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Ocampo v. Corizon LLC

United States District Court, D. Idaho

April 4, 2019

CORIZON, LLC, a Missouri Corporation; DIANNA COLLINS; AMY ANDERSON, Warden North Idaho Correctional Institution, BRIAN CROWL, Lieutenant North Idaho Correctional Institution, JIM DUNNING, KEITH BOLINE; PATTI SCHMITT; and JOHN/JANE DOES 1-10, Defendants.




         Pending 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 (Dkt. 55).

         Plaintiff 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).

         Having 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 Motions.


         A. Factual Background

         Plaintiff 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.

         On 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.

         The 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 several days.

         On May 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.

         Ocampo 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.[1]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.

         Specifically, 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 treatment.

         Ocampo 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.

         B. Procedural Background

         On July 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 motion.

         Ocampo 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.

         In 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.

         Ocampo then filed another document-captioned as a response to Defendants sur-sur reply. Dkt. 54. Defendants did not reply.[2]

         About 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.

         Relatedly, 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 15.

         In 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 motions followed.[3]

         Finally, 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.

         III. ANALYSIS

         A. 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).

         i. Legal Standard

         Summary 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.” Id.

         To 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).

         The 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. 2001).

         ii. Analysis

         The Court begins by addressing Ocampo's Motion to Strike (Dkt. 51) and Motion for Extension of Time (Dkt. 52).

         “It 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).

         Further 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 Summary Judgment.

         Additionally, 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 Judgment.

         In 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 ...

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