Wolf et al v. Otter et al

Filing 202

MEMORANDUM DECISION & ORDER Plaintiffs' Motion to Alter, Amend, Vacate or Reconsider Re: Dkt. 168 (Dkt. 170 ) is DENIED. Plaintiffs' Motion to Reconsider Re: Docket 160 (Dkt. 173 ) is DENIED. Plaintiff's Motion for Leave to Conduct Further Discovery (Dkt. 176 ) is DENIED. The Court will REFRAIN FROM RULING on Defendant's Second Motion for Summary Judgment (Dkt. 179 ) and the various, related motions including motions to seal and unseal (Dkts. 178 , 194 , 195 ) and pl aintiffs' request for judicial notice (Dkt. 196 ) until plaintiffs have had the opportunity to submit a substantive response to the motion and defendant has had the opportunity to reply. See2/14/17 Order, Dkt. 200 (ordering plaintiffs to sub mit any substantive response by no later than 3/1/17, with the optional reply brief due 3/8/17). Plaintiffs' Motion for Leave to File More than Three Motions (Dkt. 191 ) 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.

I
INTRODUCTION
Before the Court is Defendant Kevin Kempf’s second motion for summary
judgment (Dkt. 179), as well as a host of motions filed by Plaintiffs Andrew Wolf and
Hans Kruger, including two motions to reconsider, a motion for leave to conduct
additional discovery, and various other motions. See Dkts. 170, 173, 176, 193-96. For
the reasons explained below, the Court will deny plaintiffs’ motions to reconsider, deny

MEMORANDUM DECISION AND ORDER - 1

plaintiffs’ motion to conduct additional discovery, and refrain from ruling on the pending
motion for summary judgment until plaintiffs have filed a substantive response.
II
BACKGROUND
Plaintiffs are prisoners in the custody of the Idaho Department of Correction.
They are proceeding pro se in this action, which has been narrowed to two plaintiffs
pursuing one defendant on three claims. In the original complaint, three plaintiffs alleged
twenty-four claims against sixteen defendants. See Compl., Dkt. 7. The Court has
repeatedly denied plaintiffs’ efforts to certify this as a class action.
Two of plaintiffs’ remaining claims deal with conditions of confinement at the
Idaho State Correctional Center (ISCC) in Kuna, Idaho, and the third is a failure-toprotect claim. The details of these claims are as follows:
Twelfth Claim. In the twelfth claim for relief, Plaintiff Andrew Wolf alleges that
defendant failed to provide adequate dayroom space in the West Wing Living Units of
ISCC. See Compl., Dkt. 7, ¶ 338.
Twentieth Claim: Out-of-Cell Time at ISCC. In the twentieth claim, Wolf alleges
that prison officials fail to adequately staff ISCC, which resulted in Wolf’s failure to
receive enough time outside his prison cell. See Compl., Dkt. 1, ¶ 349.1

1

This claim originally targeted two prisons: ISCC and Idaho State Correctional Institution (ISCI),
also in Kuna. In a previous ruling, however, the Court granted defendant’s motion for summary judgment
on issues related to the ISCI claims within the twentieth claim. So at this point, Wolf is pursuing the
inadequate staffing/out-of-cell-time claim only as it relates to ISCC.

MEMORANDUM DECISION AND ORDER - 2

Twenty-Fourth Claim: Failure to Protect. In the twenty-fourth claim, Plaintiff
Hans Kruger alleges that the prison failed to protect him from attacks by other inmates.
In March 2016, this Court granted summary judgment in defendant’s favor on
numerous other claims. See Mar. 31, 2016 Order, Dkt. 160. This order left plaintiffs
with the three claims just discussed. The Court did not schedule a trial on these claims,
however, opting instead to allow for further summary judgment proceedings in
accordance with Federal Rule of Procedure 56(e).
Regarding the twenty-fourth claim, the Court decided that Plaintiff Kruger was
entitled to review certain documents related to prisoner-on-prisoner assaults, which
defendant had previously refused to produce. See id., at 7. The Court ordered defendant
to produce these documents to Kruger and, after doing so, allowed defendant to renew his
motion for summary judgment on the twenty-fourth claim. Kruger would then have an
opportunity to file a new response brief, potentially supported with new factual evidence
gleaned from the additional discovery materials provided to him. See id., at 35.
Regarding the twelfth and twentieth claims, Kempf’s sole argument on summary
judgment was that these claims were moot. The Court disagreed, but allowed Kempf the
opportunity renew his motion to address those claims on the merits. See Mar. 31, 2016
Order, Dkt. 160, at 18, 19.
After the Court issued this ruling, plaintiffs filed two motions to reconsider, plus a
motion for leave to conduct additional discovery. See Dkts. 170, 173, 176. Later,
defendant filed a second motion for summary judgment regarding the three remaining
claims. See Dkt. 179. The Court will address each of these motions in turn (as well as
MEMORANDUM DECISION AND ORDER - 3

various additional motions), beginning with plaintiffs’ request that this Court reconsider
its March 31, 2016 Order.
III
DISCUSSION
A.

Motion to Reconsider Summary Judgment in Defendant’s Favor (Dkt. 173)
1. Governing Legal Standard
Plaintiffs rely on Federal Rule of Civil Procedure 60(b) to support their motions to

reconsider. See Dkts. 170, 173. That rule does not apply here because this Court has not
entered a final judgment. See Madsen v. Bumb, 419 F.2d 4, 6 (9th Cir. 1969) (“By its
terms Rule 60(b) applies only to relief from a final judgment.”). Nevertheless, “as long
as a district court has jurisdiction over the case, then it possesses the inherent procedural
power to reconsider, rescind, or modify an interlocutory order for cause seen by it to be
sufficient.” City of L.A. Harbor Div. v. Santa Monica Baykeeper, 254 F.3d 882, 889 (9th
Cir. 2001).
“A motion for reconsideration should not be granted, absent highly unusual
circumstances, unless the district court is presented with newly discovered evidence,
committed clear error, or if there is an intervening change in the controlling law.” Sissoko
v. Rocha, 440 F.3d 1145, 1153-54 (9th Cir. 2006). The Court will apply this standard to
both motions to reconsider (Dkts. 170, 173).
2. Newly Discovered Evidence
Plaintiffs ask this Court to reconsider its March 2016 summary judgment ruling
based on their assertion that they have recently discovered new evidence. The evidence

MEMORANDUM DECISION AND ORDER - 4

consists of two multi-page charts, which the parties refer to as staffing matrixes, or
staffing rosters. The charts list which prison employee is slated to cover a particular post
at the prison for the year 2016. An excerpt of the ISCI chart is shown here:
Idaho State Correctional Institution
Master Roster—2016
Lieutenants
Staff[ 2]

Post
1L
2L
3L
4L
5L
6L

7L

Position
Shift Commander,
1st Shift
Shift Commander,
2nd Shift
Shift Commander,
3rd Shift
Housing
Lieutenant
Fixed Relief
External
Security/Fixed
Relief
Relief

Sun

Mon

Wed

Thu

Fri

Sat

X
X

Tue

X

X

X

X

3rd
2nd

3rd
2nd

X
ES

X
ES

Rlf
ES

1st
1st

1st
1st

Supervisor
Sammons,
David
Sammons,
David
Sammons,
David
Sammons,
David
Sammons,
David
Sammons,
David
Sammons,
David

Maxson Dec., attachment thereto, entitled ISCI Master Roster – 2016, Dkt. 173-4, at 1.
Standing alone, the charts are not helpful to plaintiffs’ case. Although plaintiffs
say the charts are generally relevant to their assertion that the prisons are understaffed,
the charts do not contain enough information to establish that either prison is
understaffed, or, more to the point, that Wolf does not receive sufficient time outside his
cell due to alleged understaffing. Likewise, even viewing these charts in the context of
other evidence presented in connection defendant’s summary judgment motion, the charts

2

All entries in this column were redacted.

MEMORANDUM DECISION AND ORDER - 5

do not lead to either inference. Similarly, the charts do not shore up plaintiffs’ defenses
on any other claim that was summarily adjudicated in the Court’s March 31, 2016 Order.
The Court will therefore deny plaintiffs’ motion for reconsideration based on this
evidence. After all, even assuming this evidence is newly discovered, plaintiffs would
still need to demonstrate that it is of such a magnitude that if the Court had known of it
earlier, the outcome would likely have been different. Cf. Feature Realty, Inc. v. City of
Spokane, 331 F.3d 1082, 1093(9th Cir. 2003) (in seeking relief from judgment, the
moving party must, among other things, demonstrate that the new evidence is “‘of such
magnitude that production of it earlier would have been likely to change the disposition
of the case.’”) (citation omitted). Plaintiffs cannot clear this hurdle.
Perhaps recognizing that the new evidence is not particularly helpful to their case,
plaintiffs do not argue that the charts themselves – either standing alone or viewed in the
context of other evidence – would have made any difference. Instead, they argue that if
they had had these charts earlier in the litigation, they would have been prompted to
undertake other discovery that would have allowed them to dispute defendant’s evidence
establishing that inmates receive sufficient out-of-cell time. See Dkt. 173, at 6 (citing
Dkt. 137-7, at 8, ¶ 26). Ultimately, then, plaintiffs are not asking the Court to reconsider
its earlier ruling on the basis of newly discovered evidence. They are asking the Court to
modify the scheduling order by reopening the discovery period. As plaintiffs recognize
in a separately filed motion to reopen discovery, see Dkt. 176, such a request is governed
by Federal Rule of Civil Procedure 16. The Court will therefore address the remainder of
the arguments advanced in the motion for reconsideration in the context of ruling on
MEMORANDUM DECISION AND ORDER - 6

plaintiffs’ motion to reopen discovery. See discussion infra, ¶ III.C.
B.

Motion to Reconsider Discovery Order (Dkt. 173)
Before resolving the motion to reopen discovery, the Court will resolve plaintiffs’

motion to reconsider a discovery ruling. Plaintiffs contend that this Court mistakenly
“failed to address all of the Motion to Compel Discovery documents” when it resolved an
earlier motion to compel. See Motion, Dkt. 173, at 9.
The Court is not persuaded. The motion to compel at issue related to 417 separate
document requests plaintiffs had propounded. See Dkt. 107. Generally speaking, many
of the documents plaintiffs sought do not appear proportional to needs of this case. See
generally Fed. R. Civ. P. 26(b)(1) (“Parties may obtain discovery regarding any
nonprivileged matter that is relevant to any party’s claim or defense and proportional to
the needs of the case, considering . . . [various factors].”) (emphasis added). For
example, although plaintiffs’ central complaint is that the prisons are overcrowded, they
asked Kempf to produce documents related to the prison’s standard operating procedures
(SOPs) for hundreds of different topics that do not appear to have any bearing on the
issue of overcrowding. The requested SOPs include those related to, among other things:
(1) cash receipts; (2) encumbrances; (3) fiscal policy; (4) grant management; (5) offender
trust accounts; (6) purchasing and contracting; (7) quality management systems; (8)
internship opportunities and management; (9) hygiene of officers; (10) offender barbers;
(11) facility housekeeping (12) radio/TV/movie programs in institution; (13) religious
activities; (14) special needs treatment plans; and (15) use of telephones by offenders.
See Plaintiffs’ First Req. for Prod. of Docs., Dkt. 107-1 (Request Nos. 60, 72, 74, 78, 79,
MEMORANDUM DECISION AND ORDER - 7

87, 126, 127, 152, 174, 177, 178, 179, 184, 213).
In their motion to compel, plaintiffs continued the same shotgun approach. In a
single, relatively brief motion, they asked the Court to compel defendant to produce
documents responsive to their 417 requests, some of which requested documents dating
back to 2005. See generally Dkt. 107, at 9. Despite seeking such a sweeping order,
plaintiffs’ motion largely failed to direct the Court’s attention to any particular document
request, or even to specific categories of documents. Instead, plaintiffs typically made
generalized arguments such as this one: “Plaintiffs would seek this Court to compel
defense counsel to produce discovery documents requested that go back to January 1,
2005, based upon the Balla Final Expert Master Report of Chase Riveland concerning the
12, 13th, 20th, 21st Claims for Relief on Inadequate Staffing and Lack of Out-of-Cell
Time at ISCC and ISCI.” Motion to Compel, Dkt. 107, at 6. 3
The Court observed that such general arguments were not persuasive, particularly
when plaintiffs sought so many categories of documents spanning such a wide range of
topics and such a lengthy period. The Court therefore denied plaintiffs’ request for a
blanket order compelling defendant to provide documents responsive to all 417 requests.
In an effort to move the litigation along, however, the Court provided specific guidance
on two requests (Nos. 27 and 28), which were the only requests plaintiffs specifically and

3

Plaintiffs discussed some requests more specifically in an affidavit filed with their reply brief.
See Wolf Aff., Dkt. 110-1. This affidavit, however, is filled with conclusory statements that did not (and
do not) persuade the Court to issue a broader order. Further, by waiting until reply, plaintiffs did not give
defendant an opportunity to respond to these arguments.

MEMORANDUM DECISION AND ORDER - 8

meaningfully discussed in their motion. See Dkt. 107, at 6-7 (discussing document
requests 27 and 28).
The Court has reviewed its ruling, as well as the underlying motion papers, and it
is not persuaded to vacate or modify its order. Plaintiffs chose to make general
arguments, loosely based on hundreds of document requests, which, in turn, often
suffered from a lack of focus. The Court did the best it could with such a motion – by
specifically dealing with the requests that were actually raised in the motion, and
otherwise issuing a blanket denial of plaintiff’s sweeping motion to compel. The Court
will therefore deny Plaintiff’s motion to the extent plaintiffs are asking the Court to
compel any further responses from defendant as to these 417 requests.
C.

Motion to Reopen Discovery (Dkt. 176)
The next issue is whether the Court should modify the scheduling order by

reopening the discovery period. Rule 16(b)(4) provides that a scheduling order “may be
modified only for good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4).
“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). 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. While prejudice to the party opposing the modification may provide
MEMORANDUM DECISION AND ORDER - 9

additional reasons for denying the motion, it is not required to deny a motion to amend
under Rule 16(b). Coleman v. Quaker Oats Co., 232 F.3d 1271, 1295 (9th Cir.2000).
Plaintiffs advance several arguments to justify their motion to reopen discovery,
but none establish the requisite good cause.
1. Defendant’s Alleged “Fraud” Relating to Document Request No. 360
Plaintiffs’ central argument is that defendant committed “fraud” during the
discovery period. In a nutshell, plaintiffs correctly point out that during informal
discovery meetings, Kempf said he would produce the prison staffing charts discussed
above, but then later said he would not produce those very documents. The relevant
request is No. 360, which is shown here, along with its corresponding response:
REQUEST NO. 360: Produce the staffing matrix for ISCI from January 1,
2005 to present, which sets forth the following: 1) all three shifts; 2) the
posting for each officer; 3) posting for each non-security personnel; [and]
4) calendar days that each is scheduled.
RESPONSE TO REQUEST NO. 360: Defendant objects to this request
on the grounds that it seeks information that is outside the timeframe
alleged in plaintiffs’ complaint, and therefore, is not relevant nor likely to
lead to the discovery of admissible relevant evidence. Defendant further
objects on the grounds that this request is overly broad and unduly
burdensome.
Dkt. 173-3, at 21 (page 86 of the written response). In earlier correspondence, Defendant
Kempf’s counsel said she would produce the documents so long as plaintiffs limited their
request to the period 2011 to present. See Oct. 10, 2014 Letter from Leslie Hayes to
Plaintiffs, Dkt. 107-3; Feb. 13, 2015 Letter from Leslie Hayes to Plaintiffs, Dkt. 107-4, at
3. Kempf now says that regardless of what happened during informal negotiations, his
formal, written response controls.
MEMORANDUM DECISION AND ORDER - 10

The Court does not condone this behavior by defense counsel, but it cannot
conclude that defendant defrauded plaintiffs or the Court. The parties were negotiating
417 wide-ranging document requests and defense counsel’s initial letter to plaintiffs
discussing the document requests indicated that defendant reserved the right to later
object to the requests, regardless of what was said in the letter. See Oct. 10, 2014 Letter,
Dkt. 107-3, at 1 (“Please note that I reserve the right to . . . assert additional objections
[or] withhold documents . . . and that any statements provided herein that I will provide
you with certain documents does not constitute a waiver of . . . other general objections to
the productions of those documents.”).
Further, by April 2015 – when defendant served his formal, written responses –
plaintiffs were on notice that defendant did not intend to produce the requested staffing
matrix, notwithstanding earlier, contrary representations. At that point, plaintiffs could
have brought this issue to the Court’s attention with a targeted motion to compel. They
did not do so. Granted, they filed the sweeping motion to compel discussed above, but
this motion largely failed to discuss specific document requests. More to the point, this
motion did not place any special attention on Document Request No. 360. In fact,
plaintiffs filed this motion before Kempf had even served his formal written responses.
The formal, written response was served during the briefing period for that motion to
compel, yet despite filing numerous other documents (including a “supplemental reply”
related to that very motion, see May 27, 2015 Supp. Reply, Dkt. 114), plaintiffs did not
specifically point out that defendant had reneged on an informal agreement regarding
Request No. 360. The upshot is that defendant’s alleged “fraud” regarding Request No.
MEMORANDUM DECISION AND ORDER - 11

360 was not brought to the Court’s attention until nearly one year later. In the meantime,
plaintiffs effectively dropped the issue.
On these facts, the Court cannot conclude that plaintiffs were diligent in their
efforts to compel Kempf to produce the staffing rosters. Accordingly, the Court cannot
find that they established good cause to conduct additional discovery based on any
information they might have learned by viewing the rosters. For all these reasons, the
Court will deny plaintiffs’ motion to reopen the discovery period based on Kempf’s
alleged fraud regarding Document Request No. 360.
2. Defendant’s Alleged Fraud Related to Other Document Requests
Likewise, the Court does not find good cause to reopen the discovery period based
on plaintiffs’ complaints about other document requests. In that regard, plaintiffs
generally say Kempf’s alleged “fraud” is not restricted to Document Request No. 360.
They say Kempf failed to produce responsive documents to hundreds of other requests.
See Dkt. 173, at 5, 8. But once again, plaintiffs do not discuss the other requests in any
meaningful way. Instead, they attach a cryptic, two-page chart to their motion papers,
which is meant to flesh out the details regarding the alleged misconduct. See Ex. 78 to
Plaintiffs’ Motion, Dkt. 173-5. A representative portion of the chart is shown here:
Discovery Disclosures Agreed To
Request or Production Nos.:
RFP Nos. 45-260. Per Docket 160 RFP
Nos. 60 and 70 became relevant.

Actually Produced:
RFP Nos. 69-70, 95-96, 108, 110, 119,
128 and 208.

Chart entitled “Discovery Disclosures Agreed To”, Dkt. 173-5.

MEMORANDUM DECISION AND ORDER - 12

The few lines of text shown here are presumably meant to convince the Court to
compel defendant to provide further response to over 200 separate document requests
(Nos. 45-260). Yet there is simply not enough explanation or background provided to
convince the Court that defendant misbehaved during discovery regarding these requests.
The remainder of the chart suffers from similar defects and thus fails to persuade
the Court that the discovery period should be reopened due to any alleged fraud.
3. Plaintiffs’ Other Arguments
The Court has considered all of plaintiffs’ remaining arguments in support of their
request to reopen discovery and finds them unpersuasive. Among other things:
Wolf suggests he should be allowed to conduct additional discovery because his
claim related to out-of-cell time was not dismissed on summary judgment. See Motion,
Dkt. 176, at 3. But the mere fact that a claim survived a motion for summary judgment
does not justify reopening discovery.
Wolf also argues that because Kempf and his staff assumed control of ICC in July
2014, plaintiffs should be able to conduct discovery about staffing and building schedules
after the 2014 change in management. Id. at 4. But the discovery period remained open
until after July 2014, meaning that plaintiffs have already had the opportunity to conduct
discovery regarding ICC (renamed ISCC) after the change in management occurred. In
fact, plaintiffs’ document request, discussed above, was propounded in September 2014.
Plaintiffs next say they should be permitted to conduct additional discovery
regarding Kruger’s failure-to-protect claim. Here, the Court previously set up a phased
discovery plan: In March 2016, defendant was ordered to produce documents relating to
MEMORANDUM DECISION AND ORDER - 13

prisoner-on-prisoner assaults at the prison during the one-year period before Kruger filed
his complaint. See Dkt. 160, at 6-7, 34. (For ease of reference, the Court will refer to
these documents as “Assault Packets”). If Kruger established that he was subjected to a
serious risk of harm during that period, then the Court indicated it would consider
ordering the production of additional documents. Id. at 7-8. In this motion, Kruger does
not make such a showing, so the Court will not order additional discovery.
For all the reasons set forth above, the Court does not find good cause to modify
the scheduling order. It will therefore deny plaintiffs’ motion to reopen discovery.
D.

Motion for a Protective Order – Documents Related to Prisoner-on-Prisoner
Assaults (Dkt. 170)
Plaintiffs’ next motion is framed as a motion to reconsider, but the issue is actually

whether this Court should issue a protective order related to documents Kempf has
produced to Kruger – and only to Kruger – during discovery. As noted above, in March
2016, this Court ordered Kempf to produce Assault Packets to Plaintiff Kruger.
Defendant complied with this order by allowing Kruger to examine these documents, but
he has refused to allow Kruger to share these documents with any other inmate –
including Plaintiff Wolf.
Wolf says he should be allowed to view the documents because they are “relevant
to Wolf’s overall Eighth Amendment Claim [of] systemwide overcrowding and [he]
should be permitted access to it.” Reply, Dkt. 175, at 6. Yet Wolf no longer has a
failure-to-protect claim to pursue. In its March 2016 Order, the Court dismissed Wolf’s
failure-to-protect claim because he failed to exhaust administrative remedies. See Mar.

MEMORANDUM DECISION AND ORDER - 14

31, 2016 Order, Dkt. 160, at 23-30. Thus, the only remaining failure-to-protect claim at
issue in this action belongs to Kruger. Further, at the same time the Court dismissed
Wolf’s failure-to-protect claim, the Court ordered defendant to “produce to Plaintiff
Kruger documents related to inmate-on-inmate assaults during the one-year period before
the complaint was filed.” Id. at 34 (emphasis added). Citing this language of the order,
along with safety and security concerns, Kempf has refused to allow Wolf to view the
Assault Packets. See generally Cluney Aff., Dkt. 174-1.
Kempf should have sought a protective order clarifying that Kruger would not be
allowed to share the documents with other inmates, including Wolf. Or, at a minimum,
Kempf should have sought a clarifying order from this Court. Nevertheless, based on the
record in this case, the Court finds good cause to issue a protective order.
Federal Rule of Civil Procedure 26(c)(1) provides that a Court may issue a
protective order for good cause shown. IDOC’s Deputy Chief of Prisons Shannon
Cluney explains that disseminating the documents provided to Kruger to other inmates
could present safety and security risks at the prison. See Cluney Aff., Dkt. 174-1, ¶ 7.
Specifically, it seems that the key concern is inmate safety, because inmates who
examine the documents might be able to figure out which inmates are providing
information to the prison. Then the reporting inmate’s safety is placed at risk, and,
further, inmates might be less likely to report information in the future. Id. Cluney also
says inmates with access to the documents could potentially use the information
contained in those documents to manipulate other inmates. Id.
Under these circumstances, the Court will issue a protective order preventing
MEMORANDUM DECISION AND ORDER - 15

Kruger from sharing these documents with any other inmate, including Wolf.
Finally, the Court is not persuaded by Wolf’s argument that Kruger is incapable of
pursuing these claims unless Wolf is allowed to view the Assault Packets. Nor is the
Court persuaded that Kempf effectively waived any right to preclude Wolf from viewing
these documents by allowing Wolf to attend Kruger’s deposition or because Wolf has
apparently already viewed some confidential documents. The Court will therefore deny
Wolf’s motion related to the Assault Packets and will instead issue a protective order
allowing Kruger to view the documents, but preventing him from copying or
disseminating the documents to others without a prior Court order.
The Court will also deny plaintiffs’ alternative request to appoint counsel. The
Court has previously denied this request and will do so again for the same reasons. See
June 13, 2013 Order, Dkt. 27, at 22-24; Mar. 16, 2016 Order, Dkt. 158, at 7.
E.

Defendant’s Second Motion for Summary Judgment (Dkt. 179)
Defendants filed their second motion for summary judgment in July 2016. See

Dkt. 179. In the ensuing several months, plaintiffs have not filed a substantive response.
The Court recently ordered plaintiffs to file a substantive response by no later than March
8, 2017. The Court will therefore refrain from ruling on the pending motion for summary
judgment, along with various related motions (including motions to seal or unseal
documents and a request for judicial notice) until the summary judgment motion is fully
briefed.
ORDER
IT IS ORDERED that:

MEMORANDUM DECISION AND ORDER - 16

1. Plaintiffs’ Motion to Alter, Amend, Vacate or Reconsider Re: Dkt. 168
(Dkt. 170) is DENIED.
2. Plaintiffs’ Motion to Reconsider Re: Docket 160 (Dkt. 173) is DENIED.
3. Plaintiff Hans Kruger shall be allowed to view the Assault Packets, but he
shall not be allowed to copy the Assault Packets or disseminate their contents to any
other person without a prior order from this Court.
4. Plaintiff’s Motion for Leave to Conduct Further Discovery (Dkt. 176) is
DENIED.
5. The Court will REFRAIN FROM RULING on Defendant’s Second
Motion for Summary Judgment (Dkt. 179) and the various, related motions – including
motions to seal and unseal (Dkts. 178, 194, 195) and plaintiffs’ request for judicial notice
(Dkt. 196) – until plaintiffs have had the opportunity to submit a substantive response to
the motion and defendant has had the opportunity to reply. See Feb. 14, 2017 Order,
Dkt. 200 (ordering plaintiffs to submit any substantive response by no later than March 1,
2017, with the optional reply brief due March 8, 2017).
6. Plaintiffs’ Motion for Leave to File More than Three Motions (Dkt. 191) is
DENIED.
DATED: March 6, 2017

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

MEMORANDUM DECISION AND ORDER - 17