Searcy v. Thomas et al

Filing 40

MEMORANDUM DECISION AND ORDER denying 26 Motion to Compel; granting 27 Motion to Defer Ruling on Summary Judgment; granting 30 Motion to Vacate ; denying 35 Motion to Appoint Counsel. All discovery shall be completed by December 21, 2012. Signed by Judge Ronald E Bush. (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

BARRY SEARCY,
Case No. 1:10-cv-00294-REB
Plaintiff,
v.

MEMORANDUM DECISION AND
ORDER

MARTIN THOMAS, KELLY BROWN,
TERRY KNAPP, PAUL “B.J.”
BJORUM, and SCOTT WALDEN,
employees of Correctional Industries;
IDOC Div. of Prisons Chief Pam Sonnen,
ISCI Warden JOHANNA SMITH,
Deputy Warden JAY CHRISTENSEN,
Sgts. FULLER and RICH’ARD, Cpl.
BICK CHRISTON, in their individual
and official capacities; DOES 1 through
10, fictitiously named person,
Defendants.

Currently pending before the Court in this prisoner civil rights matter is
Defendants’ Motion for Summary Judgment (Dkt. 24). Also pending are Plaintiff’s
Motion for Order to Compel Disclosure or Discovery (Dkt. 26), Motion to Defer Ruling
on Summary Judgment (Dkt. 27), Motion to Vacate Scheduling Order and Reopen
Discovery (Dkt. 30), and Motion for Appointment of Counsel (Dkt. 35).
The Court will resolve these matters on the written record and the parties’ briefing
without oral argument. See D. Idaho L. Civil R. 7.1. The Court finds good cause to amend
MEMORANDUM DECISION AND ORDER - 1

its scheduling order, reset the discovery deadline, and give Plaintiff leave to file a
supplemental response to Defendants’ Motion for Summary Judgment. Plaintiff’s motion
for the appointment of counsel will be denied without prejudice.
BACKGROUND
In 2004, Plaintiff was appointed as a class representative in Balla v. Idaho State
Board of Correction, Case No. 1-81-cv-1165-BLW. (Amended Complaint, Dkt. 10, p. 6.)
Plaintiff alleges that after he began “actively exercising and asserting civil rights” as a
class representative in the Balla matter and in “other litigations,” he “earned the
animosity, ill will and antagonism of IDOC officials, agents and employees.” (Id. at 7.)
During this same time, Plaintiff was employed as a clerk by Correctional Industries (CI)
at the Idaho State Correctional Institution, and he asserts that his relationship with CI
management was affected negatively by his litigious activities, his knowledge of
“corrupt” business practices, and his complaints about the working conditions at CI. (Dkt.
10, pp. 6-7.)
Specifically, Plaintiff alleges that in November of 2007, CI switched from a
manual time-keeping system to an automated system that required workers to swipe a
plastic card through an electronic time clock. (Id. at 7-8.) Plaintiff contends that it was
commonly known that the new system occasionally failed to record a worker’s “swipe,”
meaning that the worker’s time would not be recorded on those occasions. (Id. at 8.) In
July of 2008, CI imposed a new policy to dock workers’ pay if they failed to post their
time properly under the new system. (Id. at 9.) Plaintiff alleges that he and other inmates
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complained about this policy on the ground that it would be unfair not to pay workers for
time that they had actually worked simply because the electronic time-keeping system
had malfunctioned. (Id. at 10.) In an unrelated matter, Plaintiff complained to supervisors
that lunch was being served at CI in unsanitary conditions. (Id.)
On July 11, 2008, CI workers learned that they would not be paid on time because
of an apparent accounting problem at the end of the fiscal year. (Dkt. 10, p. 11.) That
morning, Plaintiff asked his supervisor, B.J. Bjorum, for permission to leave work for a
previously scheduled visit at 2 p.m. (Dkt. 10, p. 11.) According to Plaintiff, Bjorum
granted this request. (Id.) Also around 2 p.m., approximately 30 workers from various CI
shops stopped work, apparently in protest of the late payment issue, and walked off the
job. (Id. at 11.)
Plaintiff then alleges that Sergeant Richard conducted an investigation into the
work stoppage and issued a Disciplinary Offense Report (DOR) to Plaintiff and other
inmates. In the DOR, Plaintiff was accused of organizing the stoppage and rallying other
workers to walk off the job. (Dkt. 10, p. 15.) Plaintiff contends that the charges were
false, but he was found guilty after a hearing, and his appeal to the Warden was denied.
(Id. at 18-19.) Because of the DOR, Plaintiff contends that he was terminated from his
position at CI, received a less favorable housing assignment, and has been “blacklisted”
from re-applying for employment at CI. (Id. at 21-23.)
On June 14, 2010, Plaintiff filed a Complaint in this Court, alleging that he had
been the victim of wide-ranging unconstitutional retaliatory conduct at IDOC going back
MEMORANDUM DECISION AND ORDER - 3

to 2003, mainly because of his status as a class representative in Balla. (Dkt. 3.) The
Court conducted an initial review of the Complaint and determined that many of
Plaintiff’s claims fell outside of the two-year statute of limitations. (Dkt. 7.) The Court
ordered Plaintiff to amend his Complaint to include only timely claims, which he did on
February 9, 2011, focusing primarily on the 2008 work stoppage and the DOR that
followed, upon which he relies for his core claims that prison officials had retaliated
against him for his legally protected activities. (Dkts. 8, 10.) The Court then allowed
Plaintiff to proceed. (Dkt. 9.)
After Defendants filed their Answer, the Court issued a Scheduling Order, setting a
discovery deadline of April 23, 2012, and a dispositive motions deadline of June 1, 2012.
(Dkt. 21.) In accordance with that Order, Defendants filed a Motion for Summary
Judgment on June 1, 2012. (Dkt. 24.)
Although Plaintiff has responded to Defendants’ Motion, he alleges that he never
received a copy of the Court’s Scheduling Order and that he was unaware of the
discovery and dispositive motions deadlines. (Dkt. 30.) As a result, he has asked the
Court to reopen discovery and to extend the deadline for him to submit a more complete
response. (Id.) He has also filed a motion for an order to compel certain discovery and for
the appointment of counsel to assist him. (Dkts. 26, 35.)
These matters are fully briefed, and the Court is now prepared to issue its ruling.

MEMORANDUM DECISION AND ORDER - 4

DISCUSSION
1.

The Scheduling Order Will Be Amended
Because Plaintiff apparently did not receive the Court’s Scheduling Order, the

Court finds good cause to grant his request to reopen discovery for a short period of time
and to submit a supplemental or amended response to Defendants’ Motion for Summary
Judgment. See Fed. R. Civil P. 56(d) (authorizing a court to defer consideration of a
motion pending the submission of additional evidence).
The new discovery deadline will be December 21, 2012, and Plaintiff must submit
his supplemental or amended response by January 18, 2013. Defendants may submit a
supplemental reply by February1, 2013. The Court will defer ruling on Defendants’
Motion for Summary Judgment until after the briefing is complete.
2.

Plaintiff’s Motion to Compel Will Be Denied Without Prejudice
Plaintiff has submitted a motion seeking a court order requiring Defendants to

comply with certain discovery requests. (Dkt. 26.) Plaintiff argues that Defendants’
counsel responded to the requests, rather than each named Defendant individually; that
Defendants’ objections are evasive and incomplete; and, that Defendants have not
disclosed the information that he has sought. (Id.) Defendants respond that Plaintiff’s
requests were procedurally defective because he combined them into one set of
documents that was directed to all Defendants. (Dkt. 28, pp. 3-4.) Nonetheless,
Defendants assert that they have attempted to respond in good faith, and while they have
raised objections where appropriate, in many instances they responded to the requests
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“subject to and without waiving any objections.” (Id. at 4.) Defendants further contend
that many of Plaintiff’s requests are excessively broad, burdensome, and seek irrelevant
information. (Id.) For the reasons that follow, the Court will deny Plaintiff’s Motion
without prejudice, although Plaintiff may re-submit requests that fall within the scope of
discovery, as limited and defined below.
Federal Rule of Civil Procedure 26(b) allows “[p]arties [to] obtain discovery
regarding any matter, not privileged, that is relevant to the claim or defense of any party .
. .” The term “relevant” is further defined as information that is “reasonably calculated
to lead to the discovery of admissible evidence,” and it “need not be admissible at trial.”
Fed. R. Civ. P. 26(b)(1). Although relevance has a broad meaning, district courts are
given wide discretion to apply the discovery rules in a way that will achieve the policy of
the Federal Rules of Civil Procedure; namely to “secure the just, speedy, and inexpensive
determination of every action.” Fed. R. Civ. P. 1.
If the answering party fails to respond adequately in discovery, the propounding
party can move for an order compelling discovery under Federal Rule of Civil Procedure
37(a) after meeting and conferring with the opposing side. The court should deny a
motion to compel if the information requested falls outside the scope of discovery. See
Nugget Hydroelectric, L.P. v. Pacific Gas & Elec. Co., 981 F.2d 429, 438-39 (9th Cir.
1992).
Here, the Court has allowed Plaintiff to proceed on claims that are related to the
2008 work stoppage at Correctional Industries, the DOR, and the adverse consequences to
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Plaintiff flowing from those events. The Court previously concluded that Plaintiff could
not reach back several years to litigate claims that are untimely under the statute of
limitations (Dkt. 7), and therefore, his attempt to obtain discovery from Defendants for
those years is unjustified.
Further, Plaintiff’s attempt to inquire into the business practices at CI are not
reasonably calculated to lead to the discovery of admissible evidence to prove his current
claims. Although Plaintiff asserts that he was targeted for dismissal, in part, because of
his knowledge of CI’s allegedly corrupt and unethical practices, the Court finds this
particular assertion to be speculative, at best. Beyond conclusory allegations, Plaintiff
contends only that he was somehow aware that a CI business manager had an “illegal
interest” in products that had been installed in his home and that another supervisor
supposedly said that “[a]nyone who wants to fight us will be the ones [sic] who end up
leaving.” (Dkt. 10, pp. 7, 14.) Opening up CI’s records for inspection based on these thin
and unsourced allegations that have no clear connection to the actions that Defendants
allegedly took against Plaintiff in the wake of 2008 work stoppage would amount to an
unwarranted fishing expedition.
On the other hand, requests for documents, records, and information that are
related to the events at CI in the few weeks that preceded the work stoppage on July 11
(including Plaintiff’s complaints about time keeping, late payment, and working
conditions ), IDOC’s investigation into the incident, the DOR against Plaintiff and others,
and any adverse actions taken against Plaintiff in the immediate aftermath, would all be
MEMORANDUM DECISION AND ORDER - 7

potentially relevant to the claims in the Amended Complaint. To the extent that Plaintiff
discovery requests are limited to these areas, then, and to the extent that Defendants have
the pertinent material within their possession or control, the information must be
disclosed.
Plaintiff may re-submit discovery requests that fall within the time frame and
subject matter that the Court has outlined. Defendants will also be expected to respond to
reasonable requests that fall within the scope of permissible discovery, if they have not
already done so.
3.

Counsel Will Not Be Appointed
Plaintiff has moved the Court to appoint counsel to assist him, arguing that the

case is complex and requires an investigation beyond his capability as a prisoner. 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).
Plaintiff has shown an ability to articulate his claims and to pursue his case quite
well for a pro se litigant. Moreover, all prisoners are at a disadvantage in investigating the
facts and in conducting discovery, and Plaintiff’s situation is not unique. Plaintiff has not
otherwise convinced the Court that extraordinary circumstances warrant the appointment
of counsel, and his motion will be denied.
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ORDER
IT IS ORDERED:
1.

Plaintiff’s Motion to Vacate Scheduling Order and Reopen Discovery (Dkt.
30) is GRANTED. The Scheduling Order (Dkt. 21) is amended as follows:
all discovery shall be completed by December 21, 2012. Plaintiff must
submit his supplemental or amended response to Defendants’ Motion for
Summary Judgment by January 18, 2013. Defendants may submit a
supplemental reply by February 1, 2013. The Clerk of Court shall send a
copy of the previous Scheduling Order (Dkt. 21) to Plaintiff with this Order.

2.

Plaintiff’s Motion to Defer Ruling on Summary judgment Until Discovery
is Completed (Dkt. 27) is GRANTED.

3.

Plaintiff’s Motion for Order to Compel Disclosure or Discovery (Dkt. 26) is
DENIED without prejudice.

4.

Plaintiff’s Motion for Appointment of Counsel (Dkt. 35) is DENIED
without prejudice.
DATED: October 23, 2012

Honorable Ronald E. Bush
U. S. Magistrate Judge

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