Hurtado-Gomez et al v. McCleary et al

Filing 21

MEMORANDUM DECISION AND ORDER AND SCHEDULING ORDER Defendants' Motion to Dismiss Pursuant to Rule 12(b) (Dkt. 11) is DENIED. Plaintiff's Motion to Amend Complaint to Add John Does 1-5 as Established in the Sur-Reply of the Plaintiff (Dkt. 16 ) is DENIED. Defendants' Motion to Compel Plaintiff to Respond to Defendants' First Discovery Requests and to Deem Defendants' First Requests for Admissions to Plaintiff Admitted (Dkt. 19 ) is DENIED. (Any proposed amended compla ints, with accompanying motions, must be filed no later than 120 days after entry of this Order: Amended Complaint due by 7/10/2014, All discovery shall be completed no later than 180 days after entry of this Order: Discovery due by 9/8/2014, All motions for summary judgment and other potentially dispositive motions shall be filed with accompanying briefs no later than 210 days after entry of this Order: Dispositive Motions due by 10/8/2014). Signed by Judge B. Lynn Winmill. ((jp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

ALVARO HURTADO-GOMEZ,
Case No. 1:12-cv-00606-BLW
Plaintiff,
v.
ANGENIE McCLEARY; TOM
BOWMAN; LAWRENCE SCHOEN;
BLAIN COUNTY SHERIFF’S
DEPARTMENT; BLAINE COUNTY
SHERIFF GENE RAMSEY; BLAINE
COUNTY JAIL SERGEANT BEAR1;
BLAINE COUNTY JAILER KELLY2;
BLAINE COUNTY JAILER HANSEN3;
AND BLAINE COUNTY JAILER
OJEDA,

MEMORANDUM DECISION AND
ORDER AND SCHEDULING
ORDER

Defendants.

Pending before the Court in this prisoner civil rights case are Defendants’ Motion
to Dismiss Pursuant to Rule 12(b) (Dkt. 11), Plaintiff’s Motion to Amend Complaint to
Add John Does 1-5 (Dkt. 16), and Defendants’ Motion to Compel Plaintiff to Respond to
Defendants’ First Discovery Requests and to Deem Defendants’ First Requests for
Admissions to Plaintiff Admitted (Dkt. 19).

1

The true identity of “Blaine County Jail Sergeant Bear” is Robert Dachtler.

2

The true identity of “Blaine County Jailer Kelly” is Kelly White.

3

The true identity of “Blaine County Jailer Hansen” is Steven Hansen.

MEMORANDUM DECISION AND ORDER AND SCHEDULING ORDER - 1

The Court finds that the parties have adequately stated the facts and legal
arguments in their briefs and that the decisional process would not be significantly aided
by oral argument. Accordingly, the Court will decide this matter on the written motions,
briefs, and record without oral argument. D. Idaho L. Civ. R. 7.1.
After reviewing the parties’ arguments, supporting evidence, and the record in this
matter, the Court will deny Defendants’ Motion to Dismiss, deny Plaintiff’s Motion to
Amend, and deny Defendants’ Motion to Compel.
BACKGROUND
Plaintiff is a prisoner in the custody of the Idaho Department of Correction
(IDOC), currently incarcerated at the Idaho State Correctional Institution (ISCI). The
events relevant to Plaintiff’s Complaint occurred while he was incarcerated at the Blaine
County Detention Center (BCDC), awaiting relocation to an IDOC facility.
On February 6, 2012, Plaintiff learned that he would be moving from 500 Pod to
300 Pod at the BCDC. (Complaint, Dkt. 3, p. 4.) On that date, Plaintiff was told by BCDC
staff that he was no longer a Blaine County inmate, but an IDOC inmate, because he had
been sentenced.
Also on that date, Plaintiff alleges that he told BCDC officers Kelly White, Robert
Dachtler and Steven Hansen, that his co-defendant was housed in 300 Pod and that this
inmate was likely to attack Plaintiff if they were housed in the same place. (Id.) Plaintiff
asked not to be moved to 300 Pod, but Robert Dachtler ordered Plaintiff moved, and
Kelly White and Steven Hansen allegedly did nothing to stop it, even though they were
MEMORANDUM DECISION AND ORDER AND SCHEDULING ORDER - 2

all aware of the risk that Plaintiff would be attacked by his co-defendant. (Id.) Plaintiff
filed an inmate request form on February 7, 2012, notifying jail officials of the threat, but
they responded only, “Kite us if you have any problems.”
On February 9, 2012, Plaintiff was attacked and seriously injured by his codefendant and two other inmates in 300 Pod. (Id. at 4-5.) He was taken to the hospital for
treatment. (Id. at 5.)
Plaintiff is a Mexican national and Spanish speaker, who states that he does not
speak English. (Dkt. 16.) He does not read or write English. (See Dkt. 12, p. 3.) He asserts
that he did know how to use the grievance system, and filed two formal grievances before
he was informed that his custody status had changed: on September 13, 2011, he filed a
grievance, complaining of an infection on his legs and feet that was not cured by the
antifungal cream he was given (Dkt. 11-2 ,pp. 14-15); and on October 5, 2011, Plaintiff
filed a grievance, complaining that he needed additional medical attention for his rash.
(Dkt. 11-2, p. 13.) Plaintiff filed informal inmate request forms to remedy many different
issues both before and after his custody status change. (See, e.g., Dkt. 18-2.)
According to the BCDC grievance policy, Plaintiff had ten days to file a grievance
after the assault incident of February 9, making the deadline on February 19, 2012.
Plaintiff was transferred to an IDOC facility on February 24, 2012. Between February 11,
2012 and February 22, 2012, Plaintiff filed five inmate request forms about miscellaneous
needs he had, but no grievances.
Plaintiff alleges that, a day after the assault, on February 10, 2012:
MEMORANDUM DECISION AND ORDER AND SCHEDULING ORDER - 3

I asked for a grievance form, I was told that, I was a [sic] IDOC
inmate and that I would have to file it there. I don’t recall who the deputy
was, due to the fact that I was on medication and I was still in sort of a daze
from the beating, that I received in 300 pod by my co-defendants.
(Second Plaintiff Decl., Dkt. 17, p. 2.)
He further alleges, that, two days after the assault, on February 12, 2012:
I was transported to the dentist, because of the beating, and on the
way I asked the Deputy if he would get a me a grievance form when we got
back. He told me that he would. After we got back I once again reminded
him, and again he told me he would. The next time I seen him I asked him
about it he told me that he was informed to tell me that I was to file it at
IDOC. I asked him if he was sure and he said “that’s what I was told.”
(Id.)
Jay Davis, BCDC Jail Administrator and Grievance Coordinator, declares: “I
personally never denied [Plaintiff] a grievance form. I also interviewed all of my Deputies
and confirmed that no one told [Plaintiff] that he needed to wait until he reached IDOC to
file a grievance.” (Second Davis Decl., Dkt. 14, p. 6.) Further, Davis declares: “All
deputies are trained that if an inmate requests a grievance form the deputy is required to
give them one.” (Id.)
To show that it was not impossible to file a grievance in the BCDC even though a
prisoner was considered in “State custody” after sentencing, Defendants have provided
instances of three other inmates who were able to file grievances that received responses
while they were IDOC inmates housed in the BCDC. (Davis Second Decl., Dkt 14, pp. 68.) The grievances concerned why over-the-counter Naproxen and cough drops were not
paid for by the State now that the prisoner was in “State custody,” BCDC censorship of
MEMORANDUM DECISION AND ORDER AND SCHEDULING ORDER - 4

incoming mail, and personal property BCDC staff removed during a cell search.
The BCDC does not allow grievances to be filed after an inmate has been
transferred to a new facility. The BCDC policy states: “Inmates who have a pending
grievance at the time of release lose all standing with respect to any further internal
administrative remedy of the matter under consideration.” (Dkt. 14-1, p. 4.)
Plaintiff alleges that, after his transfer, he requested a grievance form at the IDOC
on February 24, 2012, but was told he would be moved to the RDU, and could file one
there. On February 28, 2012, he was moved, and he requested a grievance form. He
alleges that he filed a grievance about the Blaine County incident, by placing a grievance
in the ISCI grievance box, on March 1, 2012. He alleges that he did not ever receive a
response to that grievance. (Plaintiff Dec., Dkt. 12-2, p. 2.)
On December 10, 2012, Plaintiff filed his Complaint wherein he alleged that
Defendants failed to protect him from inmate-on-inmate violence in violation of the
Eighth Amendment. Plaintiff also alleged that Defendants failed to provide him with
adequate medical care. The Court initially reviewed the Complaint pursuant to 28 U.S.C.
§ 1915A, and on March 15, 2013, entered an Order permitting Plaintiff to proceed on his
Eighth Amendment failure to protect claim.
On May 9, 2013, Defendants filed the Motion to Dismiss Pursuant to Rule 12(b)
that is now under consideration. (Dkt. 11.) Defendants argue that Plaintiff failed to
exhaust his administrative remedies with respect to his Eighth Amendment claim. (Id. at
7.) Specifically, Defendants argue that Plaintiff never filed a formal Inmate Grievance
MEMORANDUM DECISION AND ORDER AND SCHEDULING ORDER - 5

Form regarding the February 2012 assault. (Id. at 9.) In response, Plaintiff contends that
the exhaustion process was rendered unavailable to him because he was told by jail
officials that he could not file a grievance and was denied a grievance form. (Dkt. 12-2, p.
2.)
EXHAUSTION OF ADMINISTRATIVE REMEDIES
1.

Standard of Law
Pursuant to the Prison Litigation Reform Act of 1995 (“PLRA”), Pub. L. No. 104-

134, 110 Stat. 1321, as amended, 42 U.S.C. § 1997e, et seq., a prisoner is required to
exhaust all of his administrative remedies within the prison or jail system before he can
include the claim in a new or ongoing civil rights lawsuit challenging the conditions of
his confinement. 42 U.S.C. § 1997e(a); Cano v. Taylor, – F.3d –, 2014 WL 114684 (9th
Cir. 2014) (exhaustion of a claim may occur prior to filing suit or during the suit, so long
as exhaustion was completed before the first time the prisoner sought to include the claim
in the suit). “Proper” exhaustion of administrative remedies is required, meaning that the
prisoner must comply “with [the prison’s] deadlines and other critical procedural rules
because no adjudicative system can function effectively without imposing some orderly
structure on the course of its proceedings.” Woodford v. Ngo, 548 U.S. 81, 90-91 (2006).
“There is no question that exhaustion is mandatory under the PLRA and that
unexhausted claims cannot be brought in court.” Jones v. Bock, 549 U.S. 199, 211 (2007).
The exhaustion requirement is based on the important policy concern that prison officials
should have “an opportunity to resolve disputes concerning the exercise of their
MEMORANDUM DECISION AND ORDER AND SCHEDULING ORDER - 6

responsibilities before being haled into court.” Id. at 204.
Failure to exhaust is an affirmative defense that is “subject to an unenumerated
Rule 12(b) motion rather than a motion for summary judgment.” Wyatt v. Terhune, 315
F.3d 1108, 1119 (9th Cir. 2003). In deciding a motion to dismiss for lack of exhaustion,
the Court “may look beyond the pleadings and decide disputed issues of fact.” Id. at 1120.
If a prisoner has failed to exhaust his administrative remedies, the appropriate remedy is
dismissal without prejudice. Id.
The defendant bears the burden of proving failure to exhaust. See Brown v. Valoff,
422 F.3d 926, 936 (9th Cir. 2005). If the defendant does so, “the burden shifts to the
plaintiff to show that the administrative remedies were unavailable.” Albino v. Baca, 697
F.3d 1023, 1031 (9th Cir. 2012). Confusing or contradictory information given to a
prisoner “informs [the] determination of whether relief was, as a practical matter,
‘available.’” Brown, 422 F.3d at 937.
Administrative remedies will be deemed unavailable and exhaustion excused
where the prison improperly screened or processed an inmate’s grievance, Sapp v.
Kimbrell, 623 F.3d 813 (9th Cir. 2010); prison officials misinformed an inmate regarding
grievance procedures, even if innocently done, Nunez v. Duncan, 591 F.3d 1217, 1224
(9th Cir. 2010); or “jail staff affirmatively interfered with his ability to exhaust
administrative remedies.” Albino, 697 F.3d at 1033.
Administrative remedies are also considered “unavailable” where “remedies were
“not known and unknowable with reasonable effort.” Albino, 697 F.3d at 1037. It is not
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enough that the prisoner was subjectively unaware of proper grievance procedures. He
must also show that “his unawareness was objectively reasonable” – that he “could not
have discovered the grievance procedure with reasonable effort.” Id. at 1038 (“Albino
fails to dispute that the Custody Division Manual described the grievance procedure in §
5–12/010.00, that jail policies required every housing unit to have an adequate supply of
Inmate Complaint Forms, or that locked grievance repositories existed in each housing
unit”). In addition, “a good faith effort on the part of inmates to exhaust a prison’s
administrative remedies [is] a prerequisite to finding remedies effectively unavailable.”
Id. at 1035.
2.

Blaine County Detention Center’s Grievance Procedure
The BCDC grievance procedure is an internal administrative means for resolving

complaints and identifying potentially problematic management areas. (Davis Decl. And
Exhibits Dkt. 11-2, pp. 2-3). It consists of informal grievances, formal grievances, and
appeals. (Id. at 3-4.) The grievance procedure identifies informal communications
between inmates and staff as informal grievances. (Id. at 2.) If the inmate’s concern is not
resolved informally and the inmate wishes to continue with the grievance process, he
must file a formal grievance. (Id.)
An inmate may file a formal grievance regarding treatment, administrative
procedures, policies, incidents, medical care, disciplinary actions, or other legitimate
concerns. (Id. at 3.) When filing a formal grievance, inmates must include: (1) the specific
nature of the complaint(s) including the date, time, and location of the incident(s); (2) the
MEMORANDUM DECISION AND ORDER AND SCHEDULING ORDER - 8

date the grievance is being filed; and (3) the signature of the inmate. (Id.) A formal
grievance must be filed no later than ten (10) days from the date on which the basis for
the complaint occurred. (Id.)
Upon receiving the completed Inmate Grievance Form, the Deputy will forward it
immediately to the Shift Supervisor. (Id.) The Shift Supervisor will review the grievance
and if immediate action needs to be taken, will contact the Administrator for direction. If
immediate action is not required the Shift Supervisor will forward it to the Administrator
or his designee.
The Administrator or his designee shall, within five (5) days: (1) investigate and
review the inmate’s complaint; (2) ensure that corrective action is taken if the inmate’s
complaint is valid; (3) inform the inmate in writing of his findings and what, if any, action
will be taken and when; and (4) inform the inmate in writing if the grievance is invalid
and provide them the reason why. (Id.)
The Administrator will review the designee’s administrative response to ensure
that the grievance has been addressed and responded to appropriately. (Id.) The
Administrator will return the form to the designee in a timely manner so that the response
can be given to the inmate within seven (7) working days. (Id.) When the inmate’s
grievance is of a confidential or sensitive nature, the response will be sealed in an
envelope and delivered personally to the inmate. (Id.)
Inmates dissatisfied with the grievance response may file an appeal to the
Administrator within ten (10) working days of the response. (Id. at 4.) The appeal must be
MEMORANDUM DECISION AND ORDER AND SCHEDULING ORDER - 9

written on an inmate request form, with a copy of the original grievance attached, and
must state the specific reasons for the appeal. (Id.) The Chief Deputy or Sheriff will
review the inmate’s grievance and the response provided. (Id.) If the response is
appropriate, he will indicate that no further action is required, sign and date the grievance,
and forward it to the Administrator. (Id.) If the response is inappropriate or inadequate,
the Chief Deputy or Sheriff will attach comments and return it to the Administrator for
further action. (Id.) A written response to the appeal will be given to the inmate within
five (5) working days from the date the appeal was received. (Id.) The grievance process
is not exhausted until the inmate’s grievance appeal has been filed. (Id.)
3.

Discussion
Defendants argue that Plaintiff failed to exhaust his administrative remedies with

respect to his Eighth Amendment claim. To meet their initial burden, Defendants rely
upon the Declaration of Jay Davis, BCDC Jail Administrator and Grievance Coordinator.
(Dkt. 11-2.) Davis states that while Plaintiff was incarcerated at the Blaine County
Detention Center from July 15, 2011 through February 24, 2012, Plaintiff filed only two
Inmate Grievance Forms. (Id. at 5-6.) The two formal grievances concerned claims of
improper medical care and medication. (Id.) Davis states that Plaintiff never filed a formal
inmate grievance regarding any of the allegations in this lawsuit related to the February
2012 inmate-on-inmate assault. (Id. at 6.) In addition, the record is clear that no finallevel appeal of a grievance was filed. Accordingly, Defendants have met their initial
burden to show that Plaintiff did not exhaust his administrative remedies.
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The burden then shifts to Plaintiff to show that administrative remedies or
instructions for their use were so confusing or contradictory that they were essentially
unavailable, or that jail employees misled him into believing that jail remedies were
unavailable. Plaintiff argues that the grievance process was “unavailable” to him for the
following reasons.
On or about January 31, 2012, Plaintiff was sentenced to a term of imprisonment
in the Idaho State Department of Correction. It is undisputed that, as a result of his change
in status from a pretrial detainee to a sentenced felon, he was moved to a different pod
and was told that he was now an IDOC inmate, rather than a BCDC inmate, even though
he was still incarcerated at BCDC.
Plaintiff alleges that, after the assault and prior to his transfer, he requested a
grievance form twice, but was told by deputies that, because he was sentenced to the
IDOC, any grievance would have to be filed in the IDOC. (Dkts. 12, pp. 2-3; 17, p. 2.)
Plaintiff is adamant that two deputies told him that he could not file a grievance about the
assault because he was an IDOC inmate. He declares, “I’m sure that if I saw them I could
identify them, I just don’t know their names,” and he seeks to include them as defendants
in this lawsuit for their alleged wrongdoing. (Sec. Plaintiff Decl., p. 2.)
Plaintiff was transferred to the IDOC on or about February 24, 2012. (Dkt. 12, p.
2.) Plaintiff alleges that he filed a grievance when he reached the IDOC, but that he never
received a response. (Id. at 3.)
Defendants argue that this series of events is highly unlikely, based on Jay Davis’s
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declaration that the grievance policy is always available to inmates who are awaiting
transfer to state prison, and that most of the grievances in the jail are filed by IDOC
inmates awaiting transfer. (Dkt. 13, p. 4; Dkt. 14, p. 6.) Davis also declares that he never
denied Plaintiff a grievance form and that he interviewed all his deputies and confirmed
that no one told Plaintiff that he needed to wait until he reached IDOC to file a grievance.
(Id. at 4-5.)
These responses to Plaintiff's allegations are merely general, and are not supported
by the testimony of any jail deputy who was actually involved in the situations Plaintiff
describes. For example, jail records would indicate who had interactions with Plaintiff in
his new cell when he was moved after the assault, and who would have accompanied him
to the dentist, and yet Defendants have not come forward with specific facts to rebut
Plaintiff’s particular version of events.
Similarly, Defendants have not shown that Plaintiff had interactions with other
inmates who told him that they had filed BCDC grievances, regardless of their status as
IDOC inmates. As to substance, at least one of the sample grievances provided by
Defendants shows that, for some purposes, whether an inmate was a BCDC pretrial
detainee or a sentenced IDOC inmate awaiting transfer made a difference in how that
inmate was to be provided with medical care. This fact, and the fact that jailors moved
him to a new area of the jail and made it a point to tell Plaintiff that he was now an IDOC
inmate as of his sentencing date, show that the BCDC or IDOC distinction did matter in
some circumstances, which could lead to confusion about which custodian should receive
MEMORANDUM DECISION AND ORDER AND SCHEDULING ORDER - 12

a grievance.
Plaintiff also alleges that he, in fact, filed a grievance with IDOC to complain of
the assault, but he never received an answer. He asserts that he does not have a copy of
the grievance he filed because the IDOC form is not a duplicate, but rather a single piece
of paper. He further submits evidence from a prisoner class action lawsuit showing an
ongoing issue regarding whether the grievance delivery system at ISCI works in a
dependable fashion. Defendants have provided no controverting evidence from IDOC
officials showing whether they received the grievance about BCDC.
The Court finds that Plaintiff has met his burden to show unavailability of
administrative remedies in light of the confusing dual nature of his custody,
communicated directly to him; the direction for him to wait to grieve the assault incident
until after he was transferred to the IDOC that is uncontroverted by testimony from the
specific deputies who had Plaintiff in their care; and Plaintiff’s allegation that he placed
his grievance form in the IDOC grievance box for resolution as he had been advised,
another fact that is uncontroverted by the evidence. Plaintiff’s newness to the IDOC
system, his declarations that he followed BCDC and IDOC employee instructions on how
to submit a grievance, and his limited ability to understand English also weigh in the
balance on Plaintiff’s side.
Accordingly, the Motion to Dismiss will be denied, and the Court will enter a
pretrial scheduling order.

MEMORANDUM DECISION AND ORDER AND SCHEDULING ORDER - 13

MOTION TO AMEND COMPLAINT TO ADD JOHN DOES 1-5
Plaintiff seeks leave to amend his Complaint. The Court will deny Plaintiff’s
motion. Plaintiff alleges in his briefing that John Does 1-5 interfered with his ability to
file a formal grievance concerning the allegations in this lawsuit related to the February
2012 inmate-on-inmate assault. While such allegations are relevant to the PLRA’s
exhaustion requirement, they alone do not create a separate cause of action.
Inmates have no constitutional entitlement to a specific grievance procedure.
Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988). Therefore, since Plaintiff has not
demonstrated how John Does 1-5 violated his Eighth Amendment rights or any other
established rights, Plaintiff’s Motion to Amend will be denied. To the extent that Plaintiff
alleges that the Court should permit him to add Defendant Ojeda, who allegedly directed
that Plaintiff be placed in the pod where he was attacked, he has stated insufficient facts
to support a claim. However, Plaintiff may seek to add Ojeda at a later date if he obtains
facts in discovery that would support such a claim.
DEFENDANTS’ MOTION TO COMPEL PLAINTIFF TO
RESPOND TO DEFENDANTS’ FIRST DISCOVERY
REQUESTS AND TO DEEM DEFENDANTS’ FIRST REQUEST
FOR ADMISSIONS TO PLAINTIFF ADMITTED
The Court will deny Defendants’ Motion to Compel Plaintiff to respond to their
discovery requests and to deem their requests for admissions admitted. The Court’s Initial
Review Order provided the following:

MEMORANDUM DECISION AND ORDER AND SCHEDULING ORDER - 14

If, instead of filing an answer, Defendants file a motion to dismiss under Federal
Rule of Civil Procedure 12, disclosures and discovery shall be automatically
stayed with the exception that Defendants shall submit with any motion to dismiss
for failure to exhaust administrative remedies a copy of all grievance-related forms
and correspondence, including a copy of original handwritten forms submitted by
Plaintiff that either fall within the relevant time period or otherwise relate to the
subject matter of a claim.
(Dkt. 6, pp. 9-10.) Accordingly, all discovery was stayed upon Defendants’ filing of their
Motion to Dismiss Pursuant to Rule 12(b).
ORDER
IT IS ORDERED:
1.

Defendants’ Motion to Dismiss Pursuant to Rule 12(b) (Dkt. 11) is
DENIED.

2.

Plaintiff’s Motion to Amend Complaint to Add John Does 1-5 as
Established in the Sur-Reply of the Plaintiff (Dkt. 16) is DENIED.

3.

Defendants’ Motion to Compel Plaintiff to Respond to Defendants’ First
Discovery Requests and to Deem Defendants’ First Requests for
Admissions to Plaintiff Admitted (Dkt. 19) is DENIED.

IT IS FURTHER ORDERED:
1.

Disclosure of Relevant Information and Documents: If the parties have
not already done so, no later than 30 days after entry of this Order, the
parties shall provide each other with relevant information and documents
pertaining to the claims and defenses in this case, including the names of
individuals likely to have discoverable information, along with the subject

MEMORANDUM DECISION AND ORDER AND SCHEDULING ORDER - 15

of the information, as well as any relevant documents in their possession, in
a redacted form if necessary for security or privilege purposes; and, if
necessary, they shall provide a security/privilege log sufficiently describing
any undisclosed relevant documents which are alleged to be subject to
nondisclosure. Any party may request that the Court conduct an in camera
review of withheld documents or information. In camera documents are to
be filed ex parte under seal, and not provided by email or mail.
2.

Amendment of Complaint. Any proposed amended complaints, with
accompanying motions, must be filed no later than 120 days after entry of
this Order.

3.

Completion of Discovery and Requests for Subpoenas: All discovery
shall be completed no later than 180 days after entry of this Order.
Discovery requests must be made far enough in advance to allow
completion of the discovery in accordance with the applicable federal rules
prior to this discovery cut-off date. Discovery is exchanged between
parties, not filed with the Court. The Court is not involved in discovery
unless the parties are unable to work out their differences between
themselves as to whether the discovery responses are appropriate. In
addition, all requests for subpoenas duces tecum (pretrial production of
documents by nonparties) must be made within 150 days afer entry of this
Order. No requests for subpoenas duces tecum will be entertained after that

MEMORANDUM DECISION AND ORDER AND SCHEDULING ORDER - 16

date. (Subpoena requests for trial appearances of witnesses shall not be filed
until the case is se for trial.) To obtain a subpoena duces tecum for
production of documents by nonparties, Plaintiff must first submit to the
Court the names, addresses, and the type of information sought from each
person or entity to be subpoenaed, and Plaintiff must explain the relevance
of the items requested to the claims. The Court will then determine whether
the subpoenas should issue.
4.

Depositions: Depositions, if any, shall be completed no later than 150 days
after entry of this Order. If Defendants wish to take the deposition of
Plaintiff or other witnesses who are incarcerated, leave to do so is hereby
granted. Any such depositions shall be preceded by 10 days’ written notice
to all parties and deponents. The parties and counsel shall be professional
and courteous to one another during the depositions. The court reporter,
who is not a representative of Defendants, will be present to record all of
the words spoken by Plaintiff (or other deponent), counsel, and any other
persons at the deposition. If Plaintiff (or another deponent) wishes to ensure
that the court reporter did not make mistakes in transcribing the deposition
into a written form, then Plaintiff can request the opportunity to read and
sign the deposition, noting any discrepancies between what is transcribed
and what Plaintiff believes was said. If Plaintiff wishes to take depositions,
Plaintiff must file a motion requesting permission to do so, specifically

MEMORANDUM DECISION AND ORDER AND SCHEDULING ORDER - 17

showing the ability to comply with the applicable Federal Rules of Civil
Procedure by providing the names of the proposed persons to be deposed,
the name and address of the court reporter who will take the deposition, the
estimated cost for the court reporter’s time and the recording, and the
source of funds for payment of the cost.
5.

Dispositive Motions: All motions for summary judgment and other
potentially dispositive motions shall be filed with accompanying briefs no
later than 210 days after entry of this Order. Responsive briefs to such
motions shall be filed within 30 days after service of motions. Reply briefs,
if any, shall be filed within 14 days after service of responses. All motions,
responses, and replies shall conform to Rule 7.1 of the Local Rules for the
District of Idaho. Neither party shall file supplemental responses,
replies, affidavits, or other filings not authorized by the Local Rules
without prior leave of Court. No motion or memorandum, typed or
handwritten, shall exceed 20 pages in length.

6.

Alternative Dispute Resolution (ADR). Should Plaintiff and any
Defendant wish to attend a settlement conference, they should file a
stipulation to attend settlement conference, and the case will be referred to
the ADR Director for scheduling.

MEMORANDUM DECISION AND ORDER AND SCHEDULING ORDER - 18

DATED: March 12, 2014

Honorable B. Lynn Winmill
Chief U. S. District Judge

MEMORANDUM DECISION AND ORDER AND SCHEDULING ORDER - 19