DaSilva v. City of Montana et al

Filing 74

ORDER denying 30 Motion for Security of Cost; denying 31 Motion for Summary Judgment; denying 43 Motion for Leave to File; granting 45 Motion to Amend/Correct; denying 49 Motion Opposing Untimely Response ; denying 56 Motion for Leave to File; denying 58 Motion to Amend; denying 64 Motion for Partial Summary Judgment. Scheduling Order 23 AMENDED as described. Signed by Magistrate Judge John Johnston on 9/27/2018. (TAG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
GREAT FALLS DIVISION
CV 17-00115-GF-JTJ2

ROBERT AYRES DASILVA, JR.
Plaintiff,
vs.

ORDER
CASCADE COUNTY DETENTION
CENTER, DAN O’FALLON, BOB
EDWARDS, NATHAN BENNETT, CORY
LIGHT, JACOB VAN ZUYT, JUSTIN
TIBBITTS, BLAYNE GAMEON,
VALENTINE WALTERS, and PATRICIA
LAMMERS,1
Defendants.

Plaintiff Robert DaSilva has filed the following motions: Motion for
Security of Cost (Doc. 30.); Motion for Summary Judgment/Default Judgment
(Doc. 31); Motion for Leave to File Motion for Reconsideration of Order denying
Motion for Appointment of Counsel (Doc. 43); Motion to Amend to Correct

As set forth below, the case caption has been amended to reflect the correct
spelling of Defendants’ names.
1

Pursuant to 28 U.S.C. § 636(c), Fed.R.Civ.P. 73, and upon the written
consent of the parties, this matter was reassigned to the undersigned on February 8,
2018 to conduct all further proceedings, enter judgment, and conduct all post-trial
proceedings in the above-captioned matter. (Doc. 37.)
2

1

Spelling of Defendants’ Names (Doc. 45); Motion Opposing Untimely filed
Response (Doc. 49); Motion for Leave to File Motion for Reconsideration (Doc.
56); and Motion to Amend (Doc. 58). In addition, Defendants have filed a Motion
for Partial Summary Judgment (Doc. 64).
Aside from Mr. DaSilva’s motion to correct the spelling of Defendants’
names (Doc. 45), all motions will be denied.
I. Motion for Security of Cost (Doc. 30)
Mr. DaSilva moves pursuant to “Civil Rule 67.3”3 for the Court to secure a
bond from Defendants in the amount of $3,383,000.00 based upon his motion for
summary judgment or default judgment. Rule 67(a) of the Federal Rules of Civil
Procedure provides that “in an action in which any part of the relief sought is a
judgment for a sum of money . . . a party . . . by leave of court, may deposit with
the court all or any part of such sum . . . ” Rule 67 is not generally employed as a
means by which a defendant can be required to prepay a potential judgment.
Regardless, as set forth below, Mr. DaSilva’s motion for summary judgment/
default will be denied and therefore the motion for security of costs will also be
denied.
Presumably, Mr. DaSilva is referring to Local Rule 67.3(a) which provides:
“On a party’s or its own motion, the court may at any time order any party to file a
bond for costs in such amount and so conditioned as the court may designate.”
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2

II. Plaintiff’s Motion for Summary Judgment/Default Judgment (Doc. 31)
In his Motion for Summary Judgment or Alternatively for Default Judgment,
Mr. DaSilva argues Defendants admitted to certain facts in their Answer and failed
to respond to certain allegations which entitles him to judgment as a matter of law.
(Doc. 31.) Although some facts have been admitted, Defendants have not admitted
liability and Mr. DaSilva has not established that there is no genuine dispute as to
any material fact. The motion for summary judgment/default judgment will be
denied.
A. Standard
Summary judgment is appropriate when the moving party “shows that there
is no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). Under summary judgment practice,
“[t]he moving party initially bears the burden of proving the absence of a genuine
issue of material fact.” In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir.
2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The moving
party may accomplish this by “citing to particular parts of materials in the record,
including depositions, documents, electronically stored information, affidavits or
declarations, stipulations (including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials” or by showing that such
3

materials “do not establish the absence or presence of a genuine dispute, or that the
adverse party cannot produce admissible evidence to support the fact.” Fed. R.
Civ. P. 56(c)(1)(A), (B).
“Where the non-moving party bears the burden of proof at trial, the moving
party need only prove that there is an absence of evidence to support the nonmoving party’s case.” Oracle Corp., 627 F.3d at 387 (citing Celotex, 477 U.S. at
325); see also Fed. R. Civ. P. 56(c)(1)(B). Summary judgment should be entered,
“after adequate time for discovery and upon motion, against a party who fails to
make a showing sufficient to establish the existence of an element essential to that
party’s case, and on which that party will bear the burden of proof at trial.” See
Celotex, 477 U.S. at 322. “[A] complete failure of proof concerning an essential
element of the nonmoving party’s case necessarily renders all other facts
immaterial.” Id. at 323. In such a circumstance, summary judgment should be
granted, “so long as whatever is before the district court demonstrates that the
standard for entry of summary judgment, as set forth in Rule 56(c), is satisfied.”
Id.
If the moving party meets its initial responsibility, the burden then shifts to
the opposing party to establish that a genuine issue as to any material fact actually
does exist. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
4

586-87 (1986). In attempting to establish the existence of this factual dispute, the
opposing party may not rely upon the allegations or denials of its pleadings but is
required to tender evidence of specific facts in the form of affidavits, and/or
admissible discovery material, in support of its contention that the dispute exists.
See Fed. R. Civ. P. 56(c)(1); Matsushita, 475 U.S. at 586 n.11. But “[a] plaintiff’s
verified complaint may be considered as an affidavit in opposition to summary
judgment if it is based on personal knowledge and sets forth specific facts
admissible in evidence.” Lopez v. Smith, 203 F.3d 1122, 1132 n.14 (9th Cir. 2000)
(en banc). The opposing party must demonstrate that the fact in contention is
material, i.e., a fact “that might affect the outcome of the suit under the governing
law,” and that the dispute is genuine, i.e., “the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors
Ass’n, 809 F.2d 626, 630 (9th Cir. 1987).
“In evaluating the evidence to determine whether there is a genuine issue of
fact,” the court draws “all inferences supported by the evidence in favor of the
non-moving party.” Walls v. Cent. Costa Cnty. Transit Auth., 653 F.3d 963, 966
(9th Cir. 2011). It is the opposing party’s obligation to produce a factual predicate
from which the inference may be drawn. See Richards v. Nielsen Freight Lines,
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810 F.2d 898, 902 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the
opposing party “must do more than simply show that there is some metaphysical
doubt as to the material facts.” Matsushita, 475 U.S. at 586 (citations omitted).
B. Analysis
Mr. DaSilva first contends that he is entitled to summary judgment based
upon Defendants’ admission that the Cascade County Detention Center (“CCDC”)
is overcrowded because it houses more prisoners than its designed capacity.
Defendants do not dispute this contention but argue that the mere fact that CCDC
was overcrowded is insufficient to establish a constitutional violation. Defendants
are correct, overcrowding, by itself, is not a constitutional violation. Doty v.
County of Lassen, 37 F.3d 540, 545 n.1 (9th Cir. 1994); Hoptowit v. Ray, 682 F.2d
1237, 1249 (9th Cir. 1982).
At all times relevant to the Complaint, Mr. DaSilva was a pretrial detainee.
A pretrial detainee’s (as opposed to a convicted prisoner’s) constitutional rights
relative to conditions of confinement are addressed under the due process clause of
the Fourteenth Amendment, rather than the Eighth Amendment’s prohibition
against cruel and unusual punishment applicable to convicted inmates. Oregon
Advocacy Center v. Mink, 322 F.3d 1101, 1120 (9th Cir. 2003). In the past, it was
assumed that the standard applicable to a pretrial detainee’s conditions of
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confinement claims brought under the Fourteenth Amendment was the same state
of mind requirement as an Eighth Amendment violation, i.e., subjective deliberate
indifference to a substantial risk of serious harm. See Clouthier v. Cty. of Contra
Costa, 591 F.3d 1232 (9th Cir. 2010). The United States Supreme Court, however
applied an objective deliberate indifference standard to a pretrial detainee’s claims
of excessive force in Kingsley v. Hendrickson, 135 S.Ct. 2466, 2473 (2015). The
Ninth Circuit has extended the Kingsley rationale to a Fourteenth Amendment
failure-to-protect claim (Castro v. Cty. of Los Angeles, 833 F.3d 1060 (9th Cir.
2016) (en banc) and a pre-trial detainee’s medical care claims (Gordon v. County
of Orange, 888 F.3d 1118 (9th Cir. 2018)). See also Darnell v. City of New York,
849 F.3d 17, 36 (2nd Cir. 2017)(opining on a wide range of conditions of
confinement claims brought by twenty pretrial detainees, the court held
“[c]onsistency with the Supreme Court’s decision in Kingsley now dictates that
deliberate indifference be measured objectively in due process cases”).
While the Ninth Circuit has not expressly extended the objective deliberate
indifference standards to all conditions of confinement claims, out of an abundance
of caution, this Court will analyze Mr. DaSilva’s claims under the objective
reasonableness test. That test requires a plaintiff to show that:
(1) The defendant made an intentional decision with respect to the
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conditions under which the plaintiff was confined;
(2) Those conditions put plaintiff at substantial risk of suffering
serious harm;
(3) The defendant did not take reasonable available measures to abate
that risk, even though a reasonable officer in the circumstances would
have appreciated the high degree of risk involved-making the
consequences of the defendant’s conduct obvious; and
(4) By not taking such measures, the defendant caused the plaintiff’s
injuries.
Castro, 833 F.3d at 1071 & n.4. “With respect to the third element, the
defendant’s conduct must be objectively unreasonable, a test that will necessarily
‘turn[ ] on the “facts and circumstances of each particular case.” ‘ ” Id. quoting
Kingsley, 135 S.Ct. at 2473 (quoting Graham v. Connor, 490 U.S. 386, 396
(1989)(ref. Restatement (Second) of Torts § 500 cmt. a (Am. Law Inst. 2016)
(recognizing that “reckless disregard” may be shown by an objective standard
under which an individual “is held to the realization of the aggravated risk which a
reasonable [person] in his place would have, although he does not himself have
it”)).
With regard to Mr. DaSilva’s overcrowding allegations, there are genuine
issues of material fact regarding whether Defendants made intentional decisions
with respect to the overcrowding situation at CCDC, whether those conditions put
Mr. DaSilva at a substantial risk of suffering serious harm, whether Defendants
took reasonable available measures to abate that risk, whether Mr. DaSilva suffered
8

injuries as a result of the overcrowding at CCDC, and whether any failure to take
reasonable available measures to abate the risk was the cause of an injury to Mr.
DaSilva. There are insufficient facts in the record to establish that the
overcrowding at CCDC led to any constitutional violation. Mr. DaSilva’s motion
for summary judgment will be denied on this claim.
Secondly, Mr. DaSilva contends Defendants admitted they do not provide a
legal library or computer searches to pre-trial detainees and they failed to answer
his claims of prejudice and his claim that he had a right to literature. (Doc. 31 at
2.) Defendants admit that pre-trial detainees incarcerated at CCDC are not
provided access to the legal library or computer access for general legal research
searches. (Doc. 20 at 3.) But again, that admission, by itself, is insufficient to
establish a constitutional violation.
“Prisoners have a constitutional right of access to the courts.” Silva v. Di
Vittorio, 658 F.3d 1090, 1101 (9th Cir. 2011) overruled on other grounds by
Richey v. Dahne, 87 F.3d 1202, 1209 n. 6 (9th Cir. 2015). This right includes
“both a right to meaningful access to the courts and a broader right to petition the
government for a redress” of a prisoner’s grievances. Id. at 1102. The Ninth
Circuit differentiates between claims involving a prisoner’s right to affirmative
assistance, which is limited to the tools necessary to attack a sentence and
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“challenge the conditions of . . . confinement,” and claims regarding a prisoner’s
right to litigate without active interference. Id.
In Lewis, the Supreme Court explained that an “actual injury” must arise
before a prisoner has the standing to assert either right. See Lewis, 518 U.S. at
349–52. An “actual injury” occurs when there is a “specific instance” in which a
prisoner was denied access. Id. at 349. The injury requirement is “not satisfied by
just any type of frustrated legal claim.” Id. at 354–55. It is only satisfied when an
inmate is denied access with regard to a direct appeal from his or her conviction, a
habeas petition, or a civil rights action. Id. “Impairment of any other litigating
capacity is simply one of the incidental (and perfectly constitutional) consequences
of conviction and incarceration.” Id. at 355.
Mr. DaSilva argues Defendants’ policy and practice prejudiced him from
bringing this lawsuit with appropriate legal doctrine, legal precedent, and case law.
(MSJ Brief, Doc. 32 at 5.) But Mr. DaSilva successfully filed this lawsuit and the
right of access does not require a defendant “litigate effectively once in court.”
Lewis, 518 U.S. at 354. Mr. DaSilva has not demonstrated an actual injury such as
the “inability to file a complaint or defend against a charge.” Jones v. Blanas, 393
F.3d 918, 936 (9th Cir. 2004) (defining). Mr. DaSilva has presented insufficient
facts to demonstrate that the lack of library or computer access caused an actual
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injury with regard to this case and the Court will not infer such an injury. Mr.
DaSilva’s motion for summary judgment regarding his access to the courts claims
will be denied.
Third, Mr. DaSilva contends Defendants admit that they used pepper spray
and they failed to answer the constitutional violations inherent and inferred from
those actions. (Doc. 31 at 2.) As set forth above, under the Fourteenth
Amendment, “courts must use an objective standard” to decide whether “force
deliberately used is . . . excessive,” and “objective reasonableness turns on the
‘facts and circumstances of each particular case.’ ” Kingsley, 135 S. Ct. at 2472-73
(quoting Graham v. Connor, 490 U.S. 386, 396 (1989)). The following
considerations “illustrate the types of objective circumstances potentially relevant
to a determination of excessive force:” “the relationship between the need for the
use of force and the amount of force used; the extent of the plaintiff’s injury; any
effort made by the officer to temper or to limit the amount of force; the severity of
the security problem at issue; the threat reasonably perceived by the officer; and
whether the plaintiff was actively resisting.” Kingsley, 135 S.Ct at 2473.
Although the Court has found that Mr. DaSilva’s allegations generally state
a cognizable excessive force claim, there are genuine issues of material fact
regarding the need for Defendants’ use of force, the amount of force used, whether
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Mr. DaSilva was injured and if so the extent of that injury, any effort made by
Defendants to temper or to limit the amount of force, the severity of the security
problem at issue, the threat reasonably perceived by the officers, and whether Mr.
DaSilva was actively resisting. As such, the motion will be denied as to Mr.
DaSilva’s claims of excessive force.
Mr. DaSilva also seeks default judgment claiming Defendants failed to
answer his claims regarding failure to decontaminate, labeling him as a snitch
(retaliation), and an interference with mail claim. (Docs. 31 at 3; 32 at 8.) Rule
55(a) of the Federal Rules of Civil Procedure allow a party’s default to be entered,
“when the party has failed to plead or otherwise defend.” Defendants’ Answer
clearly states “With respect to all Counts, Defendants deny any allegation not
specifically admitted.” (Doc. 20 at 3.) Mr. DaSilva’s claims are difficult to
discern from his numerous filings and as such Defendants generally denied his
allegations not specifically admitted. The Court will not grant default judgment on
these claims.
III. Motion for Leave to File Motion for Reconsideration (Doc. 43)
Mr. DaSilva seeks reconsideration of the Court’s Order denying his motion
for appointment of counsel. Local Rule 7.3 provides as follows:
(a) Leave of Court Required. No one may file a motion for
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reconsideration of an interlocutory order without prior leave of court.
(b) Form and Content of Motion for Leave. A motion for leave to file
a motion for reconsideration may seek reconsideration only of an
interlocutory order, must be limited to 2,275 words or, for pro se
litigants, seven pages, and must specify why it meets at least one of
the following:
(1) (A) the facts or applicable law are materially different
from the facts or applicable law that the parties
presented to the court before entry of the order for
which reconsideration is sought, and
(B) despite the exercise of reasonable diligence, the
party applying for reconsideration did not know
such fact or law before entry of the order; or
(2) new material facts arose or a change of law occurred after
entry of the order.
(c) Prohibition Against Repetition of Argument. No motion for leave
to file a motion for reconsideration of an interlocutory order may
repeat any oral or written argument made by the applying party before
entry of the order. Violation of this restriction subjects the offending
party to appropriate sanctions.
Mr. DaSilva does not establish that the facts or applicable law are materially
different from the facts or law presented in his previous motion. He does not
indicate that new material facts emerged after entry of the Court’s order denying
his request for counsel. Mr. DaSilva argues that because Defendants have admitted
certain facts it demonstrates a likelihood of success on the merits. But, as set forth
above, Defendants’ admissions do not establish a constitutional violation. Further,
the Court notes that Mr. DaSilva has been released from custody. (Notice of

13

Change of Address, Doc. 68.) As such, the limits on Mr. DaSilva’s access to legal
materials that he allegedly experienced at CCDC no longer apply. Mr. DaSilva has
still not demonstrated a likelihood of success on the merits or that he is incapable
of articulating his claims pro se.
The Court will not reconsider the denial of the request for the appointment
of counsel at this time.
IV. Motion to Amend (Doc. 45)
Mr. DaSilva moves to correct the spelling of Defendants’ names as provided
in Defendants’ Answer (Doc. 20 at 2.) The motion will be granted and the case
style in this matter has been amended to correct the spelling of those names. The
Clerk of Court will be directed to correct the spelling of Defendants’ names in the
docket.
V. Motion Opposing Untimely filed Response (Doc. 49)
Mr. DaSilva opposes what he contends is Defendants’ untimely response to
his motion for summary judgment. Mr. DaSilva contends he provided his motion
to prison officials on January 26, 2018 and Defendants did not file their response
until February 20, 2018 which he contends is 25 days and they only had 21 days to
respond. (Doc. 49.)
Even assuming Mr. DaSilva’s motion was filed on January 26, 2018 when
14

he gave it to prison officials, Defendants timely filed their response. Rule 6 of the
Federal Rules of Civil Procedure provides:
(1) Period Stated in Days or a Longer Unit. When the period is stated
in days or a longer unit of time:
(A) exclude the day of the event that triggers the period;
(B) count every day, including intermediate Saturdays,
Sundays, and legal holidays; and
(C) include the last day of the period, but if the last day is a
Saturday, Sunday, or legal holiday, the period continues to run
until the end of the next day that is not a Saturday, Sunday, or
legal holiday.
Fed.R.Civ.P. 6(a)(1). Further, Rule 6 provides:
(d) Additional Time After Certain Kinds of Service. When a party
may or must act within a specified time after being served and service
is made under Rule 5(b)(2)(C) (mail), (D) (leaving with the clerk), or
(F) (other means consented to), 3 days are added after the period
would otherwise expire under Rule 6(a).
Fed.R.Civ.P. 6(d). As such, January 26, 2018 is excluded and the 21-day response
time began to run on January 27, 2018. Twenty-one days from January 27, 2018
was February 17, 2018. Because Mr. DaSilva served his motion by mail, three
days are added after the period would otherwise expire and Defendants’ deadline
for filing a response to Mr. DaSilva’s motion was February 20, 2018, the date
Defendants’ response was filed. There is no rule which requires documents to be
electronically filed within the established business hours for the Clerk of Court’s
Office. As such, the motion opposing the untimely filed response (Doc. 49) will be
15

denied.
VI. Motion for Leave to File Motion for Reconsideration (Doc. 56)
On November 6, 2017, this Court issued Findings and Recommendations
that the Court abstain from hearing Mr. DaSilva’s claims regarding his ongoing
state court proceedings based upon the policy against federal intervention in
pending state judicial processes in the absence of extraordinary circumstances.
Younger v. Harris, 401 U.S. 37, 43-45 (1971). (Doc. 7.) That recommendation
was adopted in full by District Court Judge Morris on November 29, 2017. (Doc.
13.) Mr. DaSilva filed a motion to reconsider that order on December 29, 2017.
(Doc. 19.) This Court recommended that the December 29, 2017 motion for
reconsideration be denied on January 12, 2018. (Doc. 22.) Those
recommendations were adopted on April 5, 2018. (Doc. 62.)
On March 28, 2018, Mr. DaSilva filed a second motion for reconsideration
seeking to challenge his ongoing state court criminal proceedings. As of March
28, 2018, there was no basis to reconsider the Court’s prior Younger rulings. Mr.
DaSilva’s criminal proceedings were still proceeding and there was no grounds
listed in Mr. DaSilva’s March 28, 2018 motion to render Younger abstention
inapplicable. As such, the March 28, 2018 motion for reconsideration will be
denied.
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However, in his April 16, 2018 Notice of Change of Address, Mr. DaSilva
indicated he was released from custody on April 9, 2018 and the felony charges
against him were dismissed. (Doc. 68.) As such, Younger may no longer apply
and it may be possible for Mr. DaSilva to bring claims which were previously
barred by Younger. Out of an abundance of caution, Mr. DaSilva will be given an
opportunity to file an amended complaint to raise any claims which were
previously barred by Younger.
VII. Motion to Amend (Doc. 58)
Mr. DaSilva has also filed a motion to amend his Complaint to add
defendants associated with his state court criminal proceedings (including the
judge, defense counsel, public defender, and prosecutors). Although claims
regarding the state court criminal proceedings may no longer be barred by
Younger, the Defendants named in Mr. DaSilva’s March 28, 2018 Motion to Add
Additional Defendants (Doc. 58) are not proper Defendants and/or they are entited
to immunity.
Specifically, Judge Parker would be entitled to judicial immunity. Judges
and those performing quasi-judicial functions are absolutely immune from
damages for acts performed within their judicial capacities. Stump v. Sparkman,
435 U.S. 349, 360 (1978); Schucker v. Rockwood, 846 F.2d 1202, 1204 (9th Cir.
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1988) (“A judge loses absolute immunity only when [the judge] acts in the clear
absence of all jurisdiction or performs an act that is not judicial in nature.”).
Similarly, prosecutorial immunity protects eligible government officials
when they are acting pursuant to their official role as advocate for the state. Imbler
v. Pachtman, 424 U.S. 409, 430 (1976). State prosecutors are entitled to absolute
prosecutorial immunity for acts taken in their official capacity. Kalina v. Fletcher,
522 U.S. 118, 123-25 (1997). Mr. DaSilva failed to allege facts sufficient to show
that the prosecuting attorneys and entities (Cascade County Attorney’s Office,
Amanda Lowfink and Joshua Racki) alleged conduct was not “intimately
associated with the judicial phase of the criminal process . . . ” Imbler v.
Pachtman, 424 U.S. 409, 430. As such, these potential defendants are entitled to
prosecutorial immunity.
Finally, the Supreme Court has concluded that when criminal defense
attorneys are acting in their role as advocate, they are not acting under color of
state law for purposes of § 1983. See, e.g., Vermont v. Brillon, 556 U.S. 81, 91
(2009); Polk Cnty. v. Dodson, 454 U.S. 312, 320–25 (1981); Jackson v. Brown,
513 F.3d 1057, 1079 (9th Cir. 2008); United States v. De Gross, 960 F.2d 1433,
1442 n.12 (9th Cir. 1992) (en banc). In Polk County, the Supreme Court held that
defense counsel “does not act under color of state law when performing a lawyer's
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traditional functions as counsel to a defendant in a criminal proceeding.” 454 U.S.
at 325. The Court reasoned that a public defender does not act under color of state
law when representing a defendant in a state criminal proceeding for purposes of §
1983 because he or she is “not acting on behalf of the State; he is the State's
adversary.” Id. at 323 n.13. The case law clearly demonstrates that Mr. DaSilva
may not bring a § 1983 action against his criminal defense attorneys based on their
legal counsel in his criminal case.
Because the defendants Mr. DaSilva seeks to add in his motion to amend are
not proper defendants and/or are entitled to immunity, the motion to amend will be
denied.
VIII. Defendants’ Motion for Partial Summary Judgment (Doc. 64)
Defendants move for partial summary judgment on Mr. DaSilva’s claim that
Defendants retaliated against him. On October 29, 2017, Mr. DaSilva filed a
grievance alleging that another inmate was placed on DaSilva’s “enemy list”
without DaSilva’s knowledge, that his enemies list was disclosed to other inmates,
and that the disclosure done in retaliation for filing the instant suit. Mr. DaSilva
requested an investigation into an incident and that request was granted by the
grievance officer on October 30, 2017. (Statement of Undisputed Facts, Doc. 66 at
¶¶ 6, 7.)
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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.
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.
Failure to exhaust is “an affirmative defense the defendant must plead and
prove.” Jones, 549 U.S. at 204. The appropriate means of determining whether a
defendant has proved a failure to exhaust is governed by the following
burden-shifting regime:
a defendant must first prove that there was an available administrative
remedy and that the prisoner did not exhaust that available remedy.
Then, the burden shifts to the plaintiff, who must show that there is
something particular in his case that made the existing and generally
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available administrative remedies effectively unavailable to him by
showing that the local remedies were ineffective, unobtainable,
unduly prolonged, inadequate, or obviously futile. The ultimate
burden of proof, however, remains with the defendants.
Williams v. Paramo, 775 F.3d 1182, 1190-1191 (9th Cir. 2015) (internal quotations
and citations omitted). “[T]here can be no ‘absence of exhaustion’ unless some
relief remains available.” Brown v. Valoff, 422 F.3d 926, 937 (9th Cir.2005).
Therefore, the defendant must produce evidence showing that a remedy is available
“as a practical matter,” that is, it must be “capable of use; at hand.” Albino, 747
F.3d at 1171.
Here, Mr. DaSilva’s October 28, 2017 grievance on the retaliation issue was
granted. Generally an inmate need not take further action on a grievance which has
been granted. See Harvey v. Jordan, 605 F.3d 681, 685 (9th Cir. 2010) (“An
inmate has no obligation to appeal from a grant of relief, or a partial grant that
satisfies him, in order to exhaust his administrative remedies.”).
In addition, Defendants did not produce a copy of the grievance procedure
for CCDC. Therefore, it is impossible to determine whether Mr. DaSilva complied
with the applicable procedural rules in place at CCDC. See Woodford, 548 U.S. at
88.
Accordingly, the Court finds that Mr. DaSilva exhausted his administrative

21

remedies and Defendants’ Motion for Partial Summary Judgment will be denied.
Based upon the foregoing, the Court issues the following:
ORDER
1. Mr. DaSilva’s Motion for Security of Cost (Doc. 30) is DENIED.
2. Mr. DaSilva’s Motion for Summary Judgment (Doc. 31) is DENIED.
3. Mr. DaSilva’s Motion for Leave to File Motion for Reconsideration of
Order denying Motion for Appointment of Counsel (Doc. 43) is DENIED.
4. Mr. DaSilva’s Motion to Amend to Correct Spelling of Defendants’
Names (Doc. 45) is GRANTED. The Clerk of Court is directed to correct the
spelling of Defendants’ names in the docket.
5. Mr. DaSilva’s Motion opposing Untimely filed Response (Doc. 49) is
DENIED.
6. Mr. DaSilva’s Motion for Leave to File Motion for Reconsideration of
Orders abstaining from consideration of claims regarding state court criminal case
(Doc. 56) is DENIED.
7. Mr. DaSilva’s Motion to Amend (Doc. 58) is DENIED.
8. Defendants’ Motion for Partial Summary Judgment (Doc. 64) is
DENIED.
9. The Court’s January 12, 2018 Scheduling Order (Doc. 23) is AMENDED
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as follows:
a. Mr. DaSilva may file an amended complaint regarding any claims
previously barred by Younger on or before October 19, 2018. If Mr. DaSilva fails
to timely file an amended complaint on these issues, all claims regarding Mr.
DaSilva criminal proceedings will dismissed.
b. All pretrial motions with supporting briefs shall be filed and served
on or before October 26, 2018. Briefing shall be in accordance with Rule 7 of the
Local Rules of the United States District Court for the District of Montana. Rule 7
provides that responses to motions to dismiss, for judgment on the pleadings, or for
summary judgment must be filed within 21 days after the motion was filed, and
responses to all other motions must be filed within 14 days after the motion was
filed. L.R. 7.1(d)(1).
With the service copy of each motion, Defendants must provide Mr. DaSilva
with a copy of the Court’s Notice of Electronic Filing so Mr. DaSilva is aware of
the actual filing date for each motion. Mr. DaSilva will be allowed an additional
three days for mailing to be counted after the time period expires to file his
response.
c. If no dispositive motions are filed on or before October 26, 2018,
defense counsel must assume responsibility for convening a conference of all
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parties for the purpose of preparing a Proposed Final Pretrial Order. Counsel shall
ensure that all tasks are accomplished as set forth in the Attachment to the January
12, 2018 Scheduling Order (Doc. 23) on or before November 30, 2018. A Final
Pretrial Conference and trial date will then be set by further Order of the Court.
10. At all times during the pendency of this action, Mr. DaSilva must
immediately advise the Court of any change of address and its effective date.
Failure to file a notice of change of address may result in the dismissal of the
action for failure to prosecute pursuant to Fed.R.Civ.P. 41(b).
DATED this 27th day of September, 2018.

/s/ John Johnston
John Johnston
United States Magistrate Judge

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