Banschbach v. Beckwith
Filing
34
ORDER ADOPTING 22 FINDINGS AND RECOMMENDATIONS in full; denying 8 Motion for Summary Judgment. Signed by Judge Dana L. Christensen on 10/5/2016. Mailed to Banschbach. (TAG, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
HELENA DIVISION
CV 15-106-H-DLC-JTJ
JACOB BANSCHBACH,
Plaintiff,
ORDER
vs.
MSP CORRECTIONAL OFFICER
CARL BECKWITH,
Defendant.
United States Magistrate Judge John T. Johnston entered his findings and
recommendations in this case on August 5, 2016, recommending that Defendant
MSP Correctional Officer Carl Beckwith's ("CO Beckwith") Motion for Summary
Judgment be denied. Beckwith timely objected to the findings and
recommendations, and so is entitled to a de novo review of the record. 28 U.S.C.
§ 636(b )(1 ). Plaintiff Jacob Banschbach ("Banschbach") subsequently moved for
appointment of counsel and leave to file a witness statement. (Docs. 26; 27.)
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). "Clear error exists if the Court
is left with a "definite and firm conviction that a mistake has been committed."
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United States v. Syrax, 235 F.3d 422, 427 (9th Cir. 2000). For the reasons
explained below, the Court adopts Judge Johnston's findings and
recommendations in full.
BACKGROUND
On December 7, 2015, Banschbach, a current inmate at the Montana State
Prison ("MSP"), filed a civil rights complaint claiming an Eighth Amendment
cruel and unusual punishment claim and a Fourteenth Amendment equal
'
protection claim related to alleged sexual misconduct committed by CO Beckwith.
MSP has an "Inmate Grievance Program" that allows inmates to appeal staff
conduct. Banschbach was informed of this program upon entry into the prison.
The grievance process consists of four steps: an informal resolution form, an
inmate grievance form, an appeal to the warden/administrator, and an appeal to the
division of corrections. All steps must be completed for administrative remedies
to be exhausted. Banschbach does not dispute that he was aware of the MSP
Grievance Program.
On July 16, 2012, Banschbach filed an informal grievance about CO
Beckwith. (Doc. 2-1at24-25.) 1 The grievance was denied and forwarded to the
1
The findings and recommendations mistakenly referred to "Doc. 19-1 at 11" as the July
16, 2012, grievance form. This Court agrees with Defendant's objections that this is not the
correct first page of Banschbach's grievance. Nonetheless, there is no dispute that this grievance
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"HSI Unit Manager for her review." (Doc. 2-1at24.) Banschbach appealed to the
next level. (Doc. 2-1at23.) This appeal was denied. Id. Banschbach then
submitted an "Offender Request Form" to the Warden, stating that he was "having
trouble grieving and getting a staff investigation done." (Doc. 2-1 at 22.)
Associate Warden Beeson responded that this type of grievance was allowed. Id.
Banschbach then filed a formal grievance (#3509) on August 27, 2012,
reiterating his complaints about CO Beckwith. (Doc. 2-1 at 21.) The Warden
acknowledged his request and stated that his "[a]llegations will be reviewed and
investigated as necessary." Id. On December 19, 2012, Banschbach filed another
formal grievance (#3858). (Doc. 2-1 at 16.) MSP staff again responded that
"[t]his issue will be looked into." Id. It appears from the record that the July 12,
2012, and November 29, 2012, conduct was under "staff investigation." (Doc. 10
at 7, ~ 22; 11 at 6-7.) The record is inconclusive as to the results of the
investigation.
Again, on February 14, 2013, Banschbach filed an informal grievance
relating to an incident where CO Beckwith had him "cuffled] up." (Doc. 2-1 at
14-15.) Banschbach complained that CO Beckwith was not to be near him
was filed. In an effort to clarify, the Court will only refer to Banschbach' s original § 1983
complaint and accompanying exhibits.
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because Banschbach had an ongoing sexual assault investigation. Id. The
grievance form indicates that an investigator attempted to perform a staff
investigation on March 14, 2013, but that Banschbach would not speak with him.
Id. Banschbach responded on the same form that he "[d]id not state who he was or
I would have spoke to him." Id.
On February 11, 2013, and May 21, 2013, Banschbach filed formal
grievances to the Warden alleging that the sexual misconduct by CO Beckwith had
not been properly addressed (#3977 and #4110). (Doc. 2 at 3, 7.) The final formal
grievance was responded to by MSP staff as follows: "My review finds that the
matter had been given an appropriate level of attention by MSP medical/mental
health staff. I find no ground to overturn prior decisions. Appeal denied." (Doc.
2 at 8.)
LEGAL STANDARDS
The Ninth Circuit in Albino v. Baca, 747 F.3d 1162, 1168 (9th Cir. 2014)
(en bane), held that the proper procedural device for determining whether
administrative remedies have been exhausted is a motion for summary judgment.
A party is entitled to summary judgment if it can demonstrate that "there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law." Fed. R. Civ. P. 56(a). Summary judgment is warranted where the
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documentary evidence produced by the parties permits only one conclusion.
Adickes v. S.H Kress & Co., 398 U.S. 144, 157 (1970). If the moving party makes
a prima facie showing that summary judgment is appropriate, the burden shifts to
the opposing party to show the existence of a genuine issue of material fact. Id.
Only disputes over facts that might affect the outcome of the lawsuit will preclude
entry of summary judgment; factual disputes that are irrelevant or unnecessary to
the outcome are not considered. Id. In ruling on a motion for summary judgment,
all inferences should be drawn in the light most favorable to the party opposing
summary judgment. Id. at 159.
The Prison Litigation Reform Act ("PLRA") provides: "No 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). Thus, "a prisoner must complete the 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). Exhaustion is mandatory and. each prison designates its own grievance
process. Jones v. Bock, 549 U.S. 199, 218 (2007).
Albino established the burden-shifting approach of proving failure to
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exhall;st. 747 F.3d at 1172. "[T]he defendant's burden is to prove that there was
an available administrative remedy, and that the prisoner did not exhaust that
available remedy." Id. After the defendant carries that burden, the prisoner has
the burden of production; therefore, "the burden shifts to the prisoner to come
forward with evidence showing that there is something in his particular case that
made the existing and generally available administrative remedies effectively
unavailable to him." Id. A prisoner can prove he exhausted his administrative
remedies by showing that "the local remedies were ineffective, unobtainable,
unduly prolonged, inadequate, or obviously futile." Williams v. Paramo, 775 F .3d
1182, 1191 (9th Cir. 2015) (citations and internal quotations omitted).
The United States Supreme Court recently examined this exact issue. The
Court found that there were three kinds of circumstances in which an
administrative remedy, although officially on the books, was not capable of
potential relief by an inmate:
First, an administrative procedure is unavailable when it operates as a
simple dead end-with officers unable or consistently unwilling to provide
any relief to aggrieved inmates. Next, an administrative scheme might be so
opaque that it becomes, practically speaking, incapable of use-i.e., some
mechanism exists to provide relief, but no ordinary prisoner can navigate it.
And finally, a grievance process is rendered unavailable when prison
administrators thwart inmates from taking advantage of it through
machination, misrepresentation, or intimidation.
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Ross v. Blake, 136 S. Ct. 1850, 1853-1854 (2016).
ANALYSIS
Viewing the evidence in the light most favorable to Banschbach and
applying the Albino burden-shifting test, the Court agrees with Judge Johnston
that Defendant's Motion for Summary Judgment is without merit. The evidence
produced by CO Beckwith at most meets his burden of demonstrating that the
MSP Grievance Program was an accessible administrative remedy at the initial
step of the Albino burden-shifting inquiry. But, CO Beckwith has not carried his
ultimate burden of proof in light ofBanschbach's factual allegations. The
evidence submitted by CO Beckwith generally outlines the procedure for filing a
formal complaint, but it does not rebut Banschbach's evidence that administrative
remedies were not available to him because his filings were rejected by prison
officials. Banschbach filed numerous informal complaints and four formal
complaints over a one-year span that all involved allegations of CO Beckwith's
misconduct. 2 Consequently, under Ross, Banschbach met his burden by showing
2
At first, Banschbach's July 2012 grievance was denied. He then appealed to the
Warden, and the Warden indicated that this type of grievance was allowed. Subsequently,
Banschbach filed another grievance in August 2012, which was responded to as being "reviewed
and investigated as necessary." It is unclear from the record if the investigation was indeed
completed or if the results of that investigation were disclosed to Banschbach. Nonetheless, as
Ross illustrates, this back-and-forth grievance process makes it particularly "unavailable" for a
prisoner to understand the Inmate Grievance Program at MSP.
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that the MSP administrative remedies were unavailable to him.
I.
CO Beckwith's Specific Objections
A.
Objections to Factual Findings.
CO Beckwith's main objection to Judge Johnston's factual findings is that
Banschbach did not timely file his grievances. (Doc. 25 at 10-12.) Under the
MSP Inmate Grievance Program guidelines, grievances will be investigated only if
the inmate presents an issue of concern within five working days of the action.
(Doc. 11-1 at 2.) CO Beckwith contends that because the commencement of the
alleged sexual misconduct occurred in 2011, and Banschbach did not file an
informal grievance until July 2012, his grievance is untimely. Thus, without
timely notification, MSP was not on notice of and could not adequately address
the issue.
The Court agrees that the basis ofBanschbach's grievances stem from an
event that occurred in July 2011. However, the issue before the Court is whether
Banschbach exhausted his administrative remedies, not whether Banschbach's
grievances were timely filed. CO Beckwith urges this Court to not consider the
totality ofBanschbach's grievances because only one, on December, 19, 2012,
makes a "distinctive reference" to an alleged sexual assault. (Doc. 25 at 14.)
After reviewing all four grievances, this Court agrees with CO Beckwith that only
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the December 19, 2016, grievance specifies the alleged assault by CO Beckwith in
July 2011. (Doc. 2-1at16.) However, that issue is moot because MSP conducted
an investigation into that exact grievance. Id.
CO Beckwith also objects to Judge Johnston's factual finding that MSP
granted a Prison Rape Elimination Act ("PREA") investigation into the events of
July 2011. (Doc. 25 at 16; Doc. 22 at 13.) CO Beckwith contends that the
investigation into the alleged staff misconduct on July 12, 2012, and November
29, 2012, were not pursuant to the PREA, as there were no allegations of sexual
assault in Banschbach's grievances. (Doc. 25 at 14.) This Court has already
determined that while Banschbach did not specifically make reference to the July
2011 conduct in each of his grievances, all his forms still acknowledged CO
Beckwith's alleged sexual behavior. It is unclear from the record what kind of
investigation MSP actually conducted. Banschbach refers to it as a PREA
investigation, and CO Beckwith refers to it as merely an investigation. However,
this difference has no bearing on the issue of whether Banschbach exhausted his
administrative remedies.
There is no dispute that MSP did conduct some type of investigation
regarding Banschbach's July 16, 2012, and December 19, 2012, grievances. (Doc.
2-1 at 16.) Therefore, at this point, he had completed steps one and two of
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grievance process (he submitted an informal resolution form, and an inmate
grievance form).
b.
Objections to Legal Conclusions and Recommendations.
CO Beckwith also objects to Judge Johnston's legal conclusions as they
relate to the holding in Reyes v. Smith, 810 F.3d 654 (9th Cir. 2016). CO Beckwith
spends the majority of his brief on this issue. He contends that Judge Johnston's
reliance on Reyes is misplaced and does not support the proposition that prisoners
exhaust administrative remedies under the PLRA, despite not complying with a
procedural rule, if the prison officials decide the merits of a grievance at each step
of the administrative process. (Doc. 25 at 16-24.) This Court disagrees with CO
Beckwith. Reyes clearly states "that the PLRA exhaustion requirement is satisfied
if prison officials decide a potentially procedurally flawed grievance on the
merits." 810 F.3d at 657. While the facts in Reyes are not analogous with the
facts in this case, Reyes cites to various cases in its sister circuits that have all
adopted the same conclusion. Id. One of these cases cited by the Ninth Circuit
addresses the very issue of satisfying the PLRA exhaustion requirement by an
untimely filing of a grievance when it is accepted and decided on the merits. Id.
(citing Hill v. Curcione, 657 F.3d 116, 125 (2d Cir. 2011)). Thus, Judge
Johnston's finding is correct that when prison officials ignore a procedural
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rule-including the five day time bar at issue here-and decide the grievance on
the merits, the PLRA exhaustion requirement has been fully served.
MSP accepted Banschbach's July 16, 2012, and December 19, 2012,
grievances on the merits, without addressing whatsoever the five-day time bar on
filing grievable conduct under the MSP Inmate Grievance Program. Given that
Banschbach's December 19, 2012, informal grievance specifically noted the July
2011 incident, and the grievance went under investigation by MSP, Banschbach
satisfied the first two steps of the administrative remedies. His subsequent appeal
to the warden/administrator and appeal to the Department of Corrections
completed the final third and forth step in the MSP Inmate Grievance Program.
(Doc. 2-1 at 2-4, 7-8.) Therefore, Banschbach definitively exhausted his
administrative remedies on the issue of CO Beckwith's alleged sexual misconduct.
CO Beckwith's objections do not render Judge Johnston's findings and
recommendations erroneous.
Accordingly, IT IS ORDERED that Judge Johnston's Findings and
Recommendations (Doc. 22) are ADOPTED IN FULL. CO Beckwith's Motion
for Summary Judgment (Doc. 8) is DENIED.
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DATED this
5~ day of October, 2016.
Dana L. Christensen, Chief Judge
United States District Court
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