United States District Court, D. Idaho
REPORT AND RECOMMENDATION (DKT 23; DKT 27); AND ORDER
W. Dale Judge.
before the Court are three motions: Defendants' Motion to
Dismiss (Dkt. 23), Plaintiff's Motion for Summary
Judgment (Dkt. 27), and Plaintiff's Motion to Enter
Exhibit 1 in support of his motion. (Dkt. 29). The parties
have fully briefed the motions and they are ripe for the
Court's consideration. Having reviewed the record herein,
the Court finds the facts and legal arguments are adequately
presented in the briefs and record. Accordingly, in the
interest of avoiding delay, and because the Court
conclusively finds that the decisional process would not be
significantly aided by oral argument, the motions will be
decided on the record without oral argument. Dist. Idaho L.
Rule 7.1(d). After careful consideration of the briefing, the
standard of review, and the relevant authorities, and for the
reasons set forth below, the Court will recommend that
Defendant's motion to dismiss be granted, Plaintiff's
motion for summary judgment be denied as moot, and will deny
Plaintiff's motion to enter Exhibit 1 as
Rodney Schilling was employed as a Correctional Officer by
the Idaho Department of Correction (IDOC) from July 10, 2006,
to August 20, 2013. (Dkt. 1 at ¶ 15.) Schilling worked
at the Idaho State Correctional Institution (ISCI) medical
building and medical annex and held the rank of corporal.
(Dkt. 1 at ¶ 30.) Defendants Paul Panther, Mark
Kubinski, and Leslie Hayes are Deputy Attorneys General for
Idaho. (Dkt. 1 at ¶ 4-6.) Defendants Brent Reinke, Kevin
Kempf, Randy Blades, Keith Yordy, and Kara Nielson were, and
some still are, employed in various capacities by the IDOC.
(Dkt. 1 at ¶ 7-10.) Defendants Panther, Kubinski, Hayes,
Reinke, Kempf, Blades, Yordy, and Nielson will be referred to
collectively as “Defendants” unless the Court
needs to individually identify a defendant.
claims center around his allegation that IDOC supervisors
created a work environment where loyalty to IDOC officials
trumped prisoner rights. Schilling asserts that IDOC
instructors instilled the idea that “all prisoners are
liars, ” that employees should “always back up an
IDOC official over a prisoner even if the IDOC official is
being untruthful and the prisoner is being honest, ”
and that employees should “never go against a
supervisor.” (Dkt. 1 at ¶ 16.) Schilling alleges
also the existence of an “in-crowd” made up of
top-ranking IDOC, state, and federal officials. Id.
at ¶ 17. He asserts that the in-crowd expected
“all IDOC employees to abide by a strict code of
silence concerning the group's pattern of unlawful and
unconstitutional practices, ” including nepotism,
cronyism, retaliation, harassment, intimidation, threats,
assaults, and falsifying both IDOC official records and
prisoner records. Id. at ¶ 18.
argues that certain IDOC staff members were punished because
they violated the in-crowd's “strict code of
silence” after they raised complaints and spoke out
against its members. Id. at ¶ 20. He alleges
further that he knew of or witnessed the following actions
taken by members of the in-crowd: entering false misconduct
reports into employee personnel files, deleting positive
reports in employee personnel files, performing unscheduled
post reassignments, as well as shunning, demoting, and
terminating employees who failed to adhere to their rules.
Id. at ¶ 22. Schilling claims that, because of
these actions, he developed genuine fear of being retaliated
against by other employees-preventing him from raising verbal
or written complaints against any member of the in-crowd.
Id. at ¶ 23.
this fear, Schilling still reported some prisoner complaints
to IDOC staff, including complaints from medical staff and
prisoners about inmates not being able to schedule an
appointment with the prison doctor. Dkt. 1. He asserts that
“higher up” IDOC staff turned a blind eye to the
problems. Dkt. 1 at ¶ 31. Schilling alleges also that he
reported these complaints to Defendants, and others, but was
either ignored or told to stand down. Dkt. 1 at ¶ 33.
during his time as an employee of IDOC, Schilling met an
inmate named Lance Wood, who was well-known for being a
Balla class representative. (Dkt. 1 at ¶ 34,
35.) The Balla case is an ongoing class
action lawsuit involving prisoner civil rights
claims. Schilling chose to be a witness in the
Balla case and agreed also to be a witness in Mr.
Wood's own federal case, Wood v. Martin. (Dkt. 1
at ¶ 43.)
December 19, 2012, Schilling testified in Mr. Wood's case
regarding the cronyism existing among the IDOC staff. (Dkt. 1
at ¶ 44.) Schilling claims that he was later subjected
to retaliation at work because of his testimony. (Dkt. 1 at
¶ 45.) Specifically, Schilling asserts that Defendants
Blades and Yordy began treating him “in a harsher tone
and intimidating posture” by undertaking an internal
investigation. (Dkt. 1 at ¶ 29.) According to
Defendants, the internal investigation of Schilling stemmed
from allegations that he had smuggled contraband into the
prison, and that Schilling improperly wore his IDOC uniform
on two occasions to serve process. (Dkt. 1 at ¶ 51, 54.)
investigation included the following actions by IDOC
supervisors: March 4, 2013 - Schilling was interrogated over
the telephone by Defendant Watson at the request of IDOC
officials; June 12, 2013 - he was interrogated again, this
time by Defendant Nielson, an Office of Professional
Standards Investigator; June 27, 2013 - Defendant Reinke
provided authorization to Defendant Nielson to have Schilling
take a polygraph examination, presumably regarding the
internal investigation into Schilling's conduct. (Dkt. 1
at ¶ 52, ¶ 54 and ¶ 55.) Additionally,
Schilling alleges that, on June 28, 2013, and July 5, 2013,
Defendant Nielson attempted to force him to take another
polygraph examination. Id. at ¶ 56. Schilling
refused each time and claims the polygraph examination was
retaliation for his testimony in Wood's lawsuit.
27, 2013, Defendant Blades issued a Notice of Contemplated
Action advising Schilling that he would be subject to
termination due to the result of the internal investigation.
Schilling responded to the notice on August 9, 2013. (Dkt. 1
at ¶ 57.) On August 20, 2013, IDOC terminated
Schilling's employment. Id. at ¶ 58.
Schilling appealed the termination with the Idaho Personnel
Commission on September 19, 2013. Id. at ¶ 59.
Schilling's termination from employment was
upheld. Id. at ¶ 60.
original lawsuit in this matter was filed on March 17, 2015,
under the caption Lance Wood and Renee Wood v. Paul
Panther, et al., Case No. 1:15-CV-00092-CWD. (Dkt. 26 at
2.) On August 20, 2015, Schilling joined the lawsuit by way
of a First Amended Complaint under a new caption, Lance
Wood, Renee Wood, and Rodney Schilling v. Paul Panther, et
al. Id. The Court entered an Initial Review Order on
September 30, 2015, finding that the First Amended Complaint
failed meet the Iqbal pleading standard.
Id. The order permitted Schilling to file an amended
complaint addressing the pleading insufficiencies.
December 24, 2015, Schilling filed his Second Amended
Complaint. (Dkt 1.) The Court later issued an order
severing Schilling's claims from those of Lance and Renee
Wood. Id. Schilling's Second
Amended Complaint alleges violations of the First and Eighth
Amendments under 42 U.S.C. Sections 1983 and 1985.
22, 2017, Defendants timely filed a motion to dismiss
Schilling's Second Amended Complaint for failure to state
a claim. (Dkt. 23.) On June 19, 2017, Schilling filed a
motion for extension of time. (Dkt. 25.) Thereby, Schilling
requested a 90-day extension to amend his Second Amended
Complaint to include new causes of action. Schilling asserted
further that he was waiting for the assistance of an
attorney. (Dkt. 25.) However, along with these good cause
reasons for an extension, the motion included notice that
Schilling sought to amend his complaint to add three new
claims. He did not, however, file a proposed third amended
complaint for the Court's consideration.
Schilling filed the pending motion for summary judgment on
July 10, 2017, which is based on claims made in his Second
Amended Complaint, as well as new allegations set forth in
his motion for extension of time. (Dkt. 25, 27.) On July 31,
2017, Defendants filed a response, arguing Schilling's
motion for summary judgment was untimely filed, is
unsupported by any admissible evidence, and is based upon
causes of action not included in Schilling's Second
Amended Complaint. (Dkt. 28.) Defendants did, however,
address the merits of the additional claims in their
response. Finally, on October 11, 2017, Schilling filed a
Motion to Enter Exhibit 1 in support of the motion for
summary judgment. (Dkt. 29.) This motion seeks permission to
enter as a supportive exhibit an audio interview of Schilling
taken by an IDOC employee as a part of an internal
investigation of Schilling related to actions he took as an
employee that ultimately resulted in termination of his
order dated March 30, 2018, the Court indicated it would
consider the merits of the additional claims in
Schilling's motion for extension of time within its
analysis of Schilling's 's motion for summary
judgment. (Dkt. 33.) Consistent with that order, the Court
has identified the following claims as asserted against the
Defendants that will be consider herein in connection with
Defendants' motion to dismiss:
(1) Defendants Panther, Kubinski, Hays, Reinke, Kempf,
Blades, Yordy, Nielson, and Watson conspired to violate
Schilling's First Amendment rights to access to courts,
freedom of speech, and freedom from retaliatory action (Dkt.
(2) Defendants Panther, Kubinski, Hays, Reinke, Kempf,
Blades, Yordy, Nielson, and Watson's actions amounted to
calculated harassment in violation of Schilling's Eighth
Amendment rights (Dkt. 1); and
(3) Defendants violated the Idaho Whistleblower Protection
Act, Section 6- 2101, by acting against Schilling after he
communicated his concerns to ...