Wolf et al v. Otter et al

Filing 158

MEMORANDUM DECISION AND ORDER Plaintiffs' unopposed Motion to Lodge Amended Supplement to Initial Disclosure Statement (Dkt. 106 ) is GRANTED. Plaintiff's Motions for Leave to File More than Three Motions (Dkt. 111 , 150 ) are DENIED. P laintiffs' Motion for Extension of Time in Which to File an Amended Complaint (Dkt. 112 ) is DENIED. Plaintiff's Motions to Supplement Motion for Extension of Time, which are construed as motions to modify the scheduling order (Dkt. 138 , 146 ), are DENIED. Plaintiffs' Renewed Motion to Appoint Counsel (Dkt. 113 ) is DENIED. Plaintiffs' Motion to Seal (Dkt. 116 ) is GRANTED. Defense counsel is instructed to work with the Clerks office in accordance with the instructions given above. Defendants' Motion for a Protective Order (Dkt. 124 ) is DEEMED MOOT. Defendants' Motion for Leave to File Excess Pages (Dkt. 131 ) is GRANTED. Plaintiffs' Motion to File Overlength Response (Dkt. 136 ) is GRANTED. Pla intiff's Motion to Amend Prisoner Civil Rights Complaint (Dkt. 151 ) is DENIED. Plaintiffs' Renewed Motion for Three Judge Court (Dkt. 152) is DENIED. Plaintiffs' Renewed Motion for Class Certification (Dkt. 153) is DENIED. Plaintiffs ' Motion to Seal (Dkt. 154 ) is DEEMED MOOT. Plaintiffs' Request for a Status Conference (Dkt. 155 ) is DENIED. 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 (jp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

ANDREW J.J. WOLF, R. HANS
KRUGER, and DAVID S. BEGLEY,

Case No. 1:12-cv-00526-BLW
MEMORANDUM DECISION AND
ORDER

Plaintiffs,
v.
C.L. “BUTCH” OTTER; LAWRENCE
WASDEN; IDAHO STATE BOARD OF
CORRECTIONS; ROBIN SANDY, J.R.
VAN TASSEL; JAY NEILSON; IDAHO
COMMISSION OF PARDONS AND
PAROLE; OLIVIA CRAVEN; BILL
YOUNG; MARK FUNAIOLE; JANE
DRESSEN; NORMAN LANGERAK;
MIKE MATTHEWS; BRENT REINKE;
CORRECTIONS CORPORATION OF
AMERICA, INC.; TIM WENGLER;
CORRISON INC., each sued in their
individual and official capacities and
their successors in office,
Defendants.

INTRODUCTION
Plaintiffs, prisoners in the custody of the Idaho Department of Correction (IDOC),
are proceeding pro se in this civil rights action. Plaintiffs claim that defendants violated
the Eighth Amendment in several ways stemming from prison overcrowding. Plaintiffs

MEMORANDUM DECISION AND ORDER - 1

have been allowed to proceed on the following claims against defendant Kevin Kempf, 1
for injunctive relief only:
(1)

Claims of inadequate ventilation in Unit 14 at ISCI and in the
West Wing of ICC (Third, Fourth, Fourteenth, and Fifteenth
Claims for Relief);

(2)

Claims of inadequate heating, or HVAC in ISCU Units 7, 9,
10, 11 and 13 (Fifth and Sixth Claims for Relief);

(3)

Claims of inadequate dayroom space, inadequate staffing, and
lack of out-of-cell time (Twelfth, Thirteenth, Twentieth, and
Twenty-First Claims for Relief); and

(4)

Claims of failure to protect plaintiffs from attacks by other
inmates (Twenty-Fourth Claim for Relief).

See Initial Review Order, Dkt. 27, at 8-10, 28.
Nineteen motions are pending before the Court. (Dkts. 106-07, 111-13, 116, 124,
131-32, 135-36, 138, 146, 150-55). The Court will resolve many of these motions,
including plaintiffs’ motion to amend their complaint, in this order. The remaining
motions, including the pending motion for summary judgment, will be resolved in a
separate decision.
DISCUSSION
1.

Plaintiffs’ Motions to Modify the Scheduling Order and File a First Amended
Complaint (Dkts. 112, 138, 146, 151, 154)
In July 2014, the Court entered a Scheduling Order governing pretrial proceedings

1

Defendant Brent Reinke is no longer the director of IDOC; Kevin Kempf has replaced him.
Therefore, it is proper to substitute Kempf as the defendant in this action. See Fed. R. Civ. P. 25(d).

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in this matter. The Scheduling Order gave the parties until October 28, 2014 to move to
amend their pleadings or to join parties. Dkt. 89, at 2. The October deadline was
extended to May 15, 2015. Dkt. 105. The Court was persuaded to grant this extension
based on plaintiffs’ representations that any amended complaint they would be “partially
contingent” upon information they expected to receive in response to outstanding
discovery requests. See id. at 3.
Plaintiffs did not file their motion to amend the complaint until October 20, 2015 –
roughly five months after the extended deadline, and nearly one year after the original
deadline. Before filing their motion to amend, plaintiffs repeatedly moved to extend the
May 15, 2015 deadline. See Motion for Extension, Dkt. 112. First, in May 2015,
plaintiffs said defendants had delayed responding to discovery requests and thus asked
the Court to reset the deadline – not to any specific date, but instead to an unspecified
time after the Court could resolve outstanding discovery issues. Dkt. 112. Defendants
did not oppose that request. See Notice of Non-Response, Dkt. 119.
A few months later, in September 2015, defendants again asked the Court to
extend the deadline, but this time they asked for a date certain: October 1, 2015. Dkt.
138. Among other things, plaintiffs said they were busy opposing defendant’s motion for
summary judgment and otherwise litigating this case. Defendants opposed this motion.
See Dkt. 145. In October, 2015, plaintiffs asked for an extension through October 15,
2015. See Dkt. 146. Defendant Kempf opposed this motion as well. Dkt. 147.

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As noted above, plaintiffs ultimately filed their motion to amend on October 20,
2015. Because this motion was filed after the deadline set out in the scheduling order, the
Court must determine whether plaintiffs have demonstrated good cause for modifying
that order.
“The district court is given broad discretion in supervising the pretrial phase of
litigation, and its decisions regarding the preclusive effect of a pretrial order ... will not be
disturbed unless they evidence a clear abuse of discretion.” Johnson v. Mammoth
Recreations, Inc., 975 F.2d 604, 607 (9th Cir.1992) (citation and internal quotation marks
omitted). In general, the pretrial scheduling order can only be modified “upon a showing
of good cause.” Id. at 608 (citing Fed. R. Civ. P. 16(b)). The pretrial schedule may be
modified “if it cannot reasonably be met despite the diligence of the party seeking the
extension.” Id. at 609. If the party seeking the modification “was not diligent, the inquiry
should end” and the motion to modify should not be granted. Id.
Plaintiffs have not demonstrated diligence. As noted above, this Court was
initially persuaded to extend the October 2014 deadline to May 2105 based on plaintiffs’
representations that they expected to uncover information during discovery that would
lead to amendments. Yet in their many subsequent filings (see Dkts. 112, 138, 146),
plaintiffs do not specifically explain what “new and previously unavailable information”
they obtained during discovery (or are still seeking) that would warrant modifying the
scheduling order. See Eckert Cold Storage, Inc. v. Behl, 943 F. Supp. 1230, 1233 (E.D.
Cal. 1996). Indeed, at this point, plaintiffs have now filed a proposed first amended

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complaint, but in doing so, they fail to specifically address any particular piece of
information they uncovered during discovery that triggered the need for any particular
amendment. Instead, they mainly speak in generalities. They also say they were busy
litigating this case as well as one other case. See Dkts. 138, 146.
Based on this record, the Court is not persuaded that plaintiffs have demonstrated
good cause to modify the scheduling order. This lawsuit has been pending for over three
years. Plaintiffs had ample time to move to amend their complaint within the deadlines
established by the Court and, as already noted, plaintiffs have failed to demonstrate that
their proposed amendments are tied to any newly discovered information, or any
information they expect to receive in discovery. The Court will therefore deny their
motion to amend the scheduling order.
Additionally, though it need not reach the issue, the Court finds that allowing
plaintiffs to proceed on their proposed first amended complaint would significantly
prejudice the defendants and delay the resolution of this lawsuit. In this regard, plaintiffs
say the following:
Plaintiffs see no prejudice in bringing forth an amended complaint
with two new plaintiffs joining in due to the fact that their claims for
relief are of those which this Court has already permitted Plaintiffs
to proceed with, and for judicial economy is appropriate. . . .
Other than those claims for relief which this Court permitted
Plaintiff to proceed upon have added one (1) new issue pertaining to
the due process violations that have been taking place in disciplinary
hearings. Plaintiffs feel it is appropriate to add this claim within this
case for judicial economy, and the fact that their case is comparative
to that of Balla, et al. v. Idaho State Board of Correction et al. . . .

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and its previous orders that were set forth therein granting injunctive
relief.
Motion to Amend, Dkt. 151, at 5.
Preliminarily, plaintiffs are focusing on the wrong standard; they invoke the more
liberal standard set forth in Federal Rule of Civil Procedure 15(a), as opposed to the
“good cause” standard of Rule 16(d). But even so, plaintiffs’ arguments lack merit. As
matters now stand, the Court has narrowed this lawsuit such that a single defendant faces
eleven claims for injunctive relief. Plaintiffs’ proposed amended complaint, which runs
over 200 pages, adds two new plaintiffs, names 63 defendants, and adds a whole host of
new factual allegations. The proposed first amended complaint also alleges 22 separate
claims for relief and seeks both monetary and injunctive relief. Allowing the lawsuit to
expand so significantly, so late in the game, would dramatically complicate and delay the
resolution of this case. Among other things, defendants would be forced to devote
substantial additional resources to discovery and trial preparation. Additionally,
unrelated claims against different defendants belong in different suits, primarily to
prevent the sort of morass this proposed 22-claim, 63-defendant lawsuit would produce.
The Court will also reject the proposed amended complaint for the additional reason of
ensuring that prisoners pay the required filing fees, as the Prison Litigation Reform Act
limits to three the number of frivolous suits or appeals that any prisoner may file without
prepayment of the required fees. 28 U.S.C. § 1915(g).
For all these reasons, the Court will deny plaintiffs’ motions to modify the
scheduling order as well as their motion to amend their complaint. Given this ruling,

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plaintiffs’ Motion to Seal and For In Camera Review (Dkt. 154), which relates to the true
names of some alleged victims identified in the proposed first amended complaint, is
moot.
2.

Plaintiffs’ Renewed Motions (Dkts. 113, 152, 153)
Earlier in this litigation, the Court denied plaintiffs’ requests for (1) appointment

of counsel; (2) appointment of a three-judge court to preside over this action; and (3)
class certification. See Initial Review Order, Dkt. 27, at 22-24. Plaintiffs now request
these same forms of relief in a series of “renewed” motions. See Dkts. 113, 152, 153.
The Court will construe these motions as motions for reconsideration. For the reasons
explained below, each motion will be denied.
A motion to reconsider an interlocutory ruling requires an analysis of two
important principles: (1) Error must be corrected; and (2) Judicial efficiency demands
forward progress. While even an interlocutory decision becomes the “law of the case,” it
is not necessarily carved in stone. Justice Oliver Wendell Holmes concluded that the
“law of the case” doctrine “merely expresses the practice of courts generally to refuse to
reopen what has been decided, not a limit to their power.” Messinger v. Anderson, 225
U.S. 436, 444 (1912). “The only sensible thing for a trial court to do is to set itself right
as soon as possible when convinced that the law of the case is erroneous. There is no
need to await reversal.” In re Airport Car Rental Antitrust Litig., 521 F. Supp. 568, 572
(N.D. Cal. 1981) (Schwartzer, J.).

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The need to be right, however, must co-exist with the need for forward progress. A
court's opinions “are not intended as mere first drafts, subject to revision and
reconsideration at a litigant's pleasure.” Quaker Alloy Casting Co. v. Gulfco Indus., Inc.,
123 F.R.D. 282, 288 (N.D. Ill.1988).
Reconsideration of a court's prior ruling under Federal Rule of Civil Procedure
59(e) is appropriate “if (1) the district court is presented with newly discovered evidence,
(2) the district court committed clear error or made an initial decision that was manifestly
unjust, or (3) there is an intervening change in controlling law.” S.E.C. v. Platforms
Wireless Int'l Corp., 617 F.3d 1072, 1100 (9th Cir.2010) (citation omitted). If the motion
to reconsider does not fall within one of these three categories, it must be denied.
Plaintiffs have not met this standard. They have not pointed to any new factual
information or any intervening change in the controlling law. Nor is the Court persuaded
that it committed any error in denying these motions earlier. The Court will therefore
deny plaintiffs’ “renewed” motions.
3.

Defendant’s Motion for a Protective Order (Dkt. 124)
In June 2015, defendants moved for a protective order related to plaintiffs’ Third

Request for Production of Documents. Dkt. 124. After this motion was on file, plaintiffs
agreed to withdraw the document requests. See Dkt. 130. Accordingly, the Court will
deem the pending motion for protective order moot.

MEMORANDUM DECISION AND ORDER - 8

4.

Plaintiffs’ Motion to Seal (Dkt. 116)
The complaint in this matter identifies various inmates only by letter – as in

“Inmate A,” “Inmate B,” and so on. These inmates had allegedly been harassed or
injured by other inmates, so plaintiffs chose not to identify them by name in the
complaint. Plaintiffs did, however, identify these individuals by their true names in a
separate exhibit, which the Court sealed. See Initial Review Order, Dkt. 27, at 26 (“This
sensitive information justifies sealing the documents . . . at this time.”).
In recent filings, defendants identified four of these alleged victims (Inmates “A”,
“B”, “E,” and “H”) by name. Plaintiffs request a curative order; they ask the Court to
seal or otherwise redact the identifying information in defendants’ filings. Plaintiffs also
ask the Court to sanction defense counsel. See Dkt. 116
The Court will grant the motion to the extent that it will seal the documents
containing identifying information. The Court will order defense counsel to identify
these documents and work with the Clerk’s office to ensure that these documents are
sealed. The Court will also require defendants to refile any document identifying an
alleged victim. The newly filed documents should not be sealed, but defendants should
redact identifying information from these documents. At this time, the Court declines to
sanction defense counsel. The Court attributes the disclosure of identifying information
to have been the result of a simple mistake, but counsel is cautioned that the Court
expects this mistake will not be repeated.

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5.

Plaintiffs’ Motions to File Additional Motions (Dkts. 111, 150)
In its Initial Review Order, the Court issued the following order:
No party may have more than three pending motions before the Court at
one time, and no party may file a motion on a subject matter if he or she has
another motion on the same subject matter currently pending before the
Court.

Initial Review Order, Dkt. 27,l at 33. The purpose of this order is to help the Court
manage its docket and prevent the sort of motion pile-up that has occurred in this case.
The Court will therefore deny plaintiffs’ request for relief from this order. That said,
however, the Court has considered the merits of each motion resolved within this order.
ORDER
IT IS ORDERED that:
1. Plaintiffs’ unopposed Motion to Lodge Amended Supplement to Initial
Disclosure Statement (Dkt. 106) is GRANTED.
2. Plaintiff’s Motions for Leave to File More than Three Motions (Dkt. 111,
150) are DENIED.
3. Plaintiffs’ Motion for Extension of Time in Which to File an Amended
Complaint (Dkt. 112) is DENIED.
4. Plaintiff’s Motions to Supplement Motion for Extension of Time, which are
construed as motions to modify the scheduling order (Dkt. 138, 146), are DENIED.
5. Plaintiffs’ Renewed Motion to Appoint Counsel (Dkt. 113) is DENIED.

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6. Plaintiffs’ Motion to Seal (Dkt. 116) is GRANTED. Defense counsel is
instructed to work with the Clerk’s office in accordance with the instructions given
above.
7. Defendants’ Motion for a Protective Order (Dkt. 124) is DEEMED MOOT.
8. Defendants’ Motion for Leave to File Excess Pages (Dkt. 131) is
GRANTED.
9. Plaintiffs’ Motion to File Overlength Response (Dkt. 136) is GRANTED.
10. Plaintiff’s Motion to Amend Prisoner Civil Rights Complaint (Dkt. 151) is
DENIED.
11. Plaintiffs’ Renewed Motion for Three Judge Court (Dkt. 152) is DENIED.
12. Plaintiffs’ Renewed Motion for Class Certification (Dkt. 153) is DENIED.
13. Plaintiffs’ Motion to Seal (Dkt. 154) is DEEMED MOOT.
14. Plaintiffs’ Request for a Status Conference (Dkt. 155) is DENIED.
DATED: March 16, 2016

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

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