United States District Court, D. Idaho
ALBERT PETE VEENSTRA III, MIGUEL CHARLES JOYNER, JEFFREY BOYD ASH, and WILLIAM JERMAINE FLETCHER, Plaintiffs,
v.
IDAHO STATE BOARD OF CORRECTION, et al., Defendants.
MEMORANDUM DECISION AND ORDER
Edward
J. Lodge United States District Judge
Plaintiffs,
two of whom are prisoners in the custody of the Idaho
Department of Correction (“IDOC”), are proceeding
pro se and in forma pauperis in this civil rights action. Now
pending before the Court are Defendants' (1) Motion to
Dismiss Plaintiff Ash's Claims as Moot and (2) Motion to
Dismiss for Failure to State a Claim. (Dkt. 59, 62.) The
Court has notified the parties that it intends to treat these
motions as motions for summary judgment under Rule 56 of the
Federal Rules of Civil Procedure. (Dkt. 69.) Plaintiffs have
not responded to the motions, despite having received
extensions of time to do so.
Having
fully reviewed the record, the Court finds that the facts and
legal arguments are adequately presented in the briefs and
record and that oral argument is unnecessary. See D.
Idaho Loc. Civ. R. 7.1. Accordingly, the Court enters the
following Order granting Defendants' motions for summary
judgment.
PROCEDURAL
BACKGROUND
Plaintiffs
filed the instant action in July 2015. (Dkt. 2.) The Court
screened the Complaint pursuant to 28 U.S.C. §§
1915 and 1915A and determined that it appeared to state
plausible due process and equal protection claims, against
some Defendants, based on the IDOC's policy of not
allowing inmates in most Idaho prisons to keep or have access
to their prison medical records. (Dkt. 15.) The Court noted
that, given the strict legal standards of such claims,
Plaintiffs' claims faced an uphill battle. Nonetheless,
the Court determined that it was possible, though unlikely,
that Plaintiffs could establish that they possessed a liberty
interest in accessing their medical records or that the
denial of access to those records lacked a rational
relationship to a legitimate governmental interest.
(Id. at 6, 8.) The Court denied Plaintiffs'
request for appointment of counsel. (Id. at 15.) The
Court later granted Plaintiffs' request for
reconsideration, which allowed them to proceed against three
additional Defendants. (Dkt. 19.)
Plaintiffs
renewed their request for counsel. (Dkt. 27.) After
considering the issue, the Court conditionally granted
Plaintiffs' request. (Dkt. 43.) The Court advised
Plaintiffs' that it had
no authority to require attorneys to represent indigent
litigants in civil cases under 28 U.S.C. § 1915(d).
Mallard v. U.S. Dist. Court for Southern Dist. of
Iowa, 490 U.S. 296, 298 (1989). Rather, when a Court
“appoints” an attorney, it can only do so if the
attorney voluntarily accepts the assignment. Id. The
Court has no funds to pay for attorney's fees in civil
matters, such as this one, and it is often difficult to find
attorneys willing to work on a case without payment. For
these reasons, Plaintiffs should continue to attempt to
obtain their own counsel on a contingency or other basis, if
at all possible. If the Court is unable to locate pro
bono counsel, and if Plaintiffs are unable to find their own
counsel, then Plaintiffs will have to continue to litigate
this case pro se.
(Id. at 3-4 (emphasis added).)
Court
staff immediately set about attempting to find an attorney
who would agree to represent Plaintiffs pro bono. Court staff
engaged in ongoing communication with the Court's Pro
Bono Liaison, Mary Hobson, regarding this case. Ms. Hobson
contacted numerous attorneys about this case, but
unfortunately was unable to find an attorney to agree to the
representation.
Accordingly,
in November 2016, the Court informed Plaintiffs that all
attorneys who were contacted had “declined to accept
this case pro bono.”[1] (Dkt. 47 at 2.) The Court determined
that because Plaintiffs' likelihood of success was not
substantial, it was “improbable that the Court will
succeed in finding pro bono counsel for Plaintiffs in the
near future.” (Id.) The Court concluded,
[A]lthough the Court will continue its search for pro bono
counsel to represent Plaintiffs, the Court has determined
that this case must move forward in its current state, and
Plaintiffs will be required to litigate their case
without counsel at this time. Should the Court's
continuing efforts to find pro bono counsel later prove
fruitful, that counsel may move to amend the complaint and to
reopen discovery, if necessary.
(Id. (emphasis added).) The Court amended the
pretrial schedule to permit Plaintiffs additional time to
prepare their case. (Id.)
Plaintiffs
then filed a Motion to Appoint Assistance by University of
Idaho Law School and Motion to Suspend Scheduling Order.
(Dkt. 49.) The Court denied this motion, stating that it had
“reached out to the pro bono program at the University
of Idaho College of Law, as well as Concordia University
School of Law, ” but that both law schools declined
representation. (Dkt. 50 at 1-2.) The Court reminded
Plaintiffs that they would “be required to litigate
their case pro se at this time” and that the Court
would continue its efforts to find counsel willing to take
the case. (Id. at 2.)
Plaintiffs
then filed a Motion for the Court to Exercise Its Inherent
Authority and Compel an Officer of the Court, an Attorney, to
Represent Plaintiffs and Motion to Suspend Scheduling Order.
(Dkt. 54.) Plaintiffs contended that, under Naranjo v.
Thompson, a case issued by the Fifth Circuit, they were
entitled to a Court order compelling an attorney to represent
Plaintiffs without payment. See Naranjo, 809 F.3d
793 (5th Cir. 2015).
The
Court considered Naranjo and found it unpersuasive.
(Dkt. 57 at 3.) The Court first disagreed with
Naranjo's reasoning and concluded that federal
courts do not have the inherent authority to compel an
attorney to provide pro bono representation in a civil case.
(Id. at 4.) The Court next concluded that, even if
it did have such authority, it would decline to exercise that
authority in the instant case. (Id.)
Originally,
the Court thought an attorney might find it an appealing
intellectual challenge to brief the interesting questions in
the case, even though the claims faced “an uphill
battle.” (Dkt. 15 at 8.) However, attorneys are busy
with career, pro bono, and family commitments, and practicing
law is how they must make a living. It is important to use
the scarce resources of pro bono counsel on cases that are
potentially meritorious. Having reviewed this case several
times to assess its merit, the Court again declines to assert
its authority or influence to compel an attorney to represent
Plaintiffs.
At one
point, frustrated that the Court could not find an attorney,
Plaintiffs petitioned the Ninth Circuit Court of Appeals for
a writ of mandamus, asking that court “to determine
whether or not the district court of Idaho has the inherent
authority to compel an attorney to represent
Petitioners.” (Dkt. 58-1 at 2.) The Ninth Circuit
denied the petition. (Dkt. 68.)
Meanwhile,
Defendants filed their two motions to dismiss. (Dkt. 59, 62.)
Plaintiffs sought an extension of time to respond to the
first motion, that regarding Plaintiff Ash, but did not ask
for a similar extension with respect to the second motion.
(Dkt. 66.) Nonetheless, the Court granted Plaintiffs
extensions of time to respond to both motions. Specifically,
the Court notified the parties it would treat the motions to
dismiss as motions for summary judgment and gave Plaintiffs
until September 18, 2017, to respond to the motions. (Dkt. 69
at 4-5.) Because of the length of time the case has been
pending-over two years-the Court noted that it would grant a
further extension of time only in extraordinary
circumstances. (Id. at 5.)
Plaintiffs
did not respond to either motion, nor did they move for an
extension of time based on extraordinary circumstances.
Therefore, the motions are ripe for consideration by the
Court.
DEFENDANTS'
MOTIONS FOR SUMMARY JUDGMENT
1.
Plaintiffs' Lack of Response to the Motions
The
Court can only guess at the reason why Plaintiffs did not
file a response to either of Defendants' motions, but
perhaps it was because Plaintiffs still believe they are
entitled to the appointment of pro bono counsel. The Court
has explained its reasoning behind its decision that it could
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