Bearchild v. Cobban et al
ORDER ADOPTING ([190, 212 ) FINDINGS AND RECOMMENDATIONS in part; denying 74 Motion for Summary Judgment; granting ( 78 , 82 , 86 , 90 , 194 ) Motions for Summary Judgment; denying ( 166 , 169 ) Motions; granting 139 Motion to Strike. Denise Deyott is DISMISSED. Signed by Judge Dana L. Christensen on 4/18/2017. Mailed to Bearchild. (TAG)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
APR 18 2017
Clefit, U.S Courts
District Of Montana
KRISTY COBBAN, LARRY PASHA,
SAM JOVANOVICH, DAN
JOHNSON, BRUNO KRAUS, RON
Before the Court are United States Magistrate Judge John T. Johnston's
Findings and Recommendations in this case entered on November 30, 2016, and
January 18, 2017. (Docs. 190, 212.) Judge Johnston recommends the following:
all motions to strike be denied; Plaintiff Dewayne Bearchild's ("Bearchild")
motions for injunctive relief be denied; Bearchild's discovery motions be denied;
all Defendants' motions for summary judgment be granted except for Defendant
Larry Pasha ("Sergeant Pasha"); and Bearchild's requests for a protective order
and court intervention be denied.
Bearchild timely filed his objection with this Court on December 14, 2016,
and February 3, 2017, and so is entitled to de novo review of those findings and
recommendations to which he specifically objects. 28 U.S.C. § 636(b)(l)(C).
This Court reviews for clear error those findings and recommendations to which
no party objects. See McDonnell Douglas Corp. v. Commodore Bus. Mach., Inc.,
656 F.2d 1309, 1313 (9th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 149 (1985).
Clear error exists if the Court is left with a "definite and firm conviction that a
mistake has been committed." United States v. Syrax, 235 F.3d 422, 427 (9th Cir.
2000) (citations omitted).
Notwithstanding the above,"[ w]here a petitioner's objections constitute
perfunctory responses argued in an attempt to engage the district court in a
rehashing of the same arguments set forth in the original habeas petition, the
applicable portions of the findings and recommendations will be reviewed for
clear error." Rosling v. Kirkegard, 2014 WL 693315 at *3 (D. Mont. Feb. 21,
2014) (citations omitted).
Because the parties are familiar with the factual and procedural background,
which Judge Johnston detailed in his very thorough 54-page Findings and
Recommendations, they will not be restated here.
Bearchild's objections fall into two categories: (1) objections that rehash
similar arguments that Bearchild has made throughout this litigation; and (2)
objections specifically directed toward Judge Johnston's Findings and
Recommendations. Consequently, the Court will address the objections Bearchild
makes regarding Judge Johnston's legal analysis under de novo review, and then
will review Bearchild' s rehashed arguments under a clear error standard.
Defendant Pasha also objected to Judge Johnston's legal analysis and the Court
will review those objections under de novo review.
Motions to Strike
Judge Johnston recommended denial of all of the motions to strike (Docs.
122, 139, 142, 144, 146, 148, 176, 181) because the court considered all pleadings
and evidence in its analysis. Sergeant Pasha takes issue with this ruling for two
reasons: first, because the denial of the motion could be determinative of
Bearchild's ability to use the subject exhibits and declarations in further hearings
and motions; and second, because there was confusion in the docketing on
CMIECF that was not the fault of Defendant Pasha, and because the Local Rules
of this Court do not permit sur-reply briefs without prior leave of court. The Court
agrees that Defendant Pasha is entitled to the full benefit of the denial of the
motions to strike without prejudice; thus, even though Judge Johnston considered
all of the evidence in his findings and recommendations, Defendant Pasha may
renew his motions to strike in any future hearings or motions.
As to Sergeant Pasha's second argument, the Court finds that Plaintiff
Bearchild's sur-reply briefs were filed in violation of the Local Rules. Thus,
Defendants' motion to strike the sur-reply briefs (Doc. 139) should be granted.
Under this district's L.R. 7.l(d)(l)(D), no further briefing after the reply brief is
permitted without prior leave. The Court agrees with Sergeant Pasha that while
there may have been a mishap regarding the document filing system at some point
in time, the record is now clear that Defendants sought to strike all of Bearchild' s
sur-reply briefs. (See Docs. 139, 140.) The Court finds that because Bearchild did
not seek leave of court to file his additional sur-reply briefs, and because these surreply briefs are entirely redundant ofBearchild's initial arguments, Documents
134, 135, 136, 137, and 138 will be stricken.
Motions for Injunctive Relief
The Court agrees with Judge Johnston that Bearchild's motions for
injunctive relief (Docs. 159, 166, and 169) should be denied. No party objects to
this finding and recommendation. Thus, reviewing for clear error, the Court finds
none and these motions will be denied.
Defendants Discovery Motions
Defendants moved the court to amend the protective order. (Doc. 163.)
Judge Johnston recommended that the motion be granted as to State documents
435, 437, 445, 447, 449, and 455, because the redacted information on these
documents was irrelevant to Bearchild's claims. Judge Johnston also
recommended that the motion be granted as to the schedules at issue, because
those documents were similarly irrelevant to Bearchild's claims. No party
objected to this finding. The Court finds no clear error with this recommendation
and it will be adopted.
Bearchild's Discovery Motions
Bearchild moved the Court to allow him access to unredacted copies of all
the documents produced in discovery. (Docs. 167, 173, 179.) Judge Johnston
recommended denial ofBearchild's remaining discovery motions because his
arguments were redundant and the court had already addressed the discovery
issues in this case at length in its previous order. (See Doc. 160.) Bearchild did
not object to this finding. Therefore, reviewing for clear error, the court finds
none and adopts the recommendation.
Motions for Summary Judgment
First, Judge Johnston addresses the motions for summary judgment based on
failure to exhaust administrative remedies. Under the Prison Litigation Reform Act
("PLRA"), a prisoner must exhaust his "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). Judge Johnston concluded that Bearchild had exhausted his administrative
remedies because he was granted the only available administrative remedy at
MSP: a PREA investigation. The PREA was completed and fully investigated so
the exhaustion requirement was fulfilled. No party objects to this finding, and the
Court finds no clear error in that determination.
However, the merits ofBearchild's claims against Defendants Pasha,
Jovanovich, Cobban, Kraus, Johnson, and McDonald are in dispute. Judge
Johnston recommended that the Court grant summary judgment in favor of
Jovanovich, Cobban, Kraus, Johnson, and McDonald, but deny Sergeant Pasha's
motion for summary judgment. Sergeant Pasha objects to this finding, and
Bearchild objects to the finding as it relates to the other Defendants. The motions
will be addressed separately below.
The pat-down search at issue in this case occurred at MSP in the lobby of
High Side Unit One (HSU-1) between 8:00 a.m. and 9:00 a.m. on November 4,
2013. Bearchild and at least two other inmates were exiting HSU-1 and were
stopped by correctional officers for a routine pat-down before leaving.
Judge Johnston recommends denial of Sergeant Pasha's motion for
summary judgment because the facts regarding the pat-down search are disputed.
Bearchild alleges that Sergeant Pasha rubbed and stroked his penis and testicles
for approximately five minutes. Sergeant Pasha claims that when he searched
Bearchild he detected an odd enlargement at the front ofBearchild's pants,
instructed Bearchild to face him for privacy reasons, and then instructed Bearchild
to lift his shirt and pull out the waistband of his pants so Sergeant Pasha could
determine ifthere was an object in Bearchild's pants. Bearchild replied to this
request that it was "[his] penis," Sergeant Pasha claims that he saw no other object
in Bearchild's groin area, and the pat-down was completed. Sergeant Pasha
asserts that the search lasted less than 60 seconds and was conducted according to
standard MSP pat-down procedure.
Judge Johnston found that under the Eighth Amendment, which prohibits
cruel and unusual punishment in penal institutions, there is an issue of fact
regarding whether Sergeant Pasha's search was a permissible pat-down or a sexual
assault. Judge Johnston rejected Sergeant Pasha's contention that he is protected
by qualified immunity for the alleged sexual assault because the doctrine of
qualified immunity protects government officials "from liability for civil damages
insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known." Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982). Thus, Judge Johnston concluded that a
correctional officer could not be immune from a sexual assault. Schwenk v.
Hartford, 204 F.3d 1187, 1197 (9th Cir. 2000) ("In the simplest and most absolute
of terms ... prisoners [have a clearly established Eighth Amendment right] to be
free from sexual abuse ... ").
Sergeant Pasha contends that the recommendation that qualified immunity
be denied falls into the traps identified by the United States Supreme Court in
Saucier v. Katz, 533 U.S. 194 (2001). He claims that the analysis fails to address
whether a reasonable officer in Sergeant Pasha's position could have believed that
his conduct was lawful. Further, Sergeant Pasha argues that the recommendation
does not undertake the "clearly established" inquiry set forth in Saucier in light of
the specific context of the case. In summary, Sergeant Pasha asserts that his
conduct was nothing more than routine security practices of a correctional officer
at MSP and the record proves that a reasonable officer in his position would not
have known that his pat search was unlawful.
In Saucier, the Supreme Court mandated a two-step analysis for resolving a
government official's qualified immunity claim. "An officer will be denied
qualified immunity in a § 1983 action only if ( 1) the facts alleged, taken in the
light most favorable to the party asserting injury, show that the officer's conduct
violated a constitutional right, and (2) the right at issue was clearly established at
the time of the incident such that a reasonable officer would have understood his
conduct to be unlawful in that situation." Torres v. City ofMadera, 648 F.3d
1119, 1123 (9th Cir. 2011) (citing Saucier, 533 U.S. at 200); see also White v.
Pauly, 137 S. Ct. 548, 552 (2017). 1 Thus, qualified immunity is applicable unless
the official's conduct violated a clearly established constitutional right. However,
"[i]f an officer reasonably, but mistakenly, believed that a suspect was likely to
fight back, for instance, the officer would be justified in using more force than in
fact was needed." Saucier, 533 U.S. at 205.
The Court acknowledges that Judge Johnston's analysis of the doctrine of
qualified immunity as it relates to government officials was not lengthy.
Notwithstanding this fact, his analysis was concise and the recommendation was
Defendants filed a notice of supplemental authority on February 8, 2017, notifying the
Court of White v. Pauly, 137 S. Ct. 548 (2017), a recent United States Supreme Court case issued
on January 9, 2017, that analyzed the doctrine of qualified immunity as it relates to correctional
officers. (Doc. 216.) Bearchild objects to Defendants' notice. (Doc. 220.) The Court does not
agree with Bearchild that Defendants are offering new legal arguments. Defendants are merely
supplementing their briefs with recent case law that may alter the analysis of qualified immunity.
However, the Court has read White v. Pauly and finds that the facts are distinguishable from the
facts at issue here because this is a case where it is obvious that there was a violation of clearly
established law. Id. at 552 (concluding that the officer did not violate a clearly established law
under the Fourth Amendment).
not in error. The first element of the test is met because the facts alleged by
Bearchild, when viewed in the light most favorable to Bearchild, show that
Sergeant Pasha violated Bearchild's constitutional right to be free from cruel and
unusual punishment under the Eighth Amendment. There is a genuine issue of
material fact as the length of the pat-down search and the intrusiveness of the
search. If Bearchild's account of the incident is proven at trial, a reasonable
officer in Sergeant Pasha's position would know that it is unlawful to conduct a
five minute pat-down search and stroke an inmate's penis for an extended period
of time. There is no dispute that a routine pat-down should take no longer than
As to the second element, Judge Johnston specifically cites to Schwenk v.
Hartford, 204 F.3d 1187, 1197 (9th Cir. 2000), for the proposition that "[i]n the
simplest and most absolute of terms ... prisoners [have a clearly established
Eighth Amendment right] to be free from sexual abuse .... " Further, "[n]o lasting
physical injury is necessary to state a cause of action. Rather, the only
requirement is that the officer's actions be 'offensive to human dignity."' Id. at
1196. The Ninth Circuit has also held that "the law simply does not require that
we find a prior case with the exact factual situation in order to hold that the
official breached a clearly established duty." Id. at 1197 (quoting Alexander v.
Perrill, 916 F.2d 1392, 1398 (9th Cir.1990)).
Sergeant Pasha argues at length in his objection that the conduct at issue in
Schewnkv. Hartford, Woodv. Beauclair, 692F.3d1041 (9th Cir. 2012), and
Mathie v. Fries, 935 F. Supp. 1284, 1301 (E.D.N.Y. 19963), are highly
distinguishable from the misconduct alleged by Bearchild. This Court finds that
while a sexual assault can occur in a variety of manners, any type of sexual assault
by a correctional officer violates the Eighth Amendment because it is offensive to
human dignity. The Court does not agree that the conduct alleged by Bearchild is
any less important than the egregious sexual assaults described in the other cases.
Consequently, Bearchild has satisfied that the right at issue was clearly established
at the time of the incident in question. Sergeant Pasha is not entitled to qualified
immunity because there exists a question of fact regarding whether his pat-down
was a permissible manual palpitation of the groin area pursuant to MSP protocol
or a sexual assault.
Sam Jovanovich, Kristy Cobban, Dan Johnson, and Bruno Kraus
Judge Johnston concluded, and this Court agrees, that summary judgment is
appropriate as it relates to Defendants Jovanovich, Cobban, Johnson and Kraus
because Bearchild does not allege any viable claim against these defendants.
Judge Johnston recommended that Lieutenant Jovanovich is not liable in his
supervisory capacity because Bearchild failed to prove that Lieutenant Jovanovich
was "deliberately indifferent" to Bearchild's safety. As to Defendant Cobban,
Bearchild alleges that when she received notice ofBearchild's grievance, she
threatened to write him up and lock him up for using the grievance system.
However, the undisputed timing of events proves that she did not receive notice of
Bearchild's grievance until after November 13, 2014, so this alleged conduct
could never have occurred on that specific date. In regards to the retaliation
claims against Defendants Cobban, Johnson and Kraus, for allegedly threatening
to deny Bearchild meals, write him up, or not process his grievances, Judge
Johnston recommended that these claims be dismissed because Bearchild is unable
to establish the causation element; that is, that Bearchild's grievance is what
caused the Defendants to retaliate and that their actions were taken against
Bearchild because of his protected conduct.
Bearchild objects to Judge Johnston's findings regarding these Defendants,
but fails to specifically object to Judge Johnston's reasoning. Bearchild reiterates
the same arguments he has made throughout this litigation, and further contends
that Judge Johnston's finding violates Bearchild's constitutional right to access to
the courts and his first amendment right to free speech. This Court will not
address Bearchild' s arguments regarding access to the courts and violation of his
first amendment right because these are new arguments. Thus, the Court reviews
the record for clear error and, finding none, the Court adopts Judge Johnston's
findings as it relates to Defendants Jovanovich, Cobban, Johnson, and Kraus.
Defendant Ron McDonald ("Sergeant McDonald") moved for summary
judgment following Judge Johnston's disposition on the other Defendants'
motions. Therefore, Judge Johnston issued subsequent Findings and
Recommendation solely related to the claims against Sergeant McDonald. (Doc.
212.) Bearchild alleges two claims against Sergeant McDonald: (1) that he failed
to supervise and train his subordinate officers, and (2) that he threatened Bearchild
if more grievances were filed. Judge Johnston recommended that the claims be
dismissed because the court had already found no underlying violation of
Bearchild's constitutional rights committed by Defendants Kraus and Johnson, and
therefore Sergeant McDonald could have no liability in his supervisory capacity.
Second, Judge Johnston concluded that Bearchild failed to present any evidence
suggesting that Sergeant McDonald acted in retaliation in his personal capacity.
Bearchild objects and states that the Court should grant him the ability to
amend his complaint so he can adequately allege his constitutional claims. The
Court denies this request, as Bearchild has already amended his complaint and was
given the opportunity to cure his deficiencies. Bearchild further contends that
there was a conspiracy among the correctional officers to deprive Bearchild of
meals and his access to the grievance process, and that the discovery proves their
conspiracy through a pattern of reoccurring acts by the officers. The Court agrees
with Judge Johnson that while Bearchild continues to assert this position, it is not
supported whatsoever by the facts.
Finally, Bearchild claims that an amendment of his complaint is warranted
because he needs to include claims of illegal detention and wrongful
imprisonment. The Court finds that Bearchild failed to raise these claims before
Judge Johnston. "[A]llowing parties to litigate fully their case before the
magistrate and, if unsuccessful, to change their strategy and present a different
theory to the district court would frustrate the purpose of the Magistrates Act."
Friends of the Wild Swan v. Weber, 955 F. Supp. 2d 1191, 1194 (D. Mont. 2013),
afj"d, 767 F.3d 936 (9th Cir. 2014) (citation omitted). "The Magistrates Act was
[not] intended to give litigants an opportunity to run one version of their case past
the magistrate, then another past the district court." Id. Thus, because Bearchild
failed to present any of these claims throughout the litigation, the Court declines to
address them now. Bearchild's objections are overruled.
Accordingly, IT IS ORDERED that Judge Johnston's Findings and
Recommendations (Docs. 190, 212) are ADOPTED IN PART.
Sergeant Pasha's Motion for Summary Judgment (Doc. 74) is
The Motions for Summary Judgment of Sam Jovanovich, Kristy
Cobban, Bruno Kraus, Dan Johnson, and Ron McDonald (Docs. 78, 82, 86, 90,
194) are GRANTED.
Bearchild's Request/Petition for Court Intervention (Doc. 159)
Bearchild' s Request for Protective Order due to Recent Defendant
Retaliation (Doc. 166) is DENIED.
Bearchild's Request for Court Intervention because of an Agent of
Defendants' Retaliation Against Plaintiff (Doc. 169) is DENIED.
Defendants' Motion to Strike (Doc. 139) is GRANTED. Documents
134, 135, 136, 137, and 138 shall be stricken from the record.
Denise Deyott is DISMISSED as a Defendant, and the Clerk of Court
shall terminate her as a defendant in this matter.
DATED this ~day of April, 20
Dana L. Chris ensen, Chief Judge
United States District Court
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