Bierwiler v. Officer Goodwin

Filing 28

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS in full; denying 16 Motion for Summary Judgment. Signed by Judge Brian Morris on 7/11/2017. Mailed to Bierwiler (TAG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
GREAT FALLS DIVISION
LEVI BIERWILER,
CV-16-09-GF-BMM

Plaintiff,
vs.

ORDER ADOPTING MAGISTRATE
JUDGE’S FINDINGS AND
RECOMMENDATIONS

OFFICER GOODWIN,
Defendant.

Plaintiff Levi Bierwiler, an inmate proceeding in forma pauperis and without
counsel, filed a Complaint (Doc. 1) pursuant to 42 U.S.C. § 1983, alleging that
Defendant Officer Goodwin discriminated against him based upon race by
confiscating playing cards. (Doc. 1.) Defendant filed a motion for summary
judgment arguing that Bierwiler had failed to exhaust his administrative remedies.
(Doc. 16.) United States Magistrate Judge John Johnston issued Findings and
Recommendations in this matter. (Doc. 25.) Judge Johnston recommended that the
Court deny Defendant’s motion because he failed to meet the burden of
demonstrating that administrative remedies were available and Bierwiler failed to
properly use those remedies. Id. at 1.
No party has filed objections. The Court has reviewed Judge Johnston’s
Findings and Recommendations for clear error. McDonnell Douglas Corp. v.
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Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313 (9th Cir. 1981). The Court
finds no error.
I. BACKGROUND
Officer Goodwin confiscated playing cards from Bierwiler during a cell
search at Crossroads Correctional Center (“CCC”) in Shelby, Montana. Officer
Goodwin seized the cards on the grounds that they exceeded the prison’s allowable
property limits. Bierwiler alleges that Officer Goodwin targets Native Americans
and Mexicans in performing cell searches, and that Officer Goodwin confiscated
the cards because of Bierwiler’s race. (Doc. 1.)
CCC’s mandatory grievance policy applied to Bierwiler. The policy
establishes a three-step grievance process. Judge Johnston detailed the process in
his Findings and Recommendations. (Doc. 25 at 3-5.) Bierwiler followed the
process and filed a grievance. Id. at 5. The response directed Bierwiler to “fill out
lost stolen/claim form.” Id. Bierwiler did not submit an appeal to the
warden/administrator from the decision that he received from CCC staff in
response to his grievance. Id.
II. DISCUSSION
Judge Johnston recommended that the Court deny Officer Goodwin’s
motion for summary judgment. Summary judgment is appropriate where no
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genuine issue of material fact exists and the movant is entitled to judgment as a
matter of law. Fed.R.Civ.P. 56(a). 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). The defendant bears the ultimate burden of proving failure
to exhaust. See Brown v. Valoff, 422 F.3d 926, 936 (9th Cir. 2005).
Bierwiler filed a grievance. CCC responded that he should fill out a lost
stolen/claim form. The record does not indicate whether Bierwiler filled out this
form, whether his cards were replaced, or what occurred thereafter. Bierwiler
argues that he “won” two grievances filed against Officer Goodwin, that his cards
were to be replaced, and the officer was found in the wrong.
“The obligation to exhaust ‘available’ remedies persists as long as some
remedy remains ‘available.’ Once that is no longer the case, then there are no
‘remedies . . . available,’ and the prisoner need not further pursue the grievance.
Brown, 422 F.3d at 935 (citing Booth, 532 U.S. 731). Thus, once a prisoner has
won all the relief that is available, his administrative remedies are exhausted.
Brown, 422 F.3d at 935.

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Defendants have failed to show that Bierwiler did not exhaust the
administrative remedies available to him.
III. ORDER
Accordingly, IT IS ORDERED that Magistrate Judge Johnston’s Findings
and Recommendations (Doc. 25) is ADOPTED IN FULL. Defendant’s motion for
summary judgment (Doc. 16) is DENIED.
DATED this 11th day of July, 2017.

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