Clary v. Michaels et al

Filing 60

ORDER ADOPTING 58 , 59 FINDINGS AND RECOMMENDATIONS in full; denying 32 Motion for TRO; granting 36 Motion for Summary Judgment; granting 40 Motion for Summary Judgment. Signed by Judge Brian Morris on 4/5/2021. Transmitted electronically to prison for delivery to Plaintiff. (TAG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
HELENA DIVISION
CHARLES CLARY,

CV 19-66-H-BMM-JTJ

Plaintiff,
vs.

ORDER

REGINALD MICHAEL, et al,
Defendants.
United States Magistrate Judge John Johnston entered two Findings and
Recommendations in this matter on March 3, 2021. Docs. 58 & 59. Neither party
filed objections to either Findings and Recommendations. The Court reviews for
clear error the portions of a magistrate judge’s findings and recommendations to
which a party fails to object. Rosling v. Kirkegard, 2014 WL 693315, at *3 (D.
Mont. Feb. 21, 2014). Clear error exists if the Court maintains a “definite and firm
conviction that a mistake has been committed.” United States v. Syraz, 235 F.3d
422, 427 (9th Cir. 2000).

FINDINGS AND RECOMMENDATION (DOC. 59).
Plaintiff Charles Clary (“Clary”) is a Montana State Prison (“MSP”) prisoner
proceeding pro se on a 42 U.S.C. § 1983 claim against several State of Montana
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Department of Corrections (“DOC”) employees. Clary’s complaint alleges assault
and harassment in violation of 34 U.S.C. § 30201. Defendants filed several motions
for summary judgment. Docs. 36 & 40. Judge Johnston determined that Clary had
failed to exhaust his administrative remedies. Judge Johnston recommended that
Defendants’ motions for summary judgment (Docs. 36 & 40) should be granted. The
Court finds no clear error in Judge Johnston’s Findings and Recommendation
(Doc. 59).
The record indicates that Clary filed several informal grievances related to
this incident. Clary failed to advance to the formal grievance process all but one
grievance. This grievance was denied, and Clary did not appeal the denial. The
record indicates that Clary previously had taken separate and unrelated grievances
through the DOC appeals process seven times. He was aware of the procedures.
The failure to advance the informal grievances or appeal the denial of the formal
grievance bars the present claims, and the case must be dismissed. Woodford v. Ngo,
548 U.S. 81, 87−88 (2006).

FINDINGS AND RECOMMENDATION (DOC. 58).
Clary filed the following motions: Motion to Compel (Doc. 31), Supplemental
Motion to Compel and for Temporary Restraining Order (Doc. 32), Motion for
Judicial Resolution (Doc. 34), Motion for Leave to Conventionally File (Doc. 43),
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Motion to Strike (Doc. 45), Motion to Strike (Doc. 46), Motion for Continuance
(Doc. 52), and Motion for Subpoena (Doc. 53). Judge Johnston recommended that
Clary’s Motion for Temporary Restraining Order (Doc. 32) should be denied. Judge
Johnston denied all remaining motions. The Court finds no clear error in Judge
Johnston’s in his analysis in Findings and Recommendation (Doc. 58).
Regarding Clary’s Motion to Compel (Doc. 31) and Supplemental Motion to
Compel and for Temporary Restraining Order (Doc. 32), Judge Johnston correctly
determined that Clary failed reasonably to limit the scope of his discovery request
and failed to satisfy the burden that he must meet for a temporary restraining order.
Doc. 58 at 4−5. Regarding Clary’s Motion for Judicial Resolution (Doc. 34), Judge
Johnston correctly determined that granting this motion would amount to granting
impermissibly an advisory opinion. Id. at 5−6.
Judge Johnston correctly determined that Clary failed to pursue his Motion
for Leave to Conventionally File (Doc. 43). Judge Johnston correctly determined
that Clary’s Motions to Strike (Doc. 45 & 47) improperly requests that the court
strike the relevant documents rather than address the merits of the documents. Doc.
58 at 7. Regarding Clary’s remaining motions (Docs. 52 & 53), Judge Johnston
correctly determined that these motions are untimely because the deadlines for
discovery have long since passed.

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Clary’s motions suffer a fatal flaw entirely separate from Judge Johnston’s
analysis in his Findings and Recommendations (Doc. 58). The Court’s favorable
disposition toward Defendants’ dispositive Motions for Summary Judgment
(Docs. 36 & 40) moots Clary’s motions.
IT IS HEREBY ORDERED:
1. Judge Johnston’s Finding and Recommendations (Doc. 59) is ADOPTED IN
FULL.
 Defendants Michael, Guyer, Griner, Keele, Hossack, Zacher, and
Weddington’s Motion for Summary Judgement (Doc. 36) is GRANTED.
 Defendant Kraus’ Motion for Summary Judgment (Doc. 40) is GRANTED.
2. Judge Johnston’s Findings and Recommendations (Doc. 58) is ADOPTED IN
FULL.
 Plaintiff Clary’s Motion for Temporary Restraining Order (Doc. 32) is
DENIED.
Dated the 5th day of April, 2021.

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