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Vickrey v. Erbst

May 24, 2010


The opinion of the court was delivered by: Honorable B. Lynn Winmill Chief U. S. District Judge


Before the Court are Plaintiff's Motion for Leave to Amend Complaint (Docket No. 73); Plaintiff's Motion Regarding Use of Phone Calls (Docket No. 76); Plaintiff's Motion Regarding Use of Arrest Papers (Docket No. 77); Motions to Dismiss or for Summary Judgment by Defendants Erbst and Jones (Docket No. 81), and Defendants Garrett and York (Docket No. 82); Plaintiff's Motions for Extension of Time (Docket Nos. 88 and 93); Plaintiff's Motion for Reconsideration regarding appointment of counsel (Docket No. 96); and Plaintiff's Motion for In Forma Pauperis Status (Docket No. 97). The motions are ripe and at issue. The Court finds that oral argument on the motions will not significantly aid the decisional process, therefore the Court will consider the motions without a hearing.

For the following reasons, the Court will deny the motions to amend complaint and regarding appointment of counsel (Docket Nos. 73 and 96), grant the motions for summary judgment (Docket Nos. 81 and 82), and deem moot the motions for extension of time, regarding use of phone calls and arrest papers, and for in forma pauperis status (Docket Nos. 88, 93, 76, 77 and 97, respectively).


Plaintiff Mark Vickrey is an inmate of the Idaho Department of Corrections (IDOC), currently incarcerated at the Idaho Correctional Institution in Orofino, Idaho (ICI-O).Plaintiff filed a Complaint (Docket No. 3) and Amended Complaints (Docket Nos. 6 and 11), alleging claims under 42 U.S.C. § 1983 for failure to protect and denial of proper medical help from ICI-O staff. Specifically, Plaintiff alleges that Recreation Director John Erbst and Warden Kim Jones failed to adequately protect him in, or appropriately respond to, an incident on September 20, 2006. In that incident, inmate Ferril Arnold jumped on and injured Plaintiff during a flag football game in the ICI-O recreation yard. Plaintiff also alleges that ICI-O medical services staff Dr. Garrett and Nurse Practitioner Rory York denied Plaintiff proper medical treatment to address injuries and pain suffered by Plaintiff while at ICI-O.


A. Motion to Amend Complaint

The Court previously denied Plaintiff's request (Docket No. 49) to supplement his Amended Complaint. In denying this request, the Court noted Plaintiff's undue delay, that Plaintiff had already amended his Complaint, and that Plaintiff knew or should have known of the facts forming the basis of the proposed amendments. Order (Docket No. 60) at 2-3. The Court also reasoned that allowing Plaintiff to amend after the discovery period has closed would unfairly prejudice Defendants. Id. at 3. The Court examines the same factors and applies the same analysis for Plaintiff's pending motion to amend. See Johnson v. Buckley, 356 F.3d 1067, 1077 (9th Cir. 2004)(discussing the five factors the court must consider in a motion to amend complaint). For the same reasons articulated in the Court's prior Order (Docket No. 60), Plaintiff's Motion to Amend (Docket No. 73), at issue here, will be denied.

B. Motion for Appointment of Counsel

Plaintiff has filed a fourth motion (Docket No. 96) for appointment of counsel. Although Plaintiff framed this request as a motion to reconsider the Court's order denying counsel (Docket No. 37), Plaintiff seems to have intended the motion as a renewed request in light of the changed procedural circumstances.

Plaintiff does not argue that the Court misapplied the law in its earlier orders denying counsel, but instead asks the Court to appoint counsel now that the case has progressed beyond the initial filing stage. Plaintiff requests legal assistance given the complicated legal issues raised in Defendants' motion(s) to dismiss, and because of medical issues that Plaintiff argues impair his ability to represent himself.

Neither the procedural posture of this case, nor the medical challenges with which Plaintiff is dealing, change the findings and conclusions in the Court's prior order denying counsel. As previously noted, the federal courts have no authority to require attorneys to represent indigent litigants in civil cases under 28 U.S.C. § 1915(e). See Mallard v. U.S. Dist. Court for the Southern Dist. of Iowa, 490 U.S. 396, 298 (1989). The Court can only appoint an attorney if an attorney voluntarily accepts assignment of the case. Id. Also, the Court has no funds to pay for attorney fees in matters such as this one, adding to the difficulty in finding attorneys willing to accept assignment voluntarily. Plaintiff should continue efforts to obtain assistance on his own. Because the same findings and conclusions from the Court's previous order apply, Plaintiff's fourth request for appointment of counsel will be denied.

C. Legal Standards for Dismissal and Summary Judgment

1. Standard of law for 12(b)(6) Motion

Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief," in order to "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests," Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964 (2007). While a complaint attacked by a Rule 12(b)(6) motion to dismiss "does not need detailed factual allegations," it must set forth "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. at 555.

Only a complaint that states a plausible claim for relief survives a motion to dismiss. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). "Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 1950.A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Twombly, 550 U.S. at 556.

2. Standard of Law on Summary Judgment

One of the principal purposes of summary judgment "is to isolate and dispose of factually unsupported claims . . . ." Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no ...

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