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Cherry v. Shedd

United States District Court, D. Idaho

August 15, 2016

STEPHEN A. CHERRY, Plaintiff,
v.
DWAYNE SHEDD, JEFF KIRKMAN, RANDY HIGGINS, ANDREA BLADES, BRENT REINKE, and JESSICA LORELLO Defendants.

         MEMORANDUM 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.

         Now 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 motion.

         I. RELEVANT BACKGROUND

         In 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.

         In the 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).[1] 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. 18).[2]

         Following 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[3] 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).

         On July 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).

         The 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. 59).
• “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. 12.
• “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.” Id.
• “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.

         In 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.

         Finally, 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 materials.” Id.
• “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. 16.
• “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.

         The 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).[4] 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 id.

         II. REPORT/DISCUSSION

         A. Defendant Randy Higgins’ Motion for Summary ...


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