Conner v. Kirkegard et al
ORDER ADOPTING 35 FINDINGS AND RECOMMENDATIONS; denying 18 Motion for Summary Judgment. Signed by Judge Dana L. Christensen on 12/19/2016. Mailed to Conner. (TAG)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
ANDREW DAVID CONNER,
WARDEN LEROY KIRKEGARD, et
United States Magistrate Judge John Johnston entered his Order, Findings
and Recommendations in this matter on October 5, 2016, recommending that
Defendants' motion for summary judgment be denied. Defendants timely filed
objections and are therefore entitled to de novo review of those Findings and
Recommendations to which they specifically object. 28 U.S.C. § 636(b)(1 )(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). The parties are familiar with the facts of this case and they will not be
Turning to the objections, Defendants contend that Judge Johnston erred by
concluding that Plaintiff Andrew David Conner ("Conner") provided enough
information in his grievances to allow Montana State Prison officials to respond to
the actions of the Inner-Perimeter Security ("IPS") Team. Under this general
objection, Defendants argue three specific objections where they contend Judge
Johnston erred. First, Defendants contend that Judge Johnston erred by relying on
Reyes v. Smith, 810 F.3d 654 (9th Cir. 2016), instead of Griffin v. Arpaio, 557
F.3d 1117 (9th Cir. 2009). Second, Defendants take issue with Judge Johnston's
statement that, "Mr. Conner clearly indicated that he felt the IPS Team had acted
inappropriately in his grievance." (Doc. 40 at 4 (citing Doc. 35 at 12).) Third,
Defendants dispute Judge Johnston's conclusion that Conner's grievance alerted
prison officials to the nature of his complaint and allowed them to take appropriate
Reviewing these specific objections de novo, the Court finds that they all
attempt to undercut Judge Johnston's ultimate conclusion that prison officials had
enough information to understand that Conner was grieving the actions of the IPS
team, and not just their supervisors. The Court agrees with Judge Johnston that
Conner's grievance was sufficient.
As discussed by Judge Johnston, under the Prison Litigation Reform Act
(the "PLRA"), a prisoner's grievance need only "alert the prison to the nature of
the wrong for which redress is sought" and "provide enough information ... to
allow prison officials to take appropriate responsive measures." Griffin, 557 F.3d
at 1120-1121 (citation and internal quotation marks omitted). This is because
"[t]he primary purpose of a grievance is to alert the prison to a problem and
facilitate its resolution, not to lay groundwork for litigation." Id. at 1120.
Here, Conner's first grievance clearly indicated his problem: he was sprayed
in the face with OC spray by the IPS Team despite the fact that he has asthma.
(See Doc. 28-1 at 27 (stating that prison "staff ignored the fact that I have asthma
when they insisted on spraying me in the face").) Conner's grievance should have
alerted prison officials that he was grieving the actions of the IPS Team, as vyell as
the actions of their supervisors. Defendants arguments attempt to hold Conner to
a standard of clarity that does not exist under the law. Further, Defendants'
argument that Conner's grievance was not clear enough to alert them that he was
grieving the actions of the IPS Team is undercut by the fact that their response to
his grievance argues that the actions of the IPS Team were reasonable. (See Id.
("[Inmate] Conner you had multiple chances to avoid being extracted but you
refused multiple reasonable direst orders to cuff up. . . . In the future do not put
yourself in this type of situation.").) Additionally, this response appeared to be
authored by the IPS Team members. (Id.) Defendants' objections are overruled.
Lastly, Conner objects to Judge Johnston's denial of his motion for the
appointment of counsel. Because this is a nondispositive Order, it will be
reviewed for clear error. See 28 U.S.C. § 636(b)(l)(A). Upon clear error review,
the Court agrees with Judge Johnston that Conner's motion should be denied
because he has failed to show exceptional circumstances justifying the
appointment of counsel. Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991)
("The court may appoint counsel under section 1915  only under exceptional
circumstances."). Conner's objection is overruled.
Accordingly, the Court reviews the remainder of Judge Johnston's Findings
and Recommendations for clear error and, finding none,
IT IS ORDERED that:
(1) Judge Johnston's Findings and Recommendations (Doc. 35) are
ADOPTED IN FULL.
(2) Defendants' Motion for Summary Judgment (Doc. 18) is DENIED.
DATED this 1q.ffaay of December
Dana L. Christensen, Chief Judge
United States District Court
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