Schmidt et al v. Idaho Department of Corrections et al

Filing 43

MEMORANDUM DECISION AND ORDER Defendants' Motion for Summary Judgment (Dkt. 21 ) is GRANTED in part and DENIED in part. Defendant Escobedo's Motion for Summary Judgment by Joinder in the IDOC Defendants' Motion for Summary Judgment (Dkt. 24 ) is GRANTED in part and DENIED in part. Defendants' Motion to Strike a Portion of the Exhibits to the Affidavit of Ryan Earl in Support of Plaintiffs' Objection to Defendants' Motion for Summary Judgment (Dkt. 33 ) is GRANTED in part and DENIED in part. 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

JEREMIAH B. SCHMIDT, JESS
TRONSON, and IGNACIO TELLEZ,
Plaintiffs,

Case No. 1:14-cv-00242-BLW

MEMORANDUM DECISION AND
ORDER

v.
IDAHO DEPARTMENT OF
CORRECTIONS, et. al.,
Defendants.

INTRODUCTION
The Court has before it IDOC Defendants’ Motion for Summary Judgment (Dkt.
21), Defendant Escobedo’s Motion for Summary Judgment by Joinder in the IDOC
Defendants’ Motion for Summary Judgment (Dkt. 24), and Defendants’ Motion to Strike
a Portion of the Exhibits to the Affidavit of Ryan Earl in Support of Plaintiffs’ Objection
to Defendants’ Motion for Summary Judgment (Dkt. 33). The motions were argued to the
Court on December 15, 2015, and supplemental briefs were filed on January 2 and 8,
2016. The motions are now fully ripe, and the Court issues the following memorandum
decision and order.
MEMORANDUM DECISION AND ORDER - 1

ANALYSIS
I.

Summary Judgment 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
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 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.
MEMORANDUM DECISION AND ORDER - 2

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
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.
Only admissible evidence may be considered in ruling on a motion for summary
judgment. Orr v. Bank of America, 285 F.3d 764, 773 (9th Cir. 2002); see also
Fed.R.Civ.P. 56(e). In determining admissibility for summary judgment purposes, it is
the contents of the evidence rather than its form that must be considered. Fraser v.
Goodale, 342 F.3d 1032, 1036-37 (9th Cir. 2003). If the contents of the evidence could
be presented in an admissible form at trial, those contents may be considered on summary
judgment even if the evidence itself is hearsay. Id. (affirming consideration of hearsay
contents of plaintiff’s diary on summary judgment because at trial, plaintiff’s testimony
of contents would not be hearsay).
In order to preserve a hearsay objection, “a party must either move to strike the
affidavit or otherwise lodge an objection with the district court.” Pfingston v. Ronan
Engineering Co., 284 F.3d 999, 1003 (9th Cir. 2002). In the absence of objection, the

MEMORANDUM DECISION AND ORDER - 3

Court may consider hearsay evidence. Skillsky v. Lucky Stores, Inc., 893 F.2d 1088, 1094
(9th Cir. 1990).
II.

Motion to Strike
Defendants ask the Court to strike paragraph 3 of Tronson’s and Tellez’s

affidavits. Plaintiffs concede they should be stricken, and the Court will do so.
Defendants also ask the Court to strike a report created by Ada County Detective
Jared Watson. The report was originally attached to Attorney Earl’s affidavit as a true
and correct copy. This is not proper authentication. However, Plaintiffs later filed
Detective Watson’s affidavit, wherein he authenticated the report. Although Detective
Watson’s affidavit was filed late, there is no question that the report is what Plaintiffs
purport it to be, and Defendants were not at a disadvantage in replying to the report on
summary judgment. Under these circumstances, the Court will accept the late-filed
affidavit and find that the report is properly authenticated.
The report is also admissible under Federal Rule of Evidence 803(8) as report
Detective Watson was required to make as part of his investigation. Moreover, the
statements attributed to Tramel and Escobedo in the report are not hearsay because they
are statements of a party opponent. Additionally, to the extent Tramel refers to statements
made by Escobedo, they are not being offered for the truth of the matter asserted, and
therefore not hearsay. Accordingly, the Court will deny the motion to strike the report.
III.

Motion for Summary Judgment
A.

Blades and Tramel in Their Official Capacity and IDOC

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After an in depth discussion during oral argument, Plaintiffs conceded their claims
against IDOC. Accordingly, the claims against IDOC will be dismissed. Similarly,
counsel conceded that since Escobedo no longer works for IDOC, there is no evidence of
an immediate threat of harm. Thus, injunctive relief against Blades and Tramel in their
official capacity – the only potential relief against them in their official capacity – is
unavailable. Los Angeles v. Lyons, 461 U.S. 95, 111 (1983). Accordingly, the claims
against Blades and Tramel in their official capacity will be dismissed as well.
B.

Failure to Exhaust Administrative Remedies

Defendants argue that Plaintiffs Tronson and Tellez failed to exhaust their
administrative remedies. A prisoner must exhaust available administrative remedies
before he can bring a prison conditions claim under § 1983. 42 U.S.C. § 1997e.
Exhaustion of administrative remedies is an affirmative defense which must be proved by
the defendant. Albino v. Baca, 747 F.3d 1162, 1168 (9th Cir. 2014). Here, there is no
dispute that Tronson and Tellez did not exhaust their administrative remedies.
However, failure to exhaust administrative remedies which are effectively
unavailable does not bar a claim. McBride v. Lopez, 807 F.3d 982, 986 (9th Cir. 2015)
(citing Nunez v. Duncan, 591 F.3d 1217, 1225-26 (9th Cir. 2010)). Threat of retaliation
for reporting an incident renders a grievance process effectively unavailable, and excuses
a prisoner from the exhaustion of administrative remedies requirement. Id.
The Ninth Circuit has adopted the Eleventh Circuit’s “straightforward and
conceptually simple” test for determining when a failure to exhaust is excusable because
of a threat of retaliation. Id. at 987. First, “a prisoner must provide a basis for the court to
MEMORANDUM DECISION AND ORDER - 5

find that he actually believed prison officials would retaliate against him if he filed a
grievance.” Id. Second, “he must then demonstrate that his belief was objectively
reasonable.” Id. To show objective reasonableness, “there must be some basis in the
record for the district court to conclude that a reasonable prisoner of ordinary firmness
would have believed that the prison official’s action communicated a threat not to use the
prison’s grievance procedure and that the threatened retaliation was of sufficient severity
to deter a reasonable prisoner from filing a grievance.” Id.
To prove they are excused from exhausting their administrative remedies because
of a threat of retaliation, Plaintiffs cite their deposition testimony and affidavits.
Tronson’s deposition testimony states that he “was more or less, [] scared from retaliation
from officers, and threats from other inmates when you become a rat in the prison
system.” Tronson Depo., p.143 at 12-14, Dkt. 29-9. Tellez’s deposition testimony states
that Escobedo told him that he shouldn’t speak about what he saw or Escobedo would use
Tellez’s parole date and friends against him. Tellez Depo., p. 64 at 2-5, Dkt. 29-3. What
Tellez saw was Escobedo performing oral sex on Schmidt in his cell. Id. at 21-24.
Tellez’s and Tronson’s affidavits make almost verbatim statements, indicating that they
feared retaliation from officers Escobedo and Tramel, that Escobedo threatened them
“personally sexually assaulting [them],” that Tramel threatened them indirectly through
other inmates, and that they “did not make any complaints, file a grievance, or even admit
to what occurred until later because [sic] feared retaliation and [they were] concerned
about [their] safety and well being beyond what [they] felt daily as an inmate during the

MEMORANDUM DECISION AND ORDER - 6

occurrence of these events that are the basis of this lawsuit.” Tellez Aff., Dkt. 29-6;
Tronson Aff., Dkt. 29-6.
Much of what is stated in the deposition testimony and affidavits is very general,
and unhelpful. Simply indicating that they feared retaliation does not give the Court a
basis for finding that they actually believed prison officials would retaliate against them,
or that such a belief was objectively reasonable. However, the statements that Escobedo
threatened them both by “personally sexually assaulting” them meets both prongs of the
test. Sexual assault, which includes sexual threats, by a correctional officer would
certainly cause Tronson and Tellez to believe they would be sexually assaulted if they
filed a grievance. Moreover, there can be no doubt that a threat of sexual assault is
severe, and that it would deter a reasonable prisoner from filing a grievance. Accordingly,
under McBride, Tellez and Tronson were excused from exhausting their administrative
remedies.
C.

Tronson – Mental or Emotional Distress

Defendants next argue that Tronson cannot recover for mental or emotional
distress. “No Federal civil action may be brought by a prisoner . . . for mental or
emotional injury suffered while in custody without a prior showing of physical injury or
the commission of a sexual act (as defined in section 2246 of Title 18).” 42 U.S.C.
§ 1997e(e). The term “sexual act” means:
(A) contact between the penis and the vulva or the penis and the
anus, and for purposes of this subparagraph contact involving
the penis occurs upon penetration, however slight;

MEMORANDUM DECISION AND ORDER - 7

(B) contact between the mouth and the penis, the mouth and the
vulva, or the mouth and the anus;
(C) the penetration, however slight, of the anal or genital opening of
another by a hand or finger or by any object, with an intent to
abuse, humiliate, harass, degrade, or arouse or gratify the sexual
desire of any person; or
(D) the intentional touching, not through the clothing, of the
genitalia of another person who has not attained the age of 16
years with an intent to abuse, humiliate, harass, degrade, or
arouse or gratify the sexual desire of any person.
18 U.S.C. § 2246(2). Tronson’s only allegations of a physical injury or sexual act are that
Escobedo rubbed his chest and grabbed his penis over his clothes. Brassey Aff., Ex. G,.
pp. 45-46. This does not meet the definition of physical injury or sexual act as outlined in
the statute. Accordingly, Tronson’s claim for mental or emotional distress must be
dismissed.
D.

Section 1983 Claims Against Blades

Randy Blades is the warden at the Idaho State Correctional Institution (“ISCI”)
where plaintiffs are housed. “Section 1983 suits do not impose liability on supervising
officers under a respondeat superior theory of liability.” Graves v. City of Coeur D'Alene,
339 F.3d 828, 848 (9th Cir.2003). “Instead, supervising officers can be held liable under
section 1983 only if they play an affirmative part in the alleged deprivation of
constitutional rights.” Id. (Internal citations and quotations omitted). Because it is rare
that a supervisor will be personally involved in the same way as individual officers, to be
held liable, a supervising officer must “set in motion a series of acts by others . . ., which
he knew or reasonably should have known, would cause others to inflict the
MEMORANDUM DECISION AND ORDER - 8

constitutional injury.” Id. (Internal citations and quotations omitted); see also Larez v.
City of Los Angeles, 946 F.2d 630, 645 (9th Cir.1991). “Supervisory liability is imposed
against a supervisory official in his individual capacity for [1] his own culpable action or
inaction in the training, supervision, or control of his subordinates, [2] for his
acquiescence in the constitutional deprivations of which the complaint is made, or [3] for
conduct that showed a reckless or callous indifference to the rights of others.” Larez v.
City of Los Angeles, 946 F.2d 630, 646 (9th Cir.1991) (internal citations and quotations
omitted).
The only substantive reference to Blades in the Complaint is the assertion that he
is the Warden at ISCI, and that he is “responsible for and has a duty to protect inmates
entrusted into his care, as well as supervise and train those who are employed to work
under him.” Complaint, ¶ 3.5, Dkt. 1. Plaintiffs offered no other evidence in opposition to
the motion for summary judgment.
Blades, however, has provided the Court with his affidavit, indicating that “[n]one
of the Plaintiffs ever informed [him] that they were being sexually abused, harassed
and/or assaulted by Defendant Escobedo.” Blades Aff., ¶ 6, Dkt. 21-8. He further
indicates that he never witnessed Escobedo sexually abusing, harassing or assaulting
Plaintiffs or any other inmates. Id. at ¶ 7. Blades further explains that when another
inmate informed him that an unidentified correctional officer (later determined to be
Escobedo) had engaged in sexual activity with Schmidt, he immediately forwarded the
information to the Special Investigations Unit, and Escobedo was placed on

MEMORANDUM DECISION AND ORDER - 9

administrative leave. Id. at ¶¶ 8-10. Escobedo resigned and never returned to work. Id. at
¶¶ 11-12.
Under these circumstances, there is no factual dispute that Blades was not culpable
in his actions or inaction, that he did not acquiesce in the alleged constitutional
deprivations, and that he did not act with reckless or callous indifference to the rights of
others. When he heard about the allegations, he took the proper steps to address them.
Accordingly, the claims against Blades will be dismissed.
E.

Section 1983 Claims Against Tramel

“A person ‘subjects’ another to the deprivation of a constitutional right, within the
meaning of section 1983, if he does an affirmative act, participates in another’s
affirmative acts, or omits to perform an act which he is legally required to do that causes
the deprivation of which complaint is made.” Stevenson v. Koskey, 877 F.2d 1435, 1438
(9th Cir. 1989). Viewed in the light most favorable to Plaintiffs, evidence presented to the
Court creates a genuine issue of material fact as to whether Tramel participated in the
alleged sexual assaults by Escobedo or failed to report or otherwise prevent Escobedo’s
actions. Ada County Detective Jared Watson interviewed Tramel while investigating
complaints against Escobedo. In his report of that interview, Detective Watson states that,
Tramel said he has told Escobedo . . . that he is too friendly with
inmates and he needed to watch it. Tramel said . . . Escobedo has
been around Schmidt more then [sic] any other inmate. Tramel said
he didn’t know of anything inappropriate going on between them
because he has told Escobedo from day one that “if you ever do
anything inappropriate don’t tell me about it because I don’t want to
be involved.”
***
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Tramel told me he told Escobedo about the sexual rumors that were
going around the yard and Escobedo would tell Tramel he wasn’t
gay and nothing was happening.
***
I asked Tramel to explain why he thought Escobedo was being too
friendly with Schmidt and he said he thought Escobedo was treating
him more like a friend then [sic] an inmate.
***
Tramel went on to tell me he had other conversations with Escobedo
at his house . . . when he would tell Escobedo he didn’t want to have
anything to do with what he was doing at the prison. Tramel said he
would tell Escobedo about the sexual rumors and that Escobedo was
being accused of bringing contraband into Schmidt.
Watson Aff., Ex. 9, (Watson Report), Dkt. 41.
Prison officials have a duty to protect inmates from violence, which would include
sexual assault. Farmer v. Brennan, 511 U.S. 825, 833-34 (1994). Although not all
injuries suffered by a prisoner “translate[] into constitutional liability for prison officials
responsible for the victim’s safety,” prison officials violate the Eighth Amendment when
two requirements are met. Id. First, the deprivation must be, objectively, “sufficiently
serious.” Id. Second, the official must have a “sufficiently culpable state of mind.” Id. In
prison conditions cases, that means “deliberate indifference” to the prisoner’s health or
safety. Id. Thus, “a prison official cannot be found liable under the Eighth Amendment
for denying an inmate humane conditions of confinement unless the official knows of and
disregards an excessive risk to inmate health or safety; the official must both be aware of

MEMORANDUM DECISION AND ORDER - 11

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.
Here, Plaintiffs assert that Escobedo sexually assaulted them. Complaint, Dkt. 1;
Tellez Aff., Dkt. 29-6; Tronson Aff., Dkt. 29-6. There is no doubt that sexual assault is an
objectively serious deprivation of one’s constitutional rights. Additionally, Watson’s
report suggests that Tramel knew Escobedo was too “friendly” with inmates, that there
were “sexual rumors,” and that he purposely turned a blind eye to whether Escobedo was
sexually assaulting inmates. This shows a sufficiently culpable state of mind. Thus, there
is evidence that Tramel was aware of facts from which he could infer that Escobedo was
sexually assaulting plaintiffs, and he drew that inference but deliberately chose to do
nothing about it. Under these circumstances, Plaintiffs have asserted sufficient facts to
support their Eighth Amendment claims against Tramel.
Finally, Tramel is not entitled to qualified immunity. “Qualified immunity serves
to shield government officials ‘from liability for civil damages insofar as their conduct
does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.’” San Jose Charter of Hells Angels Motorcycle
Club v. City of San Jose, 402 F.3d 962, 971 (9th Cir.2005) (quoting Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982). The Supreme Court has set forth the following two-pronged
inquiry to resolve all qualified immunity claims:
First, taken in the light most favorable to the party asserting the
injury, do the facts alleged show the officers’ conduct violated a
constitutional right? Second, if so, was that right clearly established?
The relevant, dispositive inquiry in determining whether a right is
clearly established is whether it would be clear to a reasonable
MEMORANDUM DECISION AND ORDER - 12

officer that his conduct was unlawful in the situation he confronted.
This inquiry is wholly objective and is undertaken in light of the
specific factual circumstances of the case.
Id. (internal quotations and citations omitted). Thus, a district court should “concentrate
at the outset on the definition of the constitutional right and . . . determine whether, on the
facts alleged, a constitutional violation could be found . . . .” Billington v. Smith, 292 F.3d
1177, 1183 (9th Cir.2002). If a constitutional violation can be found, the Court then
decides whether the violation was the source for clearly established law that was
contravened in the circumstances of the case.
Here, as discussed above, a constitutional violation can be found – there is
evidence that Tramel was aware of facts from which he could infer that Escobedo was
sexually assaulting plaintiffs, and he drew that inference but deliberately chose to do
nothing about it. The Court therefore turns to whether that constitutional right was clearly
established. “This is a two-part inquiry: (1) Was the law governing the state official’s
conduct clearly established? (2) Under that law could a reasonable state official have
believed his conduct was lawful?” Estate of Ford v. Ramirez-Palmer, 301 F.3d 1043,
1050 (9th Cir.2002). “However, the relevant, dispositive inquiry in determining whether
a right is clearly established is whether it would be clear to a reasonable officer that his
conduct was unlawful in the situation he confronted.” Id. at 202 (Internal citations and
quotations omitted). Here, it would be clear to a reasonable officer that allowing another
officer to sexually assault inmates is unlawful. Accordingly, the Court will deny
summary judgment on the claims against Tramel in his individual capacity.
F.

Section 1983 Claim Against Escobedo

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Escobedo merely joined in the other defendants’ motion. As explained above,
Tronson’s and Tellez’s claims are not dismissed for failure to exhaust administrative
remedies, but Tronson’s claim for mental or emotional distress is dismissed. Escobedo
made no other substantive arguments in his joinder brief, and he conceded at oral
argument that factual questions remain as to plaintiffs’ constitutional claims.
Accordingly, the claims against Escobedo remain, except Tronson’s claims for mental or
emotional distress.
ORDER
IT IS ORDERED:
1. Defendants’ Motion for Summary Judgment (Dkt. 21) is GRANTED in part
and DENIED in part as explained above. All claims against IDOC and Blades
are dismissed. The claims against Tramel in his official capacity are dismissed.
Tronson’s claims for mental and emotional distress are dismissed. The claims
against Tramel in his individual capacity remain.
2. Defendant Escobedo’s Motion for Summary Judgment by Joinder in the IDOC
Defendants’ Motion for Summary Judgment (Dkt. 24) is GRANTED in part
and DENIED in part. Tronson’s claims for mental and emotions distress. All
other claims against Escobedo remain.
3. Defendants’ Motion to Strike a Portion of the Exhibits to the Affidavit of Ryan
Earl in Support of Plaintiffs’ Objection to Defendants’ Motion for Summary
Judgment (Dkt. 33) is GRANTED in part and DENIED in part. Paragraph 3

MEMORANDUM DECISION AND ORDER - 14

of Tronson’s and Tellez’s affidavits is stricken, but Detective Watson’s report
is admissible.

DATED: February 16, 2016

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

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