dismissed Stewart’s motion for reconsideration without prejudice
on April 17, 2019. (Doc. 119 at 4.) The Court notified Stewart that he needed to
file a motion for leave to file a motion for reconsideration, and the Court must
grant Stewart leave, before Stewart could file a motion for reconsideration. (Id. at
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3.) The Court further provided Stewart with additional time to respond to CCA
Defendants’ April 8, 2019, supplemental brief. (Id. at 4.) The Court ordered
Stewart to file a response brief, and accompanying affidavits, within thirty days of
Stewart’s receipt of the April 17, 2019, order. (Id. at 4.)
Stewart filed a motion for leave to file a motion for reconsideration on April
29, 2019. (Doc. 120.) The Court granted Stewart leave to file a motion for
reconsideration on July 11, 2019. (Doc. 122.) Stewart filed his motion for
reconsideration on July 22, 2019. (Doc. 123.) CCA Defendants filed their response
in opposition to Stewart’s motion for reconsideration on August 6, 2019. (Doc.
125.) Stewart did not file a response brief to CCA Defendants’ April 8, 2019,
supplemental brief.
DISCUSSION
I.

CCA Defendants’ Motion for Summary Judgment
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).
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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. CCA Defendants’ Good-Faith Defense
CCA Defendants argue they are shielded from liability because they acted in
good faith when they decided to discipline Stewart for the statements in his
Informal Resolution Form. (Doc. 117 at 5.) Federal courts afford flexibility to
prison officials who are trying to manage a volatile environment. Sandin v.
Conner, 515 U.S. 472, 482 (1995). Prison officials have significant deference in
their decisions regarding prison security. Casey v. Lewis, 4 F.3d 1516, 1521 (9th
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Cir. 1993); Pepperling v. Crist, 678 F.2d 787, 789 (9th Cir. 1982). The Court will
afford CCA Defendants deference in their decision to sanction Stewart as it
considers this issue.
The Supreme Court has noted that there exists a “possibility that private
defendants faced with § 1983 liability . . . could be entitled to an affirmative
defense based on good faith and/or probable cause.” Richardson, 521 U.S. at 413
(citing Wyatt v. Cole, 504 U.S. 158, 169 (1992)). The Ninth Circuit permits a
private actor to assert a good-faith defense to a § 1983 claim. Clement v. City of
Glendale, 518 F.3d 1090, 1096 (9th Cir. 2008). Courts have acknowledged that
“good faith” lacks susceptibility to a precise definition. Cook v. Brown, No. 6:18cv-01085-AA, 2019 WL 982384, at * 7 (D. Or. Feb. 28, 2019) (citing In re Agric.
Research & Tech. Grp., 916 F.2d 528, 536 (9th Cir. 1990); In re Roco Corp., 701
F.2d 978, 984 (1st Cir. 1983)). It is generally understood, however, that principles
of equity and fairness underpin the good-faith defense. Cook, 2019 WL 982384, at
*7.
The Ninth Circuit in Clement determined that a private towing company’s
good-faith defense shielded it from § 1983 liability. The police department in
Clement authorized a private towing company to tow Virginia Clement’s vehicle
from a hotel parking lot. 518 F.3d at 1092. Clement had filed a “planned nonoperation” (“PNO”) certificate with the California Department of Motor Vehicles.
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Id. PNO certificates allow vehicle owners to avoid paying for registration and
insurance if they do not drive on public roads or park in publicly accessible
parking lots. Id. The police department ordered Clement’s vehicle towed due to
the vehicle’s expired registration and the officer’s mistaken belief that the owner
had parked the vehicle in a publicly accessible parking lot. Id.
The Ninth Circuit reasoned that the private towing company’s good-faith
reliance on the officer’s order shielded it from liability when it towed Clement’s
vehicle. Clement, 518 F.3d at 1097. The police department authorized the private
towing company to tow Clement’s car. Id. The private towing company acted on
instructions from the police department. Id. The private towing company “did its
best to follow the law” and “had no reason to suspect that there would be a
constitutional challenge to its actions.” Id. The Ninth Circuit affirmed the district
court’s grant of summary judgment to the private towing company. Id.
No other entity similarly authorized CCA Defendants’ actions and CCA
Defendants did not act on instructions from anyone else. CCA Defendants instead
initiated disciplinary proceedings under Rule 4235 after they received Stewart’s
Informal Resolution Form. (Doc. 77-1 at 9.) CCA Defendants assert that they
believed Stewart’s threats were criminal in nature and believed they were
following the applicable prison rules when they disciplined Stewart for violating
Rule 4235. (Doc. 117 at 10.)
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CCA Defendants argue that the undisputed facts demonstrate that they acted
in good faith because reasonable minds differ regarding whether a threat qualifies
as criminal. (Id.) The CCA Defendants note that Judge Johnston believed Stewart’s
statements constituted a criminal threat, but that this Court took a different view.
(Id.) CCA Defendants argue that this disagreement demonstrates that reasonable
minds differ on the issue. As a result, CCA Defendants contend that the Court must
find that CCA Defendants acted in good faith when they disciplined Stewart for a
Rule 4235 violation. (Id.)
The Court cannot conclude that CCA Defendants are entitled to summary
judgment on this issue, even after affording them significant deference. CCA
Defendants’ argument highlights an issue of material fact: whether the CCA
Defendants act in good faith when they disciplined Stewart for a Rule 4235
violation. That question presents a factual issue that renders summary judgment
inappropriate. Fed. R. Civ. P. 56(c). The private towing company in Clement had
no reason to suspect its actions would give rise to a constitutional challenge. CCA
Defendants, as the operators of a private prison, likely had reasons to suspect that
their actions would be challenged. These circumstances represent another factual
issue that must be resolved.
CCA Defendants may have acted in good faith and their liability may be
shielded by the good-faith defense. Questions of material fact regarding CCA
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Defendants’ good-faith defense exist at this point in the proceedings. These
questions preclude this Court from granting summary judgment in their favor.
I.

STEWART’S MOTION FOR RECONSIDERATION
Stewart filed a motion asking this Court to reconsider its order denying

Stewart’s Motion for Summary Judgment (Doc. 114 at 26.). (Doc. 124.) Stewart
argued that CCA Defendants unlawfully retaliated against his exercise of free
speech when they disciplined him under Rule 4235. (Doc. 76-1 at 1.) Stewart sets
forth that same argument in his brief in support of his Motion for Reconsideration.
(Doc. 124.) He again argues that CCA Defendants found he violated Rule 4235
with “retaliatory intent” and “malice.” (Doc. 124 at 1.)
A motion for reconsideration serves the following purposes: (1) to raise
previously unknown facts or law that are materially different from those previously
presented to or applied by the Court; or (2) to present new material facts that
emerged, or a change of law that occurred, after the Court entered its order. L.R.
7.3. Stewart’s Motion for Reconsideration presents no new facts or law. Stewart
simply rehashes the arguments that he previously presented to the Court in his
Motion for Summary Judgment. (Docs. 76 & 124.) The Court deems it
unnecessary to address Stewart’s arguments and affirms its earlier decision
denying Stewart’s motion for summary judgment.

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ORDER
Accordingly, IT IS ORDERED that CCA Defendants’ Motion for Summary
Judgment regarding their good-faith defense (Doc. 80) is DENIED. The Court’s
prior rulings regarding the other portions of CCA Defendants’ Motion for
Summary Judgment (Doc. 114) remain in full force and effect.
IT IS FURTHER ORDERED that Stewart’s Motion for Reconsideration
(Doc. 123) is DENIED.
DATED this 23rd day of September, 2019.

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