Workman v. County of Ada et al
Filing
41
MEMORANDUM DECISION AND ORDER denying 33 Motion for Permission for Leave of the Court to Proceed With Presenting Exhibits With Statement in Support Thereof; granting 37 Motion for Summary Judgment. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by cjm)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
KENNETH M. WORKMAN,
Case No. 1:10-cv-00081-BLW
Plaintiff,
MEMORANDUM DECISION
AND ORDER
v.
BRENT REINKE, Director of IDOC,
Defendant.
Before the Court in this prisoner civil rights matter is Defendant Brent Reinke’s
Motion for Summary Judgment (Dkt. 37). Also pending is Plaintiff’s Motion for
Permission for Leave of the Court to Proceed with Presenting Exhibits (Dkt. 33). The
Court finds that decisional process would not be aided by oral argument, and it will
resolve these matters after consideration of the parties’ written briefing. D. Idaho L. Civ.
R. 7.1(d).
After being fully advised, the Court enters the following Order granting
Defendant’s Motion for Summary Judgment.
BACKGROUND
In 2001, Plaintiff was the driver of a vehicle on Interstate 84 that crashed into two
pickups that were legally parked, one in front of the other, on the shoulder of the
highway. (Dkt. 37-5, Ex. B.) Diane King and Anthony Barton were standing between the
MEMORANDUM DECISION AND ORDER - 1
pickups when they were struck, and both were seriously injured. (Dkt. 37-5, pp. 11-14.)
Plaintiff had high levels of heroin, amphetamine, and methadone in his blood at the time
of the crash, and the State charged him with two counts of aggravated driving under the
influence (DUI), one count of possession of a controlled substance, and a sentencing
enhancement of being a persistent violator of the law. (Dkt. 37-5, Ex. B.)
Plaintiff eventually agreed to plead guilty to the aggravated DUI counts and to the
persistent violator charge, in exchange for the State’s dismissal of the possession count
and its agreement to recommend a sentence of life in prison with 25 years fixed. (Dkt. 375, Ex. B.) Ada County District Judge Deborah Bail did not follow the recommendation
and instead sentenced Plaintiff to life in prison without the possibility of parole on each
count. (Id.)
Under the plea agreement, the State was also allowed to seek restitution, and the
prosecutor filed a Motion for Civil Judgment for Restitution in the amount of $700,000.
(Dkt. 37-6, Ex. F.) Plaintiff was represented by counsel at a restitution hearing, after
which Judge Bail ordered him to pay $32,391.44 in restitution, with interest accruing
annually. (Dkt. 37-6, Ex. G.) Judge Bail’s order also serves as a civil judgment against
Plaintiff. (Id.)
The restitution order was sent to the Idaho Department of Correction (IDOC), and,
beginning in September 2003, IDOC began deducting 25% of the funds in Plaintiff’s
inmate trust account on a monthly basis to go toward satisfying the judgment. (Dkt. 3711, Affidavit of Shirley Audens at ¶ 9.) These automatic deductions occurred pursuant to
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IDOC written policy, and the employee who implemented the policy has no discretion in
the matter. (Audens Aff. at ¶¶ 3, 6-7.) Monetary gifts to prisoners are not exempt from the
automatic withholding, unless the court that issued the order expressly exempts them. (Id.
at ¶ 8.)
On October 6, 2003, Plaintiff began filing concern forms at the prison to complain
about the deduction of funds and to request a copy of a garnishment order or a writ of
execution. (Dkt. 37-7, Affidavit of Chester Penn at ¶ 10.) Plaintiff received responses
from staff indicating that the restitution order was sufficient to justify the deductions, and
a copy of the order was sent to him. (Dkt. 37-7, Ex. D.) These responses were
unsatisfactory to Plaintiff, so on July 21, 2004, he filed a Motion to Cease and Desist
Restitution and Terminate Restitution Withholding in the state district court. (Dkt, 37-6,
Defendant’s Exhibit D.) In his Motion, Plaintiff argued that the monthly deductions had
placed a significant hardship on him while he was in prison. (Id. at 2-3.) The district court
denied the Motion without comment. (Id. at 1.)
Plaintiff was transferred to an out-of-state prison in 2007, where the deductions
apparently stopped. (Dkt. 39, p. 2.) When he returned to Idaho in 2009, prison officials
again starting deducting funds from his account. Plaintiff submitted new concern forms
on this subject, followed by grievances, all of which were unsuccessful. (Dkt. 3, Exhibits
D, E.)
On February 16, 2010, Plaintiff filed a Prisoner Civil Rights Complaint in this
Court under 42 U.S.C. § 1983. (Dkt. 3.) In his Complaint, Plaintiff alleges that he has not
MEMORANDUM DECISION AND ORDER - 3
been presented with notice or had an opportunity to object before the funds are taken out
of his account, as required by state law. (Id. at 2.) Based on this, Plaintiff claims that his
property has been taken from him without due process of law in violation of the
Fourteenth Amendment. (Id. at 2-3.)
The Court conducted an initial review of the Complaint under 28 U.S.C. § 1915(e)
and 1915A, and allowed Plaintiff to go forward with his claims against IDOC Director
Brent Reinke, Warden Phillip Valdez, and “others responsible for deducting funds who
are presently unknown to Plaintiff.” (Dkt. 14, p. 3.) All other named Defendants were
dismissed. (Id.) Plaintiff later chose to dismiss Valdez and all other unknown employees
at the Idaho Correctional Center and to proceed only against Director Reinke. (Dkts. 24,
30.)
Reinke has filed a Motion for Summary Judgment, arguing that (1) Plaintiff did
not exhaust his administrative remedies before filing his lawsuit, (2) Plaintiff’s claims are
barred by the statute of limitations, (3) his due process rights have not been violated, (4)
there is no evidence that Reinke participated personally in any alleged violations that may
have occurred, and (5) Reinke is entitled to qualified immunity from damages. (Dkt. 37-1,
p. 2.) Also pending is Plaintiff’s motion requesting permission to submit prisoner
affidavits without identifying the prisoners’ names, which the Court will address as part
of its summary judgment discussion.
For the reasons that follow, the Court concludes that Plaintiff exhausted his
administrative remedies and that this action is timely as to claims based on deductions
MEMORANDUM DECISION AND ORDER - 4
from Plaintiff’s account that occurred after February 16, 2008. Claims that accrued before
that date are untimely and will not be considered. The Court further concludes that
Plaintiff was not deprived of due process of law, and, moreover, that Reinke is entitled to
qualified immunity from damages.
EXHAUSTION OF ADMINISTRATIVE REMEDIES
1.
Standard of Law
The Prison Litigation Reform Act (PLRA) provides that “[n]o action shall be
brought with respect to prison conditions under section 1983 of this title ... until such
administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). “There is
no question that exhaustion is mandatory under the PLRA and that unexhausted claims
cannot be brought in court.” Jones v. Bock, 549 U.S. 199, 211 (2007). This requirement is
intended to give “prison officials an opportunity to resolve disputes concerning the
exercise of their responsibilities before being haled into court.” Id. at 204.
Proper exhaustion is required, meaning that “a prisoner must complete the
administrative review process in accordance with the applicable procedural rules,
including deadlines, as a precondition to bringing suit in federal court.” Woodford v. Ngo,
548 U.S. 81, 88 (2006). “The level of detail necessary in a grievance to comply with the
grievance procedures will vary from system to system and claim to claim, but it is the
prison’s requirements, and not the PLRA, that define the boundaries of proper
exhaustion.” Jones, 549 U.S. at 218.
Although Defendant has raised the exhaustion defense in his Answer and in a
MEMORANDUM DECISION AND ORDER - 5
Motion for Summary Judgment, a claim that a prisoner failed to exhaust administrative
remedies is an affirmative defense that should ordinarily be argued in an unenumerated
motion to dismiss under Rule 12(b) of the Federal Rules of Civil Procedure. Wyatt v.
Terhune, 315 F.3d 1108, 1119 (9th Cir. 2002). Unlike when reviewing a motion for
summary judgment, the Court has the discretion to resolve disputed factual issues, if
necessary. Id.
2.
The Administrative Review Process
At all relevant times, Plaintiff was incarcerated at the Idaho Correctional Center
(ICC), which is a private prison that contracts with IDOC to house prisoners for the state
of Idaho. ICC follows the same three-step administrative grievance procedure that IDOC
uses, which requires a prisoner to submit an informal concern form describing the
problem, followed by the filing of a formal grievance, and appealing any adverse
decision. (Dkt. 37-7, Affidavit of Chester Penn.)
The prisoner begins this process by routing the concern form to the staff member
most capable of addressing the problem. (Penn Aff., ¶ 6.) If the issue is not resolved, the
prisoner must then complete a grievance form and file the grievance within 30 days of the
incident. (Id. at ¶ 7.) The grievance form must contain specific information regarding the
nature of the complaint, including the dates, places, names of personnel involved, and
how the offender has been adversely affected. (Id.) The “grievance coordinator” at the
prison will route a properly completed grievance to the appropriate staff member, who
must respond within 10 days. (Id.)
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After the staff member responds, the coordinator forwards the grievance to the
“reviewing authority,” usually the deputy warden, who reviews the prisoner’s complaint
and the staff member’s response and issues a decision. (Id. at ¶ 8.) If the prisoner is
dissatisfied with the reviewing authority’s decision, he may then appeal to the “appellate
authority,” which is usually the facility head. (Id.) Once the appellate authority has issued
its decision, the grievance is then routed back to the inmate, thus concluding the
administrative review process. (Id.)
3.
Discussion
Reinke has the burden to plead and prove that Plaintiff failed to exhaust his
administrative remedies. Wyatt, 315 F.3d at 1119. In attempting to carry that burden, he
has submitted an affidavit from Chester Penn, the grievance coordinator at ICC. Penn has
searched the prison’s administrative records and asserts that while Plaintiff filed concern
forms touching on the issue of trust account deductions in 2003 through 2006, he did not
complete the administrative review process by filing grievance forms and appealing any
adverse decision. (Penn Aff., at ¶ 10.)
Penn indicates that Plaintiff did file grievances addressing this subject on
December 28, 2009, and January 14, 2010, and that Plaintiff appealed on January 22,
2010, but Defendant contends that these grievances were untimely (filed six years after
the initial garnishment of Plaintiff’s inmate account), were not specific, and failed to
name him personally. Because of these deficiencies, according to Reinke, Plaintiff has not
exhausted his remedies properly before coming to federal court.
MEMORANDUM DECISION AND ORDER - 7
While the Court agrees that Plaintiff did not complete the prison’s established
administrative review process before 2010, he clearly raised the relevant issue in his
December 29, 2009, grievance:
Inmate accounts have [been] deducting funds from my account for
restitution since 2003 illegally by failing to serve notice of garnishment on
me to satisfy my right to due process as gaurrented [sic] under the state and
federal constitution. Direct levy action by the IDOC in itself does not
exclude their responsibility to give me adequate and timely notice of the
above actions so that I could of raised a challenge to the deduction of my
funds within the 14 days after being served or commencement of action.
(Dkt. 3-2, p. 9; Dkt. 11-1; Dkt. 37-10, Def.’s Ex. K.) As a remedy, Plaintiff suggested that
unless IDOC could produce “valid documents,” it “needs to reimburse [him] for all funds
deducted between 2003 and 2009.” (Id.) His appeal was denied. (Id.)
In this grievance, Plaintiff is complaining about the allegedly unconstitutional
withholding of money from his monthly balance in his account beginning in 2003 and
continuing until 2009, based on a lack of “notice,” which essentially tracks the claim that
he has now raised in this proceeding. Contrary to Reinke’s argument, this grievance is
timely under prison rules at least as to the most recent instances of the withholding, and,
at any rate, prison administrators did not invoke untimeliness as a procedural ground on
which to dismiss the grievance.
Nor is Plaintiff’s failure to name Brent Reinke personally in a grievance fatal to
proper exhaustion. Exhaustion under the PLRA “is not per se inadequate simply because
an individual later sued was not named in the grievance,” though the necessary level of
detail in a properly completed grievance is governed by a prison’s administrative rules.
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See Jones, 549 U.S. at 219. Reinke notes correctly that IDOC written policy directs that a
grievance must “contain specific information such as dates, places, and names” (Dkt. 378, Ex. A, p. 5), but when the identity of the individual responsible for enforcing a prison
policy that is adversely affecting a prisoner is unknown to him – as appears to be the case
here – it is still possible to provide “specific information” in a grievance without
necessarily providing a name. Plaintiff’s grievances were otherwise reasonably specific as
to the actions that he was challenging and the range of dates over which those actions had
occurred, and there is no indication that administrators were confused about the nature of
his problem. To the contrary, they reviewed his complaints and found no violations that
they believed needed to be corrected.
The exhaustion requirement is not intended to be a mechanism for giving formal
notice to all potential defendants that they might be sued, but is instead designed to alert
prison administrators to an alleged problem that might be fixed before a lawsuit is filed.
Jones, 549 U.S. at 219. If an inmate has (1) set forth the “nature of the complaint” on the
grievance form with enough specificity to give notice to prison supervisors of a problem
and (2) has completed the grievance appeal process, he has “availed himself of the
administrative process the state gave him.” Butler v. Adams, 397 F.3d 1181, 1183 (9th
Cir. 2005). Plaintiff did what was required by Jones, to alert the prison to a problem, and
he did what was required by Butler, to use the materials provided by the state to complete
all of the levels of the prison grievance system.
The Court concludes that Reinke has not carried his burden to show that Plaintiff
MEMORANDUM DECISION AND ORDER - 9
failed to exhaust his administrative remedies.1
SUMMARY JUDGMENT
1.
Standard of Law
Summary judgment is appropriate where a party can show that, as to any claim or
defense, there is no genuine issue as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(1)(a). One of the principal purposes of
the summary judgment “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
defeat an otherwise properly supported motion for summary judgment; the requirement is
that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 247-48 (1986). Material facts are those that may affect the outcome of the case. See
id. at 248.
The moving party is entitled to summary judgment if that party shows that each
1
It appears that the warden did not issue a final response in Plaintiff’s appeal until after Plaintiff
filed his Civil Rights Complaint, but Reinke does not argue that Plaintiff’s failure to complete all three
steps before filing suit provides a basis for dismissal. In any case, Plaintiff contends that the prison’s
delay in returning responses to him was the cause of any delay, Dkt. 7-1, p. 4, and the Court agrees with
him that a prison cannot claim that the failure to complete a procedural step is a reason for dismissal when
the prison did not process a grievance at that step in a timely manner according to its own policies. See
Nuñez v. Duncan, 591 F.3d 1217, 1226 (9th Cir. 2010).
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issue of material fact is not or cannot be disputed. To show the material facts are not in
dispute, a party may cite to particular parts of materials in the record, or show that the
materials cited do not establish the presence of a genuine dispute, or that the adverse party
is unable to produce admissible evidence to support the fact. Fed. R. Civ. P.
56(c)(1)(A)&(B); see T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d
626, 630 (9th Cir. 1987) (citing Celotex, 477 U.S. at 322). The Court must consider “the
cited materials,” but it may also consider “other materials in the record.” Fed. R. Civ. P.
56(1)(c)(3).
The Court does not determine the credibility of affiants or weigh the evidence set
forth by the non-moving party. All inferences which can be drawn from the evidence
must be drawn in a light most favorable to the nonmoving party. T.W. Elec. Serv., 809
F.2d at 630-31 (internal citation omitted).
Rule 56(e) authorizes the Court to 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.” 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].” Anderson v. Liberty Lobby, 477
U.S. at 252.
2.
All Claims that Accrued After February 16, 2008, are Timely
Reinke contends that to the extent that Plaintiff’s due process claim is based on the
failure to give him notice and an opportunity to be heard before the first deduction from
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his trust account in September 30, 2003, his Complaint is untimely and must be
dismissed. Alternatively, he argues that only those garnishments that occurred within two
years of the filing of the Complaint on February 16, 2010, must be dismissed. The Court
agrees with the alternative argument.
In a civil rights case brought under § 1983, the statue of limitations is determined
by the law of the state in which the action arose. Wallace v. Kato, 549 U.S. 384, 387
(2007) (citing Owens v. Okure, 488 U.S. 235, 249-250 (1989); Wilson v. Garcia, 471 U.S.
261, 279-80 (1985)). Section 1983 claims are subject to the state statute of limitations for
personal injury actions because such claims have been found analogous to actions for
injuries to personal rights. Wilson, 471 U.S. at 277 (later overruled only as to claims
brought under the Securities Exchange Act of 1934). In Idaho, the limitations period for
claims alleging personal injury is two years. Idaho Code § 5-219(4).
In this case, Plaintiff cannot proceed with any claim that arose before February 16,
2008 (two years before he filed his Complaint). This would include any claims of
constitutional violations related to the original restitution order, the initial garnishment of
Plaintiff’s trust account in 2003, and garnishments that occurred up to February 16, 2008.
However, the Court liberally construes Plaintiff’s Complaint as alleging that each
deduction by IDOC violates his right to due process of law. Reinke concedes that eight
garnishments occurred after February 16, 2008, and claims based on those deductions are
timely.
3.
Plaintiff was not Deprived of Due Process of Law
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Although Plaintiff’s Complaint survives Reinke’s exhaustion and statute of
limitations defenses, the Court nonetheless concludes that there are no genuine issues of
material fact and that Reinke is entitled to judgment in his favor. On the undisputed
material facts presented here, Plaintiff has not been deprived of due process of law.
It is well established that a prisoner retains a property right in his prison trust
account. Quick v. Jones, 754 F.2d 1521, 1523 (9th Cir. 1985). Before a state or one of its
departments can take money from a prisoner’s trust account, it must have provided him
with due process of law. Due process is a flexible concept, however, and calls for such
procedural protections as the particular situation demands. Mathews v. Eldridge, 424 U.S.
319, 334 (1976). To determine the process that is due, a court must balance three factors:
(1) the private interest that will be affected by the official action; (2) the risk of an
erroneous deprivation through the procedures used and the probable value of additional or
substitute procedures; and (3) the government’s interest, including the function involved
and the fiscal and administrative burdens that the additional or substitute procedural
requirement would entail. Id. at 334-35.
As to the first Mathews factor, while Plaintiff has a private interest in his trust
account that is being affected by IDOC’s actions, that interest is not as compelling as a
non-incarcerated person’s interest in controlling his or her own bank account. A
prisoner’s management of a trust account can be limited by numerous reasonable
restrictions. See, e.g., Foster v. Hughes, 979 F.2d 130, 132-33 (8th Cir. 1992) (holding
that prisoners have no right to place their money in interest bearing accounts). More
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generally, a prisoner’s constitutional rights are subject to regulations that bear a
reasonable relationship to the legitimate penological needs of the prison. Bell v. Wolfish,
441 U.S. 520, 546 (1979); Turner v. Safley, 482 U.S. 78, 89 (1987).
Next, the risk of an erroneous deprivation of Plaintiff’s money was minimized by
the specific procedures used in this case. This is not a case in which a prisoner’s funds
were seized without any advance notice or an opportunity to be heard. Plaintiff was
instead given actual notice that the State was seeking restitution in 2002, as authorized by
Idaho Code § 19-5304, and he had an opportunity to be heard at the restitution hearing.
Plaintiff cannot claim that he was surprised that he would owe money to the victims to
compensate them for their losses, and he knew that he owed them precisely $32,391.44
after Judge Bail entered her order. He has also been aware that IDOC is deducting funds
from his account on a regular basis since at least September 2003. He received additional
process in state court by way of his Motion to Cease and Desist Restitution and Terminate
Restitution Withholding, which was denied in the state district court. (Dkt. 37-6,
Defendant’s Exhibit D.)
Prison officials have followed established statutory and administrative rules in
deducting the funds from Plaintiff’s account, further minimizing the risk of an arbitrary
deprivation. In particular, IDOC has relied on Idaho Code § 11-108 as authority to
support its actions. That statutory provision, labeled “execution of civil judgments against
prisoners,” exempts IDOC from the formal procedural requirements for executing
judgments against prisoners that would otherwise be applicable to non-prisoners. Idaho
MEMORANDUM DECISION AND ORDER - 14
Code § 11-108(1). It further authorizes IDOC to use a direct levy against inmate trust
accounts to satisfy certain judgments, and it prevents prisoners from claiming exemptions.
Idaho Code § 11-108(2),(3). IDOC has instituted a written policy that requires an
automatic deduction of 50% for any restitution order that is received, or a 25% deduction
if the prisoner is already subject to a child support order, and the employee in charge of
enforcing these rules has no discretion in the matter. Cf. Quick v. Jones, 754 F.2d 1521,
1523 (9th Cir. 1985) (finding a potentially meritorious due process claim when prison
officials deducted money for restitution after a prison disciplinary infraction without
statutory authority). The probable value or benefit of additional safeguards – such as
notice and an opportunity to be heard before each deduction – would not be great because
prison officials are already aware of Plaintiff’s financial situation, his funds and personal
property are not exempt from execution by statute, and all of his basic needs are provided
for regardless of his ability to pay.2
Finally, the government has a compelling interest in seeing that crime victims
receive restitution in an orderly and efficient manner. Requiring additional procedural
safeguards before the prison could deduct money from Plaintiff’s account for this purpose
would not decrease the already low risk of error, and the current simplified process avoids
2
Plaintiff has made passing references to a diminished standard of living in prison because of
deductions from his trust account, but a less comfortable life in prison is not the same thing as being
deprived of basic human needs. If the prison refused to provide Plaintiff with the necessities of life
because of his inability to pay for them, this would be a potential Eighth Amendment violation, which is
independent of the due process argument made here, and the Court expresses no opinion on such a claim.
MEMORANDUM DECISION AND ORDER - 15
the administrative and fiscal burdens that would accompany a more cumbersome process.
For all of these reasons, the Court finds that Plaintiff has been provided with the
process to which he was due under the Fourteenth Amendment.3
4.
Reinke has Qualified Immunity
Reinke also claims that regardless whether an arguable constitutional violation
occurred in this case, he is entitled to qualified immunity. This defense protects
government officials from liability for civil damages to the extent that their conduct does
not violate clearly established statutory or constitutional rights of which a reasonable
person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Saucier v.
Katz, 533 U.S. 194, 202 (2001).
For the reasons already expressed, the Court concludes that the conduct of prison
officials, including Reinke, did not clearly violate Plaintiff’s due process rights.
Accordingly, Reinke is also immune from liability for damages under the doctrine of
qualified immunity.
ORDER
3
In his Motion for Permission For Leave of the Court to Proceed with Presenting Exhibits (Dkt.
33) and in his “Rebuttal” (Dkt. 38), Plaintiff suggests that IDOC’s policy is being selectively enforced
against him, in violation of his right to equal protection of the law. He requests permission to submit
affidavits of prisoners, without disclosing their identities, whom he claims are not subject to automatic
deduction from their trust accounts despite having outstanding restitutions orders.
Plaintiff’s request will be denied. First, he has not raised an equal protection claim in his
Complaint, nor has he sought leave to amend. He has also failed to direct the Court to any authority under
the Federal Rules of Civil Procedure or case law that would permit the submission of anonymous
affidavits. Most importantly, regardless whether some prisoners could come forward to say that their
accounts are not garnished, there is no additional evidence from which one could find that the prison is
intentionally discriminating against Plaintiff as opposed to failing to garnish other accounts simply due to
negligence, mistake, or a lack of notice of a restitution order.
MEMORANDUM DECISION AND ORDER - 16
IT IS ORDERED:
1.
Plaintiff’s Motion for Permission for Leave of the Court to Proceed with
Presenting Exhibits with Statement in Support Thereof (Dkt. 33) is
DENIED.
2.
Defendant Reinke’s Motion for Summary Judgment (Dkt. 37) is
GRANTED
DATED: September 22, 2011
Honorable B. Lynn Winmill
Chief U. S. District Judge
.
MEMORANDUM DECISION AND ORDER - 17
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