United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
E. Bush Chief U.S. Magistrate Judge.
Oswald Reyna's prisoner civil rights action arises from
his stay in, and removal from, the Idaho Department of
Correction (IDOC) sex offender treatment program (SOTP) at
the Idaho Correctional Institution-Orofino (ICI-O), a program
that was a prerequisite to qualifying for release on parole.
Pending before the Court is Defendant Larry Bearden's
Motion to Dismiss or in the Alternative Motion for Summary
Judgment. (Dkt. 31.) Also pending are Defendant's Motion
for Leave to File a Supplemental Affidavit (Dkt. 34), and
Plaintiff Oswald Reyna's Motion for Extension of Time to
File Reply. (Dkt. 35.)
motions are now fully briefed. All parties have consented to
the jurisdiction of a United States Magistrate Judge to
conduct all proceedings in this case in accordance with 28
U.S.C. § 636(c). (Dkt. 15.) Having reviewed the record,
the Court concludes that oral argument is unnecessary and
enters the following Order.
has filed a Motion for Leave to File a Supplemental Affidavit
(Dkt. 34), seeking to add to the record the Affidavit of
Brenda Layne, containing additional relevant information
discovered after the Motion for Summary Judgment was filed.
Good cause appearing, the Motion will be granted.
Oswald Reyna has requested an extension of time in which to
respond to Defendant's Motion for Summary Judgment. (Dkt.
35.) He has since filed his Response. Good cause appearing,
the Motion will be granted, and the Response is considered
FOR SUMMARY JUDGMENT
parties have submitted evidence beyond the pleadings to be
considered by the Court in its determination of whether the
remaining claims are subject to dismissal. Therefore, the
Court will decide Defendant's Motion for Summary Judgment
under Rule 56, which renders moot the alternative Motion to
Dismiss under Rule 12(b).
Standard of Law
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.
A party asserting that a fact cannot be or is genuinely
disputed must support the assertion by:
(A) citing to particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations
(including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the
absence or presence of a genuine dispute, or that an adverse
party cannot produce admissible evidence to support the fact.
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).
Court must consider "the cited materials, " but it
may also consider "other materials in the record."
Fed.R.Civ.P. 56(c)(3). 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.
used to support or dispute a fact should be "presented
in a form that would be admissible in evidence, " or it
may be subject to objection. See 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.
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 may also grant summary
judgment to a non-moving party, on a ground not raised by
either party, or sua sponte provided that the parties are
given notice and a reasonable opportunity to respond.
Court does not decide credibility of affiants or weigh the
evidence set forth by the non-moving party.
Anderson, 477 U.S. at 255. That means a party's
or witness's sworn statement must be taken as true for
purposes of summary judgment. The Court must also draw all
reasonable inferences from circumstantial evidence in a light
most favorable to the non-moving party, T. W. Elec.
Serv., Inc., 809 F.2d at 630-31, but it is not required
to adopt unreasonable inferences from circumstantial
evidence. McLaughlin v. Liu, 849 F.2d 1205, 1207-088
(9th Cir. 1988) (observing fast Matsushita Electric
Industrial Company v. Zenith Radio Corporation, 475 U.S.
574 (1986), "authorizes an inquiry on summary judgment
into the 'implausibility' of inferences from
circumstantial evidence ..., not an inquiry into the
credibility of direct evidence.").
Court previously granted summary judgment to Defendant
Bearden on the retaliation claim asserted in the original
Complaint arising from Defendant Bearden's revision and
resubmission of the DOR regarding the Officer Cox incident
(described in the timeline below). As to that claim, the
Court ruled that, even if Bearden revised and resubmitted the
DOR based on a retaliatory motive, Plaintiff had no
retaliation claim because the DOR had a legitimate
penological purpose-that is, to bring attention to and punish
behavior that was inappropriate.
then filed an Amended Complaint, asserting additional acts of
retaliation that he gleaned from the discovery responses of
Defendant. Now at issue are Plaintiffs claims that Defendant
retaliated against him (1) by allegedly falsely reporting to
the Team Case Management (TCM) committee that Plaintiff had
continued the behaviors that led to his removal from the
SOTP; (2) by informing the TCM committee that Plaintiff had
been removed due to sexual misconduct, rather than due to
parole board action; and (3) by manufacturing false
information and using it in a Pathway Exception Request (PER)
to raise Plaintiffs pathway assessment number from 11 to 13,
instead of lowering it to 9, as assessment results indicated.
following facts are undisputed or, if disputed, the proffered
fact most favorable to Plaintiff has been included, or both
proffered facts have been noted.
02/20/13 Plaintiff was issued a Class C Disciplinary Offense
Report (DOR) for disobedience to orders for writing a letter
to his family, and he was removed from the Sex Offender
Treatment Program (SOTP). (Dkt. 24-4, p. 19.)
03/2013 Plaintiff returned to the SOTP.
04/22/13 Plaintiff allegedly unintentionally brushed up
against another inmate in the showering area. Plaintiff was
issued a Class B DOR for sexual threats and harassment for
the shower incident and was removed from the SOTP program.
(Dkt. 24-4, p. 19.)
08/09/13 Plaintiff returned to the SOTP. He did not lose his
parole date after the showering incident DOR. Defendant
Bearden expressed his disbelief that Plaintiff still had his
parole date. (Dkt. 24-4, p. 21.)
08/21/13 Defendant Bearden told Plaintiff that he believed
Plaintiff was grooming other inmates in the SOTP by being
ingratiating. Bearden said he believed Plaintiff was doing
another inmate's work assignments for him and confronted
Plaintiff in an angry, mocking way. (Dkt. 24-4, pp. 7, 29.)
08/16/13 Defendant Bearden warned Plaintiff about
"acting out" and told Plaintiff he was keeping an
eye on him. Plaintiff denied any wrongdoing. Bearden told
Plaintiff to create a coping plan to help him manage his
sexual thoughts and urges. Plaintiff felt threatened and
harassed by Bearden. (Dkt. 21-3, p. 28.)
08/27/13 Inmate Rosales entered the SOTP. Plaintiff said he
knew Rosales has sex with other inmates, and Plaintiff
advised him to be careful about acting out in the unit,
especially in the showers. Plaintiff told Rosales about the
DOR he got and the trouble it caused him. Plaintiff wrote in
his journal, "I asked Rosales to sit w/ me at dinner and
gave advi[c]e." (Dkt. 21-4. p. 3.)
10/09/13 Rosales submitted a cardinal rule violation (a
serious violation that could cause one to be removed from the
SOTP), alleging that Plaintiff had made an inappropriate
sexual comment to him (the record does not reveal the
substance of the allegations). On that same day, Plaintiff
asked Officer Elizabeth Cox about the violation. (Dkt. 21-4,
10/10/13 Cox reported the incident to Defendant Bearden by
email. Bearden interrogated Plaintiff for a lengthy period of
time about the Cox incident, despite Plaintiffs comments to
Bearden that Plaintiff was becoming confused. Plaintiff
finally agreed with Bearden to escape the interrogation.
Three other employees were present. (Dkt. 24-2, p. 23.)
10/15/13 Defendant Bearden wrote a DOR regarding the Cox
incident. Plaintiff attended the hearing on the DOR and
admitted that he could see how his statements to Ms. Cox
could have been construed by her as manipulation, but he also
maintained that Bearden had taken advantage of Plaintiff s
mental illness and manipulated him into agreeing that he was
guilty. (Dkt. 3-1, p. 1; Dkt. 19, audiorecording of DOR
10/27/13 At some point in October 2013, Plaintiff was removed
from the SOTP. Plaintiff complained to Clinician Wendy
Gebhart that Bearden had been harassing ...