Olson v. Wengler et al

Filing 30

MEMORANDUM DECISION AND ORDER Defendants' Motion for Summary Judgment (Dkt. 20 ) is GRANTED. Plaintiff's Motion to Compel Discovery (Dkt. 17 ) is DENIED. Plaintiff's Motion for Appointment of Counsel and to Reconsider (Dkt. 18 ) is DENIED. Plaintiff's Complaint is DISMISSED with prejudice. Signed by Judge Ronald E. Bush. (jp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

LARRY OLSON,
Plaintiffs,

Case No. 1:12-cv-00077-REB
MEMORANDUM DECISION AND
ORDER

vs.
TIM WENGLER, TOM KESSLER, and
BRIAN TITSWORTH,
Defendants.

Pending before the Court are Plaintiff’s Motion to Compel Discovery (Dkt. 17),
Plaintiff’s Motion for Appointment of Counsel (Dkt. 18), and Defendants’ Motion for
Summary Judgment (Dkt. 20). All parties have consented to the jurisdiction of a United
States Magistrate Judge to enter final orders in this case. (Dkt. 28.) See 28 U.S.C. §
636(c) and Fed. R. Civ. P. 73.
Having reviewed the record, the Court finds that the decisional process would not
be aided by oral argument. Accordingly, after due consideration, the Court enters the
following Order granting Defendant’s Motion for Summary Judgment and denying
Plaintiff’s Motion to Compel Discovery and Plaintiff’s Motion for Appointment of
Counsel.

MEMORANDUM DECISION AND ORDER - 1

MOTION FOR 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 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
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. Id.
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
MEMORANDUM DECISION AND ORDER - 2

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 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 of
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, the Court is
not required to adopt unreasonable inferences from circumstantial evidence. McLaughlin
MEMORANDUM DECISION AND ORDER - 3

v. Liu, 849 F.2d 1205, 1208 (9th Cir. 1988).
The required elements of a retaliation claim are the following: “(1) An assertion
that a state actor took some adverse action against an inmate (2) because of (3) that
prisoner’s protected conduct, . . . that such action (4) chilled the inmate’s exercise of his
First Amendment rights, and (5) the action did not reasonably advance a legitimate
correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (footnote
omitted). Although a “chilling effect on First Amendment rights” is enough to state an
injury, Gomez v. Vernon, 255 F.3d 1118, 1127 (9th Cir. 2001), “bare allegations of
arbitrary retaliation” are insufficient to be permitted to go forward on a retaliation claim,
Rizzo v. Dawson, 778 F.2d 527, 532 n.4 (9th Cir. 1985).
Particularly at issue in this case is whether Plaintiff has brought forward sufficient
evidence to show that the alleged retaliatory action did not advance legitimate penological
goals, such as the preservation of institutional order, discipline, security, and
rehabilitation of prisoners. See Barnett v. Centoni, 31 F.3d 813, 815-16 (9th Cir. 1994)
(per curiam); Rizzo, 778 F.2d at 532. Federal courts “should ‘afford appropriate deference
and flexibility’ to prison officials [when evaluating the] proffered legitimate penological
reasons for conduct alleged to be retaliatory.” Pratt v. Rowland, 65 F.3d 802, 807 (9th
Cir. 1995) (quoting Sandin v. Conner, 115 S.Ct. 2293, 2299 (1995)). “Specifically, the
prison administrators cannot be held liable unless their retaliatory action did not advance
legitimate goals of the correctional institution or was not tailored narrowly enough to
achieve such goals.” Vance v. Barrett, 345 F.3d 1083, 1093 (9th Cir. 2003).
MEMORANDUM DECISION AND ORDER - 4

While “timing can be properly considered as circumstantial evidence of retaliatory
intent,” there generally must be something more than timing alone to support an inference
of retaliatory intent. Pratt, 65 F.3d at 808. Retaliation is not established simply by
showing adverse activity by defendant after protected speech; plaintiff must show a nexus
between the two. See Huskey v. City of San Jose, 204 F.3d 893, 899 (9th Cir. 2000) (a
retaliation claim cannot rest on the logical fallacy of post hoc, ergo propter hoc, i.e.,
“after this, therefore because of this”).
2.

Undisputed Material Facts
This section includes facts that are undisputed and material to the resolution of the

issues in this case. Where material facts are in dispute, the Court has included Plaintiff’s
version of facts, insofar as that version is not contradicted by clear documentary evidence
in the record.
At the time of the incidents alleged in the Complaint, Plaintiff was an inmate in the
custody of the Idaho Department of Correction (IDOC), housed in the private prison
operated by Corrections Corporation of America (CCA) under contract to the IDOC. He
brings First Amendment retaliation claims against three CCA officials: Warden Tim
Wengler, Assistant Warden Tom Kessler, and Correctional Officer Brian Titsworth. The
allegations center on Plaintiff’s placement and retention in segregation from October 6,
2011, to October 28, 2011.
On June 29, 2011, Plaintiff filed a grievance against Defendant Correctional
Officer Brian Titsworth, asserting “abuse of discretionary powers & unprofessional
MEMORANDUM DECISION AND ORDER - 5

conduct.” (Dkt. 25-4, p. 10.) Plaintiff complained that Titsworth forced inmates to use
alternative electrical outlets and store all their property in their cubicles. Plaintiff
complained: “When asked about this UM Titsworth rudely threatened by telling me and
others “If you don’t like it I’ll move you to North Wing.” (Id.) The grievance was denied
by Bryan Johnson on June 30, 2011, stating that all property must be stored in a safe and
orderly manner in assigned storage boxes or lockers in inmates’ cells, and property cannot
be maintained so as to create a fire hazard or sanitation, security, or housekeeping
problems.
Plaintiff also alleges that he complained to Warden Wengler of a large number of
conditions-of-confinement violations. (Dkt 25-4, p. 5.) Plaintiff further alleges that, at
unspecified times, he provided investigators with important information about prison
violence in Kelly v. Wengler, Case No. 1:11-cv-00185-EJL, that aided the inmates’ case
against prison officials. Kelly was a class action inmate lawsuit wherein the plaintiffs
alleged that CCA prison officials did not do enough to protect inmates from violent
attacks by other inmates. Plaintiff alleges that the Kelly case settled on September 20,
2011, and that Warden Wengler had duties under the settlement agreement to investigate
and remedy future issues related to inmate safety when they were brought to his attention.
(Dkt. 24-5.)
On September 29, 2011, while eating in the dining hall, Plaintiff heard someone
say, “Give me your cookie.” He thought it was a friend joking with him, but when he
turned around, he realized it was an inmate who was a stranger to him. Another inmate
MEMORANDUM DECISION AND ORDER - 6

then said, “That’s right, chomos, turn around before we beat your asses.” (Dkt. 25-4, p.
2.) A third inmate accompanied the two threatening inmates. Plaintiff responded by
telling the inmates that no one at the table was a “chomo,” and they should get their facts
straight. The three inmates “kept hurling threats.” Plaintiff and his friends got up and
walked away. (Id.) Plaintiff alleges that the “majority of the assaults . . . have occurred in
the chow hall at ICC.” (Id.) “Chomo” is a slang term in the prison for a person convicted
of a sex offense against a minor child.
On September 30, 2011, Plaintiff sent a lengthy “letter of complaint” to Warden
Wengler notifying him that he had been threatened with physical assault by several other
inmates during dinner, who demanded his cookie and called him a “chomo.” (Wengler
Dec., Dkt. 20-4, Ex. A.)1 Plaintiff alleges that his main concern, as outlined in his letter,
was to notify Wengler that correctional officers were not performing their duties in the
dining hall, i.e., were ignoring inmates who made references to “chomos,” and that
corrective measures should be taken. (Dkt. 25-4, p. 2.) Plaintiff denies that he felt
threatened by the dining hall incident.
Also on September 30, 2011, Plaintiff sent Warden Wengler a concern form
verifying that he sent the letter of complaint to Wengler. Plaintiff specifically mentioned
that the letter of complaint had been sent pursuant to the settlement agreement in Kelly v.
Wengler, Case No. 1:11-cv-00185-EJL. (Wengler Aff., Exhibit A, Dkt. 20-4, p. 2.)

1

Plaintiff clarifies that he was not incarcerated for that type of offense, but lived among inmates
who were. (Dkt. 25-5, p. 1, Ex. M.)
MEMORANDUM DECISION AND ORDER - 7

Six calendar days or three and-a-half working days later (Dkt. 25-2, p. 4), on
October 6, 2011, Plaintiff was escorted to segregation by Officer Titsworth, who told
Plaintiff his placement in segregation for investigation resulted from Warden Wengler’s
receipt of a concern that Plaintiff’s life was in danger. Plaintiff could not have his
personal property in segregation, and he lost his institutional job. (Dkt. 25-4, p. 20.)
Wengler did not ask Plaintiff or his witness, inmate Don Rossignol, about what
happened in the dining hall. (Dkt. 25-2, p. 4.) Wengler declares: “In my experience,
inmates sometimes give vague notices of threats of violence because should their
correspondence be discovered by other inmates, they could be deemed by the prison
population a “snitch” or a “rat,” and be placed in further threat of physical violence by
other inmates.” (Dkt. 20-3, p.2.)
Plaintiff alleges that Assistant Warden Kessler said that “it was the Warden’s idea
[meaning Warden Wengler]” that Plaintiff be placed in segregation. (Dkt. 25-4, p. 28, Ex.
K.) Kessler’s Declaration states the same. (Kessler Dec., Dkt. 20-7, p. 5.) Case Manager
Sara Fink also noted in her investigative report that Warden Wengler made the decision to
place Plaintiff in segregation as a result of the letter about the dining hall threat. (Dkt. 204, p. 1.)2
Wengler declares that he placed Plaintiff in SPI for Plaintiff’s own safety, despite
2

Plaintiff also alleges that Correctional Officer Brian Titsworth was responsible for the original
placement of Plaintiff in segregation. However, the totality of the record shows that it was Wengler who
placed Plaintiff in segregation. Therefore, this allegation about Titsworth cannot be included as an
undisputed fact or considered a dispute over whether someone other than Wengler was the responsible
defendant for the original segregation order.
MEMORANDUM DECISION AND ORDER - 8

the fact that Plaintiff had not requested protective custody, based on Wengler’s
experience and duty to protect inmates from violent assault. (Defendants’ SOF, ¶¶ 13,
22.)
Plaintiff’s official designation in segregation was “SPI,” meaning segregation
pending investigation, which had a 14-day time limit. (Kessler Dec., p. 5.) On October
12, 2011, Case Manager Sara Fink prepared an investigative report for Assistant Warden
Kessler confirming that Plaintiff was placed in segregation after he wrote a letter to
Warden Wengler about being harassed in the dining hall by “JKL inmates.” (Dkt. 20-4, p.
1.) Fink wrote that JKL inmates said “give me your cookie” and called Plaintiff a
“chomo,” and that Plaintiff said he was not a “chomo” and walked away. The report does
not state that inmates actually threatened Plaintiff multiple times, as he stated in his
statement of facts. (Dkt. 25-4.) Ms. Fink concluded that she and Plaintiff thought Plaintiff
could be housed safely in the west wing. (Id.)
Also on October 12, 2011, a restrictive housing hearing was held where the
Restrictive Housing Placement Committee (Kessler, Tracy Koosman, and Justin Acosta)
determined that they needed more information before they decided whether to place
Plaintiff in protective custody or a new general population housing unit. (Acosta Dec.,
Dkt. 20-5, p. 3.) At the hearing, Kessler clarified for Plaintiff that he was not officially on
“protective custody” status, but SPI status for his protection as a result of Wengler’s
judgment from the contents of the letter Plaintiff sent to Wengler, pending a decision of
the committee. (Kessler Dec., Dkt. 20-7, p. 6.)
MEMORANDUM DECISION AND ORDER - 9

Plaintiff alleges that, at the October 12, 2011 Committee meeting, Kessler had
authority to release Plaintiff from segregation after Fink, Acosta, and Koosman discussed
their willingness to release Plaintiff into general population, but Kessler voted against
release, allegedly only because Plaintiff had made the written complaints about CCA
employees not performing their duties. Plaintiff alleges that Kessler denied having any
knowledge of Plaintiff’s complaints about staff not performing their duties, but at the
same time asked him, “What’s this about my employees failing to do their jobs?” Plaintiff
alleges that these seemingly contradictory statements show that Kessler did have prior
knowledge of Plaintiff’s complaints. Plaintiff states that, at the meeting, he twice told
Kessler to read the complaints first, and then Kessler and Plaintiff could talk. (Dkt. 25-1,
pp. 304.)
Regardless of whether two of three Committee members and the Case Manager
thought it was safe to release Plaintiff into the general population, the Committee’s
unanimous written determination on October 13, 2011, was to defer release in favor of
gathering more information before making a decision. (Dkt. 20-6, p. 1.) No Committee
member entered a written dissenting opinion from the decision. (Id.) Plaintiff’s next
hearing was set for October 19, 2011, the date of the next routine Committee meeting.
(Id.; Kessler, Dec., Dkt. 20-7, p. 7.)
On October 19, 2011, an order was entered that extended Plaintiff’s status in SPI
for another 7 days. A duplicate order was entered on October 21, 2011. (Kessler. Dec.,

MEMORANDUM DECISION AND ORDER - 10

Dkt. 20-7, p. 7 & Exhibit D, pp. 1-2.)
On October 26, 2011, the Committee held its final hearing and determined that
Plaintiff should be moved to a general population housing unit in G, H, or I Pod. (Acosta
Dec., Dkt. 20-5, p. 5.) Kessler declares that he recommended this housing change because
“between the time period of October 12, 2011, and October 26, 2011, there was no
information that arose which would indicate that Inmate Olson was at any further risk of
assault at that time.” (Kessler Dec., Dkt. 20-7, p. 8.) Kooser did not sit in on the
Committee hearing; rather, “ACOS” Melody did. (Kooser Dec., Dkt. 20-13, p. 4; Dkt. 206, p. 2, Ex. B.)
On October 28, 2011, Plaintiff was released from segregation into H Pod. Justin
Acosta, one of the Committee members, declares: “This delay was not intentional but
rather a logistical issue of placing Inmate Olson in an available cell where the Committee
had recommended him to be housed.” (Acosta Dec., Dkt. 20-5, p. 5.) Acosta notes that it
has been his experience that transferring inmates out of segregation often takes several
additional days while prison officials find an empty bed, because other prison officials are
also simultaneously transferring inmates into the facility, and anticipated beds may not be
open. (Id.)
Plaintiff alleges that, because he had complained of Correctional Officer
Titsworth’s actions in the June 2011 grievance, Titsworth tried to interfere with Plaintiff’s
release from segregation by denying or delaying placement into another unit between

MEMORANDUM DECISION AND ORDER - 11

October 26, 2011, and October 28, 2011. (Complaint, Dkt. 3.) Plaintiff and other inmates
declare under oath that, in June 2011, when inmates complained that Titsworth made
them place their property in their cubicles and move their electrical cords to different
outlets, Titsworth said that he didn’t care about inmates’ constitutional rights, and that
Titsworth threatened to move Plaintiff and other inmates to a more violent part of the
prison if they didn’t like Titsworth’s rules or if they continued to complain. (Id., pp. 7-8.)
3.

Discussion
Plaintiff asserts that Warden Wengler placed Plaintiff in protective custody in

retaliation for Plaintiff complaining that staff was failing to do their duties to supervise
inmates in the dining hall and for complaining of conditions of confinement. Plaintiff
points to timing of his complaint, a six- or three-day delay in placing him in segregation,
Plaintiff’s own interpretation of the inmates’ threats, and Plaintiff’s opinions about how
Warden Wengler should have responded when he received Plaintiff’s letter of complaint.
In all of these allegations, Plaintiff fails to show that Wengler acted without the legitimate
penological reasons of protecting Plaintiff and safeguarding institutional security.
Beginning with Plaintiff’s own acts in informing Warden Wengler of the inmate
threat against him and reminding Wengler of obligations Plaintiff says were contained in
the Kelly settlement agreement terms, Wengler took the cautionary steps of placing
Plaintiff in SPI so that Plaintiff could be protected from the JKL inmates while the
potential threat was investigated. Therefore, while Warden Wengler’s actions were

MEMORANDUM DECISION AND ORDER - 12

motivated by Plaintiff’s complaints, it was the actual threat against Plaintiff articulated in
Plaintiff’s own letter and not the act of complaining or the content about staff not doing
their jobs that was the operative element causing (and, it can be argued, requiring)
Warden Wengler to act. A legitimate penological reason existed for the SPI placement,
and, therefore, any other motives, even if retaliatory, are inconsequential to the cause of
action.
Plaintiff has a mistaken estimation of the duty of the warden and assistant warden
of a prison to keep the inmates safe in the face of an actual threat, just as Plaintiff naively
believes that, if Plaintiff’s intent was not to report he felt threatened but to report that
correctional officers were not doing their jobs, then the warden should simply believe that
Plaintiff would be safe from future harm. Plaintiff states that, had the warden spoken to
him for a few minutes, the issue would have been cleared up immediately. Plaintiff fails
to see that he himself did not possess the information whether the JKL inmates planned to
harm him. Plaintiff is merely speculating that, because he explained to the JKL inmates
that Plaintiff was not actually a “chomo,” they would reasonably stop demanding his
desserts in the lunch room and not follow through on their threats to “beat” him, even
though Plaintiff himself reports that, when he actually told the inmates he was not a
“chomo,” they continued to “hurl threats.” Unfortunately, the reason many individuals are
in prison is because they have acted unreasonably, and so Plaintiff’s view of whether or
not the JKL inmates would act reasonably in response to Plaintiff’s announcement that he

MEMORANDUM DECISION AND ORDER - 13

was not a “chomo” is too simplistic. Further, as Warden Wengler recognized, at the point
Plaintiff complained the JKL inmates could have targeted Plaintiff for being a snitch, and
harassed or harmed him for that reason, instead.
Plaintiff’s one-sided arguments fail to support his claim that there was no
penological interest in placing and keeping him in SPI for about a month. Ms. Fink’s
report says, Plaintiff “was not threatened” during the dining hall incident (Dkt. 25-4, p.
4), while Plaintiff’s other versions of the incident state that the inmates actually said to
him, “turn around before we beat your asses” and the inmates also “kept hurling threats”
as Plaintiff walked away, which amounts to at least two different threats during the
incident. (Dkt. 25-4, p. 2.) Further investigation after Ms. Fink’s cursory investigative
report seems a prudent course of action for Assistant Warden Kessler to take.
In addition, Plaintiff alleges that Defendant Kessler kept him in SPI after the
hearing of October 13, 2011, in retaliation for Plaintiff having filed complaints against
staff, but Plaintiff also alleges that, during the hearing, Plaintiff insisted that Kessler first
read Plaintiff’s “complaints” and only then would Plaintiff talk with him – which can be
construed as an invitation to do more investigation, which is what the Committee
eventually concluded that day. Even without Plaintiff’s own invitation to read his
complaints before Plaintiff would speak any further with Kessler, as an assistant warden
with nearly coextensive ultimate responsibility with Warden Wengler for keeping
Plaintiff safe, Kessler certainly was within his authority to delay a final decision to take

MEMORANDUM DECISION AND ORDER - 14

into consideration all factors, even if the other lower-level Committee members believed
release was safe. It is to be noted that, despite any discussion about release at the October
13 hearing, no Committee member dissented in writing from the decision to defer the new
housing placement assignment decision.
Further, Defendants’ denials that they made various statements attributed to them
by Plaintiffs and other inmates does not create a genuine dispute of material fact in the
face of an undisputed actual threat to Plaintiff, communicated directly from Plaintiff to
Warden Wengler. Even if Defendant Kessler argued with Plaintiff or the other Committee
members in what Plaintiff describes as a “hostile” manner, even if the Committee
members disagreed about Plaintiff’s placement, and even if Officer Titsworth made
unprofessional threats to Plaintiff about not caring about his constitutional rights and
moving him to a more dangerous housing assignment if he continued to complain,3 a
legitimate penological reason existed for Plaintiff’s placement and continuation in SPI
until the Committee decided he could be placed safely in the general population.
Further, while Plaintiff alleges that an unidentified CCA staff person told him that
Titsworth interfered with his release from PSI for two days, Plaintiff has chosen not to
identify that staff member and has not brought forward any affidavits from staff to that
effect, nor has he shown that it was even possible for Titsworth to interfere with his

3

The fact of the matter is that Plaintiff was moved to a safer environment upon his reporting of a
threat from other inmates.

MEMORANDUM DECISION AND ORDER - 15

release, since the declarations on record reflect that Titsworth had nothing to do with
housing assignments and that short delays were not unusual during reassignments due to
different officials simultaneously selecting the same beds for different inmates.
In summary, the record is clear. Plaintiff complained to Warden Wengler about an
actual threat of physical harm from other inmates. Plaintiff notified Warden Wengler that
he perceived the incident was related to Wengler’s investigative and remedial duties
under the Kelly settlement agreement terms. Warden Wengler placed Plaintiff in PSI to
keep him safe pending an investigation. Ms. Fink undertook an investigation. A threemember committee several times considered Plaintiff’s safety and housing assignment.
Plaintiff was released from segregation within two days after it was determined that he
could be safely returned to the population. Plaintiff cannot prove his claims upon that
record.
4.

Conclusion
Plaintiff has failed to show that he has sufficient facts upon which to proceed to a

jury trial on the element of an absence of legitimate penological reason to transfer him
into SPI, with the strongest evidence being Plaintiff’s own correspondence. Accordingly,
the Court grants Defendants’ Motion for Summary Judgment, and Plaintiff’s Complaint is
dismissed with prejudice.
The Court will now discuss Plaintiff’s other motions, which the Court considered
before deciding the Motion for Summary Judgment, but which are more clearly explained

MEMORANDUM DECISION AND ORDER - 16

after the parties have read the discussion articulated above.
PLAINTIFF’S MOTION TO COMPEL
Plaintiff requested documents from Defendants on September 14, 2012, November
29, 2012, and January 10, 2013. (Dkt. 17 & 17-1, Ex. 1, 2.) Defendants have produced
various documentation to Plaintiff and also objected to the production of other documents
on grounds that the request is vague, overbroad, and irrelevant. Plaintiff now moves to
compel Defendants to produce additional documents. (Dkt. 17.)
Federal Rule of Civil Procedure 26(b) allows parties to “obtain discovery
regarding any nonprivileged matter that is relevant to any party’s claim or defense,” but
discovery requests must be reasonable. The term “relevant” includes information that is
“reasonably calculated to lead to the discovery of admissible evidence and that “need not
be admissible at the trial.” Fed. R. Civ. P. 26(b)(1). However, district courts have broad
discretion to apply the discovery rules in a way that will achieve the policy of the Federal
Rules of Civil Procedure, which is to “secure the just, speedy, and inexpensive
determination of every action and proceeding.” Fed. R. Civ. P. 1.
If the answering party fails to adequately respond to discovery, the propounding
party can move for an order compelling discovery under Federal Rule of Civil Procedure
37(a). A 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), cert. denied, 113 S.Ct. 2336 (1993). In addition, a court

MEMORANDUM DECISION AND ORDER - 17

“may issue an order to protect a party or person from annoyance, embarrassment,
oppression, or undue burden or expense.” Fed. R. Civ. P. 26(d)(1).
Having reviewed Plaintiff’s requests for discovery, Defendants’ responses to the
discovery request, and all of the documents produced to the Court to date, the Court
concludes that Defendants have sufficiently responded to the discovery requests of
Plaintiff, and that Defendants’ objections to searching for and producing other documents
should be sustained under the narrow circumstances of this case. Defendants have
produced to Plaintiff relevant information and documents. The record overwhelmingly
reflects that Plaintiff was placed in protective custody segregation by Warden Wengler
after Plaintiff directly informed him of threats of violence against Plaintiff, and in the
midst of or directly on the heels of a class action lawsuit alleging that CCA officials failed
to protect its inmates from inmate-on-inmate violence. Other evidence Plaintiff seeks,
especially concerning Correctional Officer Titsworth, would not help him overcome the
missing element of his claim – to show that the action, even if retaliatory, did not advance
a legitimate penological goal or was not narrowly tailored to meet the goal of protecting
Plaintiff. Accordingly, the Motion to Compel is denied.
PLAINTIFF’S MOTION FOR APPOINTMENT OF COUNSEL
The Court previously denied Plaintiff’s request for appointment of counsel. (Dkt.
7.) Plaintiff seeks reconsideration of his request for appointment of counsel because he is
having difficulties conducting discovery. (Dkt. 18.) He is proceeding in forma pauperis.

MEMORANDUM DECISION AND ORDER - 18

(Dkt. 7.) 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. 1991).
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
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 Court explained the limitations of the Bounds
holding. There, the Court emphasized that “Bounds did not create an abstract,
freestanding right to a law library or legal assistance.” 518 U.S. at 351. A careful review
of the Casey decision demonstrates that the Supreme Court has limited the application of
Bounds to initial filings of prisoner cases involving their convictions or conditions of
confinement. Particularly, the Court stated:
It must be acknowledged that several statements in Bounds went beyond the
right of access recognized in the earlier cases on which it relied, which was
a right to bring to court a grievance that the inmate wishes to present. These
statements appear to suggest that the State must enable the prisoner to
discover grievances, and to litigate effectively once in court. These
elaborations upon the right of access to the court have no antecedent in our
pre-Bounds cases, and we now disclaim them.”
518 U.S. at 354 (emphasis added).

MEMORANDUM DECISION AND ORDER - 19

Here, Plaintiff’s inability to more fully litigate his claims are “incidental (and
perfectly constitutional) consequences of conviction and incarceration.” Lewis v. Casey,
518 U.S. at 355. It is difficult to litigate from a prison cell and pro se individuals do not
have the legal training or resources to do what they could if they were lawyers or had
lawyers. However, prisoner status and lack of legal expertise are not enough to warrant
appointment of counsel.
In the District of Idaho, the Court regularly provides for disclosure in prisoner pro
se cases, which is not mandatory under the Rules of Civil Procedure. See Fed. R. Civ. P.
26(a)(1)(B)(iv). The Court requires disclosure from defendants so that pro se plaintiffs do
not have to otherwise seek discovery on information and documents relevant to their case,
except for those areas where a plaintiff believes a wider scope of discovery is necessary
due to the particular facts alleged.
In this case, Plaintiff has shown that his litigation skills exceed that of most
prisoners, despite the limitations he cites. In its review of the Motion for Summary
Judgment, the Court finds that additional discovery and aid from counsel would not help
Plaintiff meet the missing element of his claims, given the record before the Court, which
overwhelmingly shows that Plaintiff’s claim lacks merit. Accordingly, the Motion for
Appointment of Counsel is denied.

MEMORANDUM DECISION AND ORDER - 20

ORDER
IT IS ORDERED:
1.

Defendants’ Motion for Summary Judgment (Dkt. 20) is GRANTED.

2.

Plaintiff’s Motion to Compel Discovery (Dkt. 17) is DENIED.

3.

Plaintiff’s Motion for Appointment of Counsel and to Reconsider (Dkt. 18)
is DENIED.

4.

Plaintiff’s Complaint is DISMISSED with prejudice.
DATED: January 27, 2014

Honorable Ronald E. Bush
U. S. Magistrate Judge

MEMORANDUM DECISION AND ORDER - 21