Myers v. Grubb et al

Filing 29

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 5 in full. All claims against the Montana Attorney General, the Montana Department of Corrections, and the State of Montana are dismissed with prejudice, the policy claim against Defendant Ferriter is dismissed with prejudice, the failure-to-train claims against Defendants Cascade County Commissioners, Ferriter, and Cascade County and the failure to institute a PREA policy against Cascade County are dismissed with leave to amend. Signed by Judge Dana L. Christensen on 10/2/2012. Mailed to Myers. (TAG, )

IN THE UNITED STATES DISTRICT COURT

FILED

FOR THE DISTRICT OF MONTANA
HELENA DIVISION

GLEN MYERS,
Plaintiff,
vs.
STEVE GRUBB, et aI.,
Defendants.

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CV 12-00029-H-DLC
ORDER

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Plaintiff Glen Myers filed a Motion to Proceed in Fonna Pauperis (doc. 1)
and a proposed Complaint on April 6, 2012 (doc. 2). Myers alleged Defendants
failed to protect him from an assault and rape that occurred at the Cascade County
Detention Center on November 18,2011. (Doc. 2 at 5.) United States Magistrate
Judge Keith Strong granted Myers's Motion to Proceed in Fonna Pauperis (doc. 5
at 17) and reviewed the complaint under 42 U.S.C. § 1915, entering Findings and
Recommendations on June 22, 2012 (doc. 5 at 20-21).
Judge Strong detennined that Myers stated a non-frivolous claim alleging
that individually named Defendants, Steve Grubb, a staff sergeant at the Cascade
County Detention Center; Wayne Bye, Montana Department of Corrections

Monitor at the Cascade County Detention Center; Harlen Trombly, case manager
at the Cascade County Detention Center; and Dan O'Fallon, acting Warden at
Cascade County Detention Center, violated his constitutional rights under § 1983.
However, he recommended that all of Myers's claims against the Attorney
General, the Montana Department of Corrections, and the State of Montana be
dismissed with prejudice, that Myers's policy claim against Director Ferriter be
dismissed with prejudice, and that Myers's failure-to-train claims against Cascade
County, Director Ferriter, and the Cascade County Commissioners be dismissed
with leave to amend. (Doc. 5 at 20-21.)
Myers timely objected and is therefore entitled to de novo review of the
specified findings or recommendations to which he objects. 28 U.S.C. § 636(bXI).
The portions of the Findings and Recommendations not specifically objected to
will be reviewed for clear error. McDonnell Douglas Corp. v. Commodore Bus.

Mach., Inc., 656 F.2d 1309,1313 (9th Cir. 1981).
This Court is mindful of the requirement that "a document filed pro se is to
be liberally construed." Erickson v. Pardus, 551 U.S. 89, 94 (2007). However,

"pro se litigants must follow the same rules of procedure that govern other
litigants." King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). Where the Court
does not have jurisdiction to hear a claim, the claim must be dismissed. Similarly,

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where a plaintiff has not alleged the facts necessary to establish a claim against a
specific defendant, that claim must be dismissed.
Myers objects to the recommended dismissal of his claims against the
Montana Department of Corrections and Cascade County. (Doc. 7 at 2.) For the
reasons stated below, this Court adopts Judge Strong's Findings and
Recommendations in full. Because the parties are familiar with the procedural and
factual background of this case, it will not be restated here.
A. Montana Department of Corrections
Judge Strong recommended Myers's claims against the Department of
Corrections, a state agency, be dismissed because the State of Montana has not
waived its Eleventh Amendment immunity to suit in federal court and injunctive
relief is not available. Myers asks the Court to "remand" his state claims to state
court. But there is no procedure by which the Court can do this. Myers is free to
file his own claims in state court, but this Court cannot do so for him.
B. Cascade County
Myers's second argument is that his claim against Cascade County should
not be dismissed because the County deliberately followed a course of action or
inaction that led to his alleged assault and rape. (Doc. 7 at 3.) Complaints must
contain sufficient allegations of underlying facts to give fair notice and to enable
the opposing party to defend itself effectively. Starr v. Baca, 652 F.3d 1202, 1216
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(9th Cir. 2011); AE ex reI. Hernandez v. Co. ofTulare, 666 F.3d 631, 637 (9th Cir.
2012). To establish liability against a county, it is not enough to demonstrate an
injury inflicted by the County's employees or agents. A government entity is only
responsible under § 1983 when its policy or custom inflicts the injury. Monell v.
Dept. ofSoc. Services, 436 U.S. 658, 694 (1978). Without more, allegations

concerning the individual acts of individual employees will not demonstrate a
custom or policy. Claims alleging that a local government's failure to provide
training to municipal employees resulted in a constitutional deprivation can only
result in liability when the government's failure to train reflects deliberate
indifference to the constitutional rights of inhabitants. City ofCanton v. Harris,
489 U.S. 378, 392 (1989).
Myers alleges that Grubb, Bye, Trombly, and O'Fallon ignored his repeated
requests to be moved away from the inmates who were threatening him and his
requests for help after the alleged assault. (Doc. 2 at 5.) If the allegations are true,
these individuals may have violated Myers's constitutional rights under § 1983 and
may have violated Montana Code Annotated § 7-32-2222(3) and Department of
Corrections Policy Directive 1.3.14. However, Myers's allegations against these
individuals are insufficient to establish liability as to Cascade County. There is
currently nothing in the record to suggest an unconstitutional custom, policy, or
practice, or to suggest the individuals were inadequately trained due to the
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County's deliberate indifference to prisoners' constitutional rights. Since the claim
is dismissed with leave to amend, Myers may amend his complaint to provide
additional facts to establish a claim against the County, so long as he amends it
before the amendment deadline, to be set in a subsequent scheduling order.
Conclusion
Both of Myers's objections are misplaced; he still has the ability to pursue
his claims against the Department of Corrections and Cascade County, albeit in
another court or with an amended claim. My review ofJudge Strong's analysis of
Myers's other claims against Defendants revealed no clear error.
Accordingly, IT IS HEREBY ORDERED:

1.

Judge Strong's Findings and Recommendations (doc. 5) are adopted

2.

All claims against the Montana Attorney General, the Montana

in full.

Department of Corrections, and the State of Montana are dismissed with prejudice.
3.

Mr. Myers's policy claim against Defendant Ferriter is dismissed with

prejudice.
4.

Mr. Myers's failure-to-train claims against Defendants Cascade

County Commissioners, Ferriter, and Cascade County and his failure to institute a
PREA policy against Cascade County are dismissed with leave to amend.

5

DATED this

day of October 2012.

Dana L. Christensen, District udge
United States District Court

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