MEMORANDUM DECISION AND ORDER
B. LYNN WINMILL, Chief District Judge.
Plaintiff Jody Carr, a prisoner in the custody of the Idaho Department of Correction (IDOC), is proceeding pro se and in forma pauperis in this civil rights action. On April 25, 2011, United States Magistrate Judge Candy W. Dale entered an Initial Review Order in this case pursuant to 28 U.S.C. §§ 1915 and 1915A, allowing Plaintiff to proceed only on his retaliation and access to courts claims against Defendants Hartnett, Rivera, and Davidson. (Dkt. 7.) The case was reassigned to the undersigned District Judge on November 21, 2011. (Dkt. 22.)
Now pending before the Court are (1) Plaintiff's Request for Extension of Time to File Subpoenas and Requests for Subpoenas (Dkt. 36); (2) Plaintiff's Motion for Summary Judgment (Dkt. 37); (3) Defendants' Motion for Summary Judgment (Dkt. 38); and Plaintiff's Emergency Request for Emergency Injunctive Order (Dkt. 44).
Having carefully reviewed the record, the Court finds that the parties have adequately presented the facts and legal arguments in the briefs and record and that the decisional process would not be significantly aided by oral argument. Therefore, the Court will decide this matter on the written motions, briefs and record without oral argument. D. Idaho L. Civ. R. 7.1(d). Accordingly, the Court enters the following Order granting Defendants' Motion for Summary Judgment, denying Plaintiff's Motion for Summary Judgment, and dismissing this case with prejudice.
1. Request for Extension of Time to File Subpoenas and Requests for Subpoenas
In his Request for Extension of Time to File Subpoenas and Requests for Subpoenas, Plaintiff does not describe what type of subpoenas or requests for subpoenas he wishes to submit. Because he states that the deadline for him to file such documents was April 30, 2013, however, the Court concludes that he is referring to subpoenas duces tecum, which involve the pretrial production of documents by nonparties. ( See Order dated Feb. 8, 2013, Dkt. 35, at 6) (setting April 30 as the deadline for subpoenas duces tecum).
Plaintiff signed and presumably mailed his Request on June 11, 2013, nearly six weeks after the April 30 deadline for subpoenas duces tecum and nearly two weeks after the close of all discovery. Plaintiff claims that he was severely ill with C-diff (or clostridium difficile), an antibiotic resistant bacteria, until April 9, 2013 (Dkt. 36 at 3), but he does not explain why he did not file his request for an extension within the remaining 21 days once he recovered. Further, Plaintiff does not attempt to explain how reopening the discovery period for purposes of nonparty document production is necessary for him to pursue his case. Finally, Plaintiff has filed a Motion for Summary Judgment (Dkt. 37), arguing that there is no genuine dispute as to any material fact and thus implicitly conceding that he has all the discovery he needs.
For the foregoing reasons, Plaintiff's request for an extension of time to prepare subpoenas duces tecum will be denied.
2. Emergency Request for Emergency Injunctive Order
Plaintiff claims Defendants "and their co-workers" have retaliated against him since the filing of his Complaint in this case. (Dkt. 44 at 1.) He alleges that he was fed human feces infected with the C-diff bacteria, that he has been transferred between facilities without notice or a hearing, that he has been denied adequate medical care, and that he is held in "horrific, torturous, and dangerous living conditions." ( Id. at 2-3). The Court notes that these allegations are currently before the Court in another of Plaintiff's cases. See Carr v. Higgens, 1:13-cv-00380-REB, D. Idaho, filed Aug. 29, 2013).
Preliminary injunctions are governed by Rule 65 of the Federal Rules of Civil Procedure. A Rule 65 preliminary injunction may be granted if the moving party demonstrates the following elements: (1) that the moving party will suffer irreparable injury if the relief is denied; (2) that the moving party will probably prevail on the merits;
(3) that the balance of potential harm favors the moving party; and (4) that the public interest favors granting relief. Winter v. Natural Res. Defense Council, Inc., 555 U.S. 7, 20 (2008); Cassim v. Bowen, 824 F.2d 791, 795 (9th Cir. 1987). Because a preliminary injunction is an extraordinary remedy, injunctive relief must be denied "unless the facts and law clearly favor the moving party." Stanley v. Univ. of S. Cal., 13 F.3d 1313, 1320 (9th Cir. 1994) (internal quotation marks omitted). A court "is not obligated to hold a hearing [on a motion for a preliminary injunction] when the movant has not presented a colorable factual basis to support the claim on the merits or the contention of irreparable harm." Bradley v. Pittsburgh Bd. of Educ., 910 F.2d 1172, 1176 (3rd Cir. 1990).
The instant lawsuit concerns actions taken by Defendants Rivera, Hartnett, and Davidson prior to the filing of the Complaint. Because Plaintiff has not supplemented his claims against the existing Defendants for actions occurring after the filing of the Complaint, such as alleged retaliation, the claims in the request for preliminary injunction are arguably outside the scope of the claims in the Complaint. See De Beers Consol. Mines Ltd. v. United States, 325 U.S. 212, 220 (1945) (stating that a preliminary injunction is appropriate to grant intermediate relief of "the same character as that which may be granted finally, " but inappropriate where the injunction "deals with a matter lying wholly outside of the issues in the suit"). Further, as explained below, Plaintiff has no likelihood of success on the merits of his claims. Therefore, Plaintiff's motion for injunctive relief will be denied.
CROSS-MOTIONS FOR SUMMARY JUDGMENT
1. Material Facts
Plaintiff is currently incarcerated at Idaho Maximum Security Institution, but the events giving rise to Plaintiff's claims occurred while he was incarcerated at the Idaho Correctional Institute in Orofino (ICI-O), sharing a cell with inmate Johnny Castaneda. On approximately October 7, 2010, Plaintiff filed a notice of tort claim with state officials, claiming civil rights violations and seeking $3.5 million in damages. (Pl. Stmt. of Facts, Dkt. 37-2, at 12.)
Plaintiff states that on October 14, 2010-a week after Plaintiff filed the notice of claim-Defendant Davidson came to Plaintiff's cell and told him she was there to conduct a "courtesy move" of Castaneda, which allegedly required that four different inmates consent to change cells. (Pl. Opp. to Def. Motion for Summary Judgment, Dkt. 41, at 2.) Plaintiff told Davidson that there could be no such courtesy move because "someone had forged at least 2 of the 4" signatures required. Davidson told Castaneda, "roll up your stuff Carr's getting a new cellie." ( Id. ) Because Plaintiff was afraid he would be attacked by a new cellmate (something that had happened to Plaintiff in the past), he told Davidson, "If you put another psyco [sic] in my cell that puts his hands on me, I wont [sic] follow policy this time, I'll peel him." ( Id. ) Defendant Davidson describes the incident slightly differently. She states that she informed Castaneda he would be moving to a new cell and that Plaintiff responded, "I will peel anyone who is moved into this cell without my approval." (Davidson Aff., Dkt. 38-4, at ¶ 5.) The Court accepts Plaintiff's version of the facts for purposes of the cross-motions for summary judgment, but notes that Plaintiff concedes he used the word "peel" in relation to what he might do to a new cellmate under certain circumstances.
Davidson informed Rivera, as well as two other officials, that Plaintiff threatened to "peel" his new cellmate and issued Plaintiff a DOR "because [they] agreed that his statement constituted a serious threat to assault another offender coupled with the ability to carry out the assault if Carr didn't approve of the offender moved into his cell." ( Id. ) As a result, Plaintiff was placed in segregation pending his hearing on the DOR.
Because inmates are not allowed to keep all of their property with them in segregation, Plaintiff's property-including his legal materials-had to be taken to the property office and inventoried. Castaneda has testified that he was ordered by "ICI-O staff" to "roll up" Plaintiff's property. Castaneda states that at the time of the roll up, he saw three manila envelopes among Plaintiff's property. (Castaneda Aff., Ex. 9 to Pl. Motion to Compel, Dkt. 31-2, at 6.) These envelopes contained legal materials, such as Plaintiff's notes and affidavits from other individuals, that Plaintiff was intending to use in a civil rights action he planned on filing, apparently based on the same events at issue in the notice of tort claim. Plaintiff ...