Carr v. Fleming et al

Filing 142

MEMORANDUM DECISION AND ORDER RE: PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT denying 117 Motion for Partial Summary Judgment and 123 Motion for Partial Summary Judgment. Signed by Judge Ronald E. Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)

UNITED STATES DISTRICT COURT
DISTRICT OF IDAHO
JODY CARR,

Case No.: 1:13-cv-00380-REB

Plaintiff,
vs.
C/O FLEMING, and SGT. MECHTEL,

MEMORANDUM DECISION AND
ORDER RE: PLAINTIFF’S
MOTIONS FOR SUMMARY
JUDGMENT
(DKTS. 117, 123)

Defendants.
Pending are Plaintiff’s Motion for Partial Summary Judgment (Dkt. 117) and Plaintiff’s
Motion Requesting Entry of Partial Summary Judgment Due to Failure to Respond Timely (Dkt.
123). Having carefully considered the record, heard argument, and otherwise being fully advised,
the Court enters the following memorandum decision and order, consistent with its rulings from
the bench during the hearing held on these motions on August 29, 2018.
BACKGROUND
Plaintiff Jody Carr is incarcerated in the custody of the Idaho Department of Correction.
Am. Compl. p. 2 (Dkt. 103). He brought this suit in August of 2013 under 42 U.S.C. § 1983,
seeking damages, declaratory relief, and injunctive relief. See generally Compl. (Dkt. 3). His
Complaint raised various civil rights claims against four Idaho Department of Correction
employees. Id. Carr’s claims were dismissed on summary judgment and the case was ordered
closed (Dkts. 78, 79). Carr appealed (Dkt. 83) and the Ninth Circuit Court of Appeals affirmed in
part and reversed in part this Court’s grant of summary judgment. (Dkt. 92). The appellate court
reversed (1) the grant of summary judgment to Defendant Fleming; and (2) the denial of Carr’s
motion for leave to file an amended complaint to add a retaliation claim against Sergeant
Mechtel. (Dkt. 92.) Subsequently, Carr’s amended complaint was deemed filed (Dkt. 103).
MEMORANDUM DECISION AND ORDER RE: SUMMARY JUDGMENT MOTIONS – 1

Carr’s amended complaint raises three claims. He alleges that Defendant correctional
officer Crystal Fleming fed him human feces contaminated with clostridium difficile bacteria,
which caused him to become violently ill for a period of 16 months. Id. He claims that Fleming
violated his civil rights by retaliating against him, by inflicting cruel and unusual punishment,
and by demonstrating deliberate indifference to his health and welfare. Id. He further alleges that
Defendant Sergeant Mechtel issued him two Disciplinary Offense Reports (“D.O.R.s”) after Carr
sent Fleming what Carr contends was a “settlement letter” in conjunction with this lawsuit. Id.
Carr claims that Mechtel violated his civil rights by issuing the D.O.R.s to retaliate against Carr
engaging in his protected First Amendment rights in sending the letter. Id.
Carr moves for partial summary judgment on the liability element of his retaliation claim
against Mechtel. (Dkt. 117.) While the motion was pending, Carr filed an additional motion
requesting entry of partial summary judgment due to Mechtel’s alleged failure to timely respond
to Carr’s first motion for partial summary judgment. (Dkt. 123.) Mechtel opposes both motions.
(Dkts. 121, 125.)
The Court heard oral argument on both motions on August 29, 2018. During the hearing,
the Court ruled from the bench, denying both motions. This memorandum decision and order
more fully explains the Court’s reasoning for denying the motions.
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 principal purpose of summary judgment
“is to isolate and dispose of factually unsupported claims . . . .” Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986). It is “not a disfavored procedural shortcut,” but is instead the “principal

MEMORANDUM DECISION AND ORDER RE: SUMMARY JUDGMENT MOTIONS – 2

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. See Leslie v. Grupo ICA, 198 F.3d 1152, 1159 (9th Cir. 1999).
However, the Court is not required to adopt unreasonable inferences from circumstantial
evidence. See McLaughlin v. Liu, 849 F.2d 1205, 1208 (9th Cir. 1988).
The moving party bears the initial burden of demonstrating the absence of a genuine
dispute as to material fact. See Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001). To
carry this burden, the moving party need not introduce any affirmative evidence (such as
affidavits or deposition excerpts) but may simply point out the absence of evidence to support
the non-moving party’s case. See 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 his favor. See Devereaux, 263 F.3d at 1076. The non-moving party must
go beyond the pleadings and show “by [his] own 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. Where reasonable minds could differ on the material facts at issue, summary
judgment should not be granted. Anderson, 477 U.S. at 251.

MEMORANDUM DECISION AND ORDER RE: SUMMARY JUDGMENT MOTIONS – 3

ANALYSIS
1. Analysis of Plaintiff’s Motion for Partial Summary Judgment.
Carr seeks partial summary judgment on Mechtel’s liability with respect to Carr’s First
Amendment retaliation claim. For incarcerated plaintiffs, the elements of a First Amendment
retaliation claim are: “(1) An assertion that a state actor took some adverse action against an
inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled the
inmate’s exercise of his First Amendment rights, and (5) the action did not reasonably advance a
legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567–68 (9th Cir. 2005).
Carr’s motion must be denied because there is a genuine issue of material fact as to
whether the action of issuing the D.O.R.s reasonably advanced a legitimate correctional goal.
There is no dispute that Carr sent Fleming a letter and that Mechtel issued Carr two D.O.R.s
following that letter. There is dispute over the significance of the letter. Carr contends that his
sending of the letter was prompted by a document titled “Pro Se Litigants FAQs” sent to him by
the Court along with the Order of Conditional Filing (Dkt. 4). Specifically, Carr relies upon
language which said that “You may do informal tasks, such as attempting to resolve your claim
with the other party by letter.” Carr argues, variously, that he was “ordered” to send such a letter,
or that he was permitted to send the letter, and therefore, he implies, there was no legitimate
correctional goal in Mechtel issuing the D.O.R.s because of the letter.
In opposition, Mechtel relies upon a declaration filed in a different lawsuit brought by
Carr, where Mechtel said “I believed in good faith that Plaintiff’s correspondence to Fleming,
which included a number of accusations and demands and I felt was hostile and aggressive, was

MEMORANDUM DECISION AND ORDER RE: SUMMARY JUDGMENT MOTIONS – 4

intended to harass or intimidate her and was inappropriate and unauthorized by prison rules.”1
Therefore, Mechtel argues, the D.O.R.s reasonably advanced the legitimate correctional goal of
deterring Carr from further harassing or intimidating correctional officers. Moreover, issuing
Carr D.O.R.s for unauthorized communication and harassment in response to his letter advanced
the legitimate correctional goal of maintaining order and compliance with prison rules.
This letter (Dkt. 117-4 pp. 21–25) says it is “a settlement offer … to attempt to resolve
these issues.” Id. at p. 23. The language of the letter does not, however, hew to such a path. Carr
says in the letter that the “other three Defendants I will attempt to resolve with, but with you, you
will need to go down to the Clearwater County Prosecutors Office and confess and plead guilty
to assault & attempted murder, followed by conspiracy and retaliation.” Id. at p. 22. The letter
also states that “the only way to save all involved is if I get transferred to Givens Hall NOW!” Id.
at p. 23. Finally, the letter states “I don’t want to scare you into settling, I want a jury, a U.S.
federal judge and the public to know, I want to go to trial! I already have the evidence, you’re
not only facing monetary litigation, you’re facing prison! …. Settle … before the end of
September 2013 or I’ll see you at your jury trials!” Id. at p. 25.
Carr admits that the letter is strongly worded, but he argues that threats are a necessary
element of encouraging settlement. Carr may sincerely believe that such threats have a legitimate
purpose, but to make such threats and then to characterize them as a “settlement proposal” does
not insulate a prisoner from the consequences of statements that would otherwise represent a
threat against a correctional officer. The incongruity of that result is obvious, and at a minimum,
the nature of the letter raises a genuine issue of material fact as to whether the D.O.R.s issued in
1

The Court takes judicial notice of this filing, which appeared at Dkt. No. 73-18 in Carr
v. Carlyn, et al., 1:14-cv-000125-BLW (D. Idaho, Nov. 7, 2016).

MEMORANDUM DECISION AND ORDER RE: SUMMARY JUDGMENT MOTIONS – 5

response to the letter met legitimate correctional goals.2 Hence, Carr is not entitled to partial
summary judgment on the liability element of his retaliation claim against Mechtel.
2. Analysis of Plaintiff’s Motion Requesting Entry of Partial Summary Judgment Due
to Failure to Timely Respond.
Carr contends that Mechtel failed to oppose the motion in a timely manner. (Dkt. 123.)
Carr moved for summary judgment on April 16, 2018. (Dkt. 117.) Mechtel’s response was due
by May 7, 2018. Dist. Loc. Civ. R. 7.1(c)(1) (“The responding party shall serve and file a
response brief … within twenty-one (21) days after service upon the party of the memorandum
of points and authorities of the moving party.”). Mechtel timely served and filed his response on
May 7, 2018. (Dkt. 121). Accordingly, and without further consideration, the Court will deny
Carr’s motion for entry of partial summary judgment due to failure to timely respond.
ORDER
IT IS HEREBY ORDERED that Plaintiff’s Motion for Partial Summary Judgment (Dkt.
117) and Plaintiff’s Motion Requesting Entry of Partial Summary Judgment Due to Failure to
Respond Timely (Dkt. 123) are DENIED.
DATED: September 4, 2018.

_____________________________
Honorable Ronald E. Bush
Chief U. S. Magistrate Judge
2

Importantly, the fact that an inmate might be subject to discipline for statements that
the prison staff views as a threat against a correctional officer, contained in a letter styled as a
“settlement letter” regarding a lawsuit filed by the inmate, does not prevent the inmate from
being able to send a letter discussing the possibility of setting the lawsuit. Rather, it simply
subjects the inmate’s written communications to the same rules regarding the content and the
nature of the inmate’s communications as would exist in any other written communication made
by the inmate to prison officials, such as in a written grievance.
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