Wolf et al v. State of Idaho et al

Filing 77

MEMORANDUM DECISION AND ORDER re: 21 , 23 , 26 , 31 , 58 , 32 , 38 , 53 , 44 , 45 , 46 , 52 , 61 , 47 , 60 , and 64 . See Order for details. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by jm)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
ANDREW J.J. WOLF, JIMMY T.
GLASS, PATRICK K. KNIGHT,
DWAYNE N. BANKS, and RONALD
D. LEWIS,

Case No. 1:09-CV-632-EJL
MEMORANDUM DECISION AND
ORDER

Plaintiffs,
v.
BRENT REINKE; TONY MEATTE;
SHANNON CLUNEY; DIANE
BAUNE; ZARA MARTIN; RONA
SIEGERT; CORRECTIONS
CORPORATION OF AMERICA; JOHN
FERGUSON; LUCIBETH
MAYBERRY; STEVEN CONRY;
CHARLES MARTIN; PHILLIP
VALDEZ; DANIEL PRADO; JOEL V.
YOUNG; TOM KESSLER; GABRIEL
HALE; FREDERICK PERRY; SHANE
JEPSEN; DANIEL MELODY; BRYAN
JOHNSON; NORMA RODRIGUEZ;
KLINT M. STANDER; JOSEPH P.
CORDONA; NANCEY
BAERLOCHER; CHESTER PENN;
COMPASS GROUND USA, INC., a
Delaware Corporation; CANTEEN
CORRECTIONAL SERVICES; LU
VISI; JUDY RICHARDSON;
Defendants.

Pending before the Court in this prisoner civil rights action are various motions
filed by the parties that are ripe for adjudication. Having reviewed the arguments of the
parties, as well as the record in this case, the Court enters the following Order.
BACKGROUND
Plaintiffs Andrew J.J. Wolf, Jimmy T. Glass, Patrick K. Knight, Dwayne N.
Banks, and Ronald D. Lewis (Plaintiffs) were permitted to proceed only on the following
MEMORANDUM DECISION AND ORDER - 1

claims in the First Amended Complaint: the second cause of action (inadequate
ventilation), the third cause of action (inadequate plumbing), the fourth cause of action
(inadequate living space), the fifth cause of action (inadequate dayroom space), the sixth
cause of action (inadequate staffing), and the eighth cause of action (inadequate
recreation). Plaintiffs were permitted to proceed only against the following Defendants:
Brent Reinke, John Doe (current warden of Idaho Correctional Center), Daniel Melody,
Frederick Perry, and Shane Jepsen. (See Order of September 30, 2010, Dkt. 19.)
REVIEW OF PENDING MOTIONS
1.

Patrick Knight’s Motion for Voluntary Dismissal (Dkt. 21) and Andrew
Wolf’s Motion to Take Judicial Notice (Dkt. 23)
Patrick Knight requests that the Court voluntarily dismiss his claims and that he

not be assessed part of the filing fee. Good cause appearing, the Court will grant the
motion and dismiss Mr. Knight’s claims without prejudice. The Court will not assess Mr.
Knight a portion of the filing fee because a fee order has not yet been issued, but will
divide the fee among the remaining Plaintiffs who wish to continue.
Plaintiff Andrew Wolf requests that the Court take judicial notice of the fact that
the remaining Plaintiffs intend to continue the action. Mr. Wolf’s motion will be granted
to the extent that it acknowledges that Mr. Knight wishes to withdraw and not pay a
portion of the filing and the remainder of the Plaintiffs wish to proceed and pay the filing
fee among themselves ($87.50 each).
2.

Plaintiffs’ Motion for Extension of Time to File Supplemental First
Amendment Complaint (Dkt. 26); Plaintiffs’ Motion to Reconsider Order
(Dkt. 31); and Defendants’ Motion to Strike Plaintiffs’ Reply to Response to
Motion to Amend/Correct Complaint (Dkt. 58)
As to Plaintiffs’ claims for declaratory and injunctive relief, the Court previously

ordered Plaintiffs to substitute the name of the current warden for the former warden by
MEMORANDUM DECISION AND ORDER - 2

filing a “Supplement to the First Amended Complaint” within thirty (30) days. (Dkt. 19.)
Plaintiffs allege that the restrictions imposed upon inmates caused them to be unable to
file a supplement in time (they wished to file a motion to reconsider and a request to file a
second amended complaint rather than simply add the name of the new warden). Good
cause appearing, the Court will grant the requested extension of time. Because Plaintiffs
are proceeding pro se, the Court will not strike their reply and affidavit, but has
considered them as additional argument.
Plaintiffs request that the Court reconsider its previous Order limiting their causes
of action and defendants. First, Plaintiffs seek additional clarification on whether they can
proceed on their supplemental state-law causes of action. Plaintiffs may proceed on only
those state-law claims that correspond to the federal claims upon which they have been
permitted to proceed, to the extent that such state-law claims are set forth in the complaint
and permitted by state law. The Court generally leaves it up to Defendants to set forth
their defenses against any state-law causes of action, rather than reviewing them in detail
in the Initial Review Order.
The Court will not permit Plaintiffs to proceed on any of the policy-based claims at
this time because Plaintiffs have failed to provide any factual allegations showing that
adding extra beds or initiating a lock-down policy was motivated by, or implemented for,
an underlying purpose of violating inmates’ civil rights. In Ashcroft v. Iqbal, 129 S.Ct.
1937 (2009), the Court dismissed a policy-based claim for failure to state plausible facts
suggesting that the named Defendants “purposely adopted a policy of classifying postSeptember-11 detainees as ‘of high interest’ because of their race, religion, or national
origin.” Id. at 1952. The Court reasoned: “All [the complaint] plausibly suggests is that
the Nation's top law enforcement officers, in the aftermath of a devastating terrorist
MEMORANDUM DECISION AND ORDER - 3

attack, sought to keep suspected terrorists in the most secure conditions available until the
suspects could be cleared of terrorist activity.” Id.
In particular, the Iqbal Court held that the following allegations were insufficient
to state a policy-based claim:
Respondent pleads that petitioners “knew of, condoned, and willfully
and maliciously agreed to subject [him]” to harsh conditions of confinement
“as a matter of policy, solely on account of [his] religion, race, and/or
national origin and for no legitimate penological interest.”The complaint
alleges that Ashcroft was the “principal architect” of this invidious policy,
and that Mueller was “instrumental” in adopting and executing it. These
bare assertions, much like the pleading of conspiracy in Twombly, amount
to nothing more than a “formulaic recitation of the elements” of a
constitutional discrimination claim, 550 U.S. at 555, 127 S.Ct. 1955,
namely, that petitioners adopted a policy “‘because of,’ not merely ‘in spite
of,’ its adverse effects upon an identifiable group.” Feeney, 442 U.S. at 279,
99 S.Ct. 2282.
Id. at 1951 (internal record citations omitted).
While Plaintiffs cannot proceed at this time, they may request amendment at the
end of the discovery period by filing a motion to amend and a proposed amended
complaint if they have obtained sufficient facts to support such an allegation.
The Court will substitute Tim Wengler, the new warden of ICC, for former
Warden Valdez, because the inmates seek declaratory and injunctive relief only against
the Warden of ICC, without the need of a second amended complaint. Plaintiffs have not
made an adequate argument showing why the second amended complaint is necessary.
The Court will not permit Plaintiffs to proceed on additional causes of action against
additional Defendants at this time, and the proposed new plaintiff, Kenneth Workman,
has now indicated he is not interested in pursuing his claims.

MEMORANDUM DECISION AND ORDER - 4

3.

Defendants’ Motion to Dismiss for Failure to Exhaust Administrative
Remedies (Dkt. 32); Plaintiffs’ Motion for Extension of Time to Respond to
Motion to Dismiss (Dkt. 38); and Plaintiffs’ Motion to Supplement Response
to Motion to Dismiss (Dkt. 53)
A.

Standard of Law

Pursuant to the Prison Litigation Reform Act of 1995 (PLRA),1 a prisoner is
required to exhaust all administrative remedies within the prison system before he can
bring a civil rights lawsuit challenging the conditions of his confinement. 42 U.S.C. §
1997e(a). “There is no question that exhaustion is mandatory under the PLRA and that
unexhausted claims cannot be brought in court.” Jones v. Bock, 549 U.S. 199, 211 (2007).
The Jones v. Bock Court noted the important policy concern behind requiring
exhaustion is that it “allows prison officials an opportunity to resolve disputes concerning
the exercise of their responsibilities before being haled into court.” Id. at 204. In addition,
the Jones v. Bock Court cited with approval the observation that "the primary purpose of a
grievance is to alert prison officials to a problem, not to provide personal notice to a
particular official that he may be sued; the grievance is not a summons and complaint that
initiates adversarial litigation." Id. at 219 (internal citation omitted).
Where there is an “informal[]” and “relative[ly] simpl[e]” prison grievance system,
prisoners must take advantage of it before filing a civil rights complaint. Woodford v.
Ngo, 548 U.S. 81, 103 (2006). “Proper” exhaustion of administrative remedies is
required, meaning that “a prisoner must complete the administrative review process in
accordance with the applicable procedural rules, including deadlines, as a precondition to
bringing suit in federal court.” Id. at 85. Proper exhaustion is "defined not by the PLRA,
but by the prison grievance system itself." Jones v. Bock, 549 U.S. at 218. Therefore, the

1

110 Stat. 1321-71, as amended, 42 U.S.C. § 1997e, et seq.

MEMORANDUM DECISION AND ORDER - 5

"level of detail necessary in a grievance to comply with the grievance procedures" will be
defined by the prison's own grievance policy. Id.
In Rhodes v. Robinson, 621 F.3d 1002 (9th Cir. 2010), the United States Court of
Appeals for the Ninth Circuit clarified that if a plaintiff wishes to add new claims to an
existing lawsuit by raising them in an amended or supplemental complaint, the district
court is to look to the timing of the submission of the claims to determine whether the
newly-added claims were timely exhausted. The Rhodes Court held that “a prisoner must
exhaust his administrative remedies for the claims contained within his complaint before
that complaint is tendered to the district court.” Id. at 1005. Particularly, the Court agreed
that inmate Rhodes correctly argued that “the new claims in his second amended
complaint should not have been dismissed, because they were properly exhausted before
he tendered his second amended complaint to the district court for filing.” Id. (emphasis
in original).2
Rhodes does not overrule United State Supreme Court precedent requiring
exhaustion before a claim is brought in federal court. Rather, construed together, these
cases dictate that, if a claim was included in the original complaint before the claim was
exhausted, the claim cannot be exhausted during the pendency of the lawsuit and pursued
in an amended complaint, but, rather, such claims must be dismissed without prejudice.
To permit Rhodes to override § 1997e(a)’s exhaustion-first rule would contradict the
letter and spirit of Woodford v. Ngo, 548 U.S. 81, 103 (2006), which held that “proper”

2

In Rhodes, the inmate asked for authorization to file a second amended complaint to add
new claims that arose after the original complaint was filed. This Court does not read Rhodes so
narrowly as to require that claims must have arisen after the filing date of the original complaint
to be eligible for later amendment. See id., 621 F.3d at 1006-07. Rather, the Court will consider
permitting amendment so long as the claim was exhausted at the time it was first presented to the
Court in a pleading for inclusion in the case, regardless of whether it arose before or after the
filing date of the original Complaint.
MEMORANDUM DECISION AND ORDER - 6

exhaustion of administrative remedies under § 1997e(a) means that “a prisoner must
complete the administrative review process in accordance with the applicable procedural
rules, including deadlines, as a precondition to bringing suit in federal court.” Id. at 85
(emphasis added). Such a rule would also encourage inmates to disregard the exhaustionfirst rule, resulting in the thwarting of the purpose of administrative exhaustion–to resolve
problems without filing suit.
Failure to exhaust administrative remedies is an affirmative defense that should be
brought as an unenumerated 12(b) motion. Wyatt v. Terhune, 315 F.3d 1108 (9th Cir.
2003). In deciding a motion to dismiss for failure to exhaust administrative remedies, a
court may look beyond the pleadings and decide disputed issues of fact. Id. at 1119-20.
Defendants bear the burden of proving failure to exhaust. Brown v. Valoff, 422 F.3d 926
(9th Cir. 2005). The United States Court of Appeals for the Ninth Circuit has instructed
that “pro se claims are construed liberally for purposes of the exhaustion requirement.”
Vizcarra-Ayala v. Mukasey, 514 F.3d 870, 873 (9th Cir. 2008) (immigration context)
(relying on Agyeman v. INS, 296 F.3d 871, 878 (9th Cir. 2002) and Estelle v. Gamble, 429
U.S. 97, 106 (1976)).
B.

IDOC Grievance Policy

A prisoner held in custody of the Idaho Department of Correction (IDOC) must
attempt to resolve any “problem or action” related to his incarceration using the prison’s
internal grievance system. (Exhibit C to Affidavit of Chance Leeds, Standard Operating
Procedure Control Number 316.02.01.001, Docket No. 32-2.) IDOC has a relatively
straightforward three-step system, which requires the prisoner to submit an informal
concern form describing the problem, file a formal grievance, and submit an appeal of
any adverse decision. (Leeds Aff., ¶ 8.)
MEMORANDUM DECISION AND ORDER - 7

The prisoner begins this process by routing the concern form to the staff member
most capable of addressing the problem. (Id. at ¶ 11.) If the issue is not resolved, the
prisoner must complete a grievance form, attach a copy of the concern form, and file the
grievance within 30 days of the incident. (Id. at ¶ 12.) The “grievance coordinator” at the
prison will route a properly-completed grievance to the appropriate staff member, who
must respond within 10 days. (Id. at ¶13.)
After the staff member responds, the coordinator forwards the grievance to the
“reviewing authority,” who, after reviewing the prisoner’s complaint and the staff
member’s response, issues a decision. (Id.) If the prisoner is dissatisfied with the
reviewing authority’s decision, he may then appeal within 5 days to the “appellate
authority.” (Id. at ¶ 14.) The appellate authority has 14 days to issue a final decision,
whereupon the grievance is routed back to the inmate, thus concluding the administrative
review process. (Id. at ¶15.)
C.

Discussion of Claims
(1)

Patrick Knight’s Claims

Defendants seek to dismiss all of Mr. Knight’s claims for failure to exhaust.
Because Mr. Knight seeks to voluntarily dismiss his claims, this portion of Defendants’
motion is moot.
(2)

Ronald Lewis’s Claims

Defendants seek to dismiss all of Mr. Lewis’s claims for failure to exhaust his
administrative remedies on any claim. Chance Leeds, ICC’s Grievance Coordinator, has
filed an Affidavit stating that he has reviewed ICC’s grievance database, and he has
found no grievance of Mr. Lewis in the database that was exhausted prior to the filing of
the First Amended Complaint. (Leeds Aff. ¶ 22.)
MEMORANDUM DECISION AND ORDER - 8

Mr. Lewis filed and exhausted grievances about inadequate plumbing and cubical
and dayroom space on August 2, 2010, after the date the claims were included and filed in
the Complaint (December 7, 2009) and included in the First Amended Complaint (March
1, 2010). (Leeds Aff. ¶ 22 & Exhibit G.) The Court will not apply Rhodes to any claim
that was not properly exhausted before a Plaintiff first sought to include it in this case.
Because Mr. Lewis brought his claims in this lawsuit before he exhausted his
administrative remedies, the claims will be dismissed without prejudice.
(3)

Andrew Wolf’s Claims

The grievance database shows that Mr. Wolf did not file a grievance on the issue
of inadequate plumbing or inadequate recreation. (Leeds Aff, ¶ 19.) A grievance on
inadequate staffing was not exhausted until after the First Amended Complaint was filed.
Following the reasoning set forth above, Mr. Wolf’s claims of inadequate plumbing,
recreation, and staffing will be dismissed without prejudice.
Mr. Wolf has one new claim addressed in an Inmate Concern Form he submitted
on or about June 9, 2010, regarding bugs coming out of the ventilation system. The Court
agrees with Mr. Wolf that this claim should be deemed exhausted. Prison staff responded
to Mr. Wolf that bugs were coming out of the drainage system, the system had been
sprayed, and the problem resolved. Thereafter, IDOC employee Chester Penn refused to
process an Inmate Concern Form and told Plaintiff not to complain about the bugs again,
even though Mr. Wolf complained that the bugs were still dropping from the ventilation
system after the spraying.
The Court finds and concludes that Mr. Wolf has made a sufficient effort to
exhaust his administrative remedies, but the prison would not process the grievance. See
Sapp v. Kimbrell, 623 F.3d 813, 828 (9th Cir. 2010) (“[A]dministrative remedies are
MEMORANDUM DECISION AND ORDER - 9

‘effectively unavailable’–and . . . the PLRA's exhaustion requirement is therefore
excused–where prison officials improperly screen a prisoner's grievance or grievances
that would have sufficed to exhaust the claim that the prisoner seeks to pursue in federal
court.”).
Mr. Wolf’s new claim was not included in the Complaint or First Amended
Complaint. As a result, this claim is exhausted. However, Mr. Wolf has been transferred
from ICC and no longer appears to have an interest in declaratory or injunctive relief at
that facility, and, therefore, his claim may be moot. However, the Court is awaiting Mr.
Wolf’s response to the pending Motion to Dismiss Andrew Wolf as Plaintiff. (Dkt. 66.)
(4)

Jimmy Glass’s Claims

Mr. Glass did not file a grievance on inadequate plumbing or inadequate staffing.
(Leeds Aff, ¶ 20.) While Mr. Glass filed a grievance on inadequate recreation, he did not
appeal it; therefore, it is not properly exhausted. (Id.) Therefore, Mr. Glass’s claims of
inadequate plumbing, staffing, and recreation will be dismissed without prejudice.
(5)

Dwayne Banks’s Claims

Mr. Banks did not file a grievance on inadequate staffing or inadequate recreation.
(Leeds Aff. ¶ 21.) Therefore, Mr. Banks’s claims of inadequate staffing and recreation
will be dismissed without prejudice.
D.

Conclusion

No claims of Mr. Knight remain at issue as a result of his voluntary dismissal of all
of his claims. No party properly exhausted a claim of inadequate recreation or inadequate
staffing before the first time the claim was brought in this action, and therefore those
claims will be dismissed without prejudice.
Mr. Lewis did not properly exhaust any claim he brings in this lawsuit. As a result,
MEMORANDUM DECISION AND ORDER - 10

all of Mr. Lewis’s claims will be dismissed without prejudice.
Plaintiffs Wolf and Banks properly exhausted their claims of inadequate
ventilation before they first brought those claims in this action, and may proceed on those
claims, but Plaintiff Wolf’s claims appear moot due to his transfer. Plaintiff Wolf, Banks,
and Glass properly exhausted their claims of inadequate cubicle and dayroom space
before they first brought those claims in this action, and they may proceed on those
claims, with the exception of Mr. Wolf, whose claims now appear moot. Plaintiff Banks
exhausted his claim of inadequate plumbing before he first brought that claim in this
action, and he may proceed on that claim.
All claims that were not properly exhausted before they were first brought in this
case will be dismissed without prejudice.
4.

Plaintiffs’ Motion Amend Complaint for Classwide Declaratory and
Injunctive Relief (Dkt. 44); Plaintiffs’ Motion to Certify Class (Dkt. 45);
Plaintiffs’ Motion to Appoint Counsel (Dkt. 46); Defendants’ Motion to Stay
Class Certification Motion (Dkt. 52); Defendants’ Motion to Dismiss Plaintiff
Andrew Wolf from Action for Lack of Standing to Represent Putative Class
(Dkt. 66)
The trial court has broad decision whether to certify a case as a class action. Kamm

v. California City Development Co., 509 F.2d 205, 210 (9th Cir. 1975). The Court has
reviewed the class certification issue, and has determined that class certification is not
necessary in this case at this time, based on the factors set forth in Federal Rule of Civil
Procedure 23(b).
The extent and nature of this litigation weighs against class certification. See Fed.
R. Civ. P. 23(b)(3)(B). This case is at a very early stage of litigation, the standards of law
are very high and difficult to meet, and it is unclear whether the factual allegations are
meritorious. Managing an inmate class action is an inherently difficult task, which the

MEMORANDUM DECISION AND ORDER - 11

Court finds is not currently warranted given the uncertainty of the merits of the case. See
Fed. R. Civ. P. 23(b)(3)(D).
To date, six inmates have been involved in this action. As it now stands, one-third
of those inmates (two) no longer wish to pursue the action. In addition, one inmate has
been transferred, and his claims appear moot. The lack of interest shown to date by onethird of the Plaintiffs weighs in favor of permitting only those inmates who are truly
interested in the litigation to pursue it in their own names.
The Court finds that a class action is not superior to other available methods for
fairly and efficiently adjudicating the controversy. See Fed. R. Civ. P. 23(b)(3). The
remaining three Plaintiffs seek declaratory and injunctive relief which, if granted, would
benefit the potential class members without the necessity of a class action. Many courts
have held that, where a suit attacks the constitutionality of a policy, or practice by a state
actor, there is generally little need for the suit to proceed as a class action, since it can be
assumed that, if the court declares the policy or practice unconstitutional, then the
responsible government officials will discontinue enforcement of it. See Lent v. Lopes,
107 F.R.D. 62 (D. Conn. 1985); Chacon v. Zahorka, 663 F.Supp. 90 (D. Colo. 1987);
Griffin v. Smith, 493 F.Supp. 129 (W.D. N.Y. 1980); Inmates, Washington County Jail v.
England, 516 F.Supp. 132 (E.D. Tenn. 1980), aff’d, 659 F.2d 1081 (6th Cir. 1981).
For all of the foregoing reasons, Plaintiffs’ Motion Amend Complaint for
Classwide Declaratory and Injunctive Relief (Dkt. 44) will be denied; Plaintiffs’ Motion
to Certify Class (Dkt. 45) will be denied; and Defendants’ Motion to Stay Class
Certification Motion (Dkt. 52) will be denied.
The Court is awaiting a response and reply before deciding Defendants’ Motion to
Dismiss Plaintiff Andrew Wolf from Action for Lack of Standing to Represent Putative
MEMORANDUM DECISION AND ORDER - 12

Class (Dkt. 66). The parties should address whether Plaintiff Wolf’s claims are moot,
given that he has requested declaratory and injunctive relief only and no longer resides at
ICC.
5.

Plaintiffs' Motion to Appoint Counsel (Dkt. 46)
Unlike criminal defendants, prisoners and indigents in civil actions have no

constitutional right to counsel unless their physical liberty is at stake. Lassiter v. Dept. of
Social Services, 452 U.S. 18, 25 (1981). Whether a court appoints counsel for indigent
litigants is within the court’s discretion. Wilborn v. Escalderon, 789 F.2d 1328, 1330-31
(9th Cir. 1986); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991).
To date, Plaintiffs have articulated their claims sufficiently, and they are at no
substantial disadvantage compared to other inmates because they have no legal training or
few legal resources. Plaintiffs’ primary task in this case is to bring forward the facts
supporting the claims; it is not necessary to provide legal argument or citations.
Defendants have been ordered to voluntarily produce to Plaintiffs all relevant information
and documents to which they have access. Plaintiffs may draft simple interrogatories or
requests for production to be mailed directly to Defendants’ counsel for a response from
Defendants if they believe they need further information from Defendants to meet the
elements of their case.
The Court will presently deny the motion for appointment of counsel without
prejudice, but it will consider appointment at a later date if the case appears meritorious
after the Court has had an opportunity to review Defendants’ defenses and the parties’
evidence concerning the facts of the case.
6.

Plaintiffs’ Motion for Hearing and Order of Transport (Dkt. 61)
The Court has considered the pending motions, and none requires oral argument.

MEMORANDUM DECISION AND ORDER - 13

As a result, Plaintiffs’ Motion for a Hearing and Order of Transport will be denied.
7.

Intervenor Kenneth Workman’s Application to Proceed in Forma Pauperis
(Dkt. 47) and Motion for Voluntary Dismissal from Case (Dkt. 60)
Inmate Kenneth Workman sought to enter this case as a plaintiff, and then changed

his mind. Good cause appearing, the Court will permit him to withdraw his Application to
Proceed in Forma Pauperis, and he will not be added as a plaintiff to this case.
8.

Plaintiff Wolf’s Motion for Order Permitting Plaintiff Andrew Wolf to
Communicate with Co-Plaintiffs (Dkt. 64)
Plaintiff Andrew Wolf has been transferred to a different facility. Plaintiff has

requested, and Defendants have no objection, to the inmates following the procedures set
forth in Mr. Wolf’s motion to communicate with one another. In addition, all inmate-toinmate communications must be in compliance with current IDOC and ICC rules and
regulations. Therefore, the Motion will be granted; however, if Mr. Wolf is dismissed
from this case, then he will no longer have the need to communicate with the other
Plaintiffs as a party to this action.
ORDER
IT IS ORDERED:
1.

Patrick Knight’s Motion for Voluntary Dismissal (Dkt. 21) is GRANTED.

2.

Andrew Wolf’s Motion to Take Judicial Notice (Dkt. 23) is GRANTED to the
extent set forth herein above. Each remaining Plaintiff will be assessed $87.50 for
the filing fee in this case. This Order supersedes the prior Order (Dkt. 19, issued
September 30, 2010), regarding the filing fee assessments in this case.

3.

Plaintiffs’ Motion for Extension of Time to File Supplemental First Amended
Complaint (Dkt. 26) is GRANTED, to the extent that the Court has considered the
request to file a supplemental first amended complaint; it is DENIED to the extent

MEMORANDUM DECISION AND ORDER - 14

that the Court concludes that further supplementation or amendment at this time is
unnecessary.
4.

Plaintiffs’ Motion to Reconsider Order (Dkt. 31) is DENIED.

5.

Defendants’ Motion to Strike Plaintiffs’ Reply to Response to Motion to
Amend/Correct Complaint (Dkt. 58) is DENIED. The Court has considered all of
Plaintiffs’ arguments.

6.

Defendants’ Motion to Dismiss for Failure to Exhaust Administrative Remedies
(Dkt. 32) is GRANTED in part, and DENIED in part, as follows: All of Plaintiff
Lewis’s claims are dismissed without prejudice; all of the inadequate recreation
claims and inadequate staffing claims are dismissed without prejudice; the claims
of each Plaintiff that were not properly exhausted before the time they were first
brought as a claim in this litigation are dismissed without prejudice, as more
particularly set forth in Section C of this Order.

7.

Plaintiffs’ Motion for Extension of Time to Respond to Motion to Dismiss (Dkt.
38) is GRANTED. The response filed at Dkt. 43 is considered timely.

8.

Plaintiffs’ Motion to Supplement Response to Motion to Dismiss (Dkt. 53) is
GRANTED to the extent that the Court has considered all of Plaintiffs’ filings in
deciding the pending motions.

9.

Plaintiffs’ Motion Amend Complaint for Classwide Declaratory and Injunctive
Relief (Dkt. 44) is DENIED.

10.

Plaintiffs’ Motion to Certify Class (Dkt. 45) is DENIED.

11.

Plaintiffs’ Motion to Appoint Counsel (Dkt. 46) is DENIED without prejudice.

12.

Defendants’ Motion to Stay Class Certification Motion (Dkt. 52) is DENIED.

13.

Plaintiffs’ Motion for Hearing and Order of Transport (Dkt. 61) is DENIED.

MEMORANDUM DECISION AND ORDER - 15

15.

Intervenor Kenneth Workman’s Application to Proceed in Forma Pauperis (Dkt.
47) is DENIED as MOOT, and his Motion for Voluntary Dismissal from Case
(Dkt. 60) is GRANTED.

16.

Plaintiff Wolf’s Motion for Order Permitting Plaintiff Andrew Wolf to
Communicate with Co-Plaintiffs (Dkt. 64) is GRANTED only to the extent (a) as
set forth in the procedures specified in the Motion; (b) that the procedures do not
conflict with any current IDOC or ICC rules or regulations; and (c) that Wolf
remains a party to this action.

DATED: May 18, 2011

Honorable Edward J. Lodge
U. S. District Judge

MEMORANDUM DECISION AND ORDER - 16