Looman v. State of Montana et al

Filing 62

ORDER ADOPTING 51 , 56 FINDINGS AND RECOMMENDATIONS in full. Troy McQueary's 33 motion under Federal Rule of Civil Procedure 12(b)(6) is GRANTED. Ronald Looman's claims under 42 U.S.C. 1983 against McQueary are DISMISSED WITHOUT PREJ UDICE. Looman's state law claims against McQueary are DISMISSED WITH PREJUDICE. International Union of Operating Engineers National Training Fund's 28 motion under Federal Rule of Civil Procedure 12(b)(6) is GRANTED. Looman's claims under 42 U.S.C. 1983, strict liability, and the Montana Safety Act against the Union are DISMISSED WITH PREJUDICE. Signed by Judge Donald W. Molloy on 10/24/2012. (TAG, )

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

RONALD GARY LOOMAN
Plaintiff,

v.

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Defendants.

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CV I I-I 43-M-DWM-JCL

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STATE OF MONTANA;
MONTANA DEPARTMENT
OF CORRECTIONS; TROY
McQUEARY, individually;
INTERNATIONAL UNION OF
OPERATING ENGINEERS
NATIONAL TRAINING FUND;
DAVE LIEDLE, individually; and
DOES 3-100,

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OCi(J

ORDER

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Ronald Looman is a prisoner incarcerated at the Montana State Prison in
Deer Lodge, Montana. He brought several claims against the defendants after he
was injured while working on a truck in the prison's Equipment Maintenance
Shop. Looman brings claims under 42 U.S.C. § 1983 and under Montana law for
negligence, strict liability, and violations of what was formerly titled the "Montana
Safety Act," Montana Code Annotated, Title 50, Chapter 71. Judge Lynch issued
two Findings and Recommendations. The Court adopts both in full. Because the

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parties are familiar with the facts, they are restated here only when necessary to
explain the Court's decision.
STANDARD OF REVIEW

The parties are entitled to a de novo review of the specified findings or
recommendations to which they timely object. 28 U.S.C. § 636(b )(1). But the
portions ofJudge Lynch's Findings and Recommendations not specifically
objected to are reviewed for clear error. McDonnell Douglas Corp. v. Commodore

Bus. Mach., Inc., 656 F.2d 1309, 1313 (9th Crr. 1981). General, conclusory
objections do not warrant de novo review. See Potter v. Law, 2012 WL 5187913,
at * 1 (D. Mont. Oct. 18,2012).
ANALYSIS

I.

Dismissal of Loomao's § 1983 claims
Judge Lynch recommends that Looman's lawsuit against McQueary under

§ 1983 be dismissed without prejudice. (August 7, 2012 Findings and
Recommendation, doc. 51.) The State ofMontana is the only party that objects to
that recommendation. The State agrees that the § 1983 claims should be dismissed,
but it argues that the claims should be dismissed with prejudice instead of without
prejudice. The State's argument fails.
The State concedes that '''[i]fthe district court concludes that the prisoner
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has not exhausted nonjudicial remedies, the proper remedy is dismissal of the
claim without prejudice. '" (State's Objections, doc. 57 at 2 (quoting Wyatt v.

Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003)). Indeed, that is a correct statement
of the law. The State, though, argues that the district court is not barred from
dismissing the claims with prejudice if the "prisoner can no longer file a grievance
in conformity with the requirements of a prison grievance procedure." (Jd.) The
State cites two cases from the Western District of Washington and the District of
Oregon where the courts did just that.
The State argues that dismissal with prejudice is appropriate here because
there is simply no way that Looman can now pursue a grievance with prison
officials. The State made this same argument before Judge Lynch. Judge Lynch
rejected that argument because the affidavit from Billie Reich, the Grievance and
Classification Officer at the prison, establishes that Looman could request an
extension of the grievance policy deadlines even at this date. (Findings and
Recommendation, doc. 51 at 14 n.2.)
Judge Lynch is correct. Reich, in her affidavit, states that Policy 3.33 was
in effect at the time of Looman's purported injury. Policy 333 reads: "With
respect to all time limits established in this operational procedure for inmates,
extensions may be granted by the [Grievance Coordinator] for good cause shown
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in exceptional circumstances such as physical incapacity ...." (Reich Aff., doc.

36 at 6.) Nothing in Policy 3.3.3 prevents Looman from seeking an extension,
even at this date.
The State counters that Policy 3.3.3 does not allow "a prisoner (like
Looman), who the record reflects was able to file a grievance but 'made no effort'

to do so with the grievance initiation and completion time periods," to file a
grievance after the expiration ofthose periods.
The State does not point to any portion ofPolicy 3.3.3 that stands for this
proposition. Indeed, it does not. The policy simply states that the Grievance
Coordinator may grant extensions of any deadlines for "good cause shown in
exceptional circumstances ...." (Jd.) Nothing in the policy prevents Looman from
now seeking that extension. Of course, that does not mean that the Grievance
Coordinator would grant it. Dismissal with prejudice would potentially be
appropriate only after the Grievance Coordinator declined to grant an extension
because only then would Looman have no administrative remedy. Cf Vaden v.

Summerhill, 449 F.3d 1047, 1050 (9th Cir. 2006).
There is no clear error in the portions ofJudge Lynch's August 7, 2012
Findings and Recommendations to which the parties did not object. The Court
therefore adopts them in full.
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ll.

International Union of Operating Engineers National Training Fund

In his second set of Findings and Recommendation, Judge Lynch

recommends dismissing several of Looman's claims against the International
Union ofOperating Engineers National Training Fund. Neither Looman nor any of
the other parties object. (August 23, 2012 Findings and Recommendation, doc.
56.) The Court finds no clear error in Judge Lynch's Findings and
Recommendation and adopts them in full.
First. the § 1983 claims against the Union are not cognizable because
Looman failed to plead any factual allegations that support a claim under the joint
action test. See Florer v. Congregation Pidyon Shevuyim, N.A., 639 F .3d 916, 922
(9th Cir. 2011). Second, Looman's strict liability claim fails because he did not
make any factual allegations that would show the design ofthe truck was
"abnormally dangerous." See Chambers v. City ofHelena, 49 P.3d 587, 591
(Mont. 2002), overruled on other grounds, Giambra v. Kelsey, 162 P.3d 134
(Mont. 2007). Finally, Looman's Montana Safety Act claim against the Union fails
because he was not working in a federally certified prison industries program. See
Mont. Code Ann. §§ 39-71-118(1)(f), 5(}-71-204(1), 53-3(}-132(7).
IT IS ORDERED that Judge Lynch's Findings and Recommendations (docs.
51, 56) are ADOPTED IN FULL.
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IT IS FURTHER ORDERED that Troy McQueary's motion under Federal
Rule of Civil Procedure 12(b)(6} (doc. 33) is GRANTED. Ronald Looman's
claims under 42 U.S.C. § 1983 against McQueary are DISMISSED WI1HOUT
PREJUDICE. Looman's state law claims against McQueary are DISMISSED
WITH PREJUDICE.
IT IS FURTHER ORDERED that International Union of Operating
Engineers National Training Fund's motion under Federal Rule of Civil Procedure
12(b}(6} (doc. 28) is GRANTED. Looman's claims under 42 U.S.c. § 1983, strict
liability, and the Montana Safety Act against the Union are DISMISSED WITH
PREJUDICE.
Dated this

'2" 'day of October 2012.

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