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Stover v. Corrections Corporation

United States District Court, D. Idaho

February 27, 2015



EDWARD J. LODGE, District Judge.

Plaintiff, a prisoner in the custody of the Idaho Department of Correction ("IDOC"), is proceeding pro se in this civil rights action. At all times relevant to Plaintiff's claims, Plaintiff was incarcerated either at the Idaho Correctional Center (from July 21, 2009, to December 29, 2010), or the Idaho State Correctional Institution (from December 30, 2010, to the present).

Now pending before the Court are three motions for summary judgment filed by (1) Defendants Idaho Correctional Center, Corrections Corporation of America, Michael Kerr, Timothy Wengler, and Joseph Cardona (collectively, the "CCA Defendants") (Dkt. 123); (2) Defendant Corizon, LLC ("Corizon") (Dkt. 124); and (3) Defendants Ryan Allen, Shannon Magon, Shell Wamble-Fisher, Jeff Kirkman, Walter Romreill, Rona Siegert, and Joseph Cardona[1] (collectively, the "IDOC Defendants") (Dkt. 126). Also pending is the IDOC Defendants' Motion to Strike. (Dkt. 143.)

Having fully reviewed the record, the Court finds that the facts and legal arguments are adequately presented in the briefs and record and that oral argument is unnecessary. See D. Idaho Loc. Civ. R. 7.1. Accordingly, the Court enters the following Order (1) granting in part and denying in part the CCA Defendants' Motion for Summary Judgment, (2) granting in full Corizon's Motion for Summary Judgment, and (3) granting in part and denying in part the IDOC Defendants' Motion for Summary Judgment.

All claims against Defendants Corizon, Allen, Magon, Romreill, Siegert, and Cardona will be dismissed with prejudice. As set forth below, upon entry of this Memorandum Decision and Order, the only claims remaining in this action will be (1) Plaintiff's Eighth Amendment failure-to-protect claims against Defendants ICC, CCA, Kerr, and Wengler; and (2) Plaintiff's RLUIPA claims for injunctive relief, with respect to Plaintiff's desire to participate in a religious sweating ceremony, against Defendants Kirkman and Wamble-Fisher.


Plaintiff is a Native American male-to-female transgender prisoner. She has been diagnosed with Gender Identity Disorder ("GID").[2] Although Plaintiff receives female hormone therapy and has developed feminine characteristics such as breasts, she is incarcerated in a men's prison because she remains anatomically male-she has not had sex reassignment surgery. Plaintiff is incarcerated at Idaho State Correctional Institution ("ISCI"), though some of her current claims arose while she was incarcerated at a prison then-known as Idaho Correctional Center ("ICC"), which was formerly operated by CCA, a private prison company, under contract with the IDOC.[3]

Plaintiff brings claims under 42 U.S.C. § 1983, the civil rights statute, as well as the Religious Land Use and Institutionalized Persons Act ("RLUIPA"), 42 U.S.C. § 2000cc et seq. She sues various individual prison officials as well as CCA and ICC. She also sues Corizon, the private entity providing medical care to Idaho inmates under contract with the IDOC.[4]

In its Initial Review Order, the Court reviewed Plaintiff's Amended Complaint pursuant to 28 U.S.C. §§ 1915 and 1915A and allowed Plaintiff to proceed on the following four groups of claims against the following Defendants:

(1) Eighth Amendment failure-to-protect claims against Defendants ICC, CCA, Kerr, and Wengler with respect to Plaintiff being sexually assaulted by other inmates in the summer and fall of 2010;
(2) Eighth Amendment sexual abuse and sexual harassment claims against Defendants Allen and Magon with respect to an incident where Defendant Allen ordered Plaintiff to show him and Magon her breasts;
(3) Eighth Amendment medical treatment claims against Defendants Corizon, Cardona, and Siegert with respect to Plaintiff's alleged need for specific, medically necessary bras and underwear; and
(4) First Amendment and RLUIPA claims against Defendants Romreill, Kirkman, and Wamble-Fisher with respect to Plaintiff's desire to perform a smudging ritual and to use the sweat lodge at ISCI.

(Initial Review Order, Dkt. 16.)


The IDOC Defendants move to strike some of Plaintiff's evidentiary submissions as inadmissible. In the summary judgment context, a motion to strike is unnecessary, but not necessarily improper. Fed.R.Civ.P. 56(c)(2) ("A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence."); Advisory Cmte. Notes, 2010 Amendments to Rule 56 ("The [Rule 56(c)(2)] objection functions much as an objection at trial, adjusted for the pretrial setting. The burden is on the proponent to show that the material is admissible as presented or to explain the admissible form that is anticipated. There is no need to make a separate motion to strike. " (emphasis added)).

The IDOC Defendants ask the Court to strike, inter alia, the affidavits of all witnesses whom Plaintiff did not identify in her initial disclosures, her supplemental disclosures, or her responses to Defendants' discovery requests. Rule 37(c) prohibits a party from using undisclosed information "to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless."

Plaintiff has submitted affidavits from the following individuals: Adree Edmo, Erinn Wright, Amber Renee Brune, David Paul-Whitestorm Hochstetler, Kyle Merrill, David Thieme, and Jeremy Meyer. Plaintiff does not dispute that she did not initially disclose the identities of these individuals, nor did she supplement her disclosures to identify them. Plaintiff has not attempted to justify her failure to disclose this information, or to establish that the failure to disclose was harmless. Therefore, the Court will grant in part the IDOC Defendants' Motion and will strike the affidavits of these individuals. The Motion will be denied in all other respects.


In its Reply in Support of its Motion for Summary Judgment, the CCA Defendants ask the Court to disregard Plaintiff's opposition materials in their entirety. See Fed.R.Civ.P. 56(c)(2). The Court shall address each of the CCA Defendants' arguments in turn.

First, the CCA Defendants imply that Plaintiff's opposition brief does not comply with the Court's page limitations. (Dkt. 145 at 3.) Memoranda in support of or in opposition to a motion for summary judgment may, in general, be no longer than 20 pages. (Dkt. 125; D. Idaho Loc. Civ. R. 7.1.) However, the Court allowed Plaintiff to file a consolidated response to the three pending motions for summary judgment and stated that any such consolidated response must be no longer than 60 pages. (Dkt. 133 at 2.) Plaintiff's 59-page brief obviously complies with that limitation. The CCA Defendants' argument on this issue is meritless.

Second, the CCA Defendants state that the font of Plaintiff's opposition brief is too small. Although the CCA Defendants are correct in this regard-the font in Plaintiff's brief is clearly smaller than the minimum 12-point font ( see Loc. Civ. R. 5.2)-the Court will excuse Plaintiff's non-compliance on this one occasion and has considered her opposition brief.

Third, the CCA Defendants correctly point out that the "bankers box full of unorganized, unlabeled, often double-sided, miscellaneous documents, " which Plaintiff submitted in opposition to Defendants' motions, does not consistently "direct [the Court's] attention to specific triable facts." So. Ca. Gas Co. v. City of Santa Ana, 336 F.3d 885, 889 (9th Cir. 2003). Instead, Plaintiff simply submitted hundreds of pages of documents without making an attempt to assemble them in an organized way, other than numbering various exhibits. Because Plaintiff is a pro se litigant, the Court will not disregard her materials in their entirety, but has considered these materials to the extent that Plaintiff has clearly identified them in her opposition brief. See Fed.R.Civ.P. 56(c)(3) (stating that when deciding a motion for summary judgment, the Court "need consider only the cited materials").

Finally, the CCA Defendants argue that many of the documents submitted by Plaintiff have not been properly authenticated. However, the materials considered by the court at summary judgment need only be capable of being presented in a form that would be admissible in evidence. Fed.R.Civ.P. 56(c)(2). Therefore, the Court assumes that Plaintiff could lay the proper foundation for her evidence and could authenticate any of her submitted documents at trial. Defendants may, of course, challenge the admissibility of any of Plaintiff's evidence at trial. See Advisory Cmte. Notes, 2010 Amendments to Fed.R.Civ.P. 56.


This Memorandum Decision and Order 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. See Scott v. Harris, 550 U.S. 372, 380 (2007) ("When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.")

1. Summary Judgment Standard of Law

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 rule "is to isolate and dispose of factually unsupported claims or defenses." 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). Rather, there must be no genuine dispute as to any material fact in order for a case to survive summary judgment. Material facts are those "that might affect the outcome of the suit." Id. at 248. "Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment." T.W. Elec. Serv., Inc. v. P. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987).

The moving party is entitled to summary judgment if that party shows that each material 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 adverse party is unable to produce admissible evidence to support the fact. Fed.R.Civ.P. 56(c)(1)(A) & (B). The Court must consider "the cited materials, " but it may also consider "other materials in the record." Fed.R.Civ.P. 56(c)(3). The Court is "not 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) (internal quotation marks omitted). Instead, as noted previously, the "party opposing summary judgment must direct [the Court's] attention to specific triable facts." So. Ca. Gas Co., 336 F.3d at 889.

If the moving party meets its initial responsibility, then the burden shifts to the opposing party to establish that a genuine dispute 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. Rather, "there must be evidence on which [a] jury could reasonably find for the [non-moving party]." Anderson, 477 U.S. at 252.

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). If a party "fails to properly support an assertion of fact or fails to properly address another party's assertion of fact, " the Court may consider that fact to be undisputed. Fed.R.Civ.P. 56(e)(2). The Court may 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." Fed.R.Civ.P. 56(e)(3).

The Court does not determine the credibility of affiants or weigh the evidence set forth by the non-moving party. Although all reasonable inferences which can be drawn from the evidence must be drawn in the light most favorable to the non-moving party, T.W. Elec. Serv., Inc., 809 F.2d at 630-31, the Court is not required to adopt unreasonable inferences from circumstantial evidence, McLaughlin v. Liu, 849 F.2d 1205, 1208 (9th Cir. 1988).

2. Standard of Law for Section 1983 Claims

Plaintiff brings claims under 42 U.S.C. § 1983, the civil rights statute. To succeed on a claim under § 1983, a plaintiff must establish a violation of rights protected by the Constitution or created by federal statute proximately caused by the conduct of a person acting under color of state law. Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). Prison officials are generally not liable for damages in their individual capacities under § 1983 unless they personally participated in the alleged constitutional violations. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989); see also Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009) ("[E]ach Government official, his or her title notwithstanding, is only liable for his or her own misconduct.").

An individual defendant "may be held liable as a supervisor under § 1983 if there exists either (1) his or her personal involvement in the constitutional deprivation, or (2) a sufficient causal connection between the supervisor's wrongful conduct and the constitutional violation.'" Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011) (quoting Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989)). This causal connection "can be established by setting in motion a series of acts by others, or by knowingly refusing to terminate a series of acts by others, which the supervisor knew or reasonably should have known would cause others to inflict a constitutional injury." Id. at 1207-08 (internal quotation marks, citation, and alterations omitted).

To prevail on her § 1983 claims against ICC, CCA, and Corizon as entities, Plaintiff must meet the test articulated in Monell v. Department of Social Services, 436 U.S. 658, 690-94 (1978); see Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1139 (9th Cir. 2012) (applying Monell to private entities). Under Monell, the requisite elements of a § 1983 claim against a municipality or private entity performing a state function are the following: (1) the plaintiff was deprived of a constitutional right; (2) the municipality or entity had a policy or custom; (3) the policy or custom amounted to deliberate indifference to plaintiff's constitutional right; and (4) the policy or custom was the moving force behind the constitutional violation. Mabe v. San Bernardino Cnty., 237 F.3d 1101, 1110-11 (9th Cir. 2001).

An unwritten policy or custom must be so "persistent and widespread" that it constitutes a "permanent and well settled" practice. Monell, 436 U.S. at 691 (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 167-168 (1970)). "Liability for improper custom may not be predicated on isolated or sporadic incidents; it must be founded upon practices of sufficient duration, frequency and consistency that the conduct has become a traditional method of carrying out policy." Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996). Further, a municipality or private entity performing a state function "may be held liable under § 1983 when the individual who committed the constitutional tort was an official with final policy-making authority or such an official ratified a subordinate's unconstitutional decision or action and the basis for it." Clouthier v. County of Contra Costa, 591 F.3d 1232, 1250 (9th Cir. 2010).

3. Plaintiff's Eighth Amendment Claims

The Eighth Amendment to the United States Constitution protects prisoners against cruel and unusual punishment. To state a claim under the Eighth Amendment, Plaintiff must show that she is (or was) "incarcerated under conditions posing a substantial risk of serious harm, " or that she has been deprived of "the minimal civilized measure of life's necessities" as a result of Defendants' actions. Farmer v. Brennan, 511 U.S. 825, 834 (1994) (internal quotation marks omitted). An Eighth Amendment claim requires a plaintiff to satisfy "both an objective standard-that the deprivation was serious enough to constitute cruel and unusual punishment-and a subjective standard- deliberate indifference." Snow v. McDaniel, 681 F.3d 978, 985 (9th Cir. 2012).

"[D]eliberate indifference entails something more than mere negligence, [but] is satisfied by something less than acts or omissions for the very purpose of causing harm or with knowledge that harm will result." Id. at 835. To exhibit deliberate indifference, a defendant "must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Id. at 837. If a [prison official] should have been aware of the risk, but was not, then the [official] has not violated the Eighth Amendment, no matter how severe the risk." Gibson, 290 F.3d at 1188 (citation omitted). However, "whether a prison official had the requisite knowledge of a substantial risk is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence, ... and a factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious." Farmer, 511 U.S. at 842; see also Lolli v. County of Orange, 351 F.3d 410, 421 (9th Cir. 2003) (deliberate indifference to medical needs may be shown by circumstantial evidence when the facts are sufficient to demonstrate that defendant actually knew of a risk of harm).

A. Defendants ICC, CCA, Kerr, and Wengler Are Not Entitled to Summary Judgment on Plaintiff's Failure-to-Protect Claims

i. Factual Background

Plaintiff claims that Defendants failed to protect her against attacks from other inmates. At all times relevant to the claims at issue here, Plaintiff was a participant in ICC's Sexual Offender Treatment Program ("SOTP"). The SOTP was "designed to provide appropriate cognitive behavioral treatment" for sex offenders. (Decl. of John Sevy, Dkt. 123-8, at ¶ 5.)

All of the SOTP participants, including Plaintiff and the inmates who attacked her, were housed together on the same tier: R-Pod, in the West Wing of ICC. ( Id. at ¶ 12.) R-Pod was "an open dormitory with 59 beds, similar to general population" except that there were more property restrictions in R-Pod. ( Id. at ¶¶ 12-13.) This housing arrangement "allowed the inmates privacy and confidentiality while working on their Individual Treatment Plans and to discuss treatment concepts openly with other tier inmates." ( Id. at ¶ 12.) In order for an inmate to participate in the SOTP, they must be housed in R-Pod.

Plaintiff was sexually assaulted by other inmates-each of whom was designated as a member of the Security Threat Group ("STG") at ICC-on four occasions in the summer and fall of 2010. (Pl. Consol. Memo. at 32; CCA Memo. in Support, Dkt. 123-1, at 13.) At some point between August and November of that year, Plaintiff wrote an "anonymous letter" to then-Warden Wengler. This letter "detailed the specific names and activities of STG members, " but Plaintiff concedes that she "made [the letter] sound like someone else wrote it" because she was afraid that the gang members might find out about the letter. (Pl. Consol. Memo. at 32.) The letter is not part of the record in this case, but Plaintiff described it in her deposition as follows:

Q. What was the content of this letter, if you recall?
A. The content of the letter gave some information about [STG] gang activities, about the assaults that were going on and stuff, and about extortion.
Q. Did you identify anyone by name?
A. I identified all of the perpetrators, the gang members, by as much information as I could give, their names...
Q. So your name is not on [the letter]; correct?
A. Correct.
Q. And you explained, generally, to the warden, Warden Wengler, that there were things going on, on the tier; correct?
A. Yes. I explained there were all kinds of stuff going on there.
Q. You talked about extortion in the letter?
A. Extortion. Assaults, they were assaulting other inmates. There was another inmate... who was assaulted, sexually assaulted by [a gang member], the week after I was or around the same time.
Q. Did you include that in your letter?
A. In what letter?
Q. Your letter to Wengler?
A. About [that other inmate]?
Q. About that other assault? Or was this more of a general letter.
A. No. I did a general letter. Because some of the staff over there would often take the kites-I witnessed this myself-and go tell these gang members that inmates were writing kites on them. So I made it... general to make it sound like it came from someone other than myself.
Q. So you wouldn't have said, "[Inmate X] assaulted me on this date"?
A. No, I did not. I made it generalized that they were-I gave them enough information to where they could do ...

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