Hussar v. M.S.P. Warden et al

Filing 55

ORDER ADOPTING 49 FINDINGS AND RECOMMENDATIONS in full; denying 36 Motion for Summary Judgment; denying 40 Motion; denying as moot 50 Motion to Suppress; granting 32 Motion for Summary Judgment. Any appeal of this decision would not be taken in good faith. Signed by Judge Dana L. Christensen on 4/28/2020. Mailed to Hussar (TAG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
HELENA DIVISION

WAYNE A. HUSSAR, II,
Plaintiff,

CV 18–55–H–DLC–JTJ

ORDER

vs.
MSP WARDEN JAMES
SALMONSON and MSP’S
THORNTON R.N.,
Defendants.
United States Magistrate Judge John T. Johntson issued his Findings and
Recommendations in this case on January 7, 2020, recommending that the Court
grant Defendants’ Motion for Summary Judgment (Doc. 32) based on Plaintiff
Wayne A. Hussar, II’s failure to fully exhaust his administrative remedies (Doc.
49). Judge Johnston further recommended that the Court deny Hussar’s Motion for
Summary Judgment (Doc. 36) and his Motion for Counter Lawsuit (Doc. 40).
Hussar timely filed objections to the Findings and Recommendations. (Doc.
51.) Consequently, Hussar is entitled to de novo review of those findings and
recommendations to which he has specifically objected. 28 U.S.C. § 636(b)(1)(C).
Absent objection, this Court reviews findings and recommendations for clear error.
United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc);

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).
Judge Johnston recommended that the Court grant Defendants’ motion for
summary judgment based on Hussar’s failure to exhaust his administrative
remedies. Specifically, Judge Johnston found that no dispute exists that Hussar
failed to complete the last two steps of MSP’s grievance procedure regarding his
requests for his knee brace and knee sleeve. (Doc. 49 at 9.) Accordingly, under
the Prison Litigation Reform Act’s exhaustion requirement, 42 U.S.C. § 1997e(a),
Judge Johnston determined that Defendants are entitled to judgment as a matter of
law. (Id. at 7.)
Conceding that he failed to exhaust administrative remedies before turning
to the Court for relief, Hussar nevertheless objects to the Findings and
Recommendations, arguing that his transfer to Dawson County Correctional
Facility (“DCCF”)1 on May 15, 2018 prevented him from following MSP’s
appellate process. (Docs. 34-5 at 1; 51 at 1.) Specifically, Hussar states that the
grievance officer at DCCF told him on May 20, 2018 that he could not appeal to

1

Hussar also objects to the Findings and Recommendations based on Judge Johnston’s
misstatement regarding Hussar’s transfer to MSP. (Doc. 51 at 2–3.) However, as explained
further, that Hussar was transferred from Broadwater County Jail to MSP, and then from MSP to
Dawson County Correctional Facility (see Doc. 34-5), is immaterial as it relates to the
dispositive question of whether Hussar exhausted his available administrative remedies.
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Department Medical Director—step three of MSP’s four-step grievance
procedure—based on his relocation. (Doc. 51 at 1; see also Doc. 34-1 at 4, ¶ 15.)
Reviewing de novo, the Court agrees with Judge Johnston that Hussar failed
to exhaust his administrative remedies. Whatever conversation he had with the
DCCF grievance officer on May 20, 2018 is irrelevant to the question of whether
he complied with MSP’s procedures. For example, between April 24, 2018—
when he acknowledged his receipt of MSP’s informal resolution (Doc. 34-11)—
and May 15, 2018, Hussar remained in custody at MSP (Doc. 34-5). His
subsequent transfer to DCCF notwithstanding, Hussar presents no evidence that he
took any further steps to appeal after his receipt of the prison’s response. (Doc. 3412.) As Defendants point out, his opportunity to appeal the resolution of his
grievance regarding the Special Needs Committee’s decision would have expired
no later than May 2, 2018. (See Doc. 34-3 at 4 (MSP Inmate Grievance Procedure
stating that an “inmate wishing to file a formal grievance must do so within five
working days form the date he has received the informal resolution response).)
The DCCF grievance officer’s comments aside, Hussar should have filed his
administrative appeal more than two weeks before he arrived at DCCF on May 15,
2020.

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Therefore, searching the record de novo for any indication that Hussar
exhausted his administrative remedies, the Court finds none. And, finding no clear
error in the remaining portions of the Findings and Recommendations,
IT IS ORDEERED:
(1)

Judge Johnston’s Findings and Recommendations (Doc. 49) is

ADOPTED IN FULL;
(2)

Defendants’ Motion for Summary Judgment (Doc. 32) is GRANTED

based on Hussar’s failure to exhaust administrative remedies;
(3)

Hussar’s Motion for Summary Judgment (Doc. 36) is DENIED;

(4)

Hussar’s Motion to Suppress Evidence (Doc. 50) is DENIED AS

MOOT;
(5)

Hussar’s Motion for “Counter Lawsuit on Defendants for ‘Purjury

[sic] – Statements’ and false Info. from Another Inmate’s Special-Needs Records
Put on Plaintiff’s medical Records” (Doc. 40) is DENIED;
(6)

The Clerk of Court shall close this matter and enter judgment for

Defendants pursuant to Federal Rule of Civil Procedure 58; and
(7)

Pursuant to Federal Rule of Appellate Procedure 24(a)(3)(A), this

Court certifies that any appeal of this decision would not be taken in good faith.

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DATED this 28th day of April, 2020.

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