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Schilling v. Panther

United States District Court, D. Idaho

August 1, 2018

PAUL PANTHER, Deputy Attorney General; MARK KUBINSKI, Deputy Attorney General(DAG) for Idaho; LESLIE HAYES, DAG for Idaho; BRENT REINKE, Former Director of Prisons (DOP) for Idaho; KEVIN KEMPF, DOP for Idaho; RANDY BLADES, Warden of Idaho Correctional Center (ICC); KEITHYORDY, Warden of Idaho State Correctional Institution (ISCI); KARA NIELSON, Office of Professional Standards (OPS) Investigator; JARED WATSON, Ada County Sheriff's Department (ACSD) Detective; and JOHN and JANE DOES; all named Defendants are named in their individual and official capacities, Defendants.


          Candy W. Dale Judge.


         Pending 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 moot.[1]


         Plaintiff 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.

         Schilling's 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.

         Schilling 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.

         Despite 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.

         Additionally, 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.[2] 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.)

         On 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.)

         The 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. Id.

         On July 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.[3] Id. at ¶ 60.


         The 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.

         On 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.[4] Id. Schilling's Second Amended Complaint alleges violations of the First and Eighth Amendments under 42 U.S.C. Sections 1983 and 1985.

         On May 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.

         Instead, 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 employment.

         In its 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. 1);
(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 ...

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