Stewart v. Kirkegard et al
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 13 in full. Defendants Leroy Kirkegard, Mike Batista, Loraine W odnik, Paul Szczpaniak, Colleen Ambrose, Connie Wimer, Cathy Redfern, Myron Beeson, Associate Warden Wood, Cindy Hiner, Jami Eads, Sgt. W ahlman, Captain Wigert, Crystal Foster, Sgt. Postma, Unit Manager Kremer, Tom Tutty, Dr. Pirinian, Lt. Harmon, Kristy Cobban, Billie Reich, Patrick Sheehan, Ronald McDonald, Lt. Foster, Leonard Mihelich, Thomas Wilson, John Does 1-7, and John Does 10 -12 are DISMISSED WITH PREJUDICE. Defendants John Doe 8 and John Doe 9 and the allegations against these Defendants set forth in Count III are DISMISSED WITHOUT PREJUDICE. All claims raised in Counts I, II, IV, V, VII, and VIII are DISMISSED WITH P REJUDICE. All claims raised in Count III against Defendants Kirkegard, Batista, Wodnik, Wood, Harmon, and Szcapaniak are DISMISSED WITH PREJUDICE. All claims raised in Count VI against Defendants Kirkegard, W odnik, Batista, Beeson, Szczpaniak, and Cobban are DISMISSED WITH PREJUDICE. Signed by Judge Dana L. Christensen on 5/9/2017. Mailed to Stewart. (TAG)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MAY 0 9 2017
Clerk, U.S OiUict Court
District Of Montana
WARDEN LEROY KIRKEGARD, et.
United States Magistrate Judge John T. Johnston entered findings and
recommendations in this case on December 12, 2016, recommending that certain
defendants and counts in Plaintiff Laurence Stewart's ("Stewart") complaint be
dismissed for failing to state a claim upon which relief may be granted. Stewart
filed an objection to the findings and recommendations, and so is entitled to a de
novo review of those findings and recommendations to which he specifically
objects. 1 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
The Court notes that Stewart's objection was untimely since it was filed on March 1,
2017, and the Court's Order dated January 25, 2017 (Doc. 19) indicated that Stewart was to file
his objection by February 23, 2017. However, despite this one-week delay, given that Stewart is
proceeding pro se, the Court will still consider his objections.
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 ifthe 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).
Stewart is an inmate at the Montana State Prison. He filed a civil rights
petition against the following Defendants: Leroy Kirkegard, Mike Batista, Loraine
Wodnik, Paul Szczpasiak, Colleen Ambrose, Connie Wimer, Cathy Redfern,
Myron Beeson, Associate Warden Wood, Cindy Hiner, Jami Eads, Sam
Jovanovich, Sgt. Wohlman, Captain Wigert, Crystal Foster, Sgt. Postma, Unit
Manager Kremer, Tom Tutty, Dr. Pirinian, Lt. Harmon, Kristy Cobban, Billie
Reich, and John Does 1-12. Stewart alleged eight claims: Count I: denial of
mental health care; Count II: denial of medical care for cutting wounds; Count III:
handcuffs too tight-excessive force; Count IV: placement in isolation on suicide
watch; Count V: deprived of property for one week; Count VI: retaliation-lost job;
Count VII: access to policies, staff names, investigations; Count VIII: grievance
restriction. (Doc. 11.)
Because the parties are familiar with the facts of this case they will only be
included here as necessary to explain the Court's order.
Stewart objected to Judge Johnston's finding on each count. Therefore,
they will be addressed separately below.
Count I: Denial of Mental Health Care
Judge Johnston found that while Stewart contends he had a serious mental
health condition at the outset of entering the prison system, Stewart did not present
sufficient factual allegations to plausibly suggest that any named defendant was
deliberately indifferent to those mental health needs. (Doc. 13 at 7-8.) When
prison staff discovered Stewart was cutting himself with razors, he received
adequate mental health treatment and was seen by a psychiatrist. Id. Thus, Judge
Johnson determined that Stewart failed to show that any of the staff members
purposefully fail to respond to his medical needs. See Jett v. Penner, 439 F .3d
1091, 1096 (9th Cir. 2006).
Stewart contends that under Wilhelm v. Rotman, 680 F.3d 1113, 1123 (9th
Cir. 2012), Cabrales v. County ofLos Angeles, 864 F.2d 1454, 1461 (9th Cir.
1991), and Jones v. Johnson, 781 F.2d 769, 771 (9th Cir. 1985), an unnecessary
delay in prescribed medical treatment and the under-staffing of mental health
providers to the point where staff can only spend "minutes per month" with a
prisoner constitutes a deliberate indifference to medical care. Stewart argues that
after his cutting incident on January 22, 2015, MSP staff delayed Stewart's mental
health treatment by providing only two wellness checks within four months. (Doc.
25-1 at 2.)
Upon review of the record, the Court finds no error with Judge Johnston's
finding that no prison staffer was deliberately indifferent to Stewart's mental
health care. Unlike in Wilhem, where the physician diagnosed the prisoner with a
hernia and then failed to perform surgery for over a year, here Stewart received
mental health treatment from a psychiatrist on February 23, 2015, a wellness check
on March 4, 2015, a second psychiatrist meeting on May 15, 2015, and another
wellness check on May 31, 2015. This level of care indicates that MSP staff did
not ignore Stewart's mental health needs. Thus, Judge Johnston's finding that
Stewart's claims for denial of mental health care under Count I is affirmed, and
Count I is dismissed.
Count II: Denial of Medical Care for Cutting Wounds
In Count II, Stewart claims that the doctors who treated him for his wrist
wounds after he cut himself on January 22, 2015, did not properly care for him
because they only glued his injuries back together and then the wounds later broke
open and became painful. Judge Johnston recommended dismissal of this count
because Stewart did not "show that the course of treatment the doctors chose was
medically unacceptable under the circumstances and that the defendants chose this
course in conscious disregard of an excessive risk to [his] health." Snow v.
McDaniel, 681F.3d978, 988 (9th Cir. 2012). Since the doctors immediately took
Stewart to the infirmary and sealed his wounds, the decision to bind the wound
with medical glue instead of stitches was medically acceptable and did not rise to
the level of a constitutional violation.
Stewart claims that because his wounds were deep and damaged, it was
medically unacceptable and intentional when the MSP physician and staff glued
his wound back together instead of using stitches. Stewart cited to Jackson v.
Mcintosh, 90 F .3d 330, 332 (9th Cir. 1995), and Jett, 439 F .3d at 1096, and
acknowledged that in these circumstances a plaintiff must show a "serious medical
need" and a "failure to treat a condition that could result in further significant
injury or the unnecessary and wanton infliction of pain." Stewart argues that it is
common sense in a prison environment that open wounds are susceptible to
MRSA and other infectious diseases, and that MSP was lucky his wounds did not
become infected or inflamed.
Regardless of Stewart's personal feelings about how MSP medical staff
should have treated him, it is evident in the record that he was treated for his selfinflicted wounds on the day they occurred. Furthermore, Stewart missed medical
calls on January 27 and 28, 2015, on his on accord. The wounds were then
scabbed over and did not require treatment the next time he went to see medical
staff on February 10, 2015. Thus, Stewart cannot now claim that the decision to
medically glue his wounds was an unacceptable course of treatment. Count II is
Count III: Handcuffs Too Tight-Excessive Force
Stewart next argues that Judge Johnston incorrectly found that Count III
should be dismissed against all "John Does" named as defendants. Stewart claims
that he attempted to discover the names of the John Does (ISP Officers), but that
when he asked a MSP supervisor for the names in a kite, he was not supplied any
Judge Johnston determined that it is appropriate at this time to dismiss the
John Does from this case, but that Stewart may file a motion to amend his
complaint and request service on these defendants if he later identifies them
pursuant to Rule 15 of the Federal Rules of Civil Procedure. This Court agrees
with Judge Johnston's finding and will dismiss the John Does at this time with
leave to amend the complaint.
Count IV: Placement in Isolation on Suicide Watch
As to Count IV, Judge Johnston found that when Stewart was placed in an
isolation cell on suicide watch from January 23, 2015, until January 25, 2015, the
conditions of the cell did not violate Stewart's Eighth Amendment rights. Stewart
contends that in Tremblay v. Mahoney, No. CV 09-15-H-DWM-RKS, 2009 WL
5173836, at *4 (D. Mont. Dec. 30, 2009), a Montana district court found an Eighth
Amendment violation when an inmate was placed with open wounds in a dirty cell
with feces and blood, and that this determination should control the outcome here.
However, what Stewart fails to do is prove that the conditions of the isolation cell
were so egregious to warrant a constitutional violation. As Judge Johnston
explained, a prison cell does not need to be comfortable, but it does need to be
humane and officials are to provide prisoners with the basic necessities of life such
as food, clothing, shelter, sanitation, medical care and personal safety. Farmer v.
Brennan, 5111 U.S. 825, 832 (1994). Further, "[t]o state a claim under the Eighth
Amendment, the prisoner-plaintiff must show not only that prison officials were
subjectively and actually indifferent to the plight he alleges, but also that the
conditions themselves were objectively sufficiently serious to acquire
constitutional dimension; that is, the conditions 'must result in the denial of the
minimal civilized measure of life's necessities."' Tremblay, at *4 (citing Farmers,
5111 U.S. at 834). Because Stewart has not presented any credible evidence
regarding the conditions of the cell or a prison official's culpable state of mind,
Stewart has not satisfied each element in the Farmer test. Therefore, Count IV is
Count V: Deprived of Property for One Week
After his isolation and suicide watch, Stewart returned to general population
on January 25, 2015, but it was not until February 2, 2015, when his personal
items were returned to him. Stewart alleges that this restrained his liberty and that
he is entitled to procedural due process. Judge Johnston found that the short term
deprivation of Stewart's personal property did not amount to a significant hardship
in the ordinary incidents of prison life; thus, Stewart was unable to state a due
process claim. This Court agrees and finds that Stewart has not offered any
additional facts to support a due process claim. Thus, Count V is dismissed.
Count VI: Retaliation-Lost Job
Stewart alleges that Lieutenant Jovanovich fired him from working laundry
services in retaliation for submitting grievances, and that Defendants Kirkegard,
Wodnik, Batista, Beeson, Szcpaniak, and Cobban were supervisors and were
aware of this retaliation and did nothing to investigate Stewart's grievances.
Judge Johnston found that Stewart failed to state sufficient facts to bring a
supervisory claim against these defendants. In his objection, Stewart claims that
Judge Johnston applied the wrong standard regarding this claim. Stewart argues
that the correct standard is set forth in Lanham v. Kirkegard, No. CV
15-9-H-DLC-JTJ, 2015 WL 1345534, at *7 (D. Mont. Mar. 23, 2015). However,
the Ninth Circuit case relied on in Lanham was Larez v. City ofLos Angeles, 946
F.2d 630, 646 (9th Cir. 1991). In Judge Johnston's findings, he applied a similar
standard found in Rhodes v. Robinson, 408 F.3d 559, 568 (9th Cir. 2005). Not
only does Rhodes succeed Lanham, but the facts in Rhodes are more akin to the
facts at issue here. Thus, Judge Johnston used the correct standard for a
supervisory liability claim under§ 1983. Judge Johnson also correctly found that
Stewart failed to sufficiently state a claim for retaliation under this standard.
Consequently, Count VI is dismissed, except as to Lieutenant Jovanovich, who is
required to respond to this claim.
VII. Count VII: Access to Policies, Staff Names, Investigations
Under Count VII, Steward alleges multiple violations of his Fourteenth
Amendment due process rights and his substantive right to know because MSP did
not adequately investigate his grievances. He also claims that he could not obtain
information from MSP regarding staff names. Judge Johnston found that none of
the issues claimed by Stewart demonstrate an "atypical and significant hardship on
the inmate in relation to the ordinary incidents of prison life" and Stewart's
allegations were therefore insufficient to state a due process claim. Sandin v.
Conner, 515 U.S. 472, 484 (1995). Further, Judge Johnston found that even if the
Defendants violated a prison policy, that by itself, is insufficient to support a
claim under§ 1983. Nurre v. Whitehead, 580 F.3d 1087, 1092 (9th Cir. 2009).
Stewart objects to Judge Johnston's finding, but only rehashes his previous
arguments addressed by Judge Johnston. Stewart argues generally that the MSP
prison staff do not properly perform grievance investigations. (Doc. 25-1 at 6.)
While Stewart disfavors the grievance system at MSP, he has not presented any
evidence regarding a specific action or atypical hardship inflicted upon him. The
broad statements by Stewart do not amount to a Fourteenth Amendment violation
under § 1983. Count VII is dismissed.
VIII. Count VIII: Grievance Restriction
Finally, Stewart claims that the Defendants followed an illegal policy of
placing Stewart on a grievance restriction. Stewart argues that Warden Kirkegard
placed him on a grievance restriction in retaliation for simply filing grievances.
Johnston found, and this Court agrees, that while Stewart has a First
Amendment right to petition the government through the prison grievance system,
Stewart has failed to satisfy the jurisdictional requirement that he suffered an
"actual injury." See Lewis v. Casey, 518 U.S. 343, 349 (1996). Stewart's
objection does not present any new facts to fulfill this standing obligation.
Furthermore, Stewart's claim that he was shipped out ofMSP to Crossroads
Correctional Center in retaliation for using the grievance system is speculative at
best. He has not presented any circumstantial evidence that would suggest a
retaliatory intent of any named defendant. Thus, Count VIII is also dismissed.
Accordingly, IT IS ORDERED that Judge Johnston's Findings and
Recommendations (Doc. 13) are ADOPTED IN FULL.
Defendants Leroy Kirkegard, Mike Batista, Loraine Wodnik, Paul
Szczpaniak, Colleen Ambrose, Connie Wimer, Cathy Redfern, Myron Beeson,
Associate Warden Wood, Cindy Hiner, Jami Eads, Sgt. Wahlman, Captain Wigert,
Crystal Foster, Sgt. Postma, Unit Manager Kremer, Tom Tutty, Dr. Pirinian, Lt.
Harmon, Kristy Cobban, Billie Reich, Patrick Sheehan, Ronald McDonald, Lt.
Foster, Leonard Mihelich, Thomas Wilson, John Does 1-7, and John Does 10-12
are DISMISSED WITH PREJUDICE.
Defendants John Doe 8 and John Doe 9 (the two IPS Officers who
transferred Mr. Stewart from the infirmary to LHU-1 on January 23, 2015) and the
allegations against these Defendants set forth in Count III are DISMISSED
All claims raised in Counts I, II, IV, V, VII, and VIII are DISMISSED
All claims raised in Count III against Defendants Kirkegard, Batista,
Wodnik, Wood, Harmon, and Szcapaniak are DISMISSED WITH PREJUDICE.
All claims raised in Count VI against Defendants Kirkegard, Wodnik,
Batista, Beeson, Szczpaniak, and Cobban are DISMISSED WITH PREJUDICE.
q#i day of May, 2017.
Dana L. Christensen, Chief Judge
United States District Court
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