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Dick v. Kempf

United States District Court, D. Idaho

December 4, 2017

KENNETH DICK, Plaintiff,



         Plaintiff Kenneth Dick, a prisoner in the custody of the Idaho Department of Correction (“IDOC”), is proceeding pro se in this civil rights action. Pending before the Court is a Motion to Dismiss filed by Defendants Jefferson County Sheriff Blair Olsen, Lieutenant Ortega, Sergeant Hernandez, Sergeant Bush, and Sergeant Hansen (the “Jefferson County Defendants”)-the only Defendants remaining in this case.[1] (Dkt. 21.) Also pending are Plaintiff's Motion to Supplement his Complaint and Motion to Accept Exhibits as Response to Discovery. (Dkt. 45, 49.)

         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. Accordingly, because the Court finds that the decisional process would not be significantly aided by oral argument, this matter shall be decided on the record before this Court without oral argument. D. Idaho Loc. Civ. R. 7.1. Accordingly, the Court enters the following order denying Plaintiff's motions, granting the Jefferson County Defendants' motion, and dismissing this case.


         Plaintiff is currently incarcerated at the Idaho State Correctional Institution. Plaintiff claims that, after he was convicted and sentenced in his state criminal case, he was not provided with adequate legal materials and, therefore, was unable to file a timely appeal of his sentence. (Compl., Dkt. 3.) The Jefferson County Defendants have established, and Plaintiff does not dispute, that Plaintiff's judgment of conviction in his underlying criminal case was entered on November 3, 2014. (Ex. A to Aff. of Sam L. Angell (Dkt. 21-2).)

         Plaintiff states that he was incarcerated at the Canyon County Jail from November 1, 2014, until December 17, 2014, when he was transferred to the Jefferson County Jail. Plaintiff claims that the Jefferson County Jail failed to provide sufficient legal resources to allow Plaintiff to appeal his conviction. (Compl. at 3.) Plaintiff remained in the custody of Jefferson County until May 29, 2015, when he was transferred to IDOC custody. (Id. at 4-7.)

         Plaintiff claims that the Jefferson County Defendants-the sheriff and four jail deputies-violated his right of access to the courts.


         1. Plaintiff's Motion to Supplement

         Plaintiff filed the instant action in June 2016. One year later, Plaintiff filed his Motion to Supplement his Complaint. (Dkt. 45.) Plaintiff seeks to reassert claims against Defendant Stewart, one of the initial Defendants in this case. Plaintiff also seeks to assert claims against new defendants-Sergeant Barroso, Keith Yordy, Sergeant Martin, Deputy Warden Osburn, and Deputy Warden Valley. (See Dkt. 46.)

         Because the proposed supplement describes events that occurred both before and after the date of Plaintiff's initial Complaint, the Court construes Plaintiff's Motion as a motion to amend the Complaint, rather than a motion to supplement the complaint. See Fed. R. Civ. P. 15(d) (describing a supplemental pleading as one that sets out “any transaction, occurrence, or event that happened after the date of the pleading to be supplemented” (emphasis added)).

         Amendments to pleadings are governed by Rule 15 of the Federal Rules of Civil Procedure. That rule states that the Court “should freely give leave when justice so requires.” Fed.R.Civ.P. 15(a)(2). “In the absence of any apparent or declared reason- such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc., ” it is appropriate for a court to grant leave to amend. Foman v. Davis, 371 U.S. 178, 182 (1962). Although several factors contribute to the analysis of whether a plaintiff should be allowed an opportunity to amend, futility alone can justify denying such an opportunity. Johnson v. Buckley, 356 F.3d 1067, 1077 (9th Cir. 2004).

         As for the claims intended to be asserted against new defendants, Plaintiff's supplement describes events that took place after he was transferred out of the custody of Jefferson County. Therefore, allowing the supplement would have no effect on the claims against the only remaining Defendants, and amendment would be futile as to Plaintiff's claims against those Defendants. As for the reasserted claims against Defendant Stewart, Plaintiff does not explain why it took him over a year from the date this case was filed- and approximately seven months from the date that Judge Bush determined that the ...

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