United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
C. NYE, CHIEF U.S. DISTRICT COURT JUDGE
before the Court are numerous motions filed by the parties in
this case. Defendants Amy Anderson and Brian Crowl
(“Anderson and Crowl”) filed an initial Motion
for Summary Judgment (Dkt. 40), a Motion to Amend/Correct
Scheduling Deadlines (Dkt. 55), and a Motion to Amend Answer
(Dkt. 56). Defendants Dunning (Dkt. 57) and Bolin, Collins,
Schmitt, and Corizon LLC (Dkt. 58) join in Anderson and
Crowl's Motion to Amend/Correct Scheduling Deadlines
Lance Ocampo filed a Motion to Strike Defendants' Motion
for Summary Judgment (Dkt. 51), a Motion for Extension of
Time (Dkt. 52), and a Motion to Waive or Set Bond (Dkt. 60).
reviewed the record and briefs, the Court finds that the
facts and legal arguments are adequately presented.
Accordingly, in the interest of avoiding further delay, and
because the Court finds that the decisional process would not
be significantly aided by oral argument, the Court will
decide the Motions without oral argument. Dist. Idaho Loc.
Civ. R. 7.1(d)(2)(ii). For the reasons set forth below, the
Court finds good cause to DENY Anderson and Crowl's
Motion for Summary Judgment, GRANT in Part and DENY in PART
Ocampo's Motion to Strike, and GRANT the remaining
Lance Gordon Ocampo is a former inmate of the Idaho
Department of Corrections (“IDOC”) who was housed
at North Idaho Correctional Institution (“NICI”)
beginning on March 14, 2016. On April 24, 2016, Ocampo filed
a medical request to have a wisdom tooth pulled. His tooth
was subsequently pulled four days later.
April 29, 2016-the day after his tooth was removed-Ocampo
began experiencing pain in the extraction area. The following
day, Ocampo went to the prison's nurse's clinic and
received ibuprofen for the pain. Ocampo's pain, however,
continued and he put in another Health Service Request form
indicating he was in a lot of pain and that his condition was
worsening. The following morning, Ocampo went again to the
nurses' clinic and received 500 mg. of penicillin.
pain in Ocampo's throat and mouth continued and on May 3,
2016, he was taken to St. Mary's Hospital in Cottonwood,
Idaho, and then transported immediately to St. Joe's
Hospital in Lewiston, Idaho. Ultimately, Ocampo was diagnosed
with an abscess of his lateral pharyngeal space and was
operated on that same day. Ocampo stayed at the hospital for
10, 2016, Ocampo was transported to the Idaho State
Correctional Institution (“ISCI”) where he served
the remaining six months of his sentence. Ocampo was released
from custody on December 13, 2016.
filed a Complaint in this lawsuit on January 30, 2018. Ocampo
claims that when he experienced this tooth infection at NICI,
he was initially denied medical care and that the medical
care he eventually received was delayed by
defendants.Ocampo alleges that the defendants at issue
in this motion for summary judgment failed to provide him
with necessary medical treatment and acted in an intentional
and grossly negligent manner while he was housed at NICI.
Ocampo alleges that on approximately May 2, 2016, he went to
an unnamed correctional officer to try and get medical
attention. He alleges that while he was present, the officer
called Lt. Brian Crowl to inform him of Plaintiff's
condition and need for medical attention. Ocampo further
alleges that Crowl refused Plaintiff's request to be seen
by a doctor or to be taken to a hospital for medical
also alleges that on September 6, 2016, he spoke by telephone
to Deputy Warden Anderson regarding a conversation he had
with an individual that investigated the medical care
provided to him at NICI. Ocampo claims that he was never
informed of the results of this investigation or whether any
employees at the NICI or medical staff employed by Corizon
received any disciplinary action for the delay and denial of
his medical treatment.
10, 2018, Anderson and Crowl filed an initial Motion for
Summary Judgment. Dkt. 40. In this Motion, they allege that
Ocampo failed to exhaust his administrative remedies prior to
filing this lawsuit and, as a result, the suit is barred.
Ocampo responded to this Motion and noted that he was not an
inmate when he filed the instant lawsuit and under Ninth
Circuit precedent he was not required to follow the grievance
process. In their reply, Anderson and Crowl acquiesced to
these arguments, but alleged that nevertheless, under Idaho
law, Ocampo's failure to exhaust his remedies barred his
Idaho claims. In the same motion, Anderson and Crowl also
pointed out that Ocampo failed to comply with local rules and
submit a separate statement of facts in response to their
then filed his Motion to Strike (Dkt. 51) alleging that
Anderson and Crowl's argument regarding state law
exhaustion in their reply brief was improper. Alternatively,
Ocampo asked for permission to file a sur-reply to
Defendant's brief specifically addressing this new
argument in favor of summary judgment. Simultaneously, Ocampo
filed a Motion for Extension of Time (Dkt. 52) requesting
that the Court excuse his failure to timely file his
statement of facts.
response to the Motion to Strike, Anderson and Crowl filed a
sur-sur reply. Dkt. 52. In this brief, Defendants acknowledge
their argument was only brought up in their reply brief and
state that they do not oppose Ocampo's Motion to file a
sur-reply or his motion for an extension of time to file his
statement of facts.
then filed another document-captioned as a response to
Defendants sur-sur reply. Dkt. 54. Defendants did not
one month later, Anderson and Crowl filed a Motion to
Amend/Correct Deadlines (Dkt. 55) and a Motion to
Amend/Correct Answer (Dkt. 56). In the Motion to
Amend/Correct Deadlines, Anderson and Crowl outline an error
in prior negotiations between Counsel-namely the omission of
a new deadline for amendment of pleadings and joinder of
parties-regarding an already stipulated to extension of other
relevant deadlines. All other defendants joined in this
motion arguing that the omission was an oversight and asking
the Court to extend that deadline as it had the others.
Anderson and Crowl filed a Motion to Amend/Correct Answer
(Dkt. 56) seeking to file an amended answer to Ocampo's
Amended Complaint-assuming the Court set a new deadline. In
their proposed Amended Answer, Anderson and Crowl add many
additional facts and affirmative defense-specifically their
twentieth affirmative defense that Ocampo failed to post a
bond as required under Idaho Code section 6-610. Dkt. 56, at
response to Defendants' Motion to Amend/Correct Deadlines
and Amend/Correct Answer Ocampo filed strong memorandums in
opposition. At the same time, however, Ocampo also filed a
Motion to Waive Bond. Dkt. 60. Responses and replies to all
on December 4, 2018, these interrelated Motions became ripe
for adjudication. The Court will take up each motion in
turn-chronologically-addressing first the applicable legal
standard and then any factual analysis.
Anderson and Crowl's Motion for Summary Judgment (Dkt.
40); Ocampo's Motion to Strike (Dkt. 51) and Motion for
Extension of Time (Dkt. 52).
judgment is proper “if the movant shows that there is
no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a). The Court's role at summary judgment is not
“to weigh the evidence and determine the truth of the
matter but to determine whether there is a genuine issue for
trial.” Zetwick v. Cty. of Yolo, 850 F.3d 436,
441 (9th Cir. 2017) (citation omitted). In considering a
motion for summary judgment, the Court must “view the
facts in the non-moving party's favor.”
defeat a motion for summary judgment, the respondent need
only present evidence upon which “a reasonable juror
drawing all inferences in favor of the respondent could
return a verdict in [his or her] favor.” Id.
(citation omitted). Accordingly, the Court must enter summary
judgment if a party “fails to make a showing sufficient
to establish the existence of an element essential to that
party's case, and on which that party will bear the
burden of proof at trial.” Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986).
respondent cannot simply rely on an unsworn affidavit or the
pleadings to defeat a motion for summary judgment; rather the
respondent must set forth the “specific facts, ”
supported by evidence, with “reasonable
particularity” that precludes summary judgment. Far
Out Prods., Inc. v. Oskar, 247 F.3d 986, 997 (9th Cir.
Court begins by addressing Ocampo's Motion to Strike
(Dkt. 51) and Motion for Extension of Time (Dkt. 52).
is well established in this circuit that ‘[t]he general
rule is that appellants cannot raise a new issue for the
first time in their reply briefs.'” Eberle v.
City of Anaheim, 901 F.2d 814, 818 (9thCir. 1990))
(citations omitted); see also Thompson v. C.I.R.,
631 F.2d 642, 649 (9th Cir. 1980), cert. denied, 452 U.S. 961
(1981). The Court has discretion to strike new material or
may give the non-moving party an opportunity to respond.
Tovar v. U.S. Postal Service, 3 F.3d 1271, 1273 at
n. 3 (9th Cir. 1993); see also St. Luke's Magic
Valley Reg'l Med. Ctr. v. Luciani, No.
1:08-CV00030-EJL, 2013 WL 4545805, at *4 (D. Idaho, Aug. 27,
2013) (granting leave to respond to new information raised in
a reply). While the Federal Rules of Civil Procedure do not
expressly permit the filing of a sur reply, this Court has
recognized that a defendant's reply brief may justify a
sur reply in appropriate circumstances. Mitchell v. Lead
Hr, LLC, 2:14-CV-00026-EJL, 2014 WL 5341891, at *3 (D.
Idaho, Oct. 20, 2014).
analysis on this topic is unnecessary as (1) Anderson and
Crowl acknowledge that they brought up new issues in their
reply brief and Ocampo is entitled to respond; and (2) both
sides have now had ample opportunities to actually respond-to
new and old material alike. The Motion to Strike is therefore
GRANTED to the extent that the Court will allow and consider
all sur replies that have been filed. The Motion is DENIED in
that the Court will not strike Defendants' Motion for
in light of Defendants' non-opposition, and good cause
appearing, the Court will also GRANT Ocampo's Motion for
Extension of Time and will deem his Statement of Facts as
timely and appropriately filed. The Court now turns to the
merits of Anderson and Crowl's Motion for Summary
their original Motion, Anderson and Crowl alleged that Ocampo
failed to exhaust his administrative remedies-a pre-condition
to any lawsuit-because he did not timely file a grievance
with IDOC in accordance with their standard operating
procedures. Because of this failure, Anderson and Crowl
assert Ocampo's claims are barred. The “exhaustion
requirement” is a ...