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Veenstra v. Idaho State Board of Correction

United States District Court, D. Idaho

October 24, 2017



          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.


         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.


         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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