Searcy v. Walden et al

Filing 42

ORDER Plaintiff's Motion for Leave to File Overlength Brief (Dkt. 38 ) is GRANTED. Defendants' Motion to Strike (Dkt. 40 ) is DENIED. Defendants' Motion for Summary Judgment (Dkt. 23 ) is DENIED. Signed by Judge Candy W. Dale. (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

BARRY SEARCY,
Case No. 1:15-cv-00537-CWD
Plaintiff,
ORDER
v.
SCOTT WALDEN, Idaho Correctional
Industries Production Manager;
JENNIFER PANTNER, ISCI
Correctional Officer; DOES 1
THROUGH 10, fictitiously named
persons, in their individual and official
capacities; and IDAHO
CORRECTIONAL INDUSTRIES, in its
official capacity as an entity of the State
of Idaho,
Defendants.

Plaintiff, a prisoner in the custody of the Idaho Department of Correction
(“IDOC”), is proceeding pro se and in forma pauperis in this civil rights action. The
Court screened the Complaint, pursuant to 28 U.S.C. §§ 1915 and 1915A, and determined
that it stated a plausible claim that two defendant correctional officers retaliated against
Plaintiff—in violation of the First Amendment—for Plaintiff’s litigation activities and
use of the prison grievance system. (See Initial Review Order, Dkt. 8.)

ORDER - 1

Now pending before the Court is a Motion for Summary Judgment (Dkt. 23) filed
by Defendants Scott Walden and Jennifer Pantner, the only Defendants against whom
Plaintiff has been allowed to proceed. Also pending is Defendants’ Motion to Strike
Plaintiff’s Supplemental Response Brief in opposition to their Motion for Summary
Judgment. (Dkt. 40.) All parties have consented to the jurisdiction of a United States
Magistrate Judge to conduct all proceedings in this case in accordance with 28 U.S.C. §
636(c) and Fed. R. Civ. P. 73. (Dkt. 13.)
Having fully reviewed the record, the Court finds that Plaintiff’s Supplemental
Response will be accepted. Further, the Court requires additional evidence to determine
whether Defendants are entitled to summary judgment. Accordingly, the Court enters the
following Order denying Defendants’ Motion to Strike, denying without prejudice
Defendants’ Motion for Summary Judgment, allowing Defendants to renew their motion
at a later date, and allowing the parties to submit additional evidence and supplemental
briefs.
DEFENDANTS’ MOTION TO STRIKE PLAINTIFF’S
SUPPLEMENTAL RESPONSE BRIEF
Discovery in this case closed on December 5, 2016. Defendants filed their Motion
for Summary Judgment on January 4, 2017. (Dkt. 23.) Plaintiff filed his response on
February 7, 2017. (Dkt. 25.) In that response, Plaintiff asked that the Court defer
considering the Motion, or allow additional time for Plaintiff to conduct discovery, under
Federal Rule of Civil Procedure 56(d). Plaintiff did not dispute any of the facts that
Defendants alleged were undisputed, but he did submit some evidence—a memorandum

ORDER - 2

purportedly written by Defendant Walden and a declaration offered by another inmate—
with respect to Plaintiff’s claim that he was terminated from his prison employment in
retaliation for his exercise of protected activity. This evidence tends to show that there
were part-time positions available within the Correctional Industries (“CI”) program and
that various inmates were allowed to participate in that program on a part-time basis. (Id.;
see Declaration of David Johnson and May 2, 2014 Memorandum, Dkt. 25-12.)
Plaintiff’s Rule 56(d) response appears to have been based on his motion to
modify the Court’s scheduling order, which he filed just days before the close of
discovery. (Id.; Dkt. 25-1 at 2 ¶ 2; see Dkt. 41 at 2.) Plaintiff evidently assumed that the
Court would grant the motion to modify and, therefore, did not attempt to dispute any of
Defendants’ factual contentions in their Motion for Summary Judgment. The motion to
modify the scheduling order was later denied because Plaintiff had not established good
cause for filing such a motion so close to the end of the discovery period. (Dkt. 37 at 2.)
Over two months after the close of discovery, and two weeks after Plaintiff filed
his response to the Motion for Summary Judgment, Plaintiff filed a motion to compel,
contending that Defendants had not provided him with discovery. (Dkt. 29.) This motion
was later denied, because granting the post-discovery motion to compel would
“jeopardize the orderly resolution of th[is] case and disrupt[] the court’s overall
management of its busy docket.” Monson v. Corizon, No. 1:11-cv-00468-MHW, 2013
WL 3756440, at *3 (D. Idaho July 11, 2013); see also Dkt. 37 at 4.
The Motion for Summary Judgment became ripe on February 21, 2017, when
Defendants filed their reply brief. (See Dkt. 27.)
ORDER - 3

Following the Court’s denial of Plaintiff’s motion to modify the scheduling order
and motion to compel, Plaintiff filed a “Supplemental and Substantive Response to
Defendants’ Motion for Summary Judgment,” which included further argument opposing
the Motion for Summary Judgment and additional evidence intended to dispute portions
of Defendants’ statement of undisputed facts. (Dkt. 39.) Plaintiff did not seek leave of
Court to file this supplemental response, even though the Court had previously instructed
that “[n]either party shall file supplemental responses, replies, affidavits, or other filings
not authorized by the Local Rules without prior leave of Court.” (Dkt. 15 at 5.)
Defendants now move to strike Plaintiff’s supplemental response because it was
filed in violation of Local Rule 7.1 and the Court’s previous order prohibiting
unauthorized supplemental filings. (Dkt. 40.)
Plaintiff contends that his supplemental response is his “first, substantive
response” to the Motion for Summary Judgment, because Plaintiff “first asked the Court
to modify the Scheduling Order . . . and to compel disclosure of discovery.” (Dkt. 41 at
2.) Plaintiff also contends that he asked permission “to delay his substantive response . . .
by way of his Rule 56(d) response.” (Id.)
Whether to accept a brief or affidavits filed in violation of a Court order is within
the Court’s discretion. The Court will exercise that discretion in this case to allow
Plaintiff’s Supplemental Response. Although Plaintiff is a frequent civil litigator in this
Court and has been an active class representative in an ongoing class action for over
thirteen years, he remains pro se. See Searcy v. Audens, Case No. 1:04-cv-00488-LMB;
Searcy v. Ada County, Case No. 1:06-cv-00001-BLW; Searcy v. Williamson, Case No.
ORDER - 4

1:06-cv-00110-BLW; Searcy v. Idaho State Board of Corrections, Case No. 1:10-cv00166-CWD; Searcy v. Thomas, Case No. 1:10-cv-00294-EJL; see also Balla v. IDOC,
Case No. 1:81-cv-01165-BLW (D. Idaho). Pro se plaintiffs are “bound by the rules of
procedure,” just as represented parties, Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995),
but the Court finds it appropriate in this case to allow Plaintiff’s Supplemental Response.
Therefore, Defendants’ Motion to Strike will be denied.
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
Plaintiff claims that Defendant Walden terminated Plaintiff from his prison job
with CI in retaliation for Plaintiff’s litigation activities, including his class representative
activities in the Balla v. IDOC, Case No. 1:81-cv-01165-BLW (D. Idaho), and his use of
the prison grievance system. Plaintiff also claims that Defendant Pantner retaliated
against Plaintiff by (1) trying to place him in a mini-single cell, instead of a regularlysized single cell, in September of 2013, and (2) placing a C-note in Plaintiff’s file in
January of 2014, following Plaintiff’s termination from CI, in an attempt to get Plaintiff
dismissed from his new job and transferred out of his single cell.
A First Amendment retaliation claim must allege the following: “(1) An assertion
that a state actor took some adverse action against an inmate (2) because of (3) that
prisoner’s protected conduct, . . . 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) (footnote
omitted). Although a “chilling effect on First Amendment rights” is enough to state an
injury, Gomez v. Vernon, 255 F.3d 1118, 1127 (9th Cir. 2001), “bare allegations of
ORDER - 5

arbitrary retaliation” are insufficient to state a retaliation claim, Rizzo v. Dawson, 778
F.2d 527, 532 n.4 (9th Cir. 1985).
1.

Claims Against Defendant Pantner
Defendant Pantner argues that the statute of limitations bars Plaintiff’s claim

regarding the mini-single cell. Defendant Pantner is correct that the last action taken by
Pantner regarding this issue occurred on September 16, 2013, and that this action was not
filed until over two years later, on November 12, 2015. See Idaho Code § 5-219 (twoyear statute of limitations for personal injury actions); Wilson v. Garcia, 471 U.S. 261,
280 (1985) (holding that state statute of limitation for personal injury actions governs
§ 1983 actions), abrogated on other grounds by Jones v. R.R. Donnelley & Sons Co., 541
U.S. 369 (2004).
However, the statute of limitations is tolled while a prisoner exhausts the prison
grievance process, Brown v. Valoff, 422 F.3d 926, 943 (9th Cir. 2005), and there is
insufficient evidence as to whether such remedies were properly exhausted or how long it
took for Plaintiff to exhaust. Thus, on the current record the Court cannot conclude that
this claim is time-barred. Plaintiff has stated that he exhausted his remedies on this claim
no earlier than December 13, 2013—which is within the statute of limitations period.
(Dkt. 39-1 at 3-4.) Defendants will be allowed to submit evidence either that the minisingle cell claim was properly exhausted prior to November 12, 2013, or that Plaintiff did
not properly exhaust available administrative remedies as required by the Prison
Litigation Reform Act, and that therefore the statute of limitations bars this claim.

ORDER - 6

In addition to the statute of limitations issue, the record is unclear as to the exact
nature of Pantner’s actions regarding the mini-single cell, the reasons behind any such
actions, and whether such action was supported by a legitimate penological purpose. It
appears that there may have been an applicable waiting period for inmates to receive a
single cell after being hired with CI. It also appears that Plaintiff may have requested a
single cell prior to the expiration of that waiting period and that another inmate might
have been ahead of Plaintiff on the waiting list. (Dkt. 39-6 at 1-2.) However, the record is
not entirely clear on these facts.
It is also unclear whether Plaintiff was placed in a single cell in September of 2013
in compliance with policy or in an exception to policy after his attorney discussed the
issue with counsel for the IDOC. Plaintiff has submitted evidence that some officials
were upset and believed that Plaintiff was given a single cell—before he was entitled to
it—as a result of class counsel’s efforts in the Balla case. (Id. at 4, stating that Defendant
Walden believed Plaintiff “used Balla to muscle [his] way into [his] single-cell”.) It may
be that Pantner’s attempt to place Plaintiff in a mini-single cell was intended to be a
compromise that would get Plaintiff into a single cell—though not the most desirable
single cell—before he actually was entitled to single-cell status. But again, there is
simply not enough evidence in the record for the Court to determine the reasons behind
whatever action Defendant Pantner took with respect to Plaintiff’s single-cell status in
September of 2013. The parties will be allowed to supplement the record along with their
supplemental briefs.

ORDER - 7

Finally, Defendant Panter has not yet had an opportunity to reply to Plaintiff’s
additional evidence and argument, submitted with his Supplemental Response, regarding
either claim against Panter—the mini-single-cell claim or the C-note claim. Therefore,
the Court will allow supplemental briefing on this issue.
2.

Claim Against Defendant Walden
Defendant Walden has also not had an opportunity to reply to Plaintiff’s

supplemental evidence and argument. Therefore, the parties will be permitted to file
supplemental briefs on the claim regarding Plaintiff’s termination from CI.
ORDER
IT IS ORDERED:
1.

Plaintiff’s Motion for Leave to File Overlength Brief (Dkt. 38) is
GRANTED.

2.

Defendants’ Motion to Strike (Dkt. 40) is DENIED.

3.

Defendants’ Motion for Summary Judgment (Dkt. 23) is DENIED without
prejudice as set forth above. Within 42 days after entry of this Order,
Defendants may renew their motion for summary judgment and may submit
a supplemental opening brief, with additional evidence, in support of that
renewed motion.

4.

Within 28 days after service of Defendants’ renewed motion, Plaintiff shall
submit a supplemental response brief, with any additional evidence, in
opposition to the renewed motion.

ORDER - 8

5.

Within 14 days after service of Plaintiff’s supplemental response,
Defendants may submit a supplemental reply.

6.

In their supplemental briefing in support of, or in opposition to,
Defendants’ renewed motion for summary judgment, the parties may
incorporate any previous briefing with respect to Defendants’ first motion
for summary judgment and may cite to any evidence currently in the record.

7.

No additional discovery will be permitted.

DATED: August 29, 2017

Honorable Candy W. Dale
United States Magistrate Judge

ORDER - 9