Hayes et al v. Villegas et al

Filing 70

MEMORANDUM DECISION AND ORDER granting in part and denying in part 36 Motion for Summary Judgment; granting 39 Motion for Summary Judgment; denying 58 Motion to Dismiss Defendant Craig Sween ; granting 59 Motion to Dismiss; denying 65 Motion to Dismiss with Prejudice; denying 69 Motion for Hearing. No later than 21 days from the date of this Order, the remaining parties shall give notice to the Court as to whether they wish to participate in a judicially-supervised alterna tive dispute resolution (ADR) process before the case is set for trial. If all parties do not agree to participating in ADR, the Court will set then the case for trial on the remaining claim.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 (krb)

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, KOOTENAI
COUNTY SHERIFF ROCKY
WATSON, JAIL COMMANDER
CAPTAIN TRAVIS F. CHANEY,
DEPUTIES J.C. STACH, HART
DUBBS, and MOLINE, RUTH NAGLE,
LPN, JOHN AND JANE DOES (1-10),
CHRIS KENNEDY, M.D., CRAIG
SWEEN, D.D.S., sued in their individual
and official capacities and their
successors in office,
Defendants.

The following motions are currently pending before the Court in this prisoner civil
rights matter: (1) a Motion for Summary Judgment filed by Defendants Kootenai County,
Kootenai County Sheriff, Rocky Watson, Captain Travis Chaney, Deputy Hart, Deputy
Dubbs, and Deputy Moline (hereafter, the “Kootenai County Defendants”) (Dkt. 36); (2)
Defendant Craig Sween’s Motion for Summary Judgment (Dkt. 39); (3) Plaintiff Hayes’s

MEMORANDUM DECISION AND ORDER - 1

Motion and Memorandum in Opposition to Craig Sween, DDS’s Motion for Summary
Judgment (Dkt. 58); (4) Kootenai County Defendants’ Motion to Dismiss Plaintiffs’
Claims For Failure to Prosecute (Dkt. 59); (5) Plaintiff Hayes’s Motion and Memorandum
in Opposition to Kootenai County Defendants’ Motion for Summary Judgment (Dkt. 65);
and (6) Plaintiff Hayes’s Motion for Oral Argument (Dkt. 69).
The parties have adequately stated the facts and argument in their briefing, and the
Court will resolve these matters on the record without oral argument. D. Idaho L. Civil
R. 7.1. Accordingly, Plaintiff’s Motion for Oral Argument is denied.
For the reasons that follow, the Court will grant in part and deny in part the
Kootenai County Defendants’ Motion to Dismiss for Failure to Prosecute, and all claims
of Plaintiffs Luckado, Aschinger, and Villegas are dismissed from this action. Defendant
Sween’s Motion for Summary Judgment will be granted. The Kootenai County
Defendants’ Motion for Summary Judgment will be granted as to all claims except
Plaintiff Hayes’s Eighth Amendment claim that he was not provided adequate outdoor
exercise while incarcerated at the Kootenai County Jail in 2008.
BACKGROUND
In their joint Complaint, Plaintiffs Michael Hayes, Banks Luckado, Vince
Aschinger, and Gilbert Villegas brought wide-ranging claims for relief covering many
aspects of the conditions of their confinement in the Kootenai County Jail. (Complaint,
Dkt. 1.) Aschinger and Villegas were pretrial detainees at all relevant times, while Hayes
and Luckado were post-judgment prisoners.
MEMORANDUM DECISION AND ORDER - 2

The Court conducted an initial review of the Complaint, as required by 28 U.S.C.
§ 1915A, and found that all Plaintiffs stated claims for relief for overcrowding, lack of
exercise, and lack of winter clothing at the Kootenai County Jail. (Dkt. 4, pp. 2-3.)
Plaintiffs Hayes and Villegas were also permitted to go forward with claims of retaliation,
excessive force, and denial of adequate dental care, and Plaintiffs Hayes and Aschinger
stated a claim for denial of access to the courts. (Id. at 3-10.) Finally, Plaintiff Hayes
was permitted to proceed with his claim that a block on calls to his mother violated his
First Amendment rights. (Id. at 11.) The Court dismissed all other civil rights claims,
and concluded that Plaintiffs had raised no cognizable claims under the American with
Disabilities Act or state law. (Id.)
Defendant Craig Sween, DDS, has since filed an Answer and a Motion for
Summary Judgment as to Plaintiff Hayes’s claim against him, and the Kootenai County
Defendants, represented by different counsel than Dr. Sween, have submitted their own
Answer and Motion for Summary Judgment. (Dkts. 11, 13, 36, 39.) The Court has since
clarified that Plaintiff Hayes cannot represent the other three plaintiffs in this action, and
each has to file their own pleadings, motions, and responses. (Dkt. 56, p. 5.) The Court
gave the four plaintiffs one final opportunity to submit individual responses to
Defendants’ motions for summary judgment, but only Hayes has done so. (Dkt. 56, p. 19;
Dkts. 58, 65.)
These matters have been fully briefed, and the Court now is prepared to issue its
ruling.
MEMORANDUM DECISION AND ORDER - 3

MOTION TO DISMISS FOR FAILURE TO PROSECUTE
As an initial matter, the Kootenai County Defendants have requested the Court to
dismiss all claims against them based on the failure of all Plaintiffs to respond to their
summary judgment motion. The Court granted Plaintiff Hayes an extension of time in
which to file a response, and he has since done so. (Dkt. 62, p. 2; Dkt. 64.) Plaintiffs
Luckado, and Aschinger, and Villegas, however, have not submitted responses as
ordered.
Therefore, Defendants’ Motion will be granted as to Luckado, Aschinger, and
Villegas, and their remaining claims against Defendants are dismissed, without prejudice,
for failure to prosecute. The Motion is denied as to Plaintiff Hayes.
MOTIONS FOR SUMMARY JUDGMENT
1.

Legal Standards Governing Summary Judgment

Summary judgment is appropriate where 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). One of the principal purposes of the
summary judgment rule “is to isolate and dispose of factually unsupported claims . . . .”
Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). It is “not a disfavored procedural
shortcut,” but is instead the “principal tool[] by which factually insufficient claims or
defenses [can] be isolated and prevented from going to trial with the attendant
unwarranted consumption of public and private resources.” Id. at 327.
“[T]he mere existence of some alleged factual dispute between the parties will not
MEMORANDUM DECISION AND ORDER - 4

defeat an otherwise properly supported motion for summary judgment.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The requirement is that there be no
genuine dispute as to any material fact. Material facts are those “that might affect the
outcome of the suit.” Id. at 248. “Disputes over irrelevant or unnecessary facts will not
preclude a grant of summary judgment.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors
Ass’n, 809 F.2d 626, 630 (9th Cir. 1987). The moving party is entitled to summary
judgment if that party shows that each material fact cannot be disputed. To show that the
material facts are not in dispute, a party may cite to particular parts of materials in the
record, or show that the adverse party is unable to produce admissible evidence to
support the fact. Fed. R. Civ. P. 56(c)(1)(A) & (B). The Court must consider “the cited
materials,” but it may also consider “other materials in the record.” Fed. R. Civ. P.
56(c)(3).
If the 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 the jury could reasonably find for
the [non-moving party].” Liberty Lobby, 477 U.S. at 252.
Material used to support or dispute a fact must be “presented in a form that would
be admissible in evidence.” Fed. R. Civ. P. 56(c)(2). Affidavits or declarations
submitted in support of or in opposition to a motion “must be made on personal
MEMORANDUM DECISION AND ORDER - 5

knowledge, set out facts that would be admissible in evidence, and show that the affiant
or declarant is competent to testify on the matters stated.” Fed. R. Civ. P. 56(c)(4). 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). The Court may grant summary judgment for the moving party “if the motion
and supporting materials—including the facts considered undisputed—show that the
movant is entitled to it.” Fed. R. Civ. P. 56(e)(3).
The Court does not determine the credibility of affiants or weigh the evidence set
forth by the non-moving party. 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).
2.

Defendant Sween’s Motion for Summary Judgment
Dr. Craig Sween is a dentist in private practice in Coeur d’ Alene, Idaho, who, in

2008, examined Kootenai County Jail inmates one or two times per month for limited
emergencies. (Declaration of Craig Sween, DDS, (“Sween Dec.”); Dkt. 39-4, ¶ 1.) In his
Complaint, Plaintiff Hayes alleges that Dr. Sween examined him in 2008 but refused to
fix a broken bridge, take x-rays, or remove a tooth that was causing him serious pain.
(Dkt. 1, p. 26.) He contends that Dr. Sween’s failure to provide treatment violated his
Eighth Amendment right against cruel and unusual punishment. (Id.)
MEMORANDUM DECISION AND ORDER - 6

In his Motion for Summary Judgment, supported by declarations and medical
records, Dr. Sween counters that he conducted thorough examinations of Plaintiff Hayes
three times over the course of four months and was not deliberately indifferent to his
dental needs during those examinations. (Dkt. 39-1, p. 4.) The Court agrees that there
are no genuine issues of material fact and that Dr. Sween is entitled to judgment as a
matter of law.
A.

Eighth Amendment Medical Standards

Plaintiff brings his claims under 42 U.S.C. § 1983, the civil rights statute. To state
a valid claim under § 1983, a plaintiff must allege a violation of rights protected by the
Constitution or created by federal statute proximately caused by the conduct of a person
acting under color of state law. Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991).
As a post-judgment prisoner, Hayes was protected only from cruel and unusual
punishment under the Eighth Amendment. To state an Eighth Amendment claim for
denial of medical care, he must show that jail officials’ “acts or omissions [were]
sufficiently harmful to evidence deliberate indifference to serious medical needs.” Estelle
v. Gamble, 429 U.S. 97, 106 (1976)). Deliberate indifference exists when an official
knows of and disregards a serious medical condition or when an official is “aware of facts
from which the inference could be drawn that a substantial risk of harm exists,” and
actually draws such an inference. Farmer v. Brennan, 511 U.S. 825, 837 (1994).
Deliberate indifference can be “manifested by prison doctors in their response to the
prisoner’s needs or by prison guards in intentionally denying or delaying access to
MEMORANDUM DECISION AND ORDER - 7

medical care or intentionally interfering with the treatment once prescribed.” Estelle v.
Gamble, 429 U.S. 97, 104-05 (1976) (footnotes omitted).
Mere indifference, medical malpractice, or negligence will not support a cause of
action under the Eighth Amendment. Broughton v. Cutter Labs., 622 F.2d 458, 460 (9th
Cir. 1980). The Ninth Circuit has clarified that if medical personnel have been
“consistently responsive to [the inmate’s] medical needs,” and there has been no showing
that the medical personnel had “subjective knowledge and conscious disregard of a
substantial risk of serious injury,” no constitutional violation has occurred. Toguchi v.
Chung, 391 F.3d 1051, 1061 (9th Cir. 2004).
B.

Facts and Analysis

Dr. Sween has supported his Motion with the notes and x-rays from his
examinations of Plaintiff Hayes, his own declaration, and the declaration of Carson
Mooney, DDS. (Dkts. 39-2, 39-3.) Based on this evidence, Dr. Sween alleges the
following facts.
Dr. Sween examined Plaintiff Hayes three times between February 2008 and July
2008, each time for a “limited emergency visit,” while Plaintiff was in the custody of the
Kootenai County Jail.1 (Sween Decl. at ¶¶ 5, 6, 7; Exhibits 1, 2, 3.)
The first visit was on February 21, 2008, during which Dr. Sween took x-rays and
extracted Plaintiff’s lower right wisdom tooth. (Sween Decl. at ¶ 5.) According to Dr.

1

Dr. Sween disputes that he was acting under color of state law when he performed dental
services for Plaintiff Hayes, but he does not seek summary judgment on that basis. (Dkt. 39-1, p. 5.)
MEMORANDUM DECISION AND ORDER - 8

Sween, Plaintiff’s upper front teeth, which “made up two of the multiple abutments used
in previous treatment to support a long span upper bridge,” had severe periodontal
disease. (Id.) Dr. Sween asserts that he explained to Plaintiff that extracting the upper
front teeth – Nos. 8 and 9 – “would result in him losing his bridge,” and that Plaintiff
“indicated he wanted to wait on treatment of his upper teeth.” (Id.) The
contemporaneous notes for this visit read, “#8 severe perio, it is part of a long span
[illegible] bridge. Pt. to wait for treatment.” (Dkt. 39-4, Exhibit 1.) Dr. Sween prescribed
antibiotics and pain medication for the extraction of the wisdom tooth. (Id.)
Complaining of a cavity in his lower right teeth, Plaintiff next saw Dr. Sween
about ten weeks later, on May 1. (Sween Decl. at ¶ 6.) During that visit, Dr. Sween took
x-rays of Plaintiff’s teeth, removed decay from a cavity, and filled the cavity. (Id.) He
advised Plaintiff that because of the depth of the cavity, he could need “endodontics” or
an extraction of the tooth in the future. (Id.)
At the final visit, on July 17, 2008, Plaintiff requested that Dr. Sween check his
upper teeth, which were still causing him pain. (Sween Decl. at ¶ 7.) Dr. Sween
examined the teeth and took 9 x-rays. (Id.) He concluded that Plaintiff had “periapical
radiolucencies” in certain teeth, that tooth No. 2 was “supererupted,” and that Plaintiff
had advanced periodontal disease and decay in several of these teeth. (Id.) Dr. Sween
explained the situation to Plaintiff and “suggested he have these remaining upper teeth
extracted and use a denture.” (Id.) Dr. Sween also “discussed the possibility of an
implant retained upper denture in the future.” (Id.) He asserts that Plaintiff “indicated
MEMORANDUM DECISION AND ORDER - 9

that he was not interested in treatment at that time and wanted to consider my suggested
treatment.” (Id.) The record for this visit indicates that Dr. Sween “suggest Ext
remaining upper teeth w/ pt. Discussed poss. implant [illegible] palateless.” (Id.)
Carson Mooney, DDS, has reviewed Dr. Sween’s records and concludes “that Dr.
Sween’s dental care and treatment of Michael Hayes was appropriate and within the
standard of care for a general practicing dentist in Coeur d’Alene in February through
July 2008.” (Declaration of Dr. Carson Moody; Dkt. 39-3, at ¶ 5.)
Dr. Sween has come forward with a prima facie case that he was not deliberately
indifferent to Plaintiff’s serious medical or dental needs. In particular, according to the
evidence he has submitted, Dr. Sween examined Plaintiff on three occasions over a five
month span for limited emergency care when the Kootenai County Jail scheduled those
visits. He extracted a wisdom tooth on February 21 and prescribed pain medication, filled
a cavity on May 1, and diagnosed Plaintiff’s severe periodontal disease on July 17 and
explained Plaintiff’s options for treating the condition but Plaintiff wanted to weigh his
options before deciding on a course of treatment.
In his response, Plaintiff admits that he saw Dr. Sween three times between
February and July of 2008. (Affidavit of Michael T. Hayes (“Hayes Aff.”), Dkt. 58-2, p.
2.) He also admits that Dr. Sween took x-rays on February 21, 2008, which “showed
victim Hayes two upper front teeth No. 8 and 9 had sever[e] periodontal disease.” (Id.)
Plaintiff’s dispute now centers on Dr. Sween’s assertion that he discussed possible
treatment options with Plaintiff and that Plaintiff decided to wait. Plaintiff contends that
MEMORANDUM DECISION AND ORDER - 10

Dr. Sween “refused treatment” for teeth Nos. 8 and 9 on February 21, refused unspecified
treatment again on May 1, and refused to treat Plaintiff’s “bridge and upper teeth” on July
17. (Hayes Aff. at 2.) Plaintiff concludes that “Dr. Sween’s allegation that victim
Michael T. Hayes elected to wait on any treatment of his upper teeth and dental bridge is
untrue[,] meritless[,] and a lie.” (Id.)
Once the moving party made a prima facie case for summary judgment, the nonmoving party cannot rely on general denials; the non-moving party must produce
probative evidence that demonstrates that there is a genuine issue of material fact for trial.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249–50, 256–57 (1986). Moreover, the
opposing party must come forward with more than a “conclusory, self-serving affidavit,
lacking detailed facts and any supporting evidence.” FTC v. Publ’g Clearing House, Inc.,
104 F.3d 1168, 1171 (9th Cir. 1997).
Here, Plaintiff has provided no factual detail in his affidavit to support his
conclusory allegation that Dr. Sween has “lied” about refusing to treat him, an allegation
that is contradictory both to Dr. Sween’s recollection of the examinations and his
contemporaneous notes and records. In the record of the first visit, the notes indicate that
“#8 severe perio, it is part of a long span [illegible] bridge. Pt. to wait for treatment.”
(Dkt. 39-4, Exhibit 1.) (Emphasis added.) On May 1, Dr. Sween noted that he provided a
“temp fill 31” and “pulp cap.” (Id. at Exhibit 2.) The record of the last visit on July 17
indicates that Dr. Sween suggested “Ext remaining upper teeth w/ pt. Discussed poss.
implant [illegible] palateless.” (Dkt. 39-4, Exhibit 3.) Plaintiff has failed to provide any
MEMORANDUM DECISION AND ORDER - 11

evidence, beyond his conclusory claim, from which a jury could reasonably conclude that
Dr. Sween fabricated these records to fit some type of after-the-fact narrative of adequate
care.
Plaintiff’s reliance on Kootenai County Jail written “kites,” attached as exhibits,
does not assist him. While the kites show that Plaintiff asserted various complaints about
his teeth, none tends to establish that Dr. Sween refused to treat him or was otherwise
deliberately indifferent to his needs.
In a kite dated February 1, 2008, Plaintiff informed Jail staff that he had a broken
tooth and was in pain. (Dkt. 57-1, p. 4.) An appointment with Dr. Sween was scheduled
for February 21, and he extracted Plaintiff’s lower right wisdom tooth. Dr. Sween’s
records indicate that he then informed Plaintiff that if teeth nos. 8 and 9 were removed, he
could lose his bridge, but that Plaintiff would wait to make that decision. (Dkt. 39-4,
Exhibit 1.) None of Plaintiff’s kites contradict that version of events of the February 21
visit. Instead, on April 21, Plaintiff requested another appointment to have his teeth
cleaned and cavities filled. (Id. at 5.) Although staff responded that the Jail does not pay
for routine cleanings and will only pay for “temporary fillings,” Plaintiff was seen by Dr.
Sween on May 1 and one of his cavities was filled. When he complained again in May
and June about pain in his upper teeth (id. at 7), the July 21 appointment was scheduled.
At that visit, Dr. Sween noted Plaintiff’s severe periodontal disease and discussed
possible treatments, which included extracting the upper teeth and using a denture, but he
wrote that Plaintiff was undecided. It was only after that last visit, on August 1, that
MEMORANDUM DECISION AND ORDER - 12

Plaintiff wrote a kite claiming to need “oral surgery to take out the broken bridge,” but he
was transferred back to state prison on August 25 before any other action was taken. (Id.
at 8.)
The Court finds that Plaintiff’s allegation that Dr. Sween has lied is conclusory,
lacking in factual specificity, does not create a triable issue of fact. It is not a question of
resolving credibility issues on summary judgment, which would be improper, but an issue
of insufficient evidence. The evidence as a whole shows that Dr. Sween provided
reasonable and adequate care and was not deliberately indifferent to Plaintiff’s serious
dental needs. There is little doubt that Plaintiff had serious dental problems, but the
Eighth Amendment does not demand the best care available at any cost, and some
medical problems do not lend themselves to quick or simple solutions, or the precise
solution that the patient may want.
There being no genuine issues of material fact, Defendant Sween’s Motion for
Summary Judgment will be granted.
3.

Kootenai County Defendants’ Motion for Summary Judgment
Plaintiff Hayes has also sued employees of Kootenai County for his treatment at

the Jail under several legal theories. After an initial review of the Complaint, the Court
allowed him (and other plaintiffs now dismissed) to proceed against these Defendants on
claims of overcrowding, lack of exercise, and lack of winter clothing. (Dkt. 4, pp. 2-3.)
Plaintiff Hayes was also permitted to go forward with his claims of retaliation, excessive
force, denial of adequate dental care, and the denial of access to the courts. (Id. at 3-10.)
MEMORANDUM DECISION AND ORDER - 13

Finally, the Court allowed him to proceed with his claim that a block on calls to his
mother violated his First Amendment rights. (Id. at 11.)
All Kootenai County Defendants are represented by the same counsel, and they
have filed a Motion for Summary Judgment over the remaining claims against them.
A.

Outdoor Exercise

Plaintiff claims that he was denied outdoor exercise for several months of his
incarceration at the Jail, in violation of the Eighth Amendment. Defendants argue that
Plaintiff had daily recreation outside his cell and that inclement weather precluded outside
recreation. The Court concludes that a genuine issue of material facts exists as to whether
Defendants violated Plaintiff’s Eighth Amendment right to outdoor exercise while
incarcerated.
The Eighth Amendment proscribes the “unnecessary and wanton infliction of
pain” which must “draw its meaning from the evolving standards of decency that mark
the progress of a maturing society.” Gregg v. Georgia, 428 U.S. 153, 173 (1976). Under
the Eighth Amendment, prison officials have a duty to “provide humane conditions of
confinement.” Farmer v. Brennan, 511 U.S. 825, 826 (1994). Denial of outdoor exercise
may give rise to an Eighth Amendment claim for deprivation of humane conditions of
confinement if a prisoner can establish the objective and subjective requirements. See
Allen v. Sakai, 48 F.3d 1082, 1087 (9th Cir.1994); Farmer, 511 U.S. at 825-26.
Under the objective requirement of the Eighth Amendment analysis, the “prison
official’s act or omission must result in the denial of ‘the minimal civilized measure of
MEMORANDUM DECISION AND ORDER - 14

life’s necessities.’” Farmer, 511 U.S. at 834 (quoting Rhodes v. Chapman, 452 U.S. 337,
347 (1981)). The Ninth Circuit has stated that “some form of regular outdoor exercise is
extremely important to the psychological and physical well being of . . . inmates.” Spain
v. Procunier, 600 F.2d 189, 199 (9th Cir.1979) (holding that prisoner in long-term and
continuous segregation must be provided regular outdoor exercise unless “inclement
weather, unusual circumstance, or disciplinary needs” make it impossible). In Allen v.
Sakai, 48 F.3d 1082 (9th Cir.1994), a prisoner alleged that for six weeks he was only
permitted forty-five minutes of outdoor exercise a week. The court denied the
defendants’ motion for summary judgment finding that the plaintiff had satisfied the
objective requirement of the Eighth Amendment analysis by claiming he was deprived a
basic human need. Id. at 1088. In Lopez v. Smith, 203 F.3d 1122, 1133 (9th Cir. 2000),
the court found that a prisoner’s allegation that he was deprived of all outdoor exercise
for six and half weeks satisfied the objective requirement of an Eight Amendment
analysis.
In the instant case, Plaintiff has presented evidence that he was denied outdoor
exercise for 109 days during the months of January through April of 2008. (Dkt. 66, p.
2.) While Defendants correctly note that outdoor recreation is not an absolute right and
can be curtailed for reasons such as inclement weather and other “substantial” reasons,
Defendants have not come forward with “substantial” reasons for denying Plaintiff
outdoor exercise for nearly four months. (Dkt. 36-1, p. 8, citing Norwood v. Vance, 591
F.3d 1062 (9th Cir. 2010)). Plaintiff was denied outdoor exercise for a significant period
MEMORANDUM DECISION AND ORDER - 15

longer than those alleged in Allen and Lopez. Furthermore, while Defendants argue that
the “Kootenai County Public Safety Building Recreation Roster” evidences that Plaintiff
was let out of his cell for an hour nearly everyday during the time in question, the log
does not demonstrate that Plaintiff was permitted outside recreation. (Dkt. 64, p. 3; Dkt.
36-7, pp. 8-23.) Indeed the log does not specify any activity engaged in by the inmates,
nor demonstrate that the inmates were provided indoor recreation. (Id.) In viewing all
inferences drawn from the underlying facts in the light most favorable to the nonmoving
party, the Court concludes that there is a genuine issue as to whether Plaintiff was
unconstitutionally deprived of a basic need for outdoor exercise.
Plaintiff has also met the subjective element to defeat summary judgment. The
subjective element of the Eighth Amendment requires “deliberate indifference.” Allen, 48
F.3d at 1087. Deliberate indifference is found when a prison official knows of and
disregards an excessive risk to inmate health or safety. Id. Here, Defendants were aware
of a prisoner’s need for outside recreation and yet, based on the evidence currently before
the Court, they knowingly denied outdoor recreation to Plaintiff for nearly four months.
(Dkt. 67, pp. 5-6.) Defendants’ attempt to excuse the deprivation by explaining that
inclement weather and staffing made it difficult to provide outdoor exercise is not
sufficiently supported by factual and evidentiary specificity. Defendants do not indicate
which days or weeks during that time span the weather was inclement, or what exactly
“inclement” means in this context. The Court recognizes that practical difficulties arise
administering a correctional or detention facility from time to time and that they may
MEMORANDUM DECISION AND ORDER - 16

justify an occasional and brief deprivation of an inmate’s opportunity to exercise outside.
However, for purposes of summary judgment, the Court cannot accept Defendants
explanation, (without more specific evidence), for the amount of time at issue here. It
may be that Defendants will provide more detailed evidence at trial and prevail on this
claim, but they have not shown the absence of disputed issues of material fact.
Accordingly, a rational fact-finder could determine after hearing all the evidence
that the Defendants acted with deliberate indifference to Plaintiff’s basic human need for
outside exercise.
B.

Adequate Clothing

Plaintiff claims that he was not supplied with adequate clothing for the winter
months. Defendants contend that Plaintiff cannot demonstrate an “unnecessary and
wanton infliction of pain,” because he was not forced to go outside for recreation. The
Court concludes that Defendants are entitled to summary judgment.
Adequate clothing is one of life’s necessities that prison officials cannot deny an
inmate. Helling v. McKinney, 509 U.S. 25, 32 (1993); Hoptowit v. Ray, 682 F.2d 1237,
1258 (9th Cir. 1982). Indeed “[t]he denial of adequate clothing can inflict pain under the
Eighth Amendment.” Walker v. Sumner, 14 F.3d 1415, 1421 (9th Cir. 1994), overruled
on other grounds by Sandin v. Conner, 515 U.S. 472, 483-84 (1995). However, as set
forth above, in order for denial of adequate clothing to rise to the level of an Eighth
Amendment claim for deprivation of humane conditions, a prisoner must establish
objective and subjective requirements. Farmer, 511 U.S. at 825-26.
MEMORANDUM DECISION AND ORDER - 17

The objective requirement dictates that the Court consider whether the deprivation
alleged is “sufficiently serious.” Id. A constitutional violation is more apt when inmates
are denied clothing in extreme weather conditions. See, e.g., Palmer v. Johnson, 193 F.3d
346 (5th Cir.1999) (inmate was forced to overnight outdoor confinement having to
withstand strong winds and cold without the protection of jackets or blankets; court found
that, although the degree to which the temperature actually fell was relevant to a
conclusive determination, the inmate’s exposure to the elements arising out of this
incident could have risen to the level of a constitutional deprivation); Mitchell v.
Maynard, 80 F.3d 1433 (10th Cir. 1996) (material issue of fact precluded summary
judgment regarding Eighth Amendment violation where inmate alleged that officials
failed to provide him with adequate clothing); Gordon v. Faber, 973 F.2d 686 (8th Cir.
1992) (unconstitutional to require inmates to stay outdoors for 1-1 3/4 hours in freezing
weather for shakedown search without proper clothing); Knop v. Johnson, 977 F.2d 996,
1012 (6th Cir. 1992) (affirming district court’s decision that inmates exposed to harsh
winter conditions without proper winter clothing may suffer from infliction of pain that
are without penological justification in violation of Eighth Amendment); Balla v. Idaho
State Bd. of Corrections, 595 F.Supp.1558, 1575 (D. Idaho 1984) (prison officials
violated the Constitution when they provided inmates with clothing that was “patently
insufficient to protect [them] from the cold in the winter months”).
Plaintiff has not alleged that he was forced to go outside for recreation in
inclement weather; in fact, Plaintiff complains that he was not permitted to go outside for
MEMORANDUM DECISION AND ORDER - 18

weeks. For that reason, there is no evidence on which a jury could find that he was
exposed to extreme discomfort due to a lack of adequate winter clothing. Furthermore,
Plaintiff has not indicated what clothing he did have while he was held at the Jail.
Consequently, Plaintiff has not established that this alleged deprivation is
“sufficiently serious” under the objective requirement of the Eighth Amendment. It is
therefore unnecessary to consider the subjective component.
While Defendants are entitled to summary judgment on the issue of adequate
clothing as a stand-alone claim, evidence that the Jail refused to provide coats and warm
clothing in the winter months may be relevant at trial as to whether Defendants were
deliberately indifferent to Plaintiff’s basic need for outdoor exercise.
C.

Overcrowding

The fact that a prison or jail is overcrowded “has no constitutional significance
standing alone.” Balla v. Idaho State Bd. of Corrections, 869 F.2d 461 (9th Cir. 1989).
Rather, “only when overcrowding is combined with other factors such as violence or
inadequate staffing does overcrowding rise to an Eighth Amendment violation.” Id.
Plaintiff does not respond to Defendants’ arguments regarding overcrowding and
sanitary conditions, thus Plaintiff does not raise a genuine issue of material fact regarding
the same. Accordingly, Defendants are entitled to summary judgment on the claim of
overcrowding and sanitary conditions in the jail.
As with the winter clothing claim, however, because Plaintiff has successfully
raised a genuine issue of material fact with regard to outdoor exercise, he may be able to
MEMORANDUM DECISION AND ORDER - 19

present evidence at trial to show that overcrowding at the Jail contributed to that alleged
constitutional violation.
D.

Retaliation and Excessive Force

Plaintiff alleges he is the victim of retaliation and excessive force as the result of a
harsh “shakedown” conducted in response to his filing of grievances. Defendants argue
that the “shakedown” served a legitimate penological purpose. The Court concludes that
there are no genuine issues of material fact, and that Defendants are entitled to summary
judgment.
To state a claim of unconstitutional retaliation under the First and Fourteenth
Amendments, a prisoner must allege that a state actor took some adverse action against
him because of his protected conduct and that the action did not reasonably advance a
legitimate correctional goal. Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005).
Courts should “afford appropriate deference and flexibility to prison officials in the
evaluation of proffered legitimate penological reasons for conduct alleged to be
retaliatory.” Pratt v. Rowland, 65 F.3d 802, 808-810 (9th Cir. 1995); see also Barnett v.
Centoni, 31 F.3d 813, 816 (9th Cir. 1994) (per curiam) (preserving institutional order,
discipline and security are legitimate penological goals).
In addition, the Cruel and Unusual Punishment Clause of the Eight Amendment
protects prisoners from the use of excessive physical force. Hudson v. McMillian, 503
U.S. 1, 8-9 (1992). To state an Eighth Amendment claim, a plaintiff must allege that the
use of force was an “unnecessary and wanton infliction of pain.” Jeffers v. Gomez, 267
MEMORANDUM DECISION AND ORDER - 20

F.3d 895, 910 (9th Cir.2001). The malicious and sadistic use of force to cause harm
always violates contemporary standards of decency, regardless of whether or not
significant injury is evident. Hudson, 503 U.S. at 9; see also Oliver v. Keller, 289 F.3d
623, 628 (9th Cir. 2002) (Eighth Amendment excessive force standard examines de
minimis uses of force, not de minimis injuries). However, not “every malevolent touch
by a prison guard gives rise to a federal cause of action.” Hudson, 503 U.S. at 9.
Whether force used by prison officials was excessive is determined by inquiring if the
“force was applied in a good-faith effort to maintain or restore discipline, or maliciously
and sadistically to cause harm.” Id. at 6-7.
In the present case, Defendants are entitled to summary judgment as to Plaintiff’s
claims of retaliation and excessive force because Plaintiff has not demonstrated that there
are genuine factual issues as to whether the “shakedown” reasonably advanced legitimate
corrections goals – that being the safety, security, and sanitation of the Kootenai County
Jail. Plaintiff alleges that the shakedown was conducted in retaliation for a grievance he
submitted earlier that same day, (Dkt. 64, p.10), but he does not address Defendants
contention that the shakedown was the result of concealing food and other contraband
from the deputies. (Dkt. 36-1, p.15.) The Affidavit of Lt. John Holecek evidences that
Kootenai County Jail has an on-going problem with inmates hoarding food items from
meals, which contributes to ants or other bugs in the cells. (Dkt. 36-6, ¶23.) The
Kootenai County Jail is required to account for all food items in order to maintain the
health, safety, security and sanitation of the Jail. (Id.; Dkt. 38-8.) Plaintiff does not
MEMORANDUM DECISION AND ORDER - 21

dispute that food items and contraband were found in his cell in violation of the Jail’s
policy against hoarding food. Consequently, the evidence presented to the Court
indicates that the “shakedown” served a legitimate penological purpose.
The Court concludes that Plaintiff has not raised a genuine issue of material fact as
to his claims of retaliation and excessive force regarding the “shakedown” on July 19,
2008.
E.

Adequate Dental Care

Plaintiff alleges that he was denied adequate dental care during his incarceration at
the Jail. This claim relies on many of the same factual allegations as the claim against Dr.
Sween, which the Court has already concluded does not survive summary judgment. For
their part, the Kootenai County Defendants assert that they were responsive to Plaintiff’s
dental needs and that his claim focuses only on a difference of opinion as to the correct
medical treatment, rather than deliberate indifference to his needs. The Court agrees.
As the Court has previously discussed, deliberate indifference sufficient to prove
an Eighth Amendment medical claim exists when an official knows of and disregards a
serious medical condition or when an official is “aware of facts from which the inference
could be drawn that a substantial risk of harm exists,” and actually draws such an
inference. Farmer v. Brennan, 511 U.S. 825, 838 (1994). Differences in judgment
between an inmate and prison medical personnel regarding appropriate medical diagnosis
and treatment are not enough to establish a deliberate indifference claim. See Sanchez v.
Vild, 891 F.2d 240, 242 (9th Cir. 1989).
MEMORANDUM DECISION AND ORDER - 22

Mere indifference, medical malpractice, or negligence will not support a cause of
action under the Eighth Amendment. Broughton v. Cutter Lab, 622 F.2d 458, 460 (9th
Cir. 1980). A mere delay in treatment does not constitute a violation of the Eighth
Amendment, unless the delay causes serious harm. Wood v. Housewright, 900 F.2d 1332,
1335 (9th Cir. 1990).
Here, Plaintiff argues that Jail staff failed to ensure that his severe periodontal
disease was treated adequately. (Dkt. 64, p. 30.) Specifically, Plaintiff contends that
despite his multiple requests to have his “permanent dental bridge taken out and tooth no.
8 pulled to stop future bone loss and stop the gums from receding further,” Defendants
refused to see that this was done. (Dkt. 64, pp. 26-27, 29-31.) In addition, Plaintiff
contends that Defendants refused to save “tooth no. 32,” because they did not perform a
root canal or place a permanent crown on the tooth. (Id., pp. 27-28.)
Relying on Plaintiff’s records, Defendants counter that they responded
appropriately to every dental request submitted by Plaintiff during his eight months of
incarceration. (Dkt. 36-1, p. 20.) Defendants note that Plaintiff was seen by Dr. Sween
on three occasions. (Id.) His first visit was on February 21, 2008, twenty days after he
submitted his initial request to see a dentist. (Id., p. 19.) As noted above, Dr. Sween took
x-rays during that visit, extracted tooth no. 32, (due to it being un-restorable), and
prescribed pain medication and antibiotics. (Id.)
Plaintiff submitted a second request for dental care in a kite on April 21,
requesting to have his teeth cleaned, cavities filled, and a full dental examination. (Id.)
MEMORANDUM DECISION AND ORDER - 23

The Jail’s medical staff responded to Plaintiff’s request as follows: “The jail only
provides temporary fillings and extractions. No cleanings, etc. Read the attached.” (Id.)
Plaintiff was put on the inmate list for dental exams and was seen by Dr. Sween on May
1. (Id.) During his examination, Dr. Sween took more x-rays and tooth no. 31 was
temporarily filled. (Id.)
On May 6 (just five days after his last scheduled appointment), Plaintiff submitted
another request for dental care requesting that his teeth be cleaned, a full dental
examination and his bridge be replaced. The Jail’s medical staff responded by stating:
“Mr. Hayes - The jail only provides temp filling and extractions - period.” (Id., p. 20.)
On June 27, Plaintiff submitted another request to see the dentist for tooth pain.
(Id.) He was seen by Dr. Sween on July 17. (Id.) Dr. Sween took additional x-rays and
described treatment options, including the extraction of Plaintiffs’ remaining top teeth be
extracted. (Id.) No extraction occurred. (Id.) On August 1, Plaintiff submitted a request
for oral surgery to have his bridge removed, but was transported back to IDOC on August
25. (Id.)
Much of the Court’s analysis pertaining to Dr. Sween’s Motion for Summary
Judgment applies with equal force to the Kootenai County Defendants’ Motion. Like Dr.
Sween, these Defendants have offered evidence that they responded to Plaintiff’s dental
needs and arranged to have him examined and treated, although it may not have been
precisely the treatment Plaintiff sought. This is likely a result of Plaintiff’s serious and
pre-existing dental problems for which no perfect or painless options existed. A
MEMORANDUM DECISION AND ORDER - 24

difference in judgment between an inmate and medical personnel regarding an
appropriate medical diagnosis or treatment is not enough to establish a deliberateindifference claim. Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996). Furthermore,
inmates in a county jail are not entitled to unqualified access to unqualified dental care.
In Dean v. Coughlin, 804 F.2d 207 (2d Cir. 1986), the Second Circuit had occasion
to address the level of dental care required for prisoners. The court provided the
following:
[A] correctional facility is not a health spa, but a prison in which convicted felons
are incarcerated. Common experience indicates that the great majority of . . .
prisoners would not in freedom or on parole enjoy the excellence in dental care
which the plaintiffs understandably seek on their behalf. We are governed by the
principle that the objective is to “provide the minimum level of [dental] care
required by the Constitution. [Citations omitted.] “[T]he essential test is one of
medical necessity and not one simply of desirability.”
Id. at 215. Plaintiff has not demonstrated that Defendants were deliberately indifferent to
his dental necessities. Accordingly, the Kootenai County Defendants are entitled to
summary judgment on Plaintiff’s claim of inadequate dental care.
F.

Access to the Courts

Plaintiff next alleges that Defendants deprived him of his right to access the courts
due to insufficient access to legal materials. Defendants argue that Plaintiff’s claim is
only that he was inconvenienced, not that he was denied access to the courts. The Court
concludes that Defendants are entitled to summary judgment.
In Bounds v. Smith, 430 U.S. 817, 828 (1977), the Supreme Court held that “the
fundamental constitutional right of access to the courts requires prison authorities to assist
MEMORANDUM DECISION AND ORDER - 25

inmates in the preparation and filing of meaningful legal papers by providing prisoners
with adequate law libraries or adequate assistance from persons trained in the law.”
In Lewis v. Casey, 518 U.S. 343 (1996), the Supreme Court explained the
limitations of the Bounds holding. There, the Court emphasized that “the Constitution
does not require that prisoners (literate or illiterate) be able to conduct generalized
research, but only that they be able to present their grievances to the courts–a more
limited capability that can be produced by a much more limited degree of legal
assistance.” Id. at 360. To state a claim, the prisoner must show that he suffered an
actual injury as a result of the alleged denial to access, such as having a complaint
dismissed for “for failure to satisfy some technical requirements” due to the prison’s
interference, or by being “so stymied [by denial of legal access] that [the prisoner] was
unable even to file a complaint.” Id. In addition, the Supreme Court held that the right
does not encompass every type of legal proceeding; rather, it is limited to direct appeals
from convictions, habeas petitions, and civil rights actions to “vindicate basic
constitutional rights.” Id. at 354 (citations omitted).
In this case, Plaintiff alleges that the law library at Kootenai County Jail consists
of only one law computer for the entire jail population of over 400 prisoners. (Dkt. 64, p.
13.) He contends the library contains no law books, no qualified legal claim packets and
forms, no white paper and black pens, and no Federal Rules of Civil Procedure. (Id., pp.
12-19.) He further contends that he was only given access to the law library during the
early morning hours and for only one hour at a time. (Id., p. 13.) Plaintiff also claims
MEMORANDUM DECISION AND ORDER - 26

that the jail does not provide anyone trained in the law to provide legal assistance to
prisoners. (Id.)
As a result of these alleged inadequacies, Plaintiff contends he was “stymied” in
his efforts to file a civil rights complaint in federal court from January 4, 2008 through
August 25, 2008. (Id.) Plaintiff sought to file a class action suit for “failure to protect
claims in inmate on inmate assaults.” (Id., p. 20.) Plaintiff claims that he was denied
access particularly by the Jail’s failure to provide him with a black ink pen, which
Plaintiff claims is required for federal filings under Local Rule 5.2. (Id., p. 14.) He
asserts that he was finally able to bring the claim on March 16, 2009, but with only him as
a plaintiff. (Id.)
Defendants argue Plaintiff’s complaints are only of inconvenience, not access,
thus, they do not rise to the level of a constitutional violation. (Dkt. 67, p. 10.)
Defendants contend that Plaintiff was never denied access to the legal materials he
needed to file a grievance or civil rights claim. (Dkt. 36-1, p. 23.) Defendants contend
that while Plaintiff was denied black ink pens for safety and security reasons, he was
given a pencil, paper and access to the law library. (Dkt. 67, p. 9.) In addition,
Defendants contend that Plaintiff has not demonstrated an actual injury as a result of the
alleged violations. (Id., pp. 9-10.)
The Court is persuaded that no genuine issues of material fact exist as to this claim
and that Defendants are entitled to summary judgment. Plaintiff does not have “an
abstract, freestanding right to a law library or legal assistance.” Casey, 518 U.S. at 351.
MEMORANDUM DECISION AND ORDER - 27

Indeed, “an inmate cannot establish relevant actual injury simply by establishing that his
prison’s law library or legal assistance program is subpar in some theoretical sense.” Id.
Moreover, Plaintiff has failed to demonstrate an actual injury – that he was
precluded from filing his complaint. While Plaintiff was inconvenienced with the hours
he was allowed to use the library, he nevertheless was permitted the time. (Id., pp. 13,
17-18.) In addition, Plaintiff has not demonstrated that deprivation of a black ink pen
precluded him from filing any pleadings, in this Court or any other jurisdictions. While
Local Rule 5.2 requires that pleadings in paper form be legible and submitted in “black
print on white paper,” the rule does not require that the print be in black ink.
Furthermore, Plaintiff has not shown that he was actually prejudiced in bringing the
action on March 16, 2009. Thus, Plaintiff has failed to demonstrate a material issue of
fact regarding injury and Defendants are entitled to summary judgment.
H.

Denied Telephone Calls

Plaintiff alleges that he was denied his First Amendment right to place outgoing
phone calls to family members. Specifically, Plaintiff claims that a block was put on his
outgoing calls from the Jail to his mother’s phone number for a period of ten weeks.
Defendants assert that Kootenai County Jail does not place such blocks.
Prisoners have a First Amendment right to telephone access, subject to reasonable
security limitations. Keenan v. Hall, 83 F.3d 1083, 1092 (9th Cir. 1996). But, in this
case, Plaintiff has not demonstrated that his rights were violated. Plaintiff cannot “rest
upon the mere allegations or denials of [his] pleading, but must set forth specific facts
MEMORANDUM DECISION AND ORDER - 28

showing there is a genuine issue for trial.” Mattos v. Aragaon, 590 F.3d 1082, 1085 (9th
Cir. 2010). Defendants set forth in the Affidavit of John Holecek that Kootenai County
Jail does not place blocks on phone numbers. (Dkt. 36-6, ¶55.) Defendants further
provide that Plaintiff was informed that no such block was placed by the jail and that such
would have to be resolved by his mother, as blocks are placed by the receiver. (Dkt. 368, p. 8.) While Plaintiff contends that his mother made several complaints to the jail, both
in writing and verbally, (suggesting that it was not his mother who placed the block),
Plaintiff offers no evidence to support this contention. (Dkt. 64, p. 33.) Accordingly,
Defendants are entitled to summary judgment on this claim.
4.

Qualified Immunity
The Kootenai County Defendants claim they are entitled to qualified immunity

because they acted reasonably and did not violate Plaintiff’s clearly established rights.
The Court has concluded that there are genuine issues of material fact regarding whether
Defendants violated Plaintiff’s right to outdoor exercise, thus summary judgment is
inappropriate on that particular issue.
In § 1983 actions, the doctrine of qualified immunity protects state officials from
personal liability for on-the-job conduct so long as the conduct is objectively reasonable
and does not violate an inmate’s clearly-established federal rights. Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982) (citations omitted). Contrarily, a state official may be held
personally liable in a § 1983 action if he knew or should have known that he was
violating a plaintiff's clearly-established federal rights. Id. True to its dual purposes of
MEMORANDUM DECISION AND ORDER - 29

protecting state actors who act in good faith and redressing clear wrongs caused by state
actors, the qualified immunity standard “gives ample room for mistaken judgments by
protecting all but the plainly incompetent or those who knowingly violate the law."
Hunter v. Bryant, 502 U.S. 224, 227 (1991).
The threshold question in considering application of the qualified immunity
defense is usually whether, “[t]aken in the light most favorable to the party asserting the
injury, . . . the facts alleged show the [defendant's] conduct violated a constitutional
right.” Saucier v. Katz, 533 U.S. at 201 (citing Siegert v. Gilley, 500 U.S. 226, 232
(1991)). If, viewing the alleged injuries in a light most favorable to the plaintiff, the
Court finds that a constitutional right appears to have been violated, it proceeds to the
next step, which is to inquire whether the right was clearly established. Id. The Supreme
Court has recently held that a reviewing court may address whether the right was clearly
established before taking up whether a constitutional violation was shown on the facts of
the case before it, if that is the easier path. Pearson v. Callahan, 555 U.S. 223, 226
(2009).
To determine whether the right was clearly established, a court turns to the law
existing at the time of the alleged act. Osolinski v. Kane, 92 F.3d 934, 936 (9th Cir. 1996)
(citation omitted). The inquiry of whether a right was clearly established “must be
undertaken in light of the specific context of the case, not as a broad general proposition.”
Saucier 533 U.S. at 201. For the law to be clearly established, “[t]he contours of the
right” must be sufficiently clear that a reasonable official would understand that his
MEMORANDUM DECISION AND ORDER - 30

conduct violates that right. Anderson v. Creighton, 483 U.S. 635 (1987).
Application of qualified immunity is appropriate where “the law did not put the
[defendant] on notice that his conduct would be clearly unlawful. Id., 533 U.S. at 195.
However, if there is a genuine dispute as to the “facts and circumstances within an
officer’s knowledge,” or “what the officer and claimant did or failed to do,” summary
judgment is inappropriate. Act Up!/Portland v. Bagley, 988 F.2d 868, 873 (9th Cir.
1993). When a § 1983 defendant makes a properly supported motion for summary
judgment based on immunity, the plaintiff has the obligation to produce evidence of his
own; the district court cannot simply assume the truth of the challenged factual
allegations in the complaint. Butler v. San Diego District Attorney’s Office, 370 F.3d
956, 963 (9th Cir. 2004).
As the Court has already ruled in favor of Defendants on summary judgment
concerning the claims of inadequate clothing, overcrowding, retaliation and excessive
force, adequate dental care, access to the courts and denied telephone calls, the Court will
not address qualified immunity as to those claims as the issue is moot. The Court will
address qualified immunity with regard to the outdoor exercise claim.
Based upon the above analysis, the Court concludes that the defense of qualified
immunity cannot shield Defendants from Plaintiff’s claim of being denied outdoor
exercise, because the alleged denial could be found by a jury to be a violation of a clearly
established constitutional right of which a reasonable person should have known. The
Supreme Court and the Ninth circuit have held that denial of outdoor exercise may give
MEMORANDUM DECISION AND ORDER - 31

rise to an Eighth Amendment claim for deprivation of humane conditions of confinement.
Farmer v. Brennan, 511 U.S. 825, 826 (1994); Allen v. Sakai, 48 F.3d 1082, 1087 (9th
Cir.1994). Genuine issues of material fact exist that Defendants understood the right to
outside exercise and yet denied Plaintiff the right for 109 days. Therefore, Defendants are
denied summary judgment on the issue of qualified immunity.
5.

Plaintiff’s Motion for Summary Judgment
In his “Motion and Memorandum in Opposition to Kootenai County Defendants

Motion for Summary Judgment,” Plaintiff asks this Court to “dismiss” Defendants’
Motion. The Court has construed this document primarily as containing Plaintiff’s
arguments in opposition to granting summary judgment to Defendants.
However, to the extent that Plaintiff’s response can also be construed as a crossmotion for summary judgment, he has wholly failed to establish that there are no genuine
issues of material fact and that he is entitled to judgment as a matter of law on any claim.
Plaintiff’s claim for outdoor exercise may proceed to trial because there are disputed
issues of fact to be resolved on that particular issue.

ORDER
IT IS ORDERED:
1.

Plaintiff Hayes’s Motion for Oral Argument (Dkt. 69) is DENIED.

2.

Kootenai County Defendants’ Motion to Dismiss Plaintiffs’ Claims For
Failure to Prosecute (Dkt. 59) is GRANTED as to Plaintiffs Luckado,

MEMORANDUM DECISION AND ORDER - 32

Aschinger, and Villegas, and their remaining claims against all Defendants
are dismissed, without prejudice, for failure to prosecute. Plaintiffs
Luckado, Aschinger, and Villegas are dismissed from this action.
Defendants’ Motion is DENIED as to Plaintiff Hayes.
3.

Defendant Craig Sween’s Motion for Summary Judgment (Dkt. 39) is
GRANTED.

4.

Plaintiff Hayes’s Motion and Memorandum in Opposition to Craig Sween,
DDS’s Motion for Summary Judgment (Dkt. 58), construed as a motion to
dismiss Defendant’s motion, is DENIED. The Court has considered
Plaintiff’s arguments and evidence in opposition.

5.

Kootenai County Defendants’ Motion for Summary Judgment (Dkt. 36) is
GRANTED in part and DENIED in part, as set forth above.

6.

Plaintiff Hayes’s Motion and Memorandum in Opposition to Kootenai
County Defendants’ Motion for Summary Judgment (Dkt. 65) is DENIED.
The Court has considered Plaintiff’s arguments and evidence in opposition.

7.

No later than 21 days from the date of this Order, the remaining parties
shall give notice to the Court as to whether they wish to participate in a
judicially-supervised alternative dispute resolution (ADR) process before
the case is set for trial. If all parties do not agree to participating in ADR,
the Court will set then the case for trial on the remaining claim.

MEMORANDUM DECISION AND ORDER - 33

SO ORDERED.

DATED: March 27, 2013

Honorable Edward J. Lodge
U. S. District Judge

MEMORANDUM DECISION AND ORDER - 34