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Mennick v. Smith

August 10, 2010


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


On July 23, 2009, Defendants filed a Motion for Summary Judgment in this civil rights case. See Docket No. 32. On March 16, 2010, this Court granted in part and denied in part Defendants' motion. See Memorandum Decision and Order (Docket No. 37) ("Memorandum Decision"). The Court granted summary judgment to Defendants on Plaintiff's claims (1) that he was denied due process in his review hearings regarding his continued placement in administrative segregation, or "ad-seg," and (2) that Defendants retained him in ad-seg in retaliation for filing civil rights complaints. However, the Court denied summary judgment on Plaintiff's remaining claim that the Defendants' actions in placing and keeping him in ad-seg at IMSI, instead of in protective custody at Idaho Correctional Institution at Orofino ("ICI-O"), violated his Eighth Amendment right against cruel and unusual punishment. Id. Finding that there was insufficient evidence in the record to resolve this claim, the Court allowed Defendants to renew their motion for summary judgment and submit additional evidence. Defendants have done so. See Defendants' Renewed Motion for Summary Judgment (Docket No. 39) ("Renewed Motion").

After the Court's Memorandum Decision, Plaintiff filed a "Motion to Submit Additional Information" (Docket No. 38). He also filed an "Affidavit of Plaintiff to Supplement the Record to Dismiss Defendant's Motion for Summary Judgment" (Docket No. 41). Docket No. 41, Plaintiff's affidavit, contained factual allegations and stated that Plaintiff was attaching an 81-page complaint from another civil rights case. Id. at 2. Plaintiff submitted an amended complaint containing that 81-page document. See Docket No. 42. The Court, recognizing that Plaintiff wished to amend his complaint but had not clearly moved to amend, construed Docket No. 38 as a motion to amend the complaint and Docket No. 41 as an affidavit in support of that motion. So construed, the Court denied the motion. See Order, June 29, 2010 (Docket No. 47), at 2-3. The Court ordered Plaintiff to respond to Defendants' Renewed Motion. Id. at 4.

Plaintiff then informed the Court that Docket No. 41 was not intended as a affidavit in support of a motion to amend but as his Response to Defendants' Renewed Motion for Summary Judgment ("Plaintiff's Response"), and the Court has reconsidered the document in that light and for that purpose. Defendants chose not to file a reply brief, and the Renewed Motion is now ripe for adjudication.

In its earlier decision, the Court also denied Plaintiff's Motion for a Preliminary Injunction. Memorandum Decision at 12-13. Plaintiff has appealed that denial. See Notice of Appeal (Docket No. 49) ("Notice of Appeal"). If this had been a final order, the Court would no longer have jurisdiction to decide Defendants' Renewed Motion for Summary Judgment. See United States v. Phelps, 283 F.3d 1176, 1181 n.5 (9th Cir. 2002). However, because there has not been a final judgment, the proceedings in this Court are not affected by Plaintiff's preliminary injunction appeal and may continue unless the Court orders a stay. 28 U.S.C. § 1292(b); see also Rockrose, L.L.C. v. First Am. Title & Escrow of Magic Valley, Inc., 2006 WL 1697185, *1-2 (D. Idaho June 16, 2006).

Plaintiff has not requested a stay of proceedings pending appeal, and the Court declines to impose one on its own motion. The Court finds that the decisional process would not be significantly aided by oral argument and will therefore decide Defendants' Renewed Motion on the written motions, briefs, and record without oral argument. D. Idaho L. Civ. R. 7.1(d). For the reasons that follow, the Court will grant Defendants' Renewed Motion.


Defendants, as the moving parties, bear the initial burden of demonstrating that there is no genuine issue of material fact and that they are entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (en banc). If they do so, the burden shifts to the Plaintiff to produce evidence sufficient to support a jury verdict in his favor. Anderson v. Liberty Lobby, Inc., 477 U.S.242, 256-57 (1986).

As the Court explained in its previous Memorandum Decision, prisoners do not have a constitutional right to any particular housing classification, Hernandez v. Johnston, 833 F.2d 1316, 1318 (9th Cir. 1987), and there is no Eighth Amendment violation if the choice of classification involves merely a dispute over "arguably superior alternatives," Berg v. Kincheloe, 794 F.2d 457, 462 (9th Cir. 1986). Therefore, to prevail on his Eighth Amendment claim, Plaintiff must show that the safety protections available in ad-seg are so inferior to those in protective custody that he faces a substantial risk of serious harm by remaining in ad-seg. See Farmer v. Brennan, 511 U.S. 825, 834 (1994). He must also show that Defendants have been deliberately indifferent to that risk -- that they knew of and disregarded the risk, or that they were "aware of facts from which the inference could be drawn that a substantial risk of serious harm exists" and actually drew the inference. Id. at 837.


The material facts are set forth in the Court's previous Memorandum Decision and, other than the new evidence submitted in connection with Defendants' Renewed Motion, will not be discussed at length here.

In support of their renewed motion, Defendants submitted the affidavit of Jeff Zmuda, currently the interim warden at Idaho Maximum Security Institution ("IMSI"). Affidavit of Jeff Zmuda (Docket No. 39-2) ("Zmuda Affidavit") at ¶2. He has worked for the Idaho Department of Correction ("IDOC") for over 20 years and is "thoroughly familiar with the conditions of confinement in all state operated Idaho prisons including all restrictive housing units." Id.

Zmuda describes Plaintiff's conditions of confinement in ad-seg at IMSI as "the safest housing assignment he could have in the IDOC prison system." Id. at ¶3. Because inmates who are placed in ad-seg generally pose threats to others, ad-seg inmates are "severely restrict[ed]" from having contact with one another. Id. at ¶4. Most ad-seg inmates, like Plaintiff, have their own cells. Id. at ¶5. According to Zmuda, Plaintiff does not have a cellmate because he was convicted of aggravated assault, he threatened to assault a former cellmate, and he has threatened staff and other inmates on several occasions. Id.

Whenever an ad-seg inmate is removed from his cell, he is restrained with handcuffs and escorted by a "police lead." Id. at ΒΆ6. Ad-seg inmates are "moved in groups of no more than three with appropriate separation between the individuals in a group," which reduces the risk of violent behavior. Id. Ad-seg inmates are separated from ...

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