Jannisch v. Bates et al
ORDER ADOPTING 37 FINDINGS AND RECOMMENDATIONS in full; denying 7 , 23 , 36 Motions for Injuunctive Relief; denying 29 Motion for Summary Judgment. Signed by Judge Dana L. Christensen on 11/16/2017. Mailed to Jannisch (TAG)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
WILLIAM E. JANNISCH,
LEROY KIRKEGARD, et al.,
United States Magistrate Judge John T. Johnston entered Findings and
Recommendations in this case on August 17, 201 7, recommending that
Defendants' motion for summary judgment be denied and Plaintiff William E.
Jannisch's ("Jannisch") October 24, 2016, March 20, 2017, and August 11, 2017
motions for injunctive relief also be denied. Defendants timely filed objections to
the Findings and Recommendations with this Court on August 31, 2017.
Consequently, Defendants are entitled to a de novo review of those findings and
recommendations to which they specifically object. 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).
Because the parties are familiar with the factual and procedural background
which Judge Johnston detailed in his Findings and Recommendations, they will
not be restated here.
Judge Johnston concluded, and this Court agrees, that denial of the motion
for summary judgment is appropriate because Defendants have not met their
burden of demonstrating that administrative remedies were available and that
Jannisch failed to properly utilize those remedies.
Defendants object to three analyses Judge Johnston utilized when deciding
to recommend denial of the Defendants' motion for summary judgment. First,
Defendants object to Judge Johnston's analysis of the second Ross exhaustion
exception and argue that his analysis does not apply the correct standard. Second,
Defendants object to Judge Johnston's conclusion denying summary judgment
because they believe Judge Johnston used Jannisch's subjective knowledge when
concluding that the exhaustion remedies were unavailable to Jannisch. Lastly,
Defendants object that Judge Johnston improperly focused on the waiver of due
process rights instead of the exhaustion of remedies.
Second Ross Factor Analysis
Defendants first argue that Judge Johnston omitted key language that would
establish that there was an available remedy to Jannisch. However, Judge
Johnston's analysis in the Findings and Recommendations is analogous to the
omitted key language and the addition of the language would not change the
outcome of the denial.
The Prison Litigation Reform Act's ("PLRA") exhaustion requirement
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). This means 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. Booth v. Churner, 532 U.S.
731, 741 (2001); Jones v. Bock, 549 U.S. 199, 211 (2007). Under the PLRA,
prison regulations define the exhaustion requirements. Jones, 549 U.S. at 218.
The defendant bears the ultimate burden of proving failure to exhaust. See
Brown v. Va/off, 422 F.3d 926, 936 (9th Cir. 2005). If the defendant initially
shows that (1) an available administrative remedy existed and (2) the prisoner
failed to exhaust that remedy, then the burden of production shifts to the plaintiff
to bring forth evidence "showing that there is something in his particular case that
made the existing and generally available administrative remedies effectively
unavailable to him." Albino v. Baca, 747 F.3d 1162, 1172 (9th Cir. 2014). Thus,
once the defendant has carried his burden, the prisoner must produce evidence
demonstrating that "the local remedies were ineffective, unobtainable, unduly
prolonged, inadequate, or obviously futile." Williams v. Paramo, 775 F.3d 1182,
1191 (9th Cir. 2015) (internal citations and quotation marks omitted).
"The ordinary meaning of the word 'available' is 'capable of use for the
accomplishment of a purpose,' and that which 'is accessible or may be obtained."'
Ross v. Blake, 136 S.Ct. 1850, 1858 (2016) (quoting Booth, 532 U.S. at 737-38).
Therefore, inmates must exhaust those "grievance procedures that are 'capable of
use' to obtain 'some relief for the action complained of."' Id. at 1859 (quoting
Booth, 532 U.S.).
There are three general situations that can render a prison or jail grievance
process unavailable to an inmate. First, an administrative procedure is not
available, and therefore need not be exhausted, "when (despite what regulations or
guidance materials may promise) it operates as a simple dead end-with officers
unable or consistently unwilling to provide any relief to aggrieved inmates." Ross,
136 S.Ct. at 1859.
Second, "an administrative scheme might be so opaque that it becomes,
practically speaking, incapable of use. In this situation, some mechanism exists to
provide relief, but no ordinary prisoner can discern or navigate it." Id. Thus,
"[w ]hen rules are so confusing that no reasonable prisoner can use them, then
they're no longer available." Id. (internal quotation marks and alteration omitted).
Similarly, when the process is "essentially 'unknowable'-so that no ordinary
prisoner can make sense of what it demands-then it is also unavailable." Id.; see
also Turney v. Burnside, 541F.3d1077, 1084 (11th Cir. 2008) ("Remedies that
rational inmates cannot be expected to use are not capable of accomplishing their
purposes and so are not available"). The procedures need not be sufficiently
"plain" as to preclude any reasonable mistake or debate with respect to their
meaning. Ross, 136 S.Ct. at 1859. Therefore, when an administrative process is
susceptible to "multiple reasonable interpretations, Congress has determined that
the inmate should err on the side of exhaustion." Id.
Finally, administrative remedies will be deemed unavailable if"prison
administrators thwart inmates from taking advantage of a grievance process
through machination, misrepresentation, or intimidation" or if administrators
otherwise interfere with an inmate's pursuit of relief. Id. at 1860. For example, if
the prison improperly processed an inmate's grievance, if prison officials
misinformed an inmate regarding grievance procedures, or if the inmate "did not
have access to the necessary grievance forms within the prison's time limits for
filing the grievance," the remedies will be considered unavailable. Albino, 74 7
F.3d at 1172-73.
Defendants argue that Jannisch waived his ability to contest the June 6,
2016 property seizures because he signed the form entitled "Summary Action/Cell
Search/Property Receipt." (Doc. 2-1at2.) Defendants argue that because he
"waived" his ability to contest the seizure by signing the form, there was an
administrative remedy and Jannisch failed to exhaust that administrative remedy.
(Doc. 30 at 7-8.) On the form signed by Jannisch on June 6, 2016, the columns
for "Summary Action or Hearing?" and "Hearing Disposition" were left blank.
(Doc. 2-1 at 2.) Conversely, when Jannisch's property was confiscated in a prior
search on April 25, 2016, the signed form indicated within those columns that his
property was to be mailed out. (Doc. 2-1at3.) Further, on the June 6, 2016,
form, there were only descriptions of the property removed, it does not give a
reason for removal or disposition codes for any of the items. As Judge Johnston
analyzed, it is not clear from the form that by signing it, Jannisch was consenting
to waive his proper administrative exhaustion or consenting to the destruction of
his property after seizure. There is simply no way for Jannisch to "consent to the
disposal" of his property or "waive" his administrative remedies by signing the
June 6, 2016, form.
Defendants object to Judge Johnston's analysis of the second Ross
exception. Judge Johnston held that the "Court does not find that Mr. Jannisch's
signature on the summary action/cell search/property receipt was a clear waiver of
his due process rights and thus, administrative remedies were effectively
unavailable." (Doc. 37 at 11.) Judge Johnston reasoned that administrative
remedies were unavailable because the "rules are so confusing that no reasonable
prisoner can use them" and the grievances were improperly processed. (Id.)
Defendants object to Judge Johnston's reasoning in that it "did not cite to
additional clarifying language from Ross providing: '[W]hen a remedy is ...
essentially "unknowable"-so that no ordinary prisoner can make sense of what it
demands-then it is also unavailable."' (Doc. 38 at 7 (quoting Ross, 136 S.Ct. at
1859).) Defendants assert that this "clarifying language" is essential. However,
while Judge Johnston's conclusion that the rules in this case are "so confusing that
no reasonable prisoner can use them" and are thus rendered unavailable does not
quote the specific "clarifying language" regarding "unknowable" that the
Defendants assert is key (i.e., "no ordinary prisoner can make sense of what [the
rule] demands"), Judge Johnston's conclusion relies on equivalent language
quoted from the same paragraph of Ross. (Docs. 37 at 11 (quoting Ross, 136 S.Ct.
at 1859); 38 at 7 (quoting Ross, 136 S.Ct. at 1859).) The language is equivalent
and the reasoning parallel. The Defendants place form over substance by asserting
that different language be used.
Defendants further argue that "there can be no determination here based on
the record that the procedure was so confusing that it could be deemed
'unknowable."' (Doc. 38 at 7.) It is undisputed that Jannisch completed inmate
orientation and signed an Orientation Acknowledgment Form acceding that he was
responsible for following and adhering to MSP's rules and policies during his
incarceration. Defendants state that MSP policy defines proper exhaustion for a
confiscation of property from an inmate's cell. The policy holds that all items
confiscated must be recorded on a "Summary Action" form and that the inmate
will sign the form "ifhe accepts the confiscation." (Doc. 38 at 7.) Defendants
contend that if the form is signed, the property is processed as contraband and if
unsigned, the inmate receives an infraction report and the chance to challenge the
confiscation at a disciplinary hearing. Defendants assert that the existence of such
administrative exhaustion policies, and the fact that Jannisch signed an
acknowledgment that he was responsible for following the policies, should prove
that Jannisch knew the effect of signing the "Summary Action/Cell
Search/Property Receipt" form on June 6, 2016.
The reasoning of Defendants does not clear up the ambiguity regarding the
June 6, 2016 form itself. To begin with, the form is entitled "Summary
Action/Cell Search/Property Receipt," not just "Summary Action." The form does
not automatically render the property removed to be disposed of or destroyed but
rather, it prompts an officer to acknowledge on the form what is going to happen
to the property. Thus, the question the inmate is left to decipher is whether the
form invokes a summary action, cell search, and property receipt, or is this form
just a property receipt when the form fails to indicate what will happen to the
property by using the listed codes, such as "P-placed in Property Room," "EPlaced in Evidence Room," "DES-Destroyed," etc. (Doc. 2-1at2.) Jannisch's
form is unclear because there is no indication as to the disposition of his property.
Further, as mentioned above, it was also not indicated whether a Summary Action
or Hearing would occur because those columns were left blank. The form signed
by Jannisch purports to be a Property Receipt only, with no indication of what is
going to happen to the property. If the list were accurate, it would not be
reasonable for Jannisch to refain from signing the Property Receipt because he
would want an accurate description of the property in the hopes of having it all
returned back to him. In his June 20, 2016, informal resolution form, Jannisch
even indicated that he "signed summary for property receipt not destroy." (Doc.
31-1 at 40.) Again, because there was no disposition indicated on the form, there
was nothing to caution Jannisch from signing. Had the Disciplinary Unit indicated
destruction or disposal would result, Jannisch may have been more inclined not to
sign, as that would imply to a reasonable person a summary action would occur to
the listed property.
The Court agrees with Judge Johnston's analysis that the rules were so
confusing no reasonable prisoner could use them, rendering them "unknowable,"
as defined by Defendants, and consequently unavailable, as found by Judge
Johnston. The Court finds that Jannisch's signature on the "Summary Action/Cell
Search/Property Receipt" was not a waiver of his right to pursue administrative
remedies and the administrative remedies were effectively unavailable to him.
Thus, the Court agrees with Judge Johnston's finding that there was no available
remedy for Jannisch because the rules were so confusing that no reasonable
prisoner could use them.
Jannisch's Subjective Ability
In their second objection Defendants argue that Judge Johnston improperly
took into consideration Jannisch's subjective ability to understand the "Summary
Action/Cell Search/Property Receipt" form when concluding that administrative
remedies were unavailable. There is no exception excusing a prisoner's failure to
exhaust based on his personal lack of knowledge regarding the exhaustion
procedure. Several circuit courts have determined that an inmate's subjective lack
of knowledge regarding a prison's exhaustion requirements does not make the
process "unavailable." See, e.g., Twitty v. McCoskey, 226 Fed. Appx. 594, 595-96
(7th Cir. 2007) (unpublished) (rejecting inmate's argument that his failure to
exhaust should have been excused because he was unaware of the procedure and
the prison failed to inform him of it); Brock v. Kenton Cnty., 93 Fed. Appx. 793,
797 (6th Cir. 2004) (unpublished) (rejecting an inmate's argument that exhaustion
was unavailable to him because he was unaware of the system); Johnson v. D.C.,
869 F. Supp. 2d 34, 41 (D.C. Cir. 2012) ("While th[e D.C.] Circuit has not yet
weighed in on the issue, the majority of courts to have done so have held that an
inmate's subjective lack of information about his administrative remedies does not
excuse a failure to exhaust."). While Judge Johnston necessarily analyzes
Jannisch's actions to the June 6, 2016, form, there is a distinction between
analyzing Jannisch's subjective thoughts and analyzing Jannisch's objective
actions. Judge Johnston analyzes the latter but, other than acknowledging what
Jannisch contended he thought he was signing, refrained from analyzing the
former. Judge Johnston used the correct standard and analysis to determine
whether the process was unavailable. Thus, this Court finds no error in Judge
Johnston's findings and recommendations when determining the remedy was
unavailable to Jannisch.
Due Process versus Administrative Rights
In Defendants' last objection, they argue that Judge Johnston's denial of
summary judgment should be reversed because it relies on the incorrect premise of
whether Jannisch waived his due process rights, rather than whether he waived his
administrative rights. (Doc. 38 at 12.) Defendants argue that "had the Magistrate
Judge applied the correct test, however, summary judgment would have been
granted for Defendants." (Doc. 38 at 5.)
A procedural due process analysis requires courts to consider three factors:
First, the private interest that will be affected by the official action;
second, the risk of an erroneous deprivation of such interest through
the procedures used, and the probable value, if any of additional or
substitute procedural safeguards; and finally, the Government's
interest, including the function involved and the fiscal and
administrative burdens that the additional or substitute procedural
requirement would entail.
Wilkerson v. Austin, 545 U.S. 209, 224-25 (2005) (citing Mathews v. Eldridge,
424 U.S. 319, 335 (1976)); accord Singh v. Holder, 638 F.3d 1196, 1208 (9th Cir.
2011 ). An administrative exhaustion analysis, on the other hand, merely requires
courts to determine that (1) an available administrative remedy existed, (2) the
prisoner failed to exhaust that remedy, and (3) nothing made the existing and
generally available administrative remedies effectively unavailable. Albino, 74 7
F.3d at 1172. Regardless of whether Judge Johnston used the term due process
instead of administrative remedies, the exception to the administrative exhaustion
analysis was still clearly met throughout the rest of the analysis because there was
no available remedy for J annisch.
The Court does not find Judge Johnston's conclusion erroneous.
Defendants have not met their burden to prove there were available administrative
remedies for J annisch and that J annisch failed to exhaust those remedies because
the proposed remedies were effectively "unavailable" to him. Thus, Defendants'
Motion for Summary Judgment is denied.
October 24, 2016 Motion for Injunctive Relief
Neither party objected to Judge Johnston's findings and recommendation to
deny Jannisch's October 24, 2016 Motion for Injunctive Relief. Accordingly, the
Court reviews for clear error Judge Johnston's findings and recommendation that
Jannisch's Motion for Temporary Restraining Order and Preliminary Injunction to
stop the destruction of his property is moot. Finding no clear error, the Motion is
denied as moot.
March 20, 2017, and August 11, 2017, Motions for Injunctive Relief
Neither party objected to Judge Johnston's findings and recommendations
to deny Jannisch's March 20, 2017, and August 11, 2017, Motions for Injunctive
Relief. In Jannisch's second Motion for Temporary Restraining Order and
Preliminary Injunction, he seeks an order to stop the "continued outbursts of
religious retaliation, religious hate crime actions, religious discrimination, against
and interfearance [sic] with Native American Indian ceremonies and practices."
(Doc. 32 at 1.) In his third Motion for Temporary Restraining Order, Jannisch
seeks an order to stop Defendants from confiscating his religious and hobby items.
(Doc 36 at 3.)
Absent objection, the Court reviews for clear error. The Court agrees that
Jannisch's Motions do not involve Defendants in this action and do not meet the
requirements necessary to issue a preliminary injunction. "A plaintiff seeking a
preliminary injunction must establish that he is likely to succeed on the merits, that
he is likely to suffer irreparable harm in the absence of preliminary relief, that the
balance of equities tips in his favor, and that an injunction is in the public
interest." Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 20, 129
S. Ct. 365, 374, 172 L. Ed. 2d 249 (2008) (citations omitted). The Court agrees
with Judge Johnston that Jannisch was unable to meet his burden. Additionally,
the requests for injunctive relief are vague and fail to specify the conduct Jannisch
seeks to prohibit. "If an injunction does not clearly describe prohibited or required
conduct, it is not enforceable by contempt." Reno Air Racing Ass'n, Inc. v.
McCord, 452 F.3d 1126, 1132 (9th Cir. 2006) (quoting Gates v. Shinn, 98 F.3d
463, 468 (9th Cir. 1996)). Finding no clear error, Jannisch's March 20, 2017, and
August 11, 2017, motions for injunctive relief are denied. Accordingly,
IT IS ORDERED that Judge Johnston's Findings and
Recommendations (Doc. 3 7) are ADOPTED IN FULL.
Defendants' Motion for Summary Judgment (Doc. 29) is DENIED.
Jannisch's October 24, 2016, March 20, 2017, and August 11, 2017,
Motions for Injunctive Relief (Docs. 7; 23; 36) are DENIED.
DATED this~ day of November
Dana L. Christensen, Chief Judge
United States District Court
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