MEMORANDUM DECISION AND ORDER
EDWARD J. LODGE, District Judge.
The following motions are currently pending before the Court in this prisoner civil rights matter: (1) Defendants' Motion for Summary Judgment (Dkt. 33); (2) Plaintiff's Motion to Strike and Disregard Portions of Defendants' Memorandum in Support of Summary Judgment and Portions of Affidavits of Carlin, Munden and Portions of Undisputed Facts (Dkt. 55); (3) Defendants' Motion for Extension of Time to File Reply Brief in Support of Summary Judgment (Dkt. 58); and (4) Defendants' Motion to Strike the "Declaration of Dan Goodrick in Support of Plaintiff's Response Opposing Defendants Motion for Summary Judgment" (Dkt. 60).
The Court finds that the parties have adequately stated the facts and legal arguments in their briefs and that the decisional process would not be significantly aided by oral argument. Therefore, the Court will decide these matters on the written motions, briefs and record without oral argument. D. Idaho L. Civ. R. 7.1.
For the reasons that follow, the Court will deny Plaintiff's Motion to Strike and Disregard Portions of Defendants' Memorandum in Support of Summary Judgment and Portions of Affidavits of Carlin, Munden and Portions of Undisputed Facts. The Court will also deny Defendants' Motion to Strike the "Declaration of Dan Goodrick in Support of Plaintiff's Response Opposing Defendants Motion for Summary Judgment." Defendants' Motion for Summary Judgment will be granted, as well as Defendants' Motion for Extension of Time to File Reply Brief in Support of Summary Judgment.
At all times relevant to the Complaint, Plaintiff was housed at the Idaho Correctional Institution in Orofino (ICI-O). On June 17, 2010, Plaintiff was accused of engaging in prohibited sexual activity with another inmate named Gray. (Dkt. 32-2, ¶ 3.) During the investigation of the incident, Plaintiff was also accused of engaging in prohibited sexual activity with an inmate named Brown. ( Id., ¶¶ 27-29.) ICI-O officials pursued two disciplinary offense reports (DORs) against Plaintiff, ( Id., ¶¶ 26, 30), in which they relied upon information provided by confidential witnesses. ( Id., ¶¶ 12, 27-29.) Plaintiff was found guilty of sexual misconduct in both of the DORs, and he has since been transferred to a more restrictive institution and placed in administrative segregation. ( Id., ¶¶ 35-36, 39-40, 46-48.)
Plaintiff filed this lawsuit in December 2010, alleging a variety of claims. (Dkt. 1.) Plaintiff thereafter filed a motion to amend his complaint, along with a proposed Amended Complaint in August 2012 (Dkt. 7). The Court granted Plaintiff's motion and issued a Second Initial Review Order, as required by 28 U.S.C. § 1915A. (Dkt. 11.) The Court found that Plaintiff stated claims under the following causes of action: (1) Plaintiff's rights under the First and Fourteenth Amendments were violated when certain Defendants engaged in allegedly retaliatory conduct based on his previous litigation activities; (2) Plaintiff was deprived of due process of law under the Fourteenth Amendment because the two DORs for sexual misconduct were not supported by "some evidence"; and (3) Plaintiff's Fourth and Eighth Amendment rights were violated by a strip search that resulted in naked photographs of Plaintiff. ( Id., p. 3.)
Defendants have filed a motion for summary judgment, seeking to dismiss Plaintiff's claims with prejudice. (Dkt. 33.) Defendants argue the following: (1) sovereign immunity bars Plaintiff's damages claim against the named Defendants in their official capacities; (2) Plaintiff fails to state a valid retaliation claim; (3) Plaintiff fails to state a claim against Defendants Unger, Hartnett and Houndshel; (4) the "some evidence" standard no longer applies to disciplinary offenses in light of the U.S. Supreme Court's decision in Swarthout; (5) even if the "some evidence" standard applies, there was some evidence to support the discipline imposed against Plaintiff; (6) the photographing did not violate Plaintiff's Fourth Amendment rights; (7) the photographing of Plaintiff did not constitute cruel and unusual punishment; and (8) neither the DORs, nor the placement of the PRP alert and subsequent transfer of Plaintiff to administrative segregation were the result of unlawful retaliation.
Plaintiff has filed a Plaintiff's Motion to Strike and Disregard Portions of Defendants' Memorandum In Support of Summary Judgment and Portions of Affidavits of Carlin, Munden and Portions of Undisputed Facts. (Dkt. 55.) Plaintiff contends that Defendants' references to Plaintiff's prior convictions should be stricken, pursuant to Federal Rules of Evidence 404(b) and 609(b). Defendants have also filed a Motion to Strike the "Declaration of Dan Goodrick in Support of Plaintiff's Response Opposing Defendants' Motion for Summary Judgment." (Dkt. 60.)
PLAINTIFF'S MOTION TO STRIKE
Plaintiff seeks to strike portions of Defendants' Memorandum in Support of Summary Judgment, Defendants' Disputed Facts, Defendant Carlin's Affidavit and Defendant Munden's Affidavit, where such documents reference Plaintiff's prior convictions. (Dkt. 55.) Plaintiff argues such references are character evidence offered by Defendants to prove Plaintiff acted in conformity therewith. (Dkt. 55, pp. 1-2.) He further argues that the convictions are inadmissible under Rule 609, because the probative value of the convictions is substantially outweighed by its prejudicial effect. ( Id. ) The Court disagrees.
A trial court can only consider admissible evidence in ruling on a motion for summary judgment. See Fed.R.Civ.P. 56(e); Orr. v. Bank of America, NT & SA, 285 F.3d 764 (9th Cir. 2002). The Federal Rules of Evidence govern the admissibility of evidence. All relevant evidence is admissible unless otherwise stated by the Constitution, statute or other Federal Rules. Fed.R.Evid. 402. Under Rule 401, evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed.R.Evid. 401. Evidence that is not relevant is not admissible. Fed.R.Evid. 402.
Pursuant to Rule 403 of the Federal Rules of Evidence, the court may exclude relevant evidence "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Fed.R.Evid. 403. Rule 403 has been characterized, however, "as an extraordinary remedy to be used sparingly because it permits the trial court to exclude otherwise relevant evidence." U.S. v. Patterson, 819 F.2d 1495, 1505 (9th Cir. 1987).
Pursuant to Rule 404 of the Federal Rules of Evidence, character evidence is generally not admissible to prove conduct. In particular, "evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith." Fed.R.Evid. 404(b). Other crimes, wrongs or acts are admissible, however, to prove motive, opportunity, intent, preparation and plan. Id.
In a closely related vein, but contrary to the general rule on character evidence, evidence of habit or routine practice is admissible to prove that the conduct of a person on a particular occasion is in conformity with the habit or routine practice. Fed.R.Evid. 406; see also Fed.R.Evid. 406 advisory committee notes (1972) ("character and habit are close akin"). Habit is a person's regular practice of meeting a particular kind of situation with a specific type of conduct. ( Id. )
Finally, Rule 609 of the Federal Rules of Evidence governs the admissibility of a witness's prior convictions for impeachment purposes. Pursuant to Rule 609(a), for purposes of attacking the character for truthfulness of a witness, evidence that the witness has been convicted of a felony "shall be admitted, subject to Rule 403... if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused." Fed.R.Evid. 609(a)(1). In analyzing conviction evidence, the court must engage in a "genuine balancing" of probative value and prejudicial effect. U.S. v. Bagley, 772 F.2d 482, 487 (9th Cir. 1985). However, a conviction more than ten years old (measured from the date of conviction or release from confinement for the conviction, whichever is later), is generally not admissible "unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect." Fed.R.Evid. 609(b).
The Court finds that Plaintiff's convictions and the length of his sentence are relevant to Plaintiff's claims and whether Defendants had a culpable state of mind for purposes of retaliation and the claims under the Fourth and Eighth Amendments. Defendants' knowledge of an inmate's criminal convictions and the length of an inmate's sentence informs their management decisions and is an important consideration in assessing whether Defendants' actions reasonably advanced a legitimate correctional goal. Defendants did not offer the conviction evidence in question to show that Plaintiff acted in conformity with such actions, but to show Defendants' knowledge when they investigated and transferred him. The probative value of this evidence is not substantially outweighed by the danger of unfair prejudice to Plaintiff. ...