The opinion of the court was delivered by: Honorable B. Lynn Winmill Chief U. S. District Judge
Pending before the Court are several non-dispositive motions ripe for adjudication in this prisoner civil rights case (Dkts. 91, 92, 95, 97, 100), as well as Defendants' Second Amended Motion for Summary Judgment (Dkt. 101), and Plaintiff's Motion to File a Second Amended Complaint. (Dkt. 109.) The Court finds that the decisional process would not be aided by oral argument. After reviewing the record and the arguments of the parties, the Court enters the following Order addressing all pending motions.
Plaintiff Michael T. Hayes (Plaintiff) is currently an Idaho Department of Correction (IDOC) inmate, bringing conditions of confinement causes of action arising from his incarceration at the Idaho Correctional Center (ICC), a private prison operated by the Corrections Corporation of America (CCA), where he was housed between 2004 and 2007. On April 14, 2007, Plaintiff was beaten and robbed by two other ICC inmates.
Plaintiff alleges that, before the assault, he had filed offender concern forms with prison staff, asking to be transferred to a different pod because he feared for his safety. ICC staff allegedly did not receive those requests. Following the assault, Plaintiff was treated for his injuries and later transferred to a different pod where he was "largely free of these kind of assaults." (Dkt. 7, p.12.)
Plaintiff filed his original Complaint in this civil rights action on March 16, 2009, asserting that ICC Defendants*fn1 failed to protect him from other inmates who had assaulted him. (Dkt. 1.) Because several other ICC inmates had filed similar claims, the Court initially consolidated all the cases for purposes of pre-answer mediation under Lead Case No. 1:08-cv-00402-BLW, Hoak v. IDOC Warden Smith, et al. However, in November 2009, the Court dismissed without prejudice all but Plaintiff Hayes' case because each of the other plaintiffs had failed to exhaust their administrative remedies before bringing suit. (Dkt. 6.) Plaintiff's case was then deconsolidated and he was further ordered to proceed on his First Amended Complaint (Dkt. 7) under its own case number 1:09-CV-122-BLW.
Several claims in the First Amended Complaint are subject to dismissal based on prior Orders. Plaintiff's fifth claim alleges Defendant Archibald failed to properly conduct the investigation following Plaintiff's assault. However, the Court dismissed Defendant Archibald from this case in the Initial Review Order because there is no constitutional right to have one's prison assault investigated. (Dkt. 3, pp. 5-6.) Although the Initial Review Order was entered by U.S. Magistrate Judge Bush, this Court has reviewed the Initial Review Order and adopts it in its entirety. As a result, the fifth claim is no longer part of this lawsuit and will be dismissed with prejudice.
Plaintiff did not properly or timely served Defendants Garett, Bajovich and Stanger, who allegedly failed to render proper medical treatment after Plaintiff's assault. (Dkt. 7, p.16.) Therefore, in a previous Order the Court ruled that Plaintiff could no longer "proceed with claims against these Defendants in this lawsuit." (Dkt. 50, p.5.) Accordingly, Plaintiff's sixth claim is no longer part of this lawsuit and will be dismissed with prejudice.
In the nearly three years since Plaintiff was ordered to proceed on his own Complaint, numerous pretrial motions and discovery disputes have been filed, argued and resolved in this case. In January 2012, the parties attended a Settlement Conference before Judge Mikel H. Williams but failed to reach a settlement. (Dkt. 88.) Thereafter, the Court ordered all remaining discovery to be completed by February 29, 2012, and all motions for summary judgment to be filed on or before March 30, 2012. (Dkt. 90.)
The parties then filed the following motions that are now pending before the Court: (1) Plaintiff's Motion for Trial Date (Dkt. 91); (2) Plaintiff's Motion for Res Judicata Collateral Estoppel and/or Issue Preclusion (Dkt. 92); (3) Plaintiff's Motion for Subpoena Time Enlargement (Dkt. 95); (4) Plaintiff's Motion for Subpoenas Duces Tecum (Dkt. 97); (5) ICC Defendants' Motion to Strike Affidavits of Larry Sittner, Brandon Jordan, Todd Butters, Phillip Fenwick, and Albert Veenstra Filed in Support of Plaintiff's Motion for Subpoenas Duces Tecum (Dkt. 100); (6) ICC Defendants' Amended Second Motion for Summary Judgment (Dkt. 101); and (7) Plaintiff's Motion for Leave of Court to File Second Amended Civil Rights Complaint Pursuant to F.R.C.P. Rule 15.A (Dkt. 109.)
The Court will first address the only pending dispositive motion--Defendants' Amended Second Motion for Summary Judgment--wherein Defendants assert entitlement to summary judgment on all of Plaintiff's claims in the First Amended Complaint on the grounds of res judicata and failure to show an Eighth Amendment violation. The Court will then address Plaintiff's Motion for Leave to Amend Complaint, followed by the parties' remaining five nondispositive motions.
DEFENDANTS' SECOND AMENDED MOTION FOR SUMMARY JUDGMENT
1. Standard of Law for Summary Judgment
Summary judgment is appropriate where a party can show that, as to any claim or defense, "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). One of the principal purposes of the summary judgment "is to isolate and dispose of factually unsupported claims . . . ." Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). It is "not a disfavored procedural shortcut," but is instead the "principal tool[ ] by which factually insufficient claims or defenses [can] be isolated and prevented from going to trial with the attendant unwarranted consumption of public and private resources." Id. at 327.
"[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The requirement is that there be no genuine dispute as to any material fact. "Material facts are those that may affect the outcome of the case." See id. at 248. The moving party is entitled to summary judgment if that party shows that each material issue of fact cannot be disputed. To show that the material facts are not in dispute, a party may cite to particular parts of materials in the record, or show that the materials cited do not establish the presence of a genuine dispute, or that the adverse party is unable to produce admissible evidence to support the fact. Fed.
R. Civ. P. 56(c)(1)(A)&(B); see T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987) (citing Celotex, 477 U.S. at 322). The Court must consider "the cited materials," but it may also consider "other materials in the record." Fed. R. Civ. P. 56(c)(3).
Material used to support or dispute a fact must be "presented in a form that would be admissible in evidence." Fed. R. Civ. P. 56(c)(2). Affidavits or declarations submitted in support of or in opposition to a motion "must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated." Fed. R. Civ. P. 56(c)(4).
The Court does not determine the credibility of affiants or weigh the evidence set forth by the non-moving party. All inferences which can be drawn from the evidence must be drawn in a light most favorable to the nonmoving party. T.W. Elec. Serv., 809 F.2d at 630-31 (internal citation omitted). If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
The existence of a scintilla of evidence in support of the non-moving party's position is insufficient. Nor is the Court "required to comb through the record to find some reason to deny a motion for summary judgment." Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1029 (9th Cir. 2001) (quoting Fosberg v. Pac. Northwest Bell Tel. Co., 840 F.2d 1409, 1418 (9th Cir. 1988)). Rather, "there must be evidence on which the jury could reasonably find for the [non-moving party]." Anderson, 477 U.S. at 252. Statements in a brief, unsupported by the record, cannot be used to create an issue of fact. Barnes v. Independent Auto. Dealers, 64 F.3d 1389, 1396 n.3 (9th Cir. 1995).
However, in civil rights cases the Ninth Circuit has held that the procedural requirements applied to ordinary litigants at summary judgment do not apply as stringently to prisoner pro se litigants. In Thomas v. Ponder, 611 F.3d 1144 (9th Cir. 2010), district courts were reminded to "construe liberally motion papers and pleadings filed by pro se inmates and ... avoid applying summary judgment rules strictly." Id. at 1150. The Ninth Circuit also has observed that "[a]t the summary judgment stage, we do not focus on the admissibility of the evidence's form. We instead focus on the admissibility of its contents." Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir.2003) (evidence which could be made admissible at trial may be considered on summary judgment); see also Aholelei v. Hawaii Dept. of Public Safety, 220 Fed. Appx. 670, * 1 (9th Cir.2007) (district court abused its discretion in not considering plaintiff's evidence at summary judgment, "which consisted primarily of litigation and administrative documents involving another prison and letters from other prisoners" which evidence could be made admissible at trial through the other inmates' testimony at trial). Once the Court considers all the evidence presented by the parties, Rule 56(e)(3) authorizes the Court to grant summary judgment for the moving party "if the motion and supporting materials-- including the facts considered undisputed--show that the movant is entitled to it."
This section includes facts that are undisputed and material to the resolution of the issues in this case. Where material facts are in dispute, the Court has included Plaintiff's version of facts, insofar as that version is not contradicted by clear documentary evidence in the record.
Plaintiff is an inmate under the jurisdiction of IDOC. Beginning in April 2004, Plaintiff was incarcerated at ICC, a private prison operated by CCA.*fn2 (Dkt. 101-1, pp.1-2.) During the first three years of his incarceration, Plaintiff was placed in the SMU on four different occasions because of behavioral problems and/or failure to comply with prison rules. (Dkt. 101-1, p.2.)
On September 29, 2006, Plaintiff was released from SMU and assigned to A-Pod. That same day, Plaintiff submitted a written request for protective custody and alleged that another inmate told him "I could not stay on A Pod because I was a sex offender. I was told I had to leave right away." (Dkt. 101-11, p.4.) In the request Plaintiff stated that he did not know the threatening inmate's name, but described him as being "a bald man with 2 teardrop tattoos on his face just below one eye." (sic) (Dkt. 101-11, p.4) Plaintiff refused to remain in A-Pod so he was placed in SMU pending the outcome of his request for protective custody. (Dkt. 101-11, p.8.)
On October 5, 2006, Defendants Doser and Acosta interviewed Plaintiff about his request for protective custody. (Dkt. 101-11, pp. 3-4.) Defendants Doser and Acosta said that "Plaintiff then told us that the inmate who threatened him was named "Pierce," but failed to give any further details." (Dkts. 101-6, p.3, 101-7, p.3.) Defendants state in their written report that they described the qualifications for placement into segregation and when they told Plaintiff he was not a likely candidate, "[Plaintiff] became disrespectful towards us. He then began to give us evidence in his case that would indicate he is a wrongfully convicted felon. [We] told him to stop talking about his court case, and that we were there for a protective custody hearing. The inmate then remained silent for the rest of the interview. He refused to answer our questions." (Dkt. 101-11, p. 3.)
However, Plaintiff alleges that Defendants Doser and Acosta asked Plaintiff, "Why should we put you in protective custody when you held down an underaged or a teenage girl and shot her up full of some unknown drugs and gave her Hepatitis C which is a uncureable diease that she will have for life? (sic)." (Dkt. 103-3, p.6.) Plaintiff further alleges that he responded by saying: "I did not do what the State alleged I did. Besides, what does that have to do with my life, here, inside this institution, when I have told you, that my well being is in jeopardy." (Dkt. 97-2, p.5.)
Doser submitted the written report about the interview to the Segregation Housing Committee and concluded that "Plaintiff is not a candidate for placement into protective custody. He should be placed in K or L pod. His refusal to cooperate is an indicator that he is not legitimately in fear of any inmate. The information he provided does not merit the placement of an inmate into segregation." (Dkt. 101-11, p.3.) Plaintiff contends that "Unit Manager Brian Doser and Case Manager Justin Acosta denied me protective custody, because of some lies they read in my trial transcript." (Dkt. 103-3, p.7.)
On October 11, 2006, ICC Segregation Housing Placement Committee*fn3 conducted a protective custody hearing and heard testimony from Plaintiff and ICC staff. (Dkt. 101-1, p.4.) After the hearing the Committee unanimously recommended Plaintiff be returned to the general population in the "L or K-Pod, bottom bunk bottom tier." (Dkt. 101-11, p.5.) The Committee members determined that Plaintiff's lack of cooperation in the investigation and the lack of corroborating evidence of Plaintiff's allegations did not warrant placement into protective custody. (Dkts. 101-4, p.2, 101-8, p.2.) Defendant Valdez, the ICC Warden, approved the decision. (Dkt. 101-11, p.5.) Plaintiff was transferred to K-Pod that same day. (Dkt. 101-11, p.23.)
Three months later, on January 17, 2007, Plaintiff was temporarily
transferred from K-Pod to the Medical Unit, and when he returned to
the general population on January 19, 2007, he was placed in A-Pod.
(Dkt. 101-11, p.23.) Two days later, Plaintiff alleged he had been
threatened with immediate physical harm by an unnamed inmate if he was
not moved from A-Pod that day. (Dkt. 101-1, p.5.) Plaintiff personally
informed ICC staff about the threat and he was transferred from A-Pod
back to K-Pod. (Id.) Plaintiff allegedly filed a written ICC inmate
concern form on that same day--January 21, 2007-- to Defendant Doser,
reiterating his concern for his personal safety. (Dkt. 7-2, p.9.)
Defendant Doser does not recall receiving the concern form.*fn4
(Dkt. 101-6, p.4.) On March 20, 2007, and April 2, 2007,
Plaintiff allegedly filed two more concern forms requesting a transfer
from K-Pod "for my own saftey (sic) and protection" because of
problems with other inmates due to "my alledged charges of L (sic),"
and that a white supremacy group was "going to try and start charging
me rent." (Dkt. 7-2, Ex. 10.) Plaintiff did not identify the names of any particular inmates, nor did he specifically
state he had been threatened with any physical harm beyond the more
generalized statement that he was "starting to have problems with
other inmates." Id. Defendants state that ICC staff never received the
two concern forms filed by Plaintiff (Dkt. 101-1, p.5), and that "ICC
staff had received no concern forms or other reports, or knew of any
incidents that would have corroborated [Plaintiff's] alleged
statements that other inmates were being extorted." (Id.)
On April 14, 2007, Plaintiff was assaulted in K-Pod by Inmates Timothy Bushnell and Jonathan Mcelfish. (Dkt. 97-1, p.1.) According to prison records, these inmates went into Plaintiff's cell and "assaulted him with a lock in their hand as a weapon. They told him they wanted him to pay rent and he refused. As they assaulted him, they also robbed him of his commissary . . . ." (Id.) Plaintiff left his cell and "attempted to get the attention of Officers," but the assault continued, eventually ending with inmate Timothy Bushnell "knocking [Plaintiff] down to the floor and kicking him continually until he appeared to go unconscious. [Plaintiff] then got up and attempted to exit the pod by pushing the call button at the pod door. The pod was locked down and a code blue called because of the assault." (Id.)
After the assault, ICC medical staff evaluated Plaintiff's injuries. (Dkt. 101-3, Ex. B p.17.) One of the nurses filled out the Facility Emergency Anatomical Form indicating he had "erythema [redness of the skin]" on his left side and mid-back, "three red scratches" to his left chest, "slight bruising" to areas on his right side of neck/clavicle area with three "red scratches", "superficial abrasions" to his elbows, a one inch "red scratch" to his external right eye, and "slight edema, redness" and a "small" "superficial cut" to his left temple. (Id. at 30.) The nurse who treated Plaintiff summarized his injuries as "multiple areas of mild redness at various... sites on his body. The worst of his injuries was an area of mild edema & bruising to [left] side of his face." (Id. at 17.)
After ICC medical staff evaluated Plaintiff's injuries, he was placed in SMU for two days. (Dkt. 97-2, p.7.)*fn5 ICC staff promptly investigated the assault which included an interview with Plaintiff. (Dkt.101-3, Ex. B pp.5-21.) ICC staff conducted cell and body searches, including "knuckle checks" (Id. at 5) and another staff member reviewed the security cameras. (Id. at 22.) ICC gathered written statements from the inmates involved in the assault, as well as from eleven ICC employees, and compiled an investigation report. (Id. at 22-23.) Inmates Bushnell and Mcelfish were issued Disciplinary Offense Reports (DOR) for their aggravated assault upon Plaintiff and placed in SMU for 10 days. (Id.) ICC also sent a report to the Ada County Sheriff's Department for its consideration of pursuing additional criminal charges. (Id. at 35.) Plaintiff was then transferred out of SMU to X-Pod following the assault, and since that time has not "suffered any further physical confrontations with other inmates." (Dkt. 101-3, p.3.)
In the year prior to Plaintiff's assault, a total of 67 other ICC incident reports were filed regarding inmate-on-inmate assaults (Dkt. 101-3, Ex. A.) Plaintiff's assault was incident number 68. Prior to Plaintiff's assault, Defendants report that six (or 9%) of the assault victims were targeted because they were sex offender inmates. (Dkt. 101-2, pp.7-8.) Plaintiff alleges that ICC staff "failed to adequately investigate prisoner beatings and robbery's (sic). J.K.L. and A.B.C became known to inmates as Gladeator-Pods (sic). Well known to inmates in all ICC cell areas."*fn6 (Dkt. 103-3, p.8.)
3. Res Judicata and Collateral Estoppel
Res judicata prevents parties from re-litigating causes of action which were finally decided in a previous suit. Res judicata is an affirmative defense which may be used by a defendant in federal court to give preclusive effect to prior state court judgments. See 28 U.S.C. § 1738 (federal courts must afford full faith and credit to state judicial proceedings); Allen v. McCurry, 449 U.S. 90 (1980) (federal courts hearing § 1983 actions must give collateral estoppel preclusive effect to state court judgments); Migra v. Warren City Sch. Dist. Bd. of E duc., 465 U.S. 75 (1984) (federal courts hearing § 1983 actions must give res judicata preclusive effect to state court judgments). To determine whether a state judgment should have preclusive effect in a federal action, federal courts apply the state's rules governing preclusion. See Migra, 465 U.S. at 83-85.
Under Idaho law, the party asserting res judicata as an affirmative defense bears the burden of establishing all of the essential elements thereof by a preponderance of the evidence. Foster v. City of St. Anthony, 841 P.2d 413, 420 (Idaho 1992). "Under the principle of res judicata or claim preclusion, judgment on the merits in a prior proceeding generally bars relitigation between the same parties or their privies on the same cause of action." D.A.R., Inc., v. Sheffer, 997 P.2d 602, 605 (Idaho 2000) (citing Yoakum v. Hartford Fire Ins., 923 P.2d 416 (Idaho 1996)).
A party seeking to apply collateral estoppel (or issue preclusion) must show the following: (1) the party against whom an earlier decision was asserted had a full and fair opportunity to litigate the issue decided in the earlier case; (2) the issue decided in the prior litigation was identical to the issue presented in the present action; (3) the issue sought to be precluded was actually decided in the prior litigation; (4) there was a final judgment on the merits in the prior litigation; and (5) the party against whom the issue is asserted was a party or in privity with a party to the litigation. Ticor Title Co. v. Stanion, 157 P.3d 613, 618 (Idaho 2007).
Defendants seek to impose a res judicata or collateral estoppel effect from Plaintiff's prior state habeas corpus action in this federal civil rights action. The primary issue is that an Idaho habeas corpus action is a unique state law cause of action based upon the Idaho Constitution and an Idaho statute. While a state habeas corpus action may involve federal constitutional issues, there is ordinarily no right to discovery, no availability of jury trial, and no availability of a remedy other than injunctive relief. See Idaho Code §§ 19-4209 & -4210. Here, Plaintiff was not permitted discovery prior to the dismissal of his case; in addition, he could not pursue damages in a state habeas corpus action.*fn7 Cf. Hawkins v. Risley, 984 F.2d 321, 325 (9th Cir. 1993) (res judicata properly applied where "the state court allowed Hawkins to submit briefs, present evidence, and cross-examine the state's witnesses").
The standard of law used in a state habeas corpus action is distinctly different from a § 1983 action. This difference calls into question the party's ability to fully and fairly litigate a claim. In his state habeas corpus action, Plaintiff was required to meet the standard specified in Idaho Code § 19-4211,*fn8 which is akin to the standard for a preliminary injunction, and far from the preponderance of evidence standard in a civil rights action for damages.
Because of these significant differences between a state habeas corpus action and a federal civil rights action, the Court concludes that Plaintiff did not have an opportunity to fully and fairly litigate his constitutional claims and issues in state court and that the claims were not identical. As a result, that portion of Defendants' Motion for Summary Judgment is denied.
4. Failure to Protect ...