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Custodio v. Idaho State Board of Corrections

United States District Court, D. Idaho

September 29, 2016



          B. Lynn Winmill Chief Judge.

         Pending before the Court in this prisoner civil rights matter are Kevin Kempf's Motion for Summary Judgment and Defendant Jaune Sonnier's Motion for Summary Judgment. (Dkt. 60, 62.) The motions are fully briefed and ripe for adjudication.

         Having fully 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).


         Plaintiffs claims arise from his participation in and removal from a prison rehabilitation program, the Lifeline Therapeutic Community Program (TCP), where he resided for 37 days in June and July of 2012. Completion of the TCP was required to qualify for parole.

         Understanding the rehabilitative theory behind a "therapeutic community" is essential to analyzing this case. The IDOC Standard Operating Procedure (SOP) governing its TCP provided:

TC programs are designed and structured to create an environment for social learning and change. The TC is an environment that provides a residential, 24-hour per day, seven (7) days a week, intensive learning experience in which TC participant's behaviors, attitudes, values, and emotions are continually monitored, and corrected or reinforced as part of the daily regime. The role of TCs is to re-socialize TC participants according to positive values and right living lifestyles.
A critical clinical element of the TC is the peer community itself. According to the positive values and principles established and taught by the TC, peers confront inappropriate behavior and support appropriate behavior amongst each other. In contrast to traditional programs, which rely on individual or group counseling sessions, the powerful agent of change in a TC is the TC participants and the social learning process. In the TC, the primary function of staff members is that of role models for change, guides for recovery, and managers of the TC process.

(Dkt. 62-4, p. 3, SOP 607, General Requirements, § 1.) While these are indeed legitimate penological goals, Plaintiff claims that the program and its therapists were abusive and promoted homosexuality to the point of violating his constitutional rights.

         1. Alleged Abusive Nature of the TCP

         The allegations of abuse in the TCP seem to be a natural by-product of the fact that a therapeutic community experience is intended to shock an addict into sobriety. One commentator described it as follows:

The TC route to getting sober is a unique path and it is not right for everyone. Described as rigid, cult-like, or even downright abusive by some, for other people, these "cons" of this approach are its "pros."
[A] downside [] or challenge [] to embracing the TC approach [may include] [t]he "attitude." That boot camp style rigidity and the in-your-face confrontational attitude is not present in every TC, but it has become the stereotype of the model for a reason. This very black and white, right or wrong, approach to getting sober can be just what the doctor ordered for someone who has tried everything else, but be forewarned, it can be a deal breaker for some people.[1]

         Generally, TCPs should "prohibit public humiliation, physical punishment, and the withholding of sleep, food, water, and the use of the toilet."[2] The IDOC SOP provides that "[a]ll TC staff members shall role model right living ... for the TC and each other, ... and TC staff members who consistently role model inappropriate behaviors and attitudes that are incongruent with right living shall be subject to [discipline]." (Dkt. 62-4, p. 9.)

         Plaintiff and other prisoners allege that standard fare for the TCP therapists included shouting, "Shut the fuck up!" to participants and calling them "no good pieces of shit." (Depo. P. 56.) Plaintiff was confronted for manipulating the system so that he could use the bathroom, because excusing oneself to go to the bathroom during the course of a two- or three-hour meeting was generally prohibited. (Dkt. 62-9, p. 13, Plaintiff Depo. p. 113.)

         TCP participants like Plaintiff constantly questioned whether they were being taught "right-living" or being abused: "Never in my life have I been so disrespected, dehumanized, demoralized, and downright abused mentally." (Affidavit of Timothy Forgett, Dkt. 68-1.) "There is no doubt in my mind that the T.C. Program failed me. Not only did it fail me, but I believe it injured me even further.... I also had serious mental health issues that were not addressed at all. And in fact, the symptoms of my mental illness were allowed to grow to uncontrollable proportions while in the program." (Affidavit of Mark Cornelison, Dkt. 8-2.) Plaintiff also alleges he was not permitted to communicate with his family or regularly exercise.

         2. Allegations that the TCP Compelled Inmates to Adopt Therapists' Point of View on Homosexuality

         Beyond the general allegations that TCP therapists abused him, Plaintiff alleges that Ms. Sonnier and the TCP promoted homosexuality and required prisoners to agree that it is an acceptable lifestyle, in violation of his First and Fourteenth Amendment rights. Plaintiff complains that he was forced to participate daily in "image breakers" exercises, which consisted of role-playing with both overt and covert homosexual tones, such as dancing with and "grinding" against other inmates. Participants also reported that, "Valley girls, " or cheerleaders, the therapists often catcalled and whistled- counterproductively modeling disrespectful and ill-mannered societal behavior.

         3. Plaintiffs Allegations Supporting his Claims

         As part of Plaintiff s rehabilitative process, the Idaho Commission of Pardons and Parole (ICPP) required Plaintiff to participate in the IDOC's TCP. Plaintiff was granted an open tentative parole date by the ICPP, conditioned upon completion of the TCP.

         Plaintiff was bewildered by the bizarre nature of the TCP from the start. He alleges that he was not able to complete the TCP, because he was removed when the counselor in charge of the program, Defendant Sonnier, found his language unacceptable when he tried to explain that he "was not a 'gay, ' or homosexual. That [he] was a straight guy." (Complaint, Dkt. 3, p. 4.) Plaintiff explained that, when he was on the "hot seat, " and inmates aggressively questioned him about what he meant by being a "straight up, solid man, " he responded that he was not a "queer" or a "punk." (Dkt. 3-1, p. 6.)

         Plaintiff alleges that Defendant Sonnier, a lesbian, became angry, slapped the wall, and said, "that makes my blood boil." (Dkt. 3, p. 4.) Plaintiff alleges that Defendant Sonnier removed him from the TCP, placed him in segregation, and issued a disciplinary offense report (DOR) for his language. Plaintiff sought to be reinstated in the program or to be assigned to a different counselor, but he was denied that opportunity.

         Plaintiff was not permitted to visit with his family for the 37 days he was in the TCP. In addition, he alleges that Sonnier generally told the prisoners to forgo their exercise/recreation time, or they could be removed from the program, and that he was denied exercise/recreation during three specific time periods within his 37-day stay in the TCP.

         4. Disbanding of the Idaho TCP

         After Plaintiff and several other prisoners filed TCP lawsuits and new prison administrators took over prison operations, the TCP was disbanded, and the prison rehabilitative programs substantially changed. New administrators had obtained empirical data showing that offenders who completed the program were more likely to re-offend than those who had not been involved in the program.[3] After reading the numerous inmate affidavits detailing the indignities inmates suffered under the guise of "treatment, " the Court is not surprised by the increased recidivism rate.[4]

         Yet, the federal Constitution is concerned with only grievous wrongs. For example, verbal abuse does not rise to the level of a constitutional violation, [5] although prolonged verbal abuse that amounts to calculated harassment may be actionable under the Fourteenth Amendment. The underlying question posed in this lawsuit is whether a consensual but mandatory-for-parole rehabilitation program that resembled a military boot camp infringed on the basic constitutional rights of a prisoner.


         Earlier in this matter, the Court granted summary judgment on all claims against Defendant Barbara Saade for failure to exhaust administrative remedies, and all personal capacity claims against former IDOC director Brent Reinke and his successor, Kevin Kempf, for failure to show that either director personally participated in the alleged violations. The remaining claims are as follows: (1) a First Amendment free speech claim against Jaune Sonnier in her personal capacity for allegedly punishing Plaintiff for his exercise of free speech; (2) a Fourteenth Amendment equal protection claim against Ms. Sonnier in her personal capacity alleging that she discriminated against him because he refused to be compelled to adopt the position that homosexuality is an acceptable alternative lifestyle; (3) a First Amendment freedom of association claim against Ms. Sonnier in her personal capacity regarding restrictions on Plaintiffs visitation with his family; (4) an Eighth Amendment cruel and unusual punishment claim against Ms. Sonnier in her personal capacity for failing to permit Plaintiff adequate exercise and recreational time while in the program; (6) a First Amendment claim that the prison rehabilitation programs continue to violate Plaintiffs First Amendment right to free speech, asserted against IDOC Director Kevin Kempf in his official capacity; and (7) a Fourteenth Amendment claim that the programs continue to violate Plaintiffs equal protection rights, asserted against Director Kempf in his official capacity.


         Summary judgment is appropriate where a party can show that, as to a particular 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 a genuine dispute as to a material fact essential to an important element of the cause of action or defense to survive summary judgment. Disputes over facts that are not material to the resolution of the motion will not preclude summary judgment. T. W. Elec. Serv., Inc. v. Pac. 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).

         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 the jury could reasonably find for the [non-moving party]." Anderson, 477 U.S. at 252.

         5. First Amendment Free Speech Claim ...

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