Wolf et al v. State of Idaho et al

Filing 97

MEMORANDUM DECISION AND ORDER granting 94 MOTION to Correct Clerical Error re 17 Amended Complaint,, filed by Andrew J.J. Wolf, denying 92 MOTION for leave to conduct discovery filed by Andrew J.J. Wolf, granting 66 MOTION to Dismiss Andrew Wolf as a Plaintiff filed by John Ferguson, Chester Penn, Bryan Johnson, Norma Rodriguez, Corrections Corporation of America, Klint M. Stander, Tom Kessler, Phillip Valdez, Nancey Barelocher, Shane Jepsen, Steven Conry, Daniel Melody; All claims of Andrew Wolf are DISMISSED; denying 91 MOTION to Stay re 66 MOTION to Dismiss Andrew Wolf as a Plaintiff filed by Andrew J.J. Wolf, denying as moot 80 MOTION to Consolidate Cases filed by Andrew J.J. Wolf, denying 85 MOTION to Strike 66 MOTION to Dismiss Andrew Wolf as a Plaintiff filed by Andrew J.J. Wolf;, (Discovery due by 3/30/2012., Motions due by 4/30/2012.),. 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 dks)

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-00632-EJL
MEMORANDUM DECISION AND
ORDER

Plaintiffs,
v.
BRENT REINKE, et al.,
Defendants.

Pending before the Court in ths prisoner civil rights action are the following
motions: Defendants’ Motion to Dismiss Andrew Wolf as a Plaintiff (Dkt. 66); Plaintiff
Wolf’s Motion to Consolidate Case with 1:11-cv-00225-CWD (Dkt. 80); Plaintiff Wolf’s
Motion to Strike Affidavit of Peggy Birch (Dkt. 85); Plaintiff Wolf’s Motion to Stay
Summary Judgment Proceedings re: Motion to Dismiss Andrew Wolf as a Plaintiff (Dkt.
91); Plaintiff Wolf’s Motion for Leave to Conduct Discovery (Dkt. 92); and Plaintiff
Wolf’s Motion to Correct Clerical Error (Dkt. 94). Having reviewed the record and
considered the briefing of the parties, the Court enters the following Order.

MEMORANDUM DECISION AND ORDER - 1

DEFENDANTS’ MOTION TO DISMISS ANDREW WOLF
AS PLAINTIFF; PLAINTIFF’S MOTION FOR STAY
AND MOTION FOR DISCOVERY
1.

Introduction

In the midst of this multi-plaintiff litigation seeking declaratory and injunctive
relief at Idaho Correctional Center (ICC) for allegedly unconstitutional living conditions
resulting from overcrowding, Plaintiff Wolf was transferred from ICC to Idaho State
Correctional Institution (ISCI). As a result, Defendants filed a “Motion to Dismiss
Andrew Wolf as Plaintiff,” arguing that Mr. Wolf’s claims were moot.
Mr. Wolf has now filed his Response and several supplements to the pending
Motion to Dismiss Andrew Wolf as Plaintiff, and the other Plaintiffs have joined Mr.
Wolf’s Motions. (Dkt. 72, 78, 81, 83.) Defendants have filed their Reply. (Dkt. 88.)

2.

Standard of Law
Federal Rule of Civil Procedure 12(b)(1) authorizes the Court to dismiss a

complaint or claim for lack of subject matter jurisdiction. To be justiciable, a plaintiff's
claim must not have become moot during the litigation. American Civil Liberties Union
v. Lomax, 471 F.3d 1010, 1015 (9th Cir. 2006). “The basic question in determining
mootness is whether there is a present controversy as to which effective relief can be
granted.” Feldman v. Bomar, 518 F.3d 637, 642 (9th Cir. 2008). As a general rule, a
prisoner’s transfer or release will moot all personal claims for injunctive relief because
the prisoner is no longer subject to the allegedly unconstitutional policy. Preiser v.
Newkirk, 422 U.S. 395, 402-03 (1975); Johnson v. Moore, 948 F.2d 517, 519 (9th Cir.
MEMORANDUM DECISION AND ORDER - 2

1991).
3.

Discussion
The Court agrees with Defendants that, under the governing case law, Plaintiff

Wolf lacks standing to pursue declaratory and injunctive relief claims at ICC because he
is no longer incarcerated there. The Court finds Plaintiff’s counter-arguments
unpersuasive, for the reasons set forth in Defendants’ briefing (other than Defendants’
references to class-action status, which has already been denied).
Plaintiff argues that he should be permitted to conduct discovery into the facts
and circumstances surrounding his transfer from ICC because he believes that he was
transferred to thwart his ability to pursue his claims. However, even if Plaintiff were
transferred for the purpose of interfering with this lawsuit rather than for legitimate
reasons, the remedy would not be to order the prison to transfer Plaintiff back to ICC,
because prisoner placement is a matter of security to be left to prison officials.1 Rather,
the remedy would be a claim for declaratory relief or damages. Therefore, Plaintiff’s
argument of retaliatory transfer is not particularly relevant to the question of mootness of
the claims for declaratory and injunctive relief at ICC, but an alleged retaliatory transfer
is a separate issue.
While Plaintiff will not be permitted to pursue a retaliatory transfer claim in this
1

The Supreme Court has cautioned the federal courts not to interfere with the day-to-day
operations of the prisons, especially those things related to security, a task which is best left to prison
officials who have particular experience in dealing with prisons and prisoners. See Turner v. Safley, 482
U.S. 78, 89 (1987) (First Amendment claims).

MEMORANDUM DECISION AND ORDER - 3

action, because of the age of this case and the unrelatedness of a retaliation claim to the
pending conditions of confinement claims, he may do so in a separate action if he
believes Defendants’ “inmate conflict” reason is untrue and was trumped up for the
express purpose of mooting his claims.
In any event, Plaintiff Wolf has no further interest in whether the conditions of
confinement at ICC are remedied; however, the remaining Plaintiffs in this action
continue to have an interest because they remain housed there, and, any remedies won by
them will benefit all inmates at ICC.2 For this reason, Plaintiff’s other arguments that he
should be permitted to pursue the action notwithstanding his current housing assignment
are rejected. Accordingly, Defendants’ Motion to Dismiss Plaintiff Andrew Wolf will be
granted, and Plaintiff’s Motion to Stay and Motion for Discovery will be denied.
PLAINTIFF’S MOTION TO STRIKE AFFIDAVIT OF PEGGY BIRCH
Plaintiff complains that Defendants relied on the Affidavit of Peggy Birch to show
that Plaintiff was transferred for a legitimate reason, but Defendants failed to attach the
Exhibits to Plaintiff’s copy of the Affidavit. Plaintiff requests that Birch’s Affidavit be
stricken.
Defendants submitted Exhibits A, B, and C as sealed exhibits for in camera review
by the Court for security and inmate privacy reasons. Exhibit A is a “Safety Concern
2

The only claim Mr. Wolf was asserting that other inmates are not is that bugs were falling from
the ventilation system after the system had been sprayed for pests. If this is still a serious problem at the
prison, then it should first be addressed through the prison grievance system by another inmate suffering
from the effects of such a problem, and, if the problem is not resolved, it can be made the subject of a
lawsuit.
MEMORANDUM DECISION AND ORDER - 4

Detail,” relaying that Offender Wolf should not be housed with a particular inmate.
Exhibit B is a “Safety Concern Listing,” issued after the conflicting inmate was recently
transferred to ICC. Exhibit C is an IDOC “Transport Order,” indicating that Plaintiff
Wolf was being transferred due to an “offender conflict at ICC.” (Dkt. 67.)
Defendants have, as thoroughly as possible, explained the nature and content of
the exhibits in their briefing, without revealing the specific data that would pose prison
security and privacy issues. Plaintiff has done his best to rebut Defendants’ arguments
with the information to which he has access. However, Plaintiff’s identification of the
other inmate is inaccurate, and his reference to another staff member’s comments about
the transfer are too remote and vague to cast doubt on Defendants’ reasons for Plaintiff’s
transfer.
Because it is appropriate for prison officials to file such documents in camera to
balance the right of the inmate to have the information placed before the Court and the
security and privacy interests inherent in prison business, and because no wrongdoing is
evident from Plaintiff’s responsive arguments or evidence, the Affidavit of Peggy Birch
and accompanying sealed Exhibits will not be stricken.

MEMORANDUM DECISION AND ORDER - 5

PLAINTIFF WOLF’S MOTION TO CONSOLIDATE
Plaintiff Wolf filed a Motion to Consolidate Case with Case No. 1:11-cv-00225CWD. (Dkt. 80.) However, he has since voluntarily dismissed Case No. 1:11-cv-00225CWD. Accordingly, the Motion is deemed moot. It is also moot for the reasons set forth
above.
ORDER
IT IS ORDERED:
1.

Defendants’ Motion to Dismiss Andrew Wolf as a Plaintiff (Dkt. 66) is
GRANTED. All claims of Andrew Wolf are DISMISSED.

2.

Plaintiff Wolf’s Motion to Consolidate Case with 1:11-cv-00225-CWD
(Dkt. 80) is DENIED as MOOT.

3.

Plaintiff Wolf’s Motion to Strike Affidavit of Peggy Birch (Dkt. 85) is
DENIED.

4.

Plaintiff Wolf’s Motion to Stay Summary Judgment Proceedings re:
Motion to Dismiss Andrew Wolf as a Plaintiff (Dkt. 91) is DENIED.

5.

Plaintiff Wolf’s Motion for Leave to Conduct Discovery (Dkt. 92) is
DENIED.

6.

Plaintiff Wolf’s Motion to Correct Clerical Error, clarifying the
jurisdictional basis for the amended complaint (Dkt. 94) is GRANTED.

IT IS FURTHER ORDERED that the following pretrial schedule shall govern:

MEMORANDUM DECISION AND ORDER - 6

1.

Answers: Defendants who have returned the Waiver of Service of
Summons shall file an answer no later than November 28, 2011.

2.

Disclosure of Relevant Documents: On or before December 16, 2011, the
parties shall provide each other with a copy of relevant documents in their
possession, in a redacted form if necessary for security or privilege
purposes; and, if necessary, they shall provide a security/privilege log
sufficiently describing any undisclosed relevant documents which are
alleged to be subject to nondisclosure. Any party may request that the
Court conduct an in camera review of withheld documents or information.

3.

Completion of Discovery (items from other parties) and Requests for
Subpoenas Duces Tecum (items from nonparties): All discovery shall be
completed on or before March 30, 2012. Discovery requests must be made
far enough in advance to allow completion of the discovery in accordance
with the applicable federal rules prior to this discovery cut-off date. The
Court is not involved in discovery unless the parties are unable to work out
their differences as to the discovery themselves. In addition, all requests for
subpoenas duces tecum (production of documents by nonparties) must be
made by February 29, 2012. No requests for subpoenas duces tecum (items
from nonparties) will be entertained after that date. Requests for subpoenas
for witnesses to appear at trial need not be made at that time, but that will
be addressed at a later date.

MEMORANDUM DECISION AND ORDER - 7

4.

Depositions: Depositions, if any, shall be completed on or before
March 30, 2012. If Defendants wish to take the deposition of Plaintiff or
other witnesses who are incarcerated, leave to do so is hereby granted. Any
such depositions shall be preceded by ten (10) days’ written notice to all
parties and deponents. The parties and counsel shall be professional and
courteous to one another during the depositions. The court reporter, who is
not a representative of Defendants, will be present to record all of the words
spoken by Plaintiff (or other deponent), counsel, and any other persons at
the deposition. If Plaintiff (or another deponent) wishes to ensure that the
court reporter did not make mistakes in transcribing the deposition into a
written form, then he can request the opportunity to read and sign the
deposition, noting any discrepancies between what is transcribed and what
he believes he said. If Plaintiff wishes to take depositions, he must file a
motion requesting permission to do so, specifically showing his ability to
comply with the applicable Federal Rules of Civil Procedure by providing
the names of the proposed persons to be deposed, the name and address of
the court reporter who will take the deposition, the estimated cost for the
court reporter’s time and the recording, and the source of funds for payment
of the cost.

5.

Dispositive Motions: All motions for summary judgment and other
potentially dispositive motions shall be filed with accompanying briefs on

MEMORANDUM DECISION AND ORDER - 8

or before April 30, 2012. Responsive briefs to such motions shall be filed
within thirty (30) days after service of motions. Reply briefs, if any, shall
be filed within fourteen (14) days after service of responses. All motions,
responses, and replies shall conform to Rule 7.1 of the Local Rules for the
District of Idaho. Neither party shall file supplemental responses, replies,
affidavits, or other filings not authorized by the Local Rules without prior
leave of Court. No motion or memorandum, typed or handwritten, shall
exceed 20 pages in length.
6.

Settlement Options: Because this case concerns prison conditions,
rather than damages, the parties are strongly encouraged to work
together to determine whether such conditions exist, and, if so, how to
remedy them. If the parties wish to pursue mediation to help identify a
plan to resolve these claims by investigation and agreement rather than
litigation, they may contact the Court’s Alternative Dispute Resolution
Director, Susie Boring-Headlee, at 334-9067, or by letter to 550 West
Fort Street, Boise, Idaho 83724. The parties are also encouraged to
continue to pursue settlement negotiations among themselves.

MEMORANDUM DECISION AND ORDER - 9

DATED: November 1, 2011

Honorable Edward J. Lodge
U. S. District Judge

MEMORANDUM DECISION AND ORDER - 10