Wolf et al v. Otter et al

Filing 217

MEMORANDUM DECISION AND ORDER Defendant Atencio's Motion to Seal (Dkt. 162 ) is GRANTED. Defendant Atencio's Motion to Seal (Dkt. 178 ) is GRANTED in part and DENIED in part as follows: Defendant shall submit redacted versions of all doc uments contained within Dockets 178 through 184 within 60 days of this Order in accordance with the guidelines explained above. Defendant Atencio's Second Motion for Summary Judgment (Dkt. 179 ) is GRANTED. The Court will enter judgment separa tely. The Clerk shall ADMINISTRATIVELY TERMINATE plaintiffs' "motions" at Dkts. 194 and 195 . The Court construed these pleadings as response briefs and considered them in ruling on Defendant's 7/29/16 Motion to Seal. Plainti ffs' Third Request for Judicial Notice (Dkt. 196 ) is DENIED. Plaintiffs' Motion to Stay Summary Judgment Motion (Dkt. 201 ) is DENIED. Defendant's Motion to Seal (Dkt. 211 ) is GRANTED. Plaintiffs' Motion to Stay Pending Interlocutory Appeal (Dkt. 213 ) 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 Henry Atencio’s Second Motion for Summary
Judgment (Dkt. 179) and various related motions. (Defendant Atencio, as the current
director of IDOC, is substituted for former director defendants Kevin Kempf and Brent

MEMORANDUM DECISION AND ORDER - 1

Reinke. See Fed. R. Civ. P. 25(d)). For the reasons explained below, the Court will grant
Atencio’s motion.
II
PROCEDURAL BACKGROUND
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, all stemming from prison overcrowding. The
following three claims remain:
Twelfth Claim. In the twelfth claim for relief, Plaintiff Andrew Wolf alleges that
Defendant Atencio failed to provide adequate dayroom space in the West Wing Living
Units of the Idaho State Correctional Center (ISCC, formerly known as ICC 1). See
Compl., Dkt. 7, ¶ 338.
Twentieth Claim. In the twentieth claim, Wolf alleges that prison officials failed
to adequately staff ISCC, which resulted in Wolf’s failure to receive enough time outside
his prison cell. See id. ¶ 349. 2
Twenty-Fourth Claim. In the twenty-fourth claim, Plaintiff Hans Kruger alleges
that the prison failed to protect him from attacks by other inmates.

1

IDOC began managing ISCC in July 2014. Before that, a private corporation operated the
prison under the name “Idaho Correctional Center” (ICC).
2

This claim originally targeted two prisons: ISCC and Idaho State Correctional Institution
(ISCI), also in Kuna. In a previous ruling, the Court granted Atencio’s motion for summary judgment on
issues related to the ISCI claims within the twentieth claim. See Mar. 31, 2016 Order, Dkt. 160, at 34. 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

Plaintiffs seek injunctive relief only on these claims.
III
FACTUAL BACKGROUND
Plaintiffs did not file a substantive response to Atencio’s second motion for
summary judgment. Likewise, they did not submit a statement of disputed facts.
Accordingly, in resolving this motion, the Court relies on Atencio’s fact statement and
supporting evidentiary materials submitted with this motion, as well as the materials
plaintiffs submitted in the first round of summary-judgment proceedings. See e.g.,
Defendant’s Separate Statement of Undisputed Facts (“SOF”), Dkt. 179-2; Plaintiff’s
Statement of Disputed Facts, Dkt. 137-2. The relevant facts are briefly summarized here. 3
A.

Facts Relevant to Plaintiff Kruger’s Claim
In 1993, Plaintiff Hans Kruger was sentenced to 30 years in prison, through March

2023. During 23 years of incarceration, Kruger was assaulted by other inmates on two
occasions, once in 1994 when he was incarcerated at a different prison (Idaho
Correctional Institution – Orofino), and a second time in 2003, when he was incarcerated
at ISCI. Kruger did not report either incident or seek medical treatment.
Kruger observed other inmates fighting on two occasions in December 2010.
IDOC responded each time, stopped the fighting, and removed the inmates. Kruger did

3

Plaintiffs said they intended to use pleadings filed in other cases to oppose Atencio’s second
motion for summary judgment. See Request for Judicial Notice, Dkt. 196. They did not follow through,
however. Further, the Court is not convinced that any of the five cases listed in plaintiffs’ request for
judicial notice are relevant to this case. Accordingly, the Court will deny the request.

MEMORANDUM DECISION AND ORDER - 3

not file a concern form or ask for protective custody. SOF ¶¶ 8-9.
In the summer of 2012, while he was in his cell, Kruger saw one inmate attack
another. IDOC removed the victim, offered him medical care and protective custody, and
transferred him to a different unit. IDOC also disciplined the attacker. Id. ¶ 11-13.
Kruger also testified that in late August 2012, the A Tier of Unit 15 was locked
down after members of the Aryan Knights gang demanded that sex offenders pay “rent”
(ramen noodles from the commissary) to stay on the tier. ISCI investigated the matter
and found that the Aryan Knights had coerced one sex offender to attack another for
refusing to pay rent. Both inmates were taken to administrative segregation and
protective custody was offered to the victim as well as to two other inmates who
complained the Aryan Knights were demanding rent from then. Id. ¶ 15.
That same day, Kruger submitted a concern form to Warren Blades. He submitted
two more concern forms on September 8, 2012. Warden Blades responded to each
concern form, and on September 17, 2012, Kruger was transferred to a different unit and
tier. Id. ¶ 16-18.
Shortly afterward, Kruger sued. See Oct. 15, 2012 Compl., Dkt. 7. During his
deposition, Kruger testified regarding events occurring during the pendency of this
lawsuit, including a November 2014 attack and a May 2016 fight between inmates.
Kruger submitted various grievances and concern forms during the past four years,
including September and October 2015 concern forms, wherein he complained of an
influx of “young aggressive thugs” and “known active gang members from
differing/opposing gangs.” SOF ¶ 21; see also id. ¶ 22, ¶ 28. Kruger said he was
MEMORANDUM DECISION AND ORDER - 4

purposely vague in some these forms. He did identify four inmates as aggressors in a
later concern form, but these inmates did not threaten him and he was not afraid of them.
Id. ¶¶ 23-27. These four inmates are no longer housed at ISCI. Id. ¶ 27.
At his summer 2016 deposition, Kruger testified that he had not been threatened
by other inmates in the past year, and that he was in fairly good standing with the other
inmates. He did say, however, that in early June 2016 an inmate in Unit 14 told Kruger
that the skinheads were “gunning” for him. Id. ¶ 33-34.
B.

Facts Relevant to Plaintiff Wolf’s Claims
Plaintiff Wolf has been housed at both ICC (now ISCC) and ISCI during the past

decade. He was housed at ICC from April 2008 through April 2011, when he was
transferred to ISCI. Then, after being transferred to other prison facilities, Wolf returned
to ICC where he remained until October 2013, when he was again transferred to ISCI.
Wolf remains at ISCI as of this date.
The ISCC Warden has submitted an affidavit demonstrating that ISCC inmates
have multiple opportunities throughout the day to be outside their cells. See Blades Aff.,
¶¶ 1-21; Ex. A thereto. Specifically, in the morning, afternoon, and evenings, inmates
may leave their cells. They have opportunities to work, attend school, use the library and
the Legal Resources Center, or the gym. Inmates may also stay inside and watch
television or read or access the dayroom. Inmates generally have at least 20 hours of
scheduled gym or ball field time each week.

MEMORANDUM DECISION AND ORDER - 5

IV
DISCUSSION
A.

Motion to Stay Summary Judgment
In an earlier ruling, this Court denied plaintiffs’ motion to reopen discovery, and

ordered plaintiffs to file a substantive response to the pending motion for summary
judgment. Plaintiffs have not filed such a response. Instead, they moved to “stay” the
summary judgment motion. See Dkt. 201. This stay motion mainly rehashes arguments
this Court previously rejected. See Mar. 6, 2017 Order, Dkt. 202. Plaintiffs do,
however, offer one new justification for “staying” a ruling on Atencio’s summaryjudgment motion. They say they because they are unable to afford a copy of Defendant
Kruger’s deposition transcript, the Court should withhold ruling, and, in the meantime,
either: (1) order defendant to provide a copy of the transcript; (2) bar defendant from
using the transcript to support his summary-judgment motion; or (3) use Court funds to
pay the court reporter for a copy of the transcript.
The Court will deny this motion for three reasons.
First, plaintiffs delayed bringing this motion. Kruger was deposed in the summer
of 2016, yet plaintiffs waited until February 2017 to bring this motion.
Second, Plaintiff Kruger was present at his own deposition, so he has first-hand
knowledge of what occurred there. (Plaintiff Wolf also attended the deposition). Kruger
also took notes when he reviewed his transcript for errors. See Motion, Dkt. 201, at 10.
Third, plaintiffs cite no authority supporting their request, and there is no
provision in 28 U.S.C. § 1915 requiring defendants or the Court to pay indigent

MEMORANDUM DECISION AND ORDER - 6

defendants’ litigation costs. The Court will therefore deny plaintiffs’ motion. Cf. Rivera
v. DisAbato, 962 F. Supp. 38, 40 (D.N.J. 1997) (denying a pro se prisoner litigant’s
similar request, observing “plaintiff’s obligations, even as an indigent litigant, to finance
his own litigation expenses cannot be arbitrarily thrust upon defendants”).
B.

Motion to Stay Pending Interlocutory Appeal
Plaintiffs also ask the Court to stay this case pending the Ninth Circuit’s resolution

of an interlocutory appeal. See Dkt. 213 (Mar. 17, 2017 Motion to Stay); Dkt. 206
(Plaintiffs’ Notice of Interlocutory Appeal). The Court will deny this motion.
First, plaintiffs are not appealing a “final decision of the district court.” 28 U.S.C.
§ 1291, so the Ninth Circuit lacks jurisdiction. See generally Munoz v. Small Bus.
Admin., 644 F.2d 1361, 1364 (9th Cir. 1981). Second, even assuming the Ninth Circuit
had jurisdiction, the Court would not stay the matter. Among other things, this action has
been pending in this Court since 2012, and the Court is prepared to rule on defendant’s
second motion summary judgment, which has been pending for several months. Under
these circumstances, a stay would not serve the parties.
C

Motion for Summary Judgment
1.

The Governing Legal Standard

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 “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
MEMORANDUM DECISION AND ORDER - 7

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). There must be a genuine dispute as to any material fact – a fact
“that may affect the outcome of the case.” Id. at 248.
The evidence must be viewed in the light most favorable to the non-moving party,
and the Court must not make credibility findings. Id. at 255. Direct testimony of the
non-movant must be believed, however implausible. Leslie v. Grupo ICA, 198 F.3d
1152, 1159 (9th Cir. 1999). On the other hand, the Court is not required to adopt
unreasonable inferences from circumstantial evidence. McLaughlin v. Liu, 849 F.2d
1205, 1208 (9th Cir. 1988).
The Court must be “guided by the substantive evidentiary standards that apply to
the case.” Liberty Lobby, 477 U.S. at 255. If a claim requires clear and convincing
evidence, the question on summary judgment is whether a reasonable jury could conclude
that clear and convincing evidence supports the claim. Id.
The moving party bears the initial burden of demonstrating the absence of a
genuine dispute as to material fact. Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir.
2001)(en banc). To carry this burden, the moving party need not introduce any
affirmative evidence (such as affidavits or deposition excerpts) but may simply point out

MEMORANDUM DECISION AND ORDER - 8

the absence of evidence to support the nonmoving party’s case. Fairbank v. Wunderman
Cato Johnson, 212 F.3d 528, 532 (9th Cir.2000).
This shifts the burden to the non-moving party to produce evidence sufficient to
support a jury verdict in her favor. Deveraux, 263 F.3d at 1076. The non-moving party
must go beyond the pleadings and show “by her [ ] affidavits, or by the depositions,
answers to interrogatories, or admissions on file” that a genuine dispute of material fact
exists. Celotex, 477 U.S. at 324.
However, the Court is “not required to comb through the record to find some
reason to deny a motion for summary judgment.” Carmen v. San Francisco Unified Sch.
Dist., 237 F.3d 1026, 1029 (9th Cir. 2001) (quotation omitted). Instead, the “party
opposing summary judgment must direct [the Court’s] attention to specific triable facts.”
S. Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 889 (9th Cir. 2003).
2.

Plaintiff Wolf’s Twelfth and Twentieth Claims

The Court will grant summary judgment on Wolf’s claims related to ICC (now
ISCC). In his two remaining claims, Wolf alleges that Defendant Atencio violated the
Eighth Amendment by (1) not providing adequate dayroom space at ICC; and (2) not
providing adequate out-of-cell time at ICC. See Initial Review Order, Dkt. 27, at 10;
Compl., Dkt. 1, ¶¶ 338-39, 349-50.
In his first summary-judgment motion, Atencio argued that Wolf’s claims related
to ICC were moot because Wolf has not been housed at ICC since April 2011. The court
rejected this argument, explaining that IDOC manages the prison and could easily house
Wolf there. (Wolf seeks injunctive relief only on this claim.) Defendant was given the
MEMORANDUM DECISION AND ORDER - 9

opportunity, however, to submit supplemental materials explaining current conditions at
ISCC. See Mar. 30, 2016 Order, Dkt. 160, at 17-20.
Defendant responded with an affidavit from Warden Randy Blades, which
establishes that ISCC inmates have multiple opportunities throughout the day to be out of
their cells. See Dkt. 184-1. Wolf has failed to submitted any evidence creating a genuine
dispute regarding the material facts, either in opposition to this motion or in responding
to the first motion for summary judgment. The Court will therefore grant summary
judgment in Atencio’s favor on the twentieth claim.
The Court will also grant summary judgment in Atencio’s favor on the twelfth
claim, which deals with the size of the dayroom at ISCC. Here, as Atencio points out, the
size of the prison dayroom, per se, does not create a constitutional deprivation. The
larger issue is whether ISCC inmates receive ample time outside their cells. They do.
Atencio is therefore entitled to summary judgment on Wolf’s twelfth claim.
3.

Kruger’s Twenty-Fourth Claim for Failure to Protect

The final claim at issue is Kruger’s failure-to-protect claim.
The Eighth Amendment’s proscription against cruel and unusual punishment
requires prison officials to protect inmates from violent attacks by other inmates. Farmer
v. Brennan, 511 U.S. 825, 833 (1994). But not every injury “suffered by one prisoner at
the hands of another ... translates into constitutional liability for prison officials
responsible for the victim’s safety.” Id. at 834. To establish a failure-to-protect claim,
“the inmate must show that he is incarcerated under conditions posing a substantial risk
of serious harm” and that the prison official acted with “deliberate indifference” to the
MEMORANDUM DECISION AND ORDER - 10

inmate's health or safety. Id. A prison official acts with deliberate indifference if he
“knows of and disregards an excessive risk to inmate health or safety” – that is, “the
official must both be aware of facts from which the inference could be drawn that a
substantial risk of serious harm exists, and he must also draw the inference.” Id. at 837.
A prisoner alleging an Eighth Amendment violation need not show that prison officials
believed that harm would actually occur; “it is enough that the official acted or failed to
act despite his knowledge of a substantial risk of serious harm.” Id. at 842. A prison
official's knowledge of the risk “can be proven through circumstantial evidence, such as
by showing that the risk was so obvious that the official must have known about it.”
Johnson v. Johnson, 385 F.3d 503, 524 (5th Cir.2004). A prison official, however, may
avoid liability if he “responded reasonably to the risk, even if the harm ultimately was not
averted.” Farmer, 511 U.S. at 844. Further, the mere negligent failure to protect a
prisoner from assault does not comprise a constitutional violation. See Davidson v.
Cannon, 474 U.S. 344, 347-48 (1986).
In an earlier order, the Court held that although Kruger’s concern forms did not
signal to the prison that Kruger was personally subjected to any serious threat of harm,
Kruger should nonetheless be allowed further discovery so that he could attempt “to
prove that, based on past assaults, the risk was so obvious that defendants must have
known that plaintiffs similarly situated faced a substantial risk of serious harm . . . .”
Mar. 30, 2016 Order, Dkt. 160, at 33.
Defendant has since provided additional discovery materials to Kruger, but Kruger
has not come forward with any additional argument or evidence demonstrating that,
MEMORANDUM DECISION AND ORDER - 11

based on past assaults, he has faced and continues to face a substantial risk of serious
harm. Additionally, even assuming Kruger faced a substantial risk of serious harm at
some point, Kruger has not shown that Defendant Atencio – both now, and at the time the
suit was filed – knowingly and unreasonably disregarded an objectively intolerable risk
of harm and will continue to do so. Granted, there have been isolated incidences of
violence during Kruger’s incarceration, but IDOC responded appropriately. Similarly,
although Kruger says gang members are housed with older inmates, this does not rise to
the level of a constitutional violation. See Labatad v. Corr. Corp. of Am., 714 F.3d 1155,
1160-61 (9th Cir. 2013). The Court will therefore grant Atencio’s motion for summary
judgment on Kruger’s twenty-fourth claim for relief.
D.

Motions to Seal
Finally, the Court will address two pending motions to seal (Dkts. 162, 178). 4
Earlier in this litigation, the Court ordered the parties to seal or redact documents

containing the name of inmates who had been assaulted by others. This was because
plaintiffs’ complaint identified various inmates who had allegedly been harassed or
injured by other inmates. Plaintiffs identified these individuals by name 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.”)

4

Plaintiffs filed two pleadings in response to Atencio’s July 29, 2016 motion to seal, including:
(1) an “Opposition . . . and Motion to Unseal Docket Numbers 178-184,” see Dkt. 194; and (2) a “Motion
to Seal Exhibit 80,” see Dkt. 195. The Court will construe both pleadings as oppositions to the July 29,
2016 motion to seal.

MEMORANDUM DECISION AND ORDER - 12

Later, plaintiffs complained when defendant identified four of the alleged victims
(A, B, E, and H) by name. The Court granted plaintiffs’ request for a curative order
sealing or otherwise redacting identifying information in defendants’ filings. See Mar.
16, 2016 Order, Dkt. 148, at 9.
Shortly after the Court entered this order, defendant filed a motion to seal an
affidavit, which, among other things, identified various alleged assault victims. The
Court will grant this unopposed motion and seal the April 1, 2016 affidavit (filed at
Docket 163).
Next, defendant filed a motion to seal all pleadings and supporting documents
submitted in connection with his second motion for summary judgment. See Dkt. 178.
Plaintiffs oppose this motion, arguing that rather than sealing every document in its
entirety, defendant should have instead redacted the documents. See Dkt. 194 and Ex. 80
thereto.
The Ninth Circuit has held that there is a strong presumption of public access to
judicial records. See Kamakana v. City of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006);
Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003). A party
seeking to file documents under seal bears the burden of overcoming that presumption.
Pintos v. Pac. Creditors Ass'n, 605 F.3d 665, 678 (9th Cir. 2010) (quoting Kamakana,
447 F.3d at 1178)
Defendant’s motion to seal sweeps too broadly. The intent of the Court’s earlier
order was simply to protect the identities of inmate assault victims, which did not require
defendant to seal every single page of every document filed in support of his pending
MEMORANDUM DECISION AND ORDER - 13

motion for summary judgment, including all briefs, affidavits, and exhibits. Rather, a
better approach would have been to redact names and identifying information of assault
victims within those documents. Plaintiffs indicate that defendant could properly redact
some documents by making certain, specific redactions. See Sealed Ex. 80, Dkt. 194-1.
The Court will not scour the many hundreds of pages defendant submitted in connection
with their motion for summary judgment for the purpose of specifically identifying each
and every name that should be redacted. Instead, the Court will order defendant to
undertake this review of Docket Nos. 178 through 184 (including attached affidavits and
exhibits) and then file redacted versions of these documents. Though the Court will not
require it, defense counsel may wish to correspond with plaintiffs in effort to obtain a
stipulation between the parties as to which specific names require redaction. Plaintiffs
appear to be willing to undertake this review, and the parties might save considerable
time and resources by reaching an agreement, for the Court’s review, regarding which
specific items require redaction.
For these reasons, the Court will grant in part and deny in part defendant’s motion
to seal.
III
ORDER
IT IS ORDERED that:
1. Defendant Atencio’s Motion to Seal (Dkt. 162) is GRANTED.
2. Defendant Atencio’s Motion to Seal (Dkt. 178) is GRANTED in part and
DENIED in part as follows: Defendant shall submit redacted versions of all documents

MEMORANDUM DECISION AND ORDER - 14

contained within Dockets 178 through 184 within sixty days of this Order in accordance
with the guidelines explained above.
3. Defendant Atencio’s Second Motion for Summary Judgment (Dkt. 179) is
GRANTED. The Court will enter judgment separately.
4. The Clerk shall ADMINISTRATIVELY TERMINATE plaintiffs’
“motions” at Dkts. 194 and 195. The Court construed these pleadings as response briefs
and considered them in ruling on Defendant’s July 29, 2016 Motion to Seal.
5. Plaintiffs’ Third Request for Judicial Notice (Dkt. 196) is DENIED.
6. Plaintiffs’ Motion to Stay Summary Judgment Motion (Dkt. 201) is
DENIED.
7. Defendant’s Motion to Seal (Dkt. 211) is GRANTED.
8. Plaintiffs’ Motion to Stay Pending Interlocutory Appeal (Dkt. 213) is
DENIED.
DATED: March 21, 2017

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

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