Hayes v. Valdez et al

Filing 176

MEMORANDUM DECISION AND ORDER RE MOTION TO APPOINT AMICUS denying 164 Motion to Appoint the Department of Justice and United States Attorney for the District of Idaho as Amicus Curiae. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjm)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

Michael T. Hayes
Case No. 1:09-cv-00122-BLW
Plaintiff,
MEMORANDUM DECISION AND
ORDER RE MOTION TO APPOINT
AMICUS

v.

Corrections Corporation of America
(CCA), et al.,
Defendant.

INTRODUCTION
Pending before the Court is plaintiff Michael T. Hayes’ Motion to Appoint the
Department of Justice and United States Attorney for the District of Idaho as Amicus
Curiae (Dkt. 164). For the reasons explained below, the Court will deny the motion.
BACKGROUND
Hayes was incarcerated at the Idaho Correctional Center, a private prison, from
approximately 2004 through 2012. On April 14, 2007, Hayes was beaten and robbed by
two other inmates. In March 2009, Hayes sued under 42 U.S.C. § 1983, alleging that the
MEMORANDUM DECISION AND ORDER - 1

prison and various prison employees violated his Eighth Amendment rights. After this
Court’s summary judgment decisions, the only remaining claims are Hayes’ failure-toprotect claims against prison employees Brian Doser and Justin Acosta. Trial is set for
March 11, 2013.
ANALYSIS
The decision to appoint an amicus is discretionary. See e.g., Hoptowit v. Ray, 682
F.2d 1237, 1260 (9th Cir. 1982), abrogated in part on other grounds by Sandin v.
Connor, 515 U.S. 472 (1995). Plaintiff should recognize that there is a distinction
between counsel appointed to represent the plaintiff and amicus counsel appointed to
assist the court. See e.g., United States v. Dougherty, 473 F.2d 1113, 1125 n.18 (D.C.
Cir. 1972).
Plaintiff’s request is most unusual. In the Court’s experience, a third party whose
interest may be affected by the outcome of a proceeding may request leave to participate
as amicus curiae. The Court has not been advised that the Department of Justice or the
U.S. Attorney for the District of Idaho desires to participate in this proceeding.
Additionally, the Court does not believe appointment of amicus would assist the Court in
resolving this case. The Court will therefore deny the motion.

MEMORANDUM DECISION AND ORDER - 2

ORDER
Plaintiff’s Motion to Appoint the Department of Justice and United States
Attorney for the District of Idaho as Amicus Curiae (Dkt. 164) is DENIED.

DATED: February 20, 2013

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

MEMORANDUM DECISION AND ORDER - 3