United States District Court, D. Idaho
STEPHEN A. CHERRY, Plaintiff,
DWAYNE SHEDD, JEFF KIRKMAN, RANDY HIGGINS, ANDREA BLADES, BRENT REINKE, and JESSICA LORELLO Defendants.
DECISION AND ORDER RE: PLAINTIFF’S MOTION TO SHOW CAUSE
(Docket No. 65) PLAINTIFF’S MOTION FOR APPOINTMENT OF
COUNSEL (Docket No. 66) PLAINTIFF’S MOTION FOR
PERMISSION TO DEPOSE WITNESSES (Docket No. 67)
PLAINTIFF’S MOTION FOR PERMISSION TO REPLY (Docket No.
68) PLAINTIFF’S MOTION TO DETERMINE THE SUFFICIENCY OF
ANSWERS GIVEN BY DEFENDANT (Docket No. 69) PLAINTIFF’S
VERIFIED MOTION TO CORRECT THE RECORD (Docket No. 75)
PLAINTIFF’S MOTION FOR PERMISSION TO FILE EXPANDED
RESPONSE (Docket No. 78) REPORT AND RECOMMENDATION RE:
DEFENDANT RANDY HIGGINS’ MOTION FOR SUMMARY JUDGMENT
(Docket No. 71)
Honorable Ronald E. Bush Chief U.S. Magistrate Judge.
pending before the Court are the following motions: (1)
Plaintiff’s Motion to Show Cause (Docket No. 65); (2)
Plaintiff’s Motion to Appoint Counsel (Docket No. 66);
(3) Plaintiff’s Motion for Permission to Depose
Witnesses (Docket No. 67); (4) Plaintiff’s Motion for
Permission to Reply (Docket No. 68); (5) Plaintiff’s
Motion to Determine the Sufficiency of Answers Given by
Defendant (Docket No. 69); (6) Plaintiff’s Verified
Motion to Correct the Record (Docket No. 75); (7)
Plaintiff’s Motion for Permission to File Expanded
Response (Docket No. 78); and (8) Defendant Randy
Higgins’ Motion for Summary Judgment (Docket No. 71).
Having carefully considered the record and otherwise being
fully advised, undersigned enters a Memorandum Decision and
Order as to the first six of these non-dispositive motions,
and a Report and Recommendation as to the seventh dispositive
1997, Plaintiff Stephen Cherry was convicted by a jury of
first degree murder, aggravated battery, and aggravated
assault with a deadly weapon in Idaho state court.
See Def.’s SOF No. 2 (Docket No. 71, Att. 2).
Plaintiff was sentenced to the custody of the Board of
Correction to serve life without parole for the murder
conviction, thirty years for the aggravated battery
conviction, and twenty years for the aggravated assault
conviction. See id.
Summer of 2010, Plaintiff filed the instant action, alleging
that Defendants denied him his First Amendment right of
access to the courts. See Compl. (Docket No. 3). On
August 16, 2011, United States Magistrate Judge Larry M.
Boyle dismissed Plaintiff’s Complaint in its entirety -
which, relevant here, included a finding that Plaintiff had
not alleged the requisite “actual injury” to
support his access-to-courts claim. See 8/16/11
Order, pp. 2-8, 13 (Docket No. 11). On appeal, however, the
Ninth Circuit Court of Appeals vacated the district
court’s dismissal in part, remanding the case back to
this Court as to Plaintiff’s access-to-courts claim
against certain Defendants, concluding:
The district court also prematurely dismissed Cherry’s
access-to-courts claims against defendants Higgins and Blades
in light of this court’s intervening decision in
Silva because the allegations in the complaint,
liberally construed, were “sufficient to meet the low
threshold for proceeding past the screening stage.”
Wilhelm v. Rotman, 680 F.3d 1113, 1123
(9th Cir. 2012); see Silva, 658 F.3d at
1102-04 (explaining that prisoners have the right to
litigate, without active interference, claims that have a
reasonable basis in law or fact, and concluding that
allegations that defendants hindered an inmate’s
ability to litigate his pending civil action resulting in
dismissal of the action were sufficient to state a claim).
See 10/25/13 Mem., p. 4 (Docket No.
remand, the then-remaining Defendants moved for summary
judgment on May 21, 2014, arguing that Plaintiff failed to
exhaust his administrative remedies. See generally
Defs.’ MSJ (Docket No. 30). On January 6, 2015, United
States District Judge Edward J. Lodge granted, part, and denied,
in part, Defendants’ Motion for Summary Judgment,
dismissing all remaining Defendants except for Defendant
Randy Higgins - Plaintiff was permitted to proceed on his
access-to-courts claim against Defendant Higgins even though
Plaintiff had not exhausted his administrative remedies
because the prison grievance system was unavailable when
Plaintiff was transferred to an out-of-state prison during
the relevant time period he otherwise could have grieved the
issues concerning Defendant Higgins. See 1/6/15
Order, p. 15 (Docket No. 48).
31, 2015, Plaintiff moved for leave to amend his Complaint,
contending that he “wishes to amend his Complaint to
set out more fully the issues and the actual harm experienced
and a direct result of Defendant Higgins’ actions
and/or inactions.” Mot. to Am., p. 1 (Docket No. 58).
On October 29, 2015, Judge Lodge granted Plaintiff’s
Motion to Amend. See 10/29/15 Order (Docket No. 62).
overall thrust of Plaintiff’s Amended Civil Rights
Complaint is that Defendant Higgins confiscated some of
Plaintiff’s legal materials and evidence pertaining to
Plaintiff’s state criminal case when he was scheduled
to be transferred to an out-of-state prison. Specifically,
Plaintiff makes the following factual allegations:
• “But for the actions and/or inactions, lies,
delays, and impediment of Defendant Higgins, Mr. Cherry would
not have suffered the permanent loss of irreplaceable
exculpatory legal materials and evidence necessary in
litigating a case which was active at the time these claims
arose and which is still on-going to date, nor would Mr.
Cherry have suffered a permanent hindrance to his attack on
his criminal case; and, thus been irreversibly
harm[ed].” Am. Civ. Rights Compl., p. 2 (Docket No.
• “Defendant Higgins did deliberately and with
intent to violate Mr. Cherry’s right to unobstructed
and clear access to courts as well as Mr. Cherry’s
rights guaranteed by the First Amendment to the United States
Constitution when Defendant Higgins, in violation of Idaho
Department of Corrections (IDOC) custom, practice, and
policy, refused to transport Mr. Cherry’s irreplaceable
exculpatory legal materials and evidence with him for
transfer to North Fork Correctional Facility (NFCF) in
Oklahoma. But for these actions and/or inactions, Mr. Cherry
would not have suffered permanent placement of a hindrance to
. . . Mr. Cherry’s attack on his criminal conviction[.]
Defendant Higgins, was the cause in fact of the permanent
loss of Mr. Cherry’s legal materials.”
Id. at pp. 2-3.
• “Upon notice, Defendant Higgins had the legal
duty to locate and return Mr. Cherry’s legal materials
in its entirety. Instead, Defendant Higgins deliberately
opened a box which had been previously inventoried, sealed
and prepared for transport, and repackaged the legal
materials. In the process, Defendant Higgins either caused or
allowed the destruction and/or loss of about 50% of the legal
materials in that original box. As a direct result, Mr.
Cherry suffered the permanent loss of his legal materials and
must now rely upon unfrivolous means to litigate this case
and his on-going attack of his criminal case.”
Id. at p. 3.
• “Defendant Higgins did first threaten Mr.
Cherry, telling him that his legal paperwork would not go
with him to NFCF in Oklahoma, then Defendant Higgins
deliberately, with intent, and with full knowledge, in direct
violation of IDOC custom, practice, and policy, carried out
his threat against Mr. Cherry by in fact not shipping Mr.
Cherry’s legal materials with him to NFCF which
deprived Mr. Cherry of the legal materials necessary in his
then active and still on-going attack on his criminal
conviction and which was the cause in fact of the permanent
loss of 50% of the legal materials which Defendant Higgins
refused to send to NFCF. When Defendant Higgins did finally
send the legal materials to Mr. Cherry, about 50% of those
legal materials had been permanently lost and/or
destroyed.” Id. at pp. 3-4.
• “The full extent of the harm done to Mr. Cherry
can not be fully estimated. It is completely conceivable that
one, all, or some combination of these lost legal materials
could have resulted in the successful litigation of his
criminal case and but for the loss of those materials, have
secured Mr. Cherry’s release from prison. Since the
loss of those legal materials, Mr. Cherry has been
incarcerated for over (7) years. What is the value of that
lost time? But for Defendant Higgins’ actions and/or
inactions, Mr. Cherry would not have been harmed.”
Id. at p. 4.
• “But for Defendant Higgins’ actions and/or
inactions, lies, delays, hindering, and deliberate
indifference, Mr. Cherry would not have suffered
irreconcilable harm and the loss of his irreplaceable
exculpatory legal documents, photographs, audio tapes, and
other material evidence which were and are of primary
importance in challenging Mr. Cherry’s criminal
conviction and proving his innocence by using these
materials.” See id. at p. 5.
• “On the 21st of July, 2008, Ms. Laura
Ashford, the paralegal in charge of the ICI-O Legal Resource
Center, and Mr. Cherry inventoried, packed, and taped up a
box of legal materials which had been stored at the Resource
Center. That Box was labeled with Mr. Cherry’s name and
addressed to go with him to Oklahoma. In addition, this box
was clearly labeled “Legal” on five (5)
sides.” Id. at pp. 5-6.
• “During the Roll Up, I notified [Correctional
Officer] Gibson that I had a box of legal materials
inventoried, taped up, and ready to go in the ICI-O Legal
Resource Center. [Correctional Officer] Gibson called
Defendant Higgins on the radio and asked him to come to the
chapel where the Roll Ups were being done. When Defendant
Higgins arrived at the chapel, [Correctional Officer] Gibson
informed him that Mr. Cherry had one box of legal materials
which needed to be retrieved from the Resource Center and
brought to property to be loaded on the bus. [Correctional
Officer] Gibson then handed Defendant Gibson a label which
would identify that Box as “Box 2 of 7" of Mr.
Cherry’s property.” Id. at pp. 6-7.
• “Later on in the early evening of July 21, 2008,
after Roll Ups were completed, Defendant Higgins came to Mr.
Cherry’s cell area on Unit C-1; and, as he walked
through the door, proclaimed ‘you might as well sue us
now because you are not taking all that legal material with
you to Oklahoma.’” id. at p. 7.
• “IDOC custom, practice, and policy is that when
an inmate has an active legal case all legal materials are to
be transported with him when he is transferred to another
institution. Based on the statement made by Defendant
Higgins, it is clear that at this point, Defendant Higgins
has decided to act in violation of IDOC custom, practices,
and policy, making his actions deliberate with complete
indifference to both the harm that Mr. Cherry would
experience and the violation of Mr. Cherry’s First
Amendment Right guaranteed by the United States Constitution.
As the property officer, Defendant Higgins was well aware of
IDOC customs, policies, and practices concerning transport of
inmates’ legal materials.” Id.
• On the 29th of July, 2008, Mr. Cherry left
ISCI Boise and arrived at NFCF on the 30th of
July. On the 8th of August, 2008, Mr. Cherry
finally received his property that had been transported with
him to NFCF. It was at that time that Mr. Cherry noticed that
a box of legal materials was missing. That missing box of
legal was the box that was in Defendant Higgins’
possession, and intentionally withheld and destroyed by
Defendant Higgins.” Id. at pp. 8-9.
• “On the 28th of August, 2008, Mr.
Cherry received a box containing about one-half of the
missing legal materials: (36) days from the time Mr. Cherry
was Rolled Up . . . . On the 28th of August, 2008,
Mr. Cherry also received a ‘property description
sheet’ indicating that Defendant Higgins had
inventoried ‘a box of legal material’ clearly
showing that all of Mr. Cherry’s legal
materials had not went to Boise nor Oklahoma with him.
Defendant Higgins was the last one to open, inventory, and
handle this box of legal materials. The box Mr. Cherry
received was not the original box which Ms. Ashford and Mr.
Cherry had inventoried, packed, taped, and addressed for
Oklahoma. The original box was a large box and was 95% full.
The box Mr. Cherry received was a much small box than the
original box and was only 50% full. Defendant Higgins, being
the last one to handle the legal materials, would have been
the only individual who could have removed over one-half of
the legal materials from the original box and placed half the
materials in a new box and prepared it for shipping.”
Id. at pp. 10-11 (emphasis in original).
• “It is IDOC’s custom, practice, and policy
that the inmate is to be present when an officer opens,
searches, or goes through that inmate’s legal property.
Defendant Higgins violated IDOC policy when he did open, and
repackaged Mr. Cherry’s legal documents without Mr.
Cherry present. Mr. Cherry’s legal materials were
already packaged and ready for shipping. There was absolutely
no need to repackage the legal materials. It was during or as
a direct result of this repacking that one-half of Mr.
Cherry’s legal materials were irretrievably lost and/or
destroyed causing Mr. Cherry permanent harm by setting a
permanent impediment to all legal proceedings [that] have to
do with Mr. Cherry’s attack of his criminal
conviction.” Id. at pp. 11-12.
• “When Defendant Higgins refused to send the
legal materials with Mr. Cherry, Defendant Higgins became the
cause in fact of the loss of Mr. Cherry’s legal
materials, thus, depriving Mr. Cherry of his right to
unobstructed and clear access to courts and denying Mr.
Cherry his First Amendment Rights guaranteed by the
Constitution of the United States.” Id. at p.
• “Mr. Cherry is unsure as to what happened to the
other half of legal materials which are still missing. Mr
Cherry never received any of these missing materials.”
• “Defendant Higgins first threatened Mr. Cherry
that his legal materials would not go with him to NFCF as was
required by IDOC policy. Defendant Higgins then carried out
his threat as shown by the fact that the box of legal
materials was not sent with Mr. Cherry on the bus. When
Defendant Higgins refused to send the legal materials as
required, he became the cause in fact of the loss of Mr.
Cherry’s legal documents and evidence. When Defendant
Higgins did finally send the missing legal documents, he
deliberately removed about 50% of Mr. Cherry’s legal
materials and repackaged them in a smaller box. Defendant
Higgins caused or allowed the destruction of the remaining
50% of the legal materials.” Id. at pp. 13-14.
turn, Plaintiff transitions these factual allegations into
his parallel “Claims for Relief” against
Defendant Higgins, alleging in part:
• “For the deliberate, malicious actions that
caused the permanent loss of one-half of the legal documents
in the original box inventoried and packaged by Ms. Ashford
and Mr. Cherry, and for the deprival of Mr. Cherry’s
unobstructed access to courts and for the violation of Mr.
Cherry’s rights guaranteed under the First Amendment of
the United State Constitution, and finally, for the placing
of a permanent impedance to Mr. Cherry’s then active
and still on-going attack on his criminal conviction . . .
.” Id. at p. 14.
• “Defendant Higgins, as the ICI-O property
officer at the time of his claim and as the person most
responsible, first threatened Mr. Cherry with the deprival of
his legal documents when Mr. Cherry was transferred to NFCF;
then carried out his threat against Mr. Cherry by not
shipping the legal materials with Mr. Cherry. But for these
actions, Mr. Cherry would not have been harmed by the
permanent loss of his legal materials necessary in attacking
his criminal conviction.” Id.
• “Defendant Higgins, when he finally did send the
legal materials, did open the previously packaged box of
legal materials and did repackage the legal materials. In the
process, one-half of Mr. Cherry’s legal materials were
lost and/or destroyed. But for these actions, Mr. Cherry
would not have suffered the permanent loss of irreplaceable
legal documents necessary in attacking his criminal
conviction and would not have a permanent impediment to his
access to courts in his criminal conviction.”
Id. at pp. 14-15.
• “Defendant Higgins, by first refusing to ship
Mr. Cherry’s legal documents with him to NFCF was the
cause in fact of the permanent loss and/or destruction of Mr.
Cherry’s legal documents and the placing of a permanent
impediment to his attack on his criminal conviction and
violating Mr. Cherry’s First Amendment rights under the
United States Constitution.” Id. at p. 15.
within the “Relief Requested” section of his
Complaint, Plaintiff prays for the following:
• “Compensating relief for the extreme mental
anguish caused by the loss of Mr. Cherry’s legal
• “Compensating relief for the extreme mental
anguish caused by the loss of his legal materials and the
permanent impedance in Mr. Cherry’s attack on his
criminal case.” Id. at pp. 15-16.
• “Compensating and punitive relief in an amount
equitable for the time Mr. Cherry has had to remain in prison
due to having to litigate his case using inference because of
the loss of his legal materials.” Id. at p.
• “Punitive damages for the permanent loss of his
legal documents.” Id.
• “Punitive damages for the placement of a
permanent hindrance to Mr. Cherry’s successful attack
on his criminal case.” Id.
• “Such other further relief as deemed necessary
and just by the jury or the Court.” Id.
undersigned’s review of the entirety of
Plaintiff’s Amended Civil Rights Complaint confirms
what this Court and the Ninth Circuit has already understood
- that Plaintiff is making an access-to-courts claim against
Defendant Higgins. With that backdrop in mind, Defendant
Higgins now moves for summary judgment, arguing that there is
no evidence that Plaintiff suffered the necessary
“actual injury” as a result of his legal
materials being lost. See Mem. in Supp. of MSJ, p. 3
(Docket No. 71, Att. 1). For the purposes of the at-issue Motion
for Summary Judgment only, Defendant Higgins does not dispute
that a portion of Plaintiff’s legal materials were
“misplaced” during his transfer to NFCF. See
Defendant Randy Higgins’ Motion for Summary ...