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Cloyd v. Brewer

United States District Court, D. Idaho

June 18, 2015

SCOTT BREWER, CORRECTIONAL OFFICER HENRIE, sued in their individual capacities, and WARDEN TEREMA D. CARLIN, sued in her official and individual capacities, Defendants.


CANDY W. DALE, Magistrate Judge.

Before the Court are two dispositive motions and a variety of ancillary motions in this civil rights action filed by pro se Plaintiff Glen Cloyd, an inmate at the Idaho Correctional Institution-Orofino (ICIO). Alleging Eighth Amendment violations under 42 U.S.C. § 1983 and negligence under Idaho law, Cloyd brought suit against three defendants: ICIO Sergeant Scott Brewer, ICIO Corrections Officer Michael Henrie, and ICIO Warden Terema Carlin.

Defendants filed a motion to dismiss Cloyd's state law negligence claims under Federal Rule of Civil Procedure 12(b)(6), (Dkt. 28), to which Cloyd has not responded. In addition, Defendants filed a motion for summary judgment on Cloyd's § 1983 claims, (Dkt. 29), which Cloyd has opposed-with a response and what are essentially two unauthorized surreplies. Defendants filed motions to strike the two surreplies as improper supplemental responses. (Dkt. 37, 40.) Also pending is Cloyd's Motion for Appointment of Counsel. (Dkt. 31.)

All parties have consented in writing to the jurisdiction of a United States Magistrate Judge. (Dkt. 23.) In the interest of avoiding delay, and because the Court conclusively finds the decisional process would not be significantly aided by oral argument, all pending motions will be decided on the record without oral argument. Dist. Idaho L. Rule 7.1(d). Accordingly, the Court enters the following disposition.


On October 13, 2014, Defendants filed a motion to dismiss and supporting memorandum regarding Cloyd's state-law negligence claims. Defendants argue these claims are subject to dismissal, because Cloyd failed to file a notice of tort claim before filing suit, as required by the Idaho Tort Claims Act, Idaho Code § 6-901, et seq. The next day, the Clerk of Court sent Cloyd a notice, informing him that a response to Defendants' motion was required within 21 days. (Dkt. 30.) The notice also stated, in accordance with Local Civil Rule 7.1(e)(1), that Cloyd risked having his claims dismissed if he failed to respond to Defendants' motion. To date, Cloyd has not responded to the motion and the time for doing so is long past.

This Court's Local Rule 7.1(c)(1) requires a response to a motion within 21 days after service of the memorandum of points and authorities supporting the motion. Further, a party's failure to timely respond to a motion to dismiss may be "deemed to constitute a consent to... granting of said motion." Dist. Idaho Loc. Civ. R. 7.1(e)(1). "Failure to follow a district court's local rules is a proper ground for dismissal" if the following factors weigh in favor of dismissal: "(1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions." Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (internal quotation marks omitted). Having weighed these factors and the merits of Defendants' motion to dismiss, the Court finds it would be appropriate to dismiss Cloyd's state law negligence claim for failure to contest Defendants' motion to dismiss.

In addition, however, Defendants' motion succeeds on the merits. The Idaho Tort Claims Act establishes procedures for bringing certain tort claims against governmental entities under Idaho law. In particular, the Act requires, as a condition precedent to filing suit against the State or its employees, that the plaintiff file a notice of tort claim with the Secretary of State. Idaho Code § 6-905; Smith v. City of Preston, 586 P.2d 1062, 1065 (Idaho 1978). The notice must be filed "within one hundred eighty (180) days from the date the claim arose or reasonably should have been discovered, whichever is later." Id. The State then has 90 days to approve or deny the claim, and the State's failure to act within this 90-day period constitutes a denial of the claim. Id. § 6-909. If the State denies the claim, the plaintiff may file a lawsuit in district court. Id. § 6-910.

"No claim or action shall be allowed against a governmental entity or its employee unless the claim has been presented and filed within the time limits prescribed by" the Tort Claims Act. Id. §6-908. The Idaho Supreme Court "has consistently interpreted the language of I[daho] C[ode] §6-908-that no claim or action shall be allowed'-to mean that compliance with the notice requirement of the Tort Claims Act is a mandatory condition precedent to bringing an action under the Act." Madsen v. Idaho Dept. of Health & Welfare, 779 P.2d 433, 436 (Idaho Ct. App. 1989). Emphasizing this mandatory condition precedent, the United States Court of Appeals for the Ninth Circuit has affirmed this Court's strict construction of the Act's notice requirement. Butler v. Elle, 281 F.3d 1014, 1029 (9th Cir. 2002). And recent decisions by the Idaho Supreme Court do not call this strict construction into question. E.g., Turner v. City of Lapwai, 339 P.3d 544, 547-48 (Idaho 2014) (finding claim barred by failure to present notice to city clerk despite city's actual notice of claim and absence of prejudice); Alpine Village Co. v. City of McCall, 303 P.3d 617, 622-23 (Idaho 2013) (holding claim against city was procedurally barred by failure to file timely notice).

In this case, Cloyd filed his Prisoner Civil Rights Complaint on August 5, 2013, alleging, among other claims, that Defendants were negligent under Idaho law. Cloyd did not file a notice of tort claim with the Secretary of State until August 19, 2013-two weeks after he filed this lawsuit. (Artiach Aff. ¶ 4, Dkt. 28-2.) The fact that Cloyd eventually filed his notice after filing his complaint does not absolve his failure to follow the Tort Claims Act's mandatory procedures. Butler, 281 F.3d at 1029. To find otherwise would not only contradict the Act's mandatory procedures, it would expand a limited waiver of Idaho's sovereign immunity and defeat three of the Act's central purposes: "(1) saving litigation expenses by allowing amicable resolution of suits; (2) allowing authorities to conduct a full investigation into the circumstances of the claim to determine the extent of government liability; and (3) allowing the government to prepare its defenses." Id. Accordingly, the Court will grant Defendants' motion to dismiss.


Defendants move to strike two of Cloyd's filings in response to Defendants' motion for summary judgment. First, Defendants argue Cloyd's "Supplemental Motion to Deny Summary Judgment Pursuant to Fed.R.Civ.P. - Rule 56(e), " (Dkt. 35), violates the Court's Scheduling Order, District of Idaho Local Civil Rule 7.1, and the sham affidavit rule. Defendants likewise claim Cloyd's "Motion to Clarify Plaintiff's Allegations in Supplemental Motion to Deny Summary Judgment, " (Dkt. 39), violates the Scheduling Order and Local Rule 7.1.

The Court's Scheduling Order provides: "Neither party shall file supplemental responses, replies, affidavits, or other filings not authorized by the Local Rules without prior leave of Court." (Dkt. 22 at 4.) Relevant here, Local Rule 7.1 authorizes a party responding to a motion for summary judgment to file (1) a response brief, (2) supporting materials with the response brief, and (3) a statement of disputed facts. Absent leave of the Court, neither the Scheduling Order nor the Local Rules authorize a responding party to supplement the filings allowed by Local Rule 7.1 with additional materials. Cloyd did not request and was not granted leave to file additional materials in opposition to Defendants' motion for summary judgment. Because Cloyd's supplemental filings are essentially unauthorized surreplies, they may not be considered in connection with Defendants' motion for summary judgment.

Alternatively, even if the Court considered Cloyd's unauthorized surreplies, they would not change the outcome of Defendants' motion for summary judgment. As discussed below, Cloyd's Eighth Amendment claims require him to present evidence that he faced a substantial risk of serious harm from his cellmate, Adam Lopez, and that the Defendants deliberately disregarded that risk. Cloyd's surreplies attempt to call the Court's attention to evidence Cloyd believes sufficient to meet this standard.

As evidence of the risk posed by Lopez, Cloyd's supplemental filings emphasize records indicating prison officials disciplined Lopez for aggravated assault in February of 2011 and battery in March of 2013. The battery pertains to the incident at the heart of this case-Lopez's March 26, 2013 battery of Cloyd-and thus could not have put Defendants on notice that Lopez presented a risk to Cloyd's safety before the incident occurred. And, as discussed in detail below, the February 2011 aggravated assault involved Lopez's threatening conduct toward another inmate while he was incarcerated at a different facility, which does not establish that Lopez posed a risk of physical violence toward anyone.

As evidence that Defendants were aware Lopez was a risk to Cloyd's safety, Cloyd's supplemental filings attempt to establish that Lopez threatened Cloyd with physical harm while the two shared a cell and that Cloyd reported those threats to Defendants Brewer and Henrie. (Dkt. 35 at 2, 5; Dkt. 39 at 2-3.) Although styled as motions, these document feature the seal of an Idaho notary public and state they were "subscribed and sworn and affirmed, " suggesting Cloyd may have intended them to be factual affidavits. (Dkt. 35 at 6; Dkt. 39 at 4.) Even if so construed, "[t]he general rule in the Ninth Circuit is that a party cannot create an issue of fact by an affidavit contradicting his prior deposition testimony." Yeager v. Bowlin, 693 F.3d 1076, 1080 (9th Cir. 2012) (internal quotation omitted). Cloyd's surreplies run afoul of this sham affidavit rule because Cloyd's August 12, 2014 deposition testimony plainly contradicts Cloyd's more recent assertions that Lopez "threatened him with physical harm." (Dkt. 35 at 2.) During his deposition, Cloyd unequivocally stated that Lopez never threatened him with physical harm before the March 26, 2013 incident:

Q: Okay. At any time - at any time when you and Lopez were roommates, did he threaten you with physical harm?
A: No.
Q: Okay. And so he never did that up from the time you became roommates until this incident?
A: Correct.
Q: Now, ... am I right that you and Lopez didn't have a lot of conversations?
A: Correct.
Q: And so -
A: If there was conversation, it was small talk.
Q: But nothing threatening?
A: Nothing threatening.

(Cloyd Depo. 78:25-79:17, Dkt. 29-5.)

"[A] party who has been examined at length on deposition" cannot "raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, [as] this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact." Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 266 (9th Cir. 1991) (quotation omitted). While the non-moving party on a motion for summary judgment is entitled to clarify or explain prior inconsistent testimony, he cannot simply change his unfavorable deposition testimony by submitting a contrary but favorable sworn statement at a later date. See Leslie v. Grupo ICA, 198 F.3d 1152, 1158 (9th Cir. 1999). Cloyd's attempt to do just that is an additional reason for not considering the surreplies in connection with Defendants motion for summary judgment.


Cloyd's § 1983 claims allege Sergeant Brewer, Corrections Officer Henrie, and Warden Carlin violated Cloyd's Eighth Amendment rights by failing to protect Cloyd from his cellmate. Defendants' motion for summary judgment argues the record does not establish a constitutional violation and, even if it did, the Defendants are entitled to qualified immunity. In opposition, Cloyd ...

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