United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
HONORABLE RONALD E. BUSH CHIEF U.S. MAGISTRATE JUDGE.
before the Court is a Motion for Summary Judgment filed by
Defendants Randy Blades, Steve Brood, Julie Bryant, District
Four Probation, Angel Dobrev, Montelito Mason, Idaho Board of
Corrections, Idaho Commission of Pardons and Parole, and
Janae Vorhes. Plaintiff Richard Drennon, a prisoner in the
custody of the Idaho Department of Correction (IDOC), has
filed an “Objection” and
“Declaration.” (Dkt. 22.) Defendants have filed a
Reply (Dkt. 25), and Plaintiff has filed a
“Supplement” and a Sur-reply (Dkts. 26, 27.) The
Motion is now fully briefed and ripe for adjudication.
named parties have consented to the jurisdiction of a United
States Magistrate Judge to enter final orders in this case.
(Dkt. 15.) See 28 U.S.C. § 636(c) and
Fed.R.Civ.P. 73. Accordingly, having considered the
submissions of the parties and finding oral argument
unnecessary, the Court enters the following Order.
22, 2016, Plaintiff Richard Drennon and three other
plaintiffs filed a civil rights action against a multitude of
defendants under Case No. 1:16-cv-00329-REB. The Idaho state
defendants filed an Answer. (Dkt. 8.) The Ada County
defendants and Meridian City defendants filed Rule 12(b)
Motions to Dismiss. (Dkt. 6, 7, 30.) On September 19, 2017,
the Court granted in part and denied in part the Ada County
defendants' Motions to Dismiss, and granted the Meridian
City defendants' Motion to Dismiss. (Dkt. 59.) The claim
of all plaintiffs were dismissed with the exception of
Plaintiffs Drennon and Robert Coy. The year 2018 was
dominated by disputes over discovery and access to the
January 18, 2019, the Court entered an Amended Case
Management Order. (Dkt. 138.) For clarity and case management
purposes, the Court severed Plaintiff Drennon's claims
from Plaintiff Robert Coy's claims and ordered the Clerk
of Court to file Plaintiff Drennon's Amended Complaint in
a new action (this action). The Court further ordered
Plaintiff Drennon's claims severed into different
lawsuits, grouped by related claims and defendants, as
required by Federal Rule of Civil Procedure 20.
to the Amended Case Management Order, this lawsuit
encompasses only those claims in the Amended Complaint that
correspond to the same claims in the original Complaint.
(Id., p. 11.)
extent that the original Complaint asserted claims against
other Defendants that Plaintiff was ordered to, but did not,
pursue in new, separate lawsuits, those claims will be
dismissed without prejudice. Those claims include the
following: (1) the claim that Plaintiff was not provided with
proper medical care at ISCI and ISCC during the time period
he was detained for the parole violations; (2) the claim that
he was not provided with proper medical care at the Ada
County Jail; (3) the claim that a state statute violated
Plaintiff's constitutional rights; (4) the claim that
certain Defendants colluded or conspired to deprive him of
his protected rights; (5) all the access to courts and
grievance claims against Ada County Defendants; (6) all the
access to courts and grievance claims against the ISCC and
ISCI, defendants and their attorneys; (7) medical and optical
care claims for treatment that occurred since Plaintiff's
new convictions; and (8) any ADA/RA claims against the state
of Idaho or a state entity. (Id., pp. 12-14.)
asserts that he informed Defendants' counsel prior to his
scheduled deposition that he was “taking several mind
altering medications but she [Defendants' counsel] chose
to continue with the deposition.” (Dkt. 22-1, p. 4.)
Plaintiff says he has very little memory of the deposition,
and the deposition should have been halted and rescheduled.
This characterization is not reflective of what happened at
Q. Are you on any medications or substances that can impair
your ability to testify truthfully here today?
A. Maybe, it depends. I take a plethora of medication. Okay?
But I intend to be as truthful as possible to what I know. So
it's not going to be intentional if it's not.
Q. What medications are you on that may impair your ability
to testify truthfully?
A. There is an antidepressant. I don't remember the name
of it. It's a new one that they put me on. And then there
is the - it's a medication for pain, for neuropathy. It
will come to me in a minute. And then there is some blood
pressure meds that kind of kept me in a loop, so -- but I
should be okay.
Q. Do you have any mental impairments that affect your
A. Mental impairments?
Q. That affect your memory?
A. Other than medication, no.
(Dkt. 13-4, Deposition of Richard Drennon (hereinafter
“Depo.”), pp. 5-6.)
had an opportunity to request a review of the deposition, to
make any changes with an explanation for each change, and to
sign the deposition. The copy lodged with the Court does not
contain a signature or any changes. (Depo., pp. 183-84.)
Nothing in the transcript demonstrates that Plaintiff was not
able to understand and respond appropriately to the questions
posed. The Court will not now entertain Plaintiff's
complaints about how his mental or physical infirmities may
have affected the deposition. Plaintiff's objections are
JUDGMENT STANDARD OF LAW
judgment is appropriately entered when a party can show that,
as to any claim or defense, “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).
“[T]he mere existence of some alleged factual
dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment ....”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247-48 (1986). Rather, a case will survive summary judgment
only if there is a genuine dispute as to a
material fact. Material facts are those “that
might affect the outcome of the suit.” Id. at
moving party meets its initial responsibility, then the
burden shifts to the opposing party to establish that a
genuine dispute as to any material fact actually does exist.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986). The existence of a scintilla of
evidence in support of the non-moving party's position is
insufficient. Rather, “there must be evidence on which
[a] jury could reasonably find for the [non-moving
party].” Anderson, 477 U.S. at 252. If a party
“fails to properly support an assertion of fact or
fails to properly address another party's assertion of
fact, ” the Court may consider that fact to be
undisputed. Fed.R.Civ.P. 56(e)(2).
Court does not determine the credibility of affiants or weigh
the evidence set forth by the parties. Although all
reasonable inferences which can be drawn from the evidence
must be drawn in a light most favorable to the non-moving
party, T.W. Elec. Serv., Inc., 809 F.2d at 630-31,
the Court is not required to adopt unreasonable inferences
from circumstantial evidence, McLaughlin v. Liu, 849
F.2d 1205, 1208 (9th Cir. 1988).
inmates are exempted “from strict compliance
with the summary judgment rules, ” but not “from
all compliance.” Soto v. Sweetman,
882 F.3d 865, 872 (9th Cir. 2018). In opposing a motion for
summary judgment, a pro se inmate must submit at least
“some competent evidence, ” such as a
“declaration, affidavit, [or] authenticated document,
” to support his allegations or to dispute the moving
party's allegations. Id. at 873 (upholding grant
of summary judgment against pro se inmate because the
“only statements supporting [plaintiff's] ...
argument are in his unsworn district court responses to the
defendants' motion for summary judgment and to the
district court's show-cause order”).
content of a verified amended complaint can serve as an
affidavit in opposition to a motion for summary judgment to
the extent the plaintiff's allegations are based on
personal knowledge. See Jones v. Blanas, 393 F.3d
918, 923 (9th Cir. 2004) (allegations in a pro se
plaintiff's verified pleadings must be considered as
evidence in opposition to summary judgment); Schroeder v.
McDonald, 55 F.3d 454, 460 (9th Cir. 1995) (verified
complaint may be used as an affidavit opposing summary
judgment if it is based on personal knowledge and sets forth
specific facts admissible in evidence). However, “if a
defendant moving for summary judgment has produced enough
evidence to require the plaintiff to go beyond his or her
pleadings, the plaintiff must counter by producing evidence
of his or her own.” Butler v. San Diego Dist.
Attorney's Office, 370 F.3d 956, 965 (9th Cir.
addition, the Prison Litigation Reform Act
(PLRA) requires the Court to screen all pro se
prisoner pleadings to determine whether they have stated a
claim upon which relief can be granted before such complaints
are served on the defendants. 28 U.S.C. §§ 1915
& 1915A. The Court retains screening authority to dismiss
claims at any time during the litigation under
OF MOTION FOR SUMMARY JUDGMENT: PART ONE, PLAINTIFF'S
TWELVE CLAIMS FOR RELIEF
First Claim for Relief
alleges that the Idaho parole statutes authorizing his
placement in jail pending resolution of his parole violation
charge, including Idaho Code § 20-229B, are
unconstitutional because they allow parole officers to decide
the length of time offending parolees must spend in jail (up
to 90 days for a first violation, and up to 180 days for a
second) and do not make allowances for disabled parolees to
receive “the identical medical treatment Plaintiff
received on the street under private care.” (Dkt. 1, p.
16.) Plaintiff was ordered to bring this claim in a separate
lawsuit if he desired to pursue it. He did not. This claim is
subject to dismissal without prejudice.
Second Claim for Relief
asserts that Defendants intentionally interfered with his
access to courts rights, resulting in the loss of three legal
actions and the loss of over $200, 000 in property. Plaintiff
was ordered to bring this claim in a separate lawsuit if he
desired to pursue it. He did not. This claim is subject to
dismissal without prejudice.
Third Claim for Relief
asserts that Defendants intentionally interfered with his
grievances so as to deprive him of a fair and timely
grievance process. There is no constitutional right to a
prison grievance system. Only if prison officials' action
related to a grievance causes a prisoner to lose a cause of
action does an access to courts claim lie. As mentioned
directly above, Plaintiff was ordered to bring that claim in
a separate lawsuit. He did not. The claim in this lawsuit
will be dismissed without prejudice.
Fourth Claim for Relief
alleges that workers in the IDOC mailroom intentionally
interfered with Plaintiff's incoming legal mail from Mrs.
Drennon and Plaintiff Coy. Only letters to and from attorneys
are classified as legal mail, but Plaintiff does have a right
to have contact with the outside world, limited by prison
security concerns. The Court previously notified Plaintiff
that, if he desired to pursue an interference with mail
claim, he must do so in a separate lawsuit. He did not do so.
The claim in this lawsuit will be dismissed without
Fifth Claim for Relief
alleges that the entity Defendants intentionally deprived him
of necessary and adequate medical care, meaning care equal to
that which he received from medical providers outside the
jail and prison systems. Plaintiff was ordered to bring such
a claim in a separate lawsuit. He did not. The claim in this
lawsuit will be dismissed without prejudice.
Sixth Claim for Relief
alleges that Defendants deprived him of the “ability to
respond to the pleadings filed by all the initial Defendants
in this lawsuit… and, as a result of this
interference, Plaintiff Drennon was unable to file responses,
objections or any form of challenge to these pleadings, and,
as a result, the Court issued decisions without Plaintiff
Drennon being able to respond.” (Dkt. 1-1, p. 20.)
Plaintiff was ordered to bring such a claim in a separate
lawsuit. He did not. The claim in this lawsuit will be
dismissed without prejudice.
Seventh Claim for Relief
seventh cause of action that Defendant
“‘Commission of Paraobation [sic] and Parole'
violated Plaintiff Drennon's right to a fair and
impartial revocation of parole process by allowing a named
Defendant, Brood, to engage Plaintiff in a bogus form of
parole hearing.” (Dkt. 1-1, p. 47.) Plaintiff has
brought forward insufficient evidence to support his
allegation that the parole revocation hearing process was
bogus. The parole revocation statutes provide that a parole
revocation hearing may be conducted by members of the
Commission, a member of the Commission, or a designated
Parole Hearing Officer, like Brood. See I.C. §
Plaintiff's claims against the Commission are subject to
dismissal. The Eleventh Amendment prohibits litigants from
bringing suits for monetary damages against state agencies
and state officials acting in their official capacity.
Puerto Rico Aqueduct & Sewer Auth. v. Metcalf &
Eddy, Inc., 506 U.S. 139 (1993). All claims for monetary
damages asserted against the state entities-Idaho Board of
Correction (IBOC), District Four Parole, and the Idaho
Commission of Pardons and Parole-are barred by Eleventh
Amendment sovereign immunity. These claims will be dismissed
for failure to state a federal claim upon which relief can be
addition, Plaintiff asserts that the parole violation charges
were based upon “fabricated, falsified” evidence
allowed by the Commission to retaliate against Plaintiff for
exercising his right to access the courts. This allegation
does not implicate the “form” of the hearing, but
the basis of the charges.
types of parole claims may be brought as § 1983 claims;
others must be asserted in habeas corpus actions. In
Wilkinson v. Dotson, 544 U.S. 74 (2005), the Supreme
Court held that an inmate may initiate a § 1983 action
to seek invalidation of “state procedures used to deny
parole eligibility . . . and parole suitability, ” but
he may not seek “an injunction ordering his immediate
or speedier release into the community.” Id.
at 82. In Heck v. Humphrey, 512 U.S. 477, 481
(1994), the Court held that a prisoner in state custody
cannot use a civil rights action to challenge the fact or
duration of his confinement. Id. at 481. In
addition, the Dotson Court further clarified that a
state prisoner's § 1983 action is barred (absent
prior invalidation)-no matter the relief sought (damages or
equitable relief), no matter the target of the prisoner's
suit (state conduct leading to conviction or internal prison
proceedings)-if success in that action would necessarily
demonstrate the invalidity of confinement or its duration.
Id. at 81-82.
if this Court were to decide that Plaintiff's parole
revocation and subsequent re-incarceration were based upon
fabrication, falsification, and/or retaliation, that decision
would call into question the factual grounds for the parole
violation and revocation. Despite the way Plaintiff has
framed his claim to bypass the Heck bar,
Plaintiff's claims are not among those authorized by
Dotson - that is, his claims do not seek
invalidation of “state procedures used to deny
parole eligibility . . . and parole suitability.”
Id. at 82 (emphasis added). The Seventh Claim will
be dismissed without prejudice.
Eighth Claim for Relief
says he notified the Ada County [state] Court of his access
to the courts issues caused by the interference of Ada County
Jail and IDOC personnel, but the Ada County Court did nothing
to remedy the problems. Instead, “Plaintiff Drennon was
unconstitutionally convicted.” (Dkt. 1-1, p. 48.) If he
refers to his parole conviction, the claim must be brought in
habeas corpus. Regardless, Plaintiff was ordered to bring
this claim in a separate lawsuit if he desired to pursue it.
He did not. This claim in this lawsuit will be dismissed
Ninth Claim for Relief
alleges that IDOC Defendants, counsel, and paralegals engaged
in intentional acts to deprive Plaintiff of attending
scheduled telephonic hearings in this lawsuit, unnecessarily
interfering with Plaintiff's right to access the Court.
The Court does not condone any circumstances in which the
IDOC failed to ensure that Plaintiff was at the right
location at the right time so as to participate
telephonically in a scheduled telephone hearing, but in each
such case the hearing was either rescheduled or some other
accommodation was made to ensure that he suffered no
prejudice to his case. There is no showing that he suffered
any harm from those instances where the originally scheduled
hearing did not go forward because IDOC failed to make
certain the Plaintiff was where he needed to be at the time
of the telephone hearing. In any event, here also the Court
ordered Plaintiff to bring such claims in a separate lawsuit
if he desired to pursue them. He did not. This claim will be
dismissed without prejudice.
Tenth Claim for Relief
asserts that the ISCC facility is not ADA or RA compliant.
The Court ordered Plaintiff to bring such claims in a
separate lawsuit against the state or appropriate state
entity if he desired to pursue them. He did not. This claim
will be dismissed without prejudice.
Eleventh Claim for Relief
asserts that the IDOC legal resource centers are inadequate
in their coverage of foreclosure laws, causing him to lose
investment property of over $200, 000. The right to access
the courts right does not cover foreclosures, only actions
that challenge convictions and prison conditions civil rights
claims. This claim will be dismissed for failure to state a
federal claim upon which relief can be granted.
Twelfth Claim for Relief
alleges that Defendants caused him to “suffer from the
chill effort resulting in Plaintiff Drennon being fearful of
pursuing grievances and other avenues of redress of
grievances for fear of being verbally, physically &
psychologically injured, due to the lack of adequate
medications Plaintiff Drennon received prior to
incarceration.” Plaintiff was previously instructed to
bring all grievance-related claims in a separate lawsuit. He
did not. This claim will be dismissed without prejudice.
OF MOTION FOR SUMMARY JUDGMENT: PART TWO, PLAINTIFF'S
UNIDENTIFIED CLAIMS ARISING FROM HIS “SUPPORTING
FACTS” ALLEGATIONS IN THE AMENDED COMPLAINT
the twelve “Claims for Relief” set forth in
Plaintiff's Amended Complaint (Dkt. 1) were to be
decided, the Court would end its analysis now and dismiss the
Amended Complaint. However, the Court has liberally construed
the Amended Complaint to contain “claims” that
can be extrapolated from the “Supporting Facts”
section of the Amended Complaint, supplemented by
Plaintiff's explanations he gave in deposition in March
Absolute Quasi-Judicial Immunity: Actions related to
was charged with violating Special Condition #4 of his Parole
Agreement, which required that he submit to a polygraph test
at the request of treatment providers and/or supervising
personnel. On January 20, 2016, Defendant Steve Brood
conducted Plaintiff's parole violation hearing. Plaintiff
entered a guilty plea.
Brood asserts entitlement to absolute quasi-judicial immunity
from suit regarding Plaintiff's claims against him. The
Ninth Circuit has outlined the absolute immunity analysis to
be used for parole board member and parole officer defendants
in Swift v. California, 384 F.3d 1184 (9th Cir.
The Supreme Court has reserved deciding whether members of
state parole boards have absolute quasi-judicial immunity for
their official actions. Martinez v. California, 444
U.S. 277, 285 n. 11, 100 S.Ct. 553, 62 L.Ed.2d 481 (1980). We
have held, however, that parole board members are entitled to
absolute immunity when they perform
“quasi-judicial” functions. Anderson
[v. Boyd], 714 F.2d, 906909-10 (9th Cir. 1983).
Thus, parole board officials … are entitled to
absolute quasi-judicial immunity for decisions “to
grant, deny, or revoke parole” because these tasks are
“functionally comparable” to tasks performed by
judges. Sellars, 641 F.2d at 1303; Bermudez v.
Duenas, 936 F.2d 1064, 1066 (9th Cir.1991) (holding
Sellars immunity encompasses actions “taken
when processing parole applications”). Absolute
immunity has also been extended to parole officials for the
“imposition of parole conditions” and the
“execution of parole revocation procedures, ”
tasks integrally related to an official's decision to
grant or revoke parole. Anderson, 714 F.2d at 909.
We have also explained, however, that parole officials are
not “entitled to absolute immunity for conduct not
requiring the exercise of quasi-judicial discretion.”
Id. “There is no reason to clothe actions
taken outside an official's adjudicatory role with the
absolute immunity tailored to the demands of that
role.” Id. Thus, while parole officials
“may claim absolute immunity for those actions relating
to their responsibility to determine whether to revoke
parole, their immunity for conduct arising from their duty to
supervise parolees is qualified.” Id. at 910;
see also Sepulveda v. Ramirez, 967 F.2d 1413,
1415-16 (9th Cir. 1992) (holding that a parole officer was
not entitled to qualified immunity for depriving a woman of
her clearly established due process right to bodily privacy
by entering a bathroom stall and watching her urinate).
Anderson, therefore, expresses the broad principle
that, under a functional analysis, parole officials
“may be accorded one degree of immunity for one type of
activity and a different degree for a discrete
function.” Anderson, 714 F.2d at 910.
Id. at 1188-1189. Swift overruled any prior
interpretation of Anderson v. Boyd that the test for
absolute immunity is only whether the act “relates
to” the decision to grant, deny, or revoke parole.
Id. at 1190.
Court will now address Plaintiff's claims for which
Defendant Brood asserts absolute quasi-judicial immunity.
Conducting a “Bogus Parole Hearing”
alleges that he was forced to “engage in a bogus parole
hearing at the hands of defendant Brood.” (Depo., p.
177.) This claim centers on the procedures and content of the
parole hearing, and, thus, even if it was “bogus,
” Brood is entitled to absolute quasi-judicial
immunity. Cf. Ashelman v. Pope, 793 F.2d 1072, 1075
(9th Cir. 1986) (Once it is determined that a judge was
acting in his judicial capacity, absolute immunity applies,
“however erroneous the act may have been, and however
injurious in its consequences it may have proved to the
plaintiff.”); Moore v. Brewster, 96 F.3d 1240,
1244 (9th Cir. 1996) (superseded on other grounds by
California statute) (quoting Ashelman v. Pope, 793
F.2d at 1078) (judicial immunity is not lost “by
allegations that a judge conspired with one party to rule
against another party: ‘a conspiracy between judge and
[a party] to predetermine the outcome of a judicial
proceeding, while clearly improper, nevertheless does not
pierce the immunity extended to judges.'”). This
claim will be dismissed with prejudice.
Failure to Allow Plaintiff to Call Witnesses
also alleges that “they” (unclear as to the
defendants) denied him the right to call witnesses to
challenge his accusers. He alleges he asked Brood or another
person in authority if he could call certain witnesses, and
“they” said no. (Depo., p. 126.) Plaintiff agreed
in his deposition that this course of action was not
outside the hearing process. Id. Defendant
Brood's (or any other Defendant's) responsibilities
and acts in deciding which witnesses to allow, weighing
evidence, and deciding the merits of the parole violations
arise from the quasi-judicial work as a parole hearing
officer. These acts are encompassed by absolute
quasi-judicial immunity and will be dismissed with prejudice.
Impartial Hearing Officer
asked in deposition why Brood was included in the lawsuit,
Plaintiff responded, “I think he lacks complete
impartiality when it comes to me.” (Depo., p. 36.)
Brood's impartiality as the factfinder in this matter is
an integral part of the hearing process. While perhaps
Plaintiff is skeptical about Brood's impartiality in not
permitting Plaintiff to call the witnesses of his choice,
both Ashelman v. Pope and Moore v. Brewster
hold that a factfinder's impropriety or bad faith is not
considered in the analysis-only whether he or she was
functioning in a quasi-judicial role. Because a charge of
impartiality is aimed at the factfinding in the
quasi-judicial hearing at issue, Brood is entitled to
absolute immunity. This claim will be dismissed with
Denial of Access to Hearing Panel
alleges that Brood, along with Defendant Vorhes,
“deprived [him] of his adequate access to hearing panel
that was impartial and would review the records requested for
a determination of plaintiff's claims being accurate, in
regards to funding the polygraph test.” (Dkt. 125, p.
17.) Plaintiff explained in deposition that he meant he
requested to meet with the Parole Board, rather than have a
parole hearing officer decide the violation. (Depo., p. 126.)
has brought forward nothing showing who assigned his
case to be heard by Brood instead of by a Commission member
or the entire Commission, why he believes he was
entitled to go before the Commission rather than a parole
hearing officer, and whether Vorhes and Brood had
the authority or acted to have Plaintiff appear before Brood
rather than the Commission. The governing statute permits a