Stewart v. Mr. Berkebile et al

Filing 32

ORDER ADOPTING 25 FINDINGS AND RECOMMENDATIONS in full; granting in part and denying in part 14 Motion to Dismiss for Failure to State a Claim. Signed by Judge Brian Morris on 4/6/2017. Mailed to Stewart (TAG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
GREAT FALLS DIVISION
LAURENCE STEWART,
CV-15-89-GF-BMM-JTJ
Plaintiff,

v.

MR. BERKEBILE, MS. ARNOLD,
MR. SPIEGLE, MR. WEAVER, MIKE
BATISTA, LORAINE WODNIK,
COLLEEN AMBROSE, and MR.
STEWART;

ORDER ADOPTING MAGISTRATE
JUDGE’S FINDINGS AND
RECOMMENDATIONS

Defendants.

State Defendants Batista, Wodnick, and Ambrose moved to dismiss this case
for failure to state a claim upon which relief can be granted under Rule 12 (b)(6) of
the Federal Rules of Civil Procedure. (Doc. 14.) United States Magistrate Judge
John Johnston issued Findings and Recommendations in this matter. (Doc. 25.)
Judge Johnston recommended that the Court deny State Defendants’ motion to
dismiss Plaintiff’s First Amendment retaliation claim and grant their motion to
dismiss Plaintiff’s denial of access to the courts claim.

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State Defendants filed an objection to Judge Johnston’s Findings and
Recommendations because it did not address their motion to dismiss Plaintiff’s due
process claim based on alleged non-processing of grievances. (Doc. 27.) The Court
reviews de novo findings and recommendations to which objections are made. 28
U.S.C. § 636(b)(1)(C). Portions of findings and recommendations not specifically
objected to are reviewed for clear error. McDonnell Douglas Corp. v. Commodore
Bus. Mach., Inc., 656 F.2d 1309, 1313 (9th Cir. 1981).
I. BACKGROUND
Mr. Stewart alleges in his Complaint that the Warden of Montana State
Prison (MSP) placed him on a grievance restriction on May 27, 2015. He asserts
that he was placed on restriction because he allegedly submitted grievances with
abusive language toward staff. MSP transferred him to Crossroads Correctional
Center on June 9, 2015. On June 30, 2015, while at Crossroads, Mr. Stewart wrote
an informal grievance to MSP which contained sexual, abusive, hostile, and
threatening language. On July 2, 2015, Crossroads placed Mr. Stewart in “the
hole.” He received a write up for submitting a grievance with threatening, obscene,
and obscure language about staff members at MSP.
At his disciplinary hearing on July 7, 2015, Mr. Stewart argued that pursuant
to the case of Brodheim v. Cry, 584 F.3d 1262 (9th Cir. 2009), his grievance was
protected by the First Amendment to the United States Constitution. He was
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nevertheless given twenty days in the hole. He appealed, but his appeal was denied
and the discipline upheld. On July 10, 2015, he was informed that the earlier
grievance restriction would remain in place at Crossroads and that none of his
grievances would be processed. (Doc. 2 at 10-11.)
In his Complaint, Mr. Stewart made the following allegation: “DOC Director
Mike Batista and Deputy Director Lorain Woonik [sic] have allowed this sort of
behavior to take place. They are or should be aware that the grievance
policy/procedure does not properly reflect the law and is being used improperly to
avoid having to answer grievances and does not reflect the protections from
disciplinary action in Brodhein v. Cry [sic].” Additionally, he alleged that “DOC
Legal Head Colleen Ambrose should be ensuring that policy and practices is in line
with the law. A change of policy should have been advised years ago.” (Doc. 2 at
12.)
II. DISCUSSION
The Court may dismiss a complaint if it fails to “state a claim upon which
relief can be granted.” Fed. R. Civ. P. 12(b)(6). The Court must consider all
allegations of material fact in the complaint as true and construe the pleading in a
light most favorable to the plaintiff. Erickson v. Pardus, 551 U.S. 89, 94 (2007);
Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).

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A complaint must contain “a short and plain statement of the claim showing
that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A complaint need not
include “detailed factual allegations” to survive a Rule 12(b)(6) motion for
dismissal. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). A complaint,
however, must contain more than “naked assertions,” “labels and conclusions” or
“a formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at
555–57. The complaint must “state a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A “facially plausible” complaint
pleads facts that “allow the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678.
A. Plaintiff’s Denial of Access to the Courts Claim
Judge Johnston stated in his Findings and Recommendations that Mr.
Stewart has conceded that he cannot prevail on a denial of access to the court
claim. (Doc. 25 at 4.) He recommended that the Court dismiss this claim. Id. State
Defendants filed no objection to this recommendation. Mr. Stewart filed no
objection. The Court determines no clear error exists in this recommendation.
B. Plaintiff’s First Amendment Retaliation Claim
Judge Johnston recommended that the Court deny State Defendants’ motion
to dismiss Plaintiff’s First Amendment retaliation claim. Mr. Stewart alleges the
grievance policy promulgated by State Defendants was unconstitutional pursuant
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to Brodheim v. Cry, 584 F.3d 1262 (9th Cir. 2009). A supervisor may be held
liable under § 1983 if he or she implemented a policy so deficient that the policy
itself is a repudiation of constitutional rights and is the moving force of a
constitutional violation. Redman v. County of San Diego, 942 F.2d 1435, 1446 (9th
Cir. 1991) (abrogated on other grounds by Farmer v. Brennan, 511 U.S. 825
(1994)). State Defendants filed no objection to this recommendation. Mr. Stewart
filed no objection. The Court determines no clear error exists in Judge Johnston’s
recommendation to deny State Defendants’ motion to dismiss this claim.
C. Plaintiff’s Due Process Claim Based on Alleged Non-Processing of
Grievances
Plaintiff alleges that his due process rights were violated when the MSP and
Crossroads denied to process his grievances after placing him on grievance
restriction. (Doc. 2 at 8, 10-11.) Judge Johnston did not address this claim in his
Findings and Recommendations. The Court reviews this portion of State
Defendants’ Motion to Dismiss de novo. State Defendants argue that no cognizable
due process claim exists based on alleged non-processing of grievances. (Doc. 27
at 4.) “[I]nmates lack a separate constitutional entitlement to a specific prison
grievance procedure.” Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003). The
Court agrees and dismisses this claim.

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I. ORDER
Accordingly, IT IS ORDERED that Magistrate Judge Johnston’s Findings
and Recommendations (Doc. 25) is ADOPTED IN FULL. State Defendants’
Motion to Dismiss (Doc. 14) is GRANTED as to Plaintiff’s denial of access to the
courts claim. That claim is DISMISSED WITH PREJUDICE. State Defendants’
Motion to Dismiss (Doc. 14) is DENIED as to Plaintiff’s First Amendment
retaliation claim. Further, based on the Court’s de novo review, State Defendants’
Motion to Dismiss (Doc. 14) is GRANTED as to Plaintiff’s due process claim
based on alleged non-processing of grievances. That claim is DISMISSED WITH
PREJUDICE.
DATED this 6th day of April, 2017.

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