Hayes et al v. Villegas et al

Filing 56

MEMORANDUM DECISION AND ORDER denying 38 Motion for Extension of Time to Complete Discovery; 44 Motion to Dismiss; denying 45 Motion to Amend Complaint; denying in part and granting in part 51 Motion to Continue; granting in part and denying in part 54 Motion for Extension of Time to File Response and Motion for Appointment of Counsel re 36 MOTION for Summary Judgment , 39 MOTION for Summary Judgment Each of the four pro se Plaintiffs, including Plaintiff Hayes, is h ereby granted one final opportunity to file and sign his own response to the Defendants Motions for Summary Judgment on or before 2/1/2013. Defendants shall file their replies, if any, within 10 days of the filing date of Plaintiffs responses. 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 (cjm)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

MICHAEL T. HAYES, BANKS M.
LUCKADO, VINCE P. ASCHINGER,
GILBERT P. VILLEGAS,
Plaintiffs,

Case No. 1:10-CV-00064-EJL
MEMORANDUM DECISION AND
ORDER

v.
KOOTENAI COUNTY SHERIFF
ROCKY WATSON, TRAVIS F.
CHANEY, J.C. STACH, DEPUTY
HART, DUBBS, MOLINE, and CRAIG
SWEEN,
Defendants.

Pending before the Court are the following motions filed by Plaintiff Hayes: (1)
Amended Motion for Extension of Time in Which to Get Discovery Completed (Dkt. 38);
(2) Motion to Dismiss Kootenai County Defendants’ Motion for Summary Judgment Plaintiff’s Rule 56(f) Motion to Dismiss (Rule 56(d) Motion to Dismiss) (Dkt. 44); (3)
Motion for Leave of Court to File First Amended Civil Rights Complaint Pursuant to
F.R.C.P. Rule 15A (Motion to Amend Complaint) (Dkt. 45); and (4) Motion for a 75 Day
Continuance Pursuant to the 10/1/2012 Court Order by U.S. District Judge Edward J.

MEMORANDUM DECISION AND ORDER - 1

Lodge (Motion for a Continuance). (Dkt. 51). In addition, Plaintiff Luckado has filed a
Motion for Extension of Time to Respond to Kootenai County Defendants’ Motion for
Summary Judgment and Motion for Appointment of Counsel. (Dkt. 54.) Also pending are
the two dispositive Motions for Summary Judgment filed by the Defendants. (Dkts. 36,
39.) Having reviewed the arguments, case law, and the record in this matter, the Court
enters the following Order.
BACKGROUND
Plaintiffs are former inmates at the Kootenai County Jail who filed a complaint
challenging many aspects of the conditions of their confinement in the Kootenai County
Jail. (Dkt. 1.) In the Initial Review Order dated July 12, 2010, the Court held that some or
all of the Plaintiffs could proceed as follows: (1) all Plaintiffs stated claims for relief
under 42 U.S.C. § 1983 for overcrowding, lack of exercise, and lack of winter clothing;
(2) Plaintiffs Hayes and Villegas stated claims of retaliation, excessive force, and denial
of adequate dental care; (3) Plaintiff Hayes and Aschinger could proceed with their
claims for denial of access to the courts; and (4) Plaintiff Hayes stated a First Amendment
claim related to blocked telephone calls to his mother. (See Dkt. 4.) All other claims were
dismissed, including Plaintiff Hayes’ claim against Defendant Kennedy alleging denial of
adequate medical care. (Id. at pp.7-9.)
On October 6, 2011, the Court entered a Scheduling Order and ordered the parties
to conclude discovery by April 23, 2012, and to file dispositive motions by June 1, 2012.

MEMORANDUM DECISION AND ORDER - 2

(Dkt. 21.) On April 9, 2012, Plaintiff Hayes requested additional time to complete
discovery (Dkt. 32) which the Court granted and extended the discovery deadline to May
23, 2012. (Dkt. 37.)
Defendants Chaney, Dubbs, Hart, Kootenai County, Kootenai County Sheriff,
Moline and Watson (Kootenai County Defendants) filed their Motion for Summary
Judgment on May 23, 2012 (Dkt. 36), and one week later, Defendant Sween filed his
Motion for Summary Judgment on May 30, 2012. (Dkt. 39.) Both of these dispositive
Motions were filed before the June 1, 2012, deadline; Plaintiffs’ responses to these
Motions were due June 18, 2012, and June 25, 2012, respectively.
On May 29, 2012, Plaintiff Hayes filed an Amended Motion for Extension of Time
in Which to Get Discovery Completed. (Dkt. 38.) Then on July 10, 2012, Plaintiff Hayes
filed two more motions: (1) his Motion to Dismiss Kootenai County Defendants’ Motion
for Summary Judgment - Plaintiff’s Rule 56(f) Motion to Dismiss (Dkt. 44); and (2) a
Motion to Amend Complaint. (Dkt. 45.) More than three months later, Plaintiff Hayes
then filed his Motion for a Continuance (Dkt. 51) requesting an additional 75 days in
which to file a response to the Defendants’ Summary Judgment Motions. Finally, on
November 8, 2012, Plaintiff Luckado filed his own Motion for Extension of Time to
Respond to Kootenai County Defendants’ Motion for Summary Judgment and Motion for
Appointment of Counsel. (Dkt. 54.)

MEMORANDUM DECISION AND ORDER - 3

DISCUSSION
1. Pro Se Plaintiff Representation
At the outset, the Court clarifies a pro se plaintiff’s rights and responsibilities in a
case involving other pro se plaintiffs. In three of Plaintiff Hayes’ pending motions, he
argues on behalf of the other pro se Plaintiffs, and requests that the discovery deadline be
extended for all four pro se Plaintiffs (Dkt. 38, p.1), that Defendants’ summary judgment
motions be dismissed against all four pro se Plaintiffs (Dkt. 44, pp.1-2), and that all four
Plaintiffs be permitted to file an amended complaint. (Dkt. 45, p.1.)
Defendants argue, and the Court agrees, that a pro se plaintiff may not represent
any other plaintiff in the proceeding. Section 1654 of the United States Code establishes
the right of an individual to represent oneself in federal court. See 28 U.S.C. § 1654.
However, “[i]t is well established that the privilege to represent oneself pro se provided
by § 1654 is personal to the litigant and does not extend to other parties or entities.”
Simon v. Hartford Life, Inc., 546 F.3d 661, 664 (9th Cir. 2008); see also McShane v. U.S.,
366 F.2d 286, 288 (9th Cir. 1966 )(pro se plaintiff may appear in propria persona in his
own behalf but he has no authority to appear as an attorney for others than himself)
(citations omitted). In this action, the only pleading signed by all four Plaintiffs is the
Complaint. The four pending motions filed by Plaintiff Hayes were signed only by him.
Therefore, these motions and the Court’s ruling thereon only apply to and affect Plaintiff
Hayes. Plaintiff Hayes is advised that he may not represent, advocate or request relief for

MEMORANDUM DECISION AND ORDER - 4

any of the other pro se Plaintiffs. If any of the pro se Plaintiffs wish to continue in this
action, they must represent themselves individually and file separate responses and
pleadings in this action, including responses to the pending Motions for Summary
Judgment as set forth below.
2. Plaintiff Hayes’ Motions
Plaintiff Hayes has four motions pending before the Court, each of which the
Court will deny for the following reasons.
A.

Amended Motion for Extension of Time in Which to Get Discovery
Completed (Dkt. 38)

On May 29, 2012, Plaintiff Hayes filed an Amended Motion for Extension of Time
in Which to Get Discovery Completed. (Dkt. 38.) As noted above, this is Plaintiff Hayes’
second request to extend the discovery deadline. Plaintiff Hayes contends that because
Defendants chose not to return the waiver of service, it delayed his effecting service upon
them which consequently shortened the Court-ordered discovery period from six months
to three months. (Id. at pp.2-6.) Plaintiff Hayes does not indicate, however, whether any
of his discovery requests are still outstanding or are otherwise adversely affected by the
truncated discovery period. Instead, he summarily argues that “[d]efendants will not be
prejudiced by this new timeline for getting discovery, admissions, and interrogatories
done and completed.” (Id. at pp.6-7.)
In their responses, Defendants argue that Plaintiff Hayes was already granted an
extension of time to complete discovery (see Dkt. 37), and that Defendants have timely
MEMORANDUM DECISION AND ORDER - 5

responded to the additional discovery propounded in that time period. (Dkts. 42, p.3; 43,
p.2.) Moreover, the Kootenai County Defendants state that they have already provided
Plaintiff Hayes with a substantial amount of discovery that has been “in Hayes’
possession for months.” (Dkt. 42, p.3.) Similarly, Defendant Sween contends that he has
“fairly and timely responded to all of [Plaintiff Hayes’] discovery requests in this matter
and done nothing to delay, prevent or preclude [Plaintiff Hayes] from completing his
discovery by the dates ordered by the Court in this matter.” (Dkt. 43, pp.2-3.)
In the absence of any outstanding discovery requests, Defendants contend that
Plaintiff Hayes has provided no justifiable reason to extend the discovery deadline. (Dkt.
42, p.3.) Plaintiff Hayes did not file a reply to rebut any of these allegations and has not
specified what more he requires in discovery, why he did not seek it sooner, or how
additional discovery would positively impact his case. The Court concludes that because
Defendants have responded to all of Plaintiff Hayes’ discovery requests and it is not clear
that any further discovery would aid Plaintiff Hayes, no additional time is needed to
complete discovery. In addition, Defendants’ dispositive Motions for Summary Judgment
are already pending before the Court; re-opening discovery at this stage of the
proceedings would result in unnecessary delay and expense. Plaintiff’s Motion for
Extension of Time in Which to Get Discovery Completed will be denied.

MEMORANDUM DECISION AND ORDER - 6

B.

Motion to Dismiss Kootenai County Defendants’ Motion for Summary
Judgment - Plaintiff’s Rule 56(f) Motion to Dismiss (Dkt. 44)

Defendants have timely filed their Motions for Summary Judgment in this action.
The deadlines for Plaintiffs to respond to the two Motions for Summary Judgment were
June 18 and June 25, 2012. No such responses were filed. However, on July 10, 2012,
Plaintiff Hayes filed a Rule 56(d) Motion to Dismiss the Defendants’ Motions for
Summary Judgment.1 (Dkt. 44.) In that Motion, Plaintiff Hayes contends that “both
motions [for summary judgment] are premature as discovery and admission have not been
completed as of yet in this case,” and that “new evidence produced thus far in discovery
has revealed new claims and new parties.” (Dkt. 44, p.2.) More specifically, Plaintiff
Hayes states in his affidavit that “a claim of medical malpractice should be filed against
Chris Kennedy M.D. who is the medical director of the Kootenai County jail facility.”
(Dkt. 44-1, pp.2-3.)
Kootenai County Defendants filed their Reply Memorandum in Support of Motion
for Summary Judgment and argue that the Court has already denied Plaintiffs’ attempt to
bring claims against Dr. Kennedy in the Initial Review Order. Additionally, Plaintiff
Hayes has not presented any evidence that demonstrates how Plaintiff's alleged claim of
medical malpractice against Dr. Kennedy is a valid basis for opposing the Kootenai
1

Plaintiff Hayes’ heading for this Motion only references Kootenai County Defendants’ Motion
for Summary Judgment. However, in the Motion itself, Plaintiff Hayes refers to and argues for dismissal
of both Motions for Summary Judgment pending in this action. In addition, although the heading also
identifies it as a “Rule 56(f) Motion to Dismiss”, the correct subsection for this type of Rule 56 motion is
Rule 56(d). See Fed. R. Civ. Proc. 56(d).
MEMORANDUM DECISION AND ORDER - 7

County Defendants’ Motion for Summary Judgment. (Dkt. 49, pp.2-3.) Similarly,
Defendant Sween contends that Plaintiff Hayes has failed to come forward with any
evidence to dispute the material facts set forth in his Motion for Summary Judgment, nor
has Plaintiff Hayes indicated what undiscovered facts are essential to oppose Defendant
Sween’s Motion for Summary Judgment. (Dkt. 46, p.5.)
Rule 56(d) allows litigants to avoid summary judgment when the non-movant
needs to discover affirmative evidence necessary to oppose the motion. Garrett v. City
and County of San Francisco, 818 F.2d 1515, 1518 (9th Cir. 1987). The party requesting
a Rule 56(d) continuance must submit affidavits showing that: (1) it has set forth in
affidavit form the specific facts it hopes to elicit from further discovery; (2) the facts
sought exist; and (3) the sought-after facts are essential to oppose summary judgment.
Family Home & Finance Center, Inc. v. Federal Home Loan Mortg. Corp., 525 F.3d 822,
827 (9th Cir. 2008); California v. Campbell, 138 F.3d 772, 779 (9th Cir. 1998). Failure to
comply with the requirements of Rule 56(d) is a proper ground for denying discovery and
proceeding to summary judgment. Campbell, 138 F.3d at 779.
The Court agrees with Defendants that Plaintiff Hayes’ affidavit does not meet the
Rule 56(d) requirements. Plaintiff Hayes’ affidavit does not set forth what specific facts
regarding Dr. Kennedy is needed, and whether those facts actually exist. Nor does
Plaintiff Hayes explain what specific material facts this discovery will likely disclose and
thus raise an issue of material fact as to the two pending Motions for Summary Judgment.

MEMORANDUM DECISION AND ORDER - 8

Since Plaintiff Hayes has not met his burden under Rule 56(d), this Court will deny his
Rule 56(d) Motion to Dismiss.
C.

Motion for Leave of Court to File First Amended Civil Rights Complaint
Pursuant to F.R.C.P. Rule 15A (Dkt. 45)

On July 10, 2012 and pursuant to Federal Rule of Civil Procedure 15(a), Plaintiff
Hayes filed a Motion to Amend Complaint. (Dkt. 45.) Plaintiff Hayes requests leave of
the Court to amend the Complaint because “through the discovery process Plaintiffs have
discovered new documentary evidence that shows a claim or claims against Chris
Kennedy M.D. of medical malpractice for both medical claims and dental claims . . .
[because] Chris Kennedy M.D. is the medical director of Kootenai County jail facility
who has ultimate responsibility for the health care provided to inmates within the
facility.” (Id. at p.2.) Plaintiff Hayes further contends that amending the Complaint would
not cause undue delay or prejudice the Defendants because “this case is in its infancy.”
(Id. at pp.3-4.)
Defendant Sween objects to Plaintiff Hayes’ Motion to Amend Complaint because
it is untimely and would unduly delay and prejudice Defendants. Defendant Sween argues
that Plaintiff Hayes filed his Motion to Amend Complaint two years after the Plaintiffs
filed their Complaint, and one month after discovery and dispositive motion deadlines had
passed. (Dkt. 48, p.3.) Defendant Sween further contends that since Plaintiffs named Dr.
Kennedy as one of the defendants in their original Complaint, “it appears Plaintiffs have
been aware of Dr. Kennedy’s alleged involvement in their causes of action from the
MEMORANDUM DECISION AND ORDER - 9

outset of this action.” (Id.) Allowing Plaintiff Hayes to amend the Complaint would
require reopening discovery and delay the Court’s ruling on Defendants Sween’s Motion
for Summary Judgment, all of which would prejudice Defendant Sween.
The Kootenai County Defendants filed a separate response to Plaintiff Hayes’
Motion to Amend Complaint, agreeing with and incorporating by reference Defendant
Sween’s arguments for denying the motion. (Dkt. 50, p.2.) In addition, the Kootenai
County Defendants assert that adding Dr. Kennedy as a defendant “would be futile” and
“have no bearing on the claims that have been made against the Kootenai County
Defendants.” (Id.)
Federal Rule of Civil Procedure 15(a) provides that a party may amend its
pleading with the court’s leave, and that the court “should freely give leave when justice
so requires.” Fed. R. Civ. Proc. 15(a)(2). However, a court may deny leave to amend after
considering the following factors: bad faith, undue delay, prejudice to the opposing party,
futility of the amendment, and whether the party has previously amended his pleadings.
Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995). Futility alone can justify the denial
of a motion for leave to amend. Id.
Plaintiff Hayes’ Motion to Amend Complaint seeks to add the singular claim of
“medical malpractice” against Defendant Kennedy because he is (or was) the medical
director of the Kootenai County jail facility. (Dkt. 45, p.2.) Plaintiff Hayes does not state
that he wishes to bring the claim pursuant to the Court’s supplemental jurisdiction

MEMORANDUM DECISION AND ORDER - 10

authority over state-law causes of action, and, thus, the Court construes the claim as one
sounding in civil rights.2
Defendants have argued that allowing Plaintiff Hayes to amend the Complaint at
this stage of the proceedings is untimely, and will cause undue delay and prejudice to the
Defendants. The Court agrees with Defendants’ arguments, as the Motion to Amend
Complaint was filed more than two years after the Complaint was filed, and over a month
after discovery had ended and Defendants had filed their Motions for Summary
Judgment. At this stage of the proceedings, Defendants would be prejudiced if leave were
given to amend the Complaint. The record shows that Defendants have timely filed their
pleadings and responded to all of Plaintiff Hayes’ discovery requests. With summary
judgment motions pending, it is not appropriate or reasonable to further delay this
proceeding by granting leave for Plaintiff Hayes to amend the Complaint.
Moreover, it would be futile to permit Plaintiff Hayes the opportunity to amend the
Complaint with an insufficient claim against a Defendant who has already been dismissed
from this action. In the original Complaint, Plaintiffs alleged that Defendant Chris
Kennedy M.D. was “employed as the Doctor M.D. at the Kootenai County Jail . . . and

2

If, in fact, Plaintiff intends it to be a state-law claim, the Court agrees with Defendants that
Plaintiff should have filed a motion to amend or clarify shortly after the Initial Review Order construed
the claim as a civil rights claim, not several years later. Plaintiff has not stated whether he has participated
in an Idaho Code § 6-1001 prelitigation screening hearing before an Idaho Board of Medicine panel prior
to bringing his claim. Staying this action to permit Plaintiff to do so and then to begin a new action
against Dr. Kennedy with this action would cause prejudicial delay to Defendants, as explained
elsewhere in this Order.
MEMORANDUM DECISION AND ORDER - 11

was personally involved in the conduct complained of herein . . . and was charged
throughout the times of these same events with the responsibility to see that all inmates . .
. were provided due process and adequate Medical care as part of his employment.” (Dkt.
1, pp. 7-8.) In the Initial Review Order, however, the Court dismissed all of Plaintiff
Hayes’ claims of inadequate medical care against Defendant Kennedy. (Dkt. 4, pp. 7-9.)
In addition, the Court discussed the applicable standard that must be met to establish a
claim of inadequate medical care under the Eighth Amendment – deliberate indifference
to serious medical needs – and specifically noted that “[m]ere indifference, medical
malpractice, or negligence will not support a cause of action under the Eighth
Amendment.” Id. at 7 (emphasis added). Plaintiff Hayes’ newly alleged claim of medical
malpractice against Defendant Kennedy fails to allege facts that would support an Eighth
Amendment claim, thereby rendering his amendment futile. See Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (“Threadbare recitals of the elements of a cause of action, supported
by mere conclusory statements, do not suffice.”) For all of these reasons, the Court will
deny Plaintiff Hayes’ Motion to Amend Complaint.
C.

Motion For a Continuance (Dkt. 51)

On October 25, 2012, Plaintiff Hayes filed a Motion for a 75 Day Continuance
Pursuant to the 10/1/2012 Court Order by U.S. District Judge Edward J. Lodge. (Dkt. 51.)
Plaintiff Hayes contends the additional time is needed to respond to the Defendants’
Motions for Summary Judgment because he has been “denied access to his legal files,

MEMORANDUM DECISION AND ORDER - 12

exhibits, and case evidence by IDOC paralegal A. Dewayne Shedd.” (Id., p.2.) In support
of the Motion, Plaintiff Hayes has attached an Order entered in a separate, unrelated
matter pending before this Court wherein this Court ordered Plaintiff Hayes to contact
prison counsel to determine a plan to access Plaintiff’s legal files that is consistent with
prison policy.3 (Dkt. 51-1, p.3.)
On October 30, 2012, the Kootenai County Defendants filed their Response to
Plaintiff Hayes’ Motion For Continuance and argue that Plaintiff Hayes has “failed to
substantiate his argument that he has been unable to respond to the summary judgment
motions because he did not have access to his files when his response was due.” (Dkt. 52,
p.4.) The Kootenai County Defendants also object to Plaintiff Hayes’ reliance on an
Order entered in an unrelated case to support his newfound contention that he is having
problems accessing his legal files. (Id. at p.2.) Finally, these Defendants point out that the
other three Plaintiffs have not filed a response or requested additional time to respond to
the Motions for Summary Judgment; therefore they are ripe for a ruling.4 (Id.)
Defendant Sween filed a separate Memorandum in Opposition to Plaintiffs’
Motion for a 75 Day Continuance on November 7, 2012, and similarly argued that
Plaintiff Hayes “has failed to provide the Court with evidence to justify or warrant a 75

3

The Order was entered on October 1, 2012, in Case No. 1:10-cv-00011-EJL.

4

Defendants filed their Response to Plaintiff’s Motion for a Continuance before Plaintiff Luckado
filed his Motion for Extension of Time to Respond to Kootenai County Defendants’ Motion for Summary
Judgment and Motion for Appointment of Counsel.
MEMORANDUM DECISION AND ORDER - 13

day continuation to respond to Dr. Sween’s motion for summary judgment.” (Dkt. 53,
p.3.) Defendant Sween also objects to Plaintiff Hayes’ reliance on an Order entered in a
different case, and asserts that Plaintiff Hayes’ Motion is silent as to when he was
allegedly denied access to his legal files, or how such denial prevented him from timely
responding to Defendant Sween’s Motion for Summary Judgment. (Id. at p.4.) In
addition, Defendant Sween notes that Plaintiff Hayes had sufficient access to his legal
files to prepare and file two other motions previously addressed in this Order – the
Motion to Amend Complaint and his Rule 56(d) Motion to Dismiss. Finally, Defendant
Sween argues that the Court’s Notice to Pro Se Litigants of the Summary Judgment Rule
Requirements, which the Clerk of Court mailed to each Plaintiff on May 31, 2012 (see
Dkt. 40), clearly outlines the plaintiff’s obligation and deadline for filing a response to a
summary judgment motion. (Id.) Because Plaintiff Hayes did not timely respond, and has
yet to respond, to Defendant Sween’s Motion for Summary Judgment, Defendant Sween
argues that the Court should grant his Motion for Summary Judgment.
Once again, the Court agrees with Defendants’ arguments and determines that
Plaintiff Hayes has failed to provide adequate justification for his Motion for a
Continuance. The Court finds it troubling that Plaintiff Hayes waited four months after
his responses to Defendants’ Motions for Summary Judgment were due to request an
additional 75 day continuance, and then attempts to substantiate that request by
submitting an Order entered in an unrelated case that refers to Plaintiff Hayes’ access to

MEMORANDUM DECISION AND ORDER - 14

his legal files in prison.
In addition, Plaintiff Hayes' alleged inability to proceed in this case without
additional access to his legal files has not impaired his ability to file two other Motions in
this case within three weeks of the Court-imposed deadline to respond to the Motions for
Summary Judgment. It is reasonable to assume, therefore, that Plaintiff Hayes had some
access to the legal files in this case so that he could prepare and file those Motions.
Moreover, Plaintiff Hayes fails to specify when and for how long the alleged denial of
access to his legal files in this case occurred. For all of these reasons, the Court will deny
in part Plaintiff Hayes’ Motion for a Continuance. Nevertheless, in the interest of overall
fairness to all pro se Plaintiffs in this proceeding, the Court will grant in part this Motion
only to the extent Plaintiff Hayes is provided the same, final opportunity to respond to
Defendants' Motions for Summary Judgment as set forth below.
3. Plaintiff Luckado’s Motion
On November 8, 2012, Plaintiff Luckado filed a Motion for Extension of Time to
Respond to Kootenai County Defendants’ Motion for Summary Judgment and Motion for
Appointment of Counsel. (Dkt. 54.) Plaintiff Luckado argues that to date, he “has been
unable to adequately prepare the response” to Kootenai County Defendants’ Motion for
Summary Judgment as required by Rule 56, and because he is a “lay person and is
unfamiliar with common litigation practice” he requests the appointment of counsel to
represent him in this matter. (Id. at 2.) In the alternative, he requests an extension of time

MEMORANDUM DECISION AND ORDER - 15

to frame an adequate response. (Id.) In response, the Kootenai County Defendants argue
that appointment of counsel is not warranted in this action, nor should the Court permit
Plaintiff Luckado an opportunity to respond to their Motion for Summary Judgment when
he failed to timely respond in June 2012. (Dkt. 55, pp. 2-4.)
Plaintiff Luckado’s Motion for Extension of Time to Respond to Kootenai County
Defendants’ Motion for Summary Judgment and Motion for Appointment of Counsel will
be granted in part and denied in part. The court will grant the Motion to the extent
Plaintiff Luckado – and each of the other three pro se Plaintiffs – will be granted one
final, succinct extension of time in which to respond to Defendants’ Motions for
Summary Judgment. Although the Court is aware of the plain language in the Notice to
Pro Se Litigants of the Summary Judgement Rule Requirements (Dkt. 40) which was
previously mailed to each of the Plaintiffs and sets forth how and when Plaintiffs were to
respond to the Motions for Summary Judgment, overall fairness and equity to each of the
pro se Plaintiffs must also be considered in this matter. Indeed, the Court further
acknowledges that Plaintiff Hayes filed multiple motions purportedly on behalf of all
Plaintiffs – to extend discovery, dismiss the Motions for Summary Judgment, and amend
the Complaint – which could have created confusion and uncertainty among the other
Plaintiffs as to their role and responsibility in this action. Accordingly, each Plaintiff will
be granted one final opportunity to file and sign his own response to the Defendants’
Motions for Summary Judgment so that each Plaintiff’s evidence and arguments are clear

MEMORANDUM DECISION AND ORDER - 16

to the Court and the Defendants. Failure to respond to the Motions for Summary
Judgment on or before the deadline set forth below will result in dismissal of all of that
Plaintiff’s claims without prejudice for failure to prosecute.
The Court will deny, however, that portion of Plaintiff Luckado’s Motion wherein
he requests appointment of counsel. 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. 1990). In civil cases, counsel should be appointed in only “extraordinary
circumstances”, which requires an evaluation of the likelihood of success on the merits
and the ability of the plaintiff to articulate his claims in light of the complexity of the
legal issues involved. Wilborn, 789 F.2d at 1331. Here, Plaintiff Luckado has not
demonstrated a likelihood of success on the merits, nor has he shown an inability to
articulate his claims in this case. Plaintiff Luckado’s only justification for requesting
counsel is that he is a lay person unfamiliar with common litigation practice. (Dkt. 54,
p.2.) His lay status, however, should not prevent him from responding to the Kootenai
County Defendants’ Motion for Summary Judgment regarding his rather straightforward
claims of overcrowding, lack of exercise, and lack of winter clothing at the Kootenai
County jail. Furthermore, Plaintiff Luckado has demonstrated his ability to file a Motion,

MEMORANDUM DECISION AND ORDER - 17

albeit untimely, with the Court and present his arguments for granting such Motion. At
this time, there are no exceptional circumstances to warrant appointment of counsel for
Plaintiff Luckado. Plaintiff Luckado is reminded that any response must be focused on
the facts (not on legal theory), and that admissible evidence supporting those facts, as
described in the Notice to Pro Se Litigants, must be included with his response.
4. Defendants’ Motions for Summary Judgment (Dkts. 36, 39)
In light of the Court’s decision above to grant Plaintiffs one final opportunity to
respond to the Defendants’ Motions for Summary Judgment, the Court will reserve ruling
on the dispositive motions until the briefing, if any, is complete as set forth below.
ORDER
IT IS ORDERED:
1.

Plaintiff Hayes’ Amended Motion for Extension of Time in Which to Get

Discovery Completed (Dkt. 38) is DENIED.
2.

Plaintiff Hayes’ Motion to Dismiss Kootenai County Defendants’ Motion

for Summary Judgment - Plaintiff’s Rule 56(f) Motion to Dismiss (Dkt. 44) is DENIED.
3.

Plaintiff Hayes’ Motion for Leave of Court to File First Amended Civil

Rights Complaint Pursuant to F.R.C.P. Rule 15A (Dkt. 45) is DENIED.
4.

Plaintiff Hayes’ Motion for a 75 Day Continuance Pursuant to the

10/1/2012 Court Order by U.S. District Judge Edward J. Lodge (Dkt. 51) is DENIED in
part based on the Court's analysis above, and GRANTED in part only to the extent

MEMORANDUM DECISION AND ORDER - 18

Plaintiff Hayes is provided the same, final opportunity to respond to Defendants' Motions
for Summary Judgment as set forth below.
5.

Plaintiff Luckado’s Motion for Extension of Time to Respond to Kootenai

County Defendants’ Motion for Summary Judgment and Motion for Appointment of
Counsel (Dkt. 54) is GRANTED in part and DENIED in part. Each of the four pro se
Plaintiffs, including Plaintiff Hayes, is hereby granted one final opportunity to file and
sign his own response to the Defendants’ Motions for Summary Judgment on or before
February 1, 2013. Any Plaintiff’s failure to individually respond to the Defendants’
Motions for Summary Judgment by this deadline will result in the dismissal of all of that
Plaintiff’s claims without prejudice for failure to prosecute. Defendants shall file their
replies, if any, within ten (10) days of the filing date of Plaintiffs’ responses.
6.

The Court reserves ruling on Kootenai County Defendants’ Motion for

Summary Judgment (Dkt. 36) and Defendant Sween’s Motion for Summary Judgment
(Dkt. 39) until the briefing on such Motions is completed as set forth above.
DATED: January 18, 2013

Honorable Edward J. Lodge
U. S. District Judge

MEMORANDUM DECISION AND ORDER - 19