Bull Plume v. Deyott
Filing
19
ORDER ADOPTING 18 FINDINGS AND RECOMMENDATIONS; granting 13 Motion to Dismiss filed by Denise Deyott. Signed by Judge Donald W. Molloy on 9/4/2012. Mailed to Bull Plume. (TAG, )
RECEIVED
SEP 9 4 tall
~:!.DiSTRICT COORT
~·,..n.;1 OF MONTANA
MISSOULA
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
SHANNON DAVID BULLPLUME,
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)
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Plaintiff,
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vs.
MAILROOM SUPERVISOR.,
DENISE DEYOTT
CV 11-56-H-DWM-RKS
ORDER
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Defendant.
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On July 30, 2012, Magistrate Judge Strong entered findings and
recommendations as to the dispute between Plaintiff Shannon David Bullplume
and Defendant Mailroom Supervisor Denise Deyott. (Doc. 18.) Judge Strong
recommended this Court grant Defendant's Motion to Dismiss for Failure to
Exhaust Administrative Remedies. (Doc. 13.)
Bullplume alleges that Defendant opened his legal mail from Attorney
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Jeffrey S. Blanck outside of his presence in violation of his First and Fourth
Amendment rights. Defendant argues Mr. Bullplume failed to exhaust the
grievance procedure in place at Montana State Prison ("MSP") and this matter
should be dismissed. Mr. Bullplume did not respond to Defendant's motion.
Bullplume is entitled to de novo review of those findings or
recommendations to which he objected. 28 U.S.C. § 636(b)(I). Because
Bullplume did not specifically object to any portion of the Findings and
Recommendations, they will be reviewed for clear error. See McDonnell Douglas
Corp. v. Commodore Bus. Mach., Inc., 656 F.2d 1309,1313 (9th Cir. 1981).
The Court agrees with Judge Strong's analysis and conclusions, and adopts
his Findings and Recommendations in full. The procedural and factual
background of the case will not be restated here as the parties are familiar with it,
and it is described in the adopted Findings and Recommendations.
The exhaustion requirement ofthe Prison Litigation Reform Act ("PLRA")
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). The exhaustion requirement is mandatory. Booth v.
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Churner, 532 U.S. 731, 741 (2001); McKinney v. Carey, 311 FJd 1198, 1199 (9th
Cir.2002). To meet this requirement, a prisoner must properly exhaust all
administrative remedies, which includes following all the steps required by the
agency. See Woodfordv. Ngo, 548 U.S. 81, 81 (2006). The defendant bears the
burden of establishing that a plaintiff failed to exhaust administrative remedies.
Wyattv. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003).
As mentioned by Judge Strong, MSP has a grievance procedure for
prisoners to use in order to resolve complaints about their incarceration. Prisoners
must first file an infomlal grievance unless their complaint regards matters
involving "substantial risk of immediate personal injury or serious harm." (MSP
Grievance Procedure, p. 3, ~ III(E)(2).) MSP includes the grievance system
procedure in its orientation program and Mr. Bullplume had previously availed
himselfto the grievance system regarding legal mail from the Center of
Constitutional Rights of Social Justice. However, the record indicates that Mr.
Bullplurne did not file a specific grievance regarding his correspondence with Mr.
Blanck. Finding no clear error in Judge Strong's Findings and Recommendations,
the Court agrees that Mr. Bullplurne failed to exhaust the available administrative
remedies for his claims.
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Bullplume's failure to exhaust his administrative remedies is so clear no
reasonable person could suppose an appeal would have merit. Thus, I certify that
any appeal of this matter would not be taken in good faith.
For all the above reasons, the Findings and Recommendations (doc. 18) are
hereby ADOPTED, and Defendant Mailroom Supervisor Denise Deyott's Motion
to Dismiss for Failure to Exhaust Administrative Remedies (doc. 13) is
GRANTED.
Dated this
~ay of Septemb .---,.~
loy, District Judge
istrict Court
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