Schilling v. Panther et al

Filing 38

ORDER ADOPTING, IN PART, REPORT AND RECOMMENDATION. The Court HEREBY ORDERS: The Report and Recommendation entered on August 1, 2018 35 is ADOPTED IN PART, consistent with the above analysis, and as set forth below. Defendants' Motion 23 i s GRANTED. Schilling's claims are DISMISSED WITH PREJUDICE. Schilling's Motion for Summary Judgment 27 is DENIED as MOOT. Schilling's Motion for Reconsideration 36 is DENIED. Signed by Judge David C. Nye. (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
FOR THE DISTRICT OF IDAHO

RODNEY SCHILLING,
Case No. 1:16-cv-00168-DCN
Plaintiff,
v.
PAUL PANTHER, Deputy Attorney
General; MARK KUBINSKI, Deputy
Attorney General for Idaho; LESLIE
HAYES, Deputy Attorney General for
Idaho; BRENT REINKE, Former Director
of Prisons for Idaho; KEVIN KEMPF,
Director Of Prisons for Idaho; RANDY
BLADES, Warden of Idaho Correctional
Center; KEITH YORDY, Warden of Idaho
State Correctional Institution; KARA
NIELSON, Office of Professional
Standards Investigator; JARED WATSON,
Ada County Sheriff’s Department
Detective; and JOHN and JANE DOES; all
named Defendants are named in their
individual and official capacities,

ORDER ADOPTING, IN PART,
REPORT AND
RECOMMENDATION (DKT. 35)

Defendants.
I. INTRODUCTION
On August 1, 2018, United States Magistrate Judge Candy W. Dale issued a Report
and Recommendation (“Report”), recommending that: (1) Defendants’ Motion to Dismiss
(Dkt. 23) be GRANTED, (2) Plaintiff Rodney Schilling’s (“Schilling”) claims be dismissed
without prejudice; and (3) that Schilling’s Motion for Summary Judgment (Dkt. 27) be
DENIED as MOOT.

ORDER ADOPTING, IN PART, REPORT AND RECOMMENDATION - 1

Any party may challenge a magistrate judge’s proposed recommendation by filing
written objections to the report and recommendation within fourteen days after being
served with a copy of the same. See 28 U.S.C. § 636(b)(1); Local Civil Rule 72.1(b). On
August 15, 2018, Schilling filed a Motion for Reconsideration for Reason of Equitable
Tolling. Dkt. 36. This motion addresses the recommendations contained within the Report,
and the Court will treat its contents as Schilling’s formal objections to the Report.
II. STANDARD OF REVIEW
Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court “may accept, reject, or modify, in
whole or in part, the findings and recommendations made by the magistrate judge.” Where
the parties object to a report and recommendation, this Court “shall make a de novo
determination of those portions of the report . . . to which objection is made.” Id. Where,
however, no objections are filed, the district court need not conduct a de novo review.
The Ninth Circuit has interpreted the requirements of 28 U.S.C. § 636(b)(1)(C) as
follows:
The statute [28 U.S.C. § 636(b)(1)(C)] makes it clear that the district judge
must review the magistrate judge’s findings and recommendations de novo if
objection is made, but not otherwise. . . .to the extent de novo review is required
to satisfy Article III concerns, it need not be exercised unless requested by the
parties. Neither the Constitution nor the statute requires a district judge to
review, de novo, findings and recommendations that the parties themselves
accept as correct.
United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (internal quotation
marks and citations omitted); see also Wang v. Masaitis, 416 F.3d 993, 1000 & n.13 (9th
Cir. 2005).

ORDER ADOPTING, IN PART, REPORT AND RECOMMENDATION - 2

III. DISCUSSION
The relevant background of this case is set forth in the Report (Dkt. 35, at 2-8) and
the Court now incorporates that background in full by reference. The Court has reviewed
the entire Report as well as the full record in this matter. It has also considered Schilling’s
objections to the Report. After conducting the requisite de novo review, the Court largely
agrees with the Report’s recitation of the facts, determination of the applicable law,
discussion of the applicable law, analysis, reasoning, and conclusions. The Court, however,
departs from the Report in two respects.
First, the Court simply notes that First Amendment retaliation claims can be, and
have been, brought by non-prisoners. While the Report does not specifically state that a
non-prisoner cannot bring such claims, the language used in the Report seems to imply that
Schilling’s status as a non-prisoner somehow hinders his First Amendment Retaliation
claim. See Dkt. 35, at 12. The Court disagrees with that notion but agrees with the Report’s
statement that Schilling “has not demonstrated or provided facts to support plausible claims
that Defendants were involved in a conspiracy, that Defendants deprived Schilling of a First
Amendment right, or that the objective of Defendant’s conspiracy was to injure Schilling
because of his testimony in the Wood v. Martin lawsuit.” Id.
Second, rather than following the Report’s recommendation that the Court dismiss
Schilling’s claims without prejudice, the Court will dismiss Schilling’s claims with
prejudice. The Court understands that dismissal with prejudice is a harsh remedy, and it
does not take this step lightly. It also understands that, ordinarily, dismissing a complaint
without leave to amend is inappropriate unless it is beyond doubt that the complaint could
ORDER ADOPTING, IN PART, REPORT AND RECOMMENDATION - 3

not be saved by an amendment. See Harris v. Amgen, Inc., 573 F.3d 728, 737 (9th Cir.
2009).
Here, the Court has considered less drastic alternatives, such as allowing Schilling
another opportunity to amend his complaint, but the Court finds that doing so would be
futile. This Court has already allowed Schilling to file an amended complaint. That
complaint once again failed to state plausible and viable claims, and Schilling has
repeatedly failed to allege sufficient facts to support his claims.
Schilling did, in fact, seek leave to file a third amended complaint, but shortly
thereafter filed a Motion for Summary Judgment instead. That motion raised a new
allegation: that Defendants violated the Idaho Protection of Public Employees Act, also
known as the “Whistleblower Protection Act.” Idaho Code Section 6-2101 et seq. Despite
Schilling’s failure to formally plead this new claim, Judge Dale considered its merits in her
Report, and found that it was time-barred.
Schilling’s Motion for Reconsideration argues that the Court should apply the
principle of “equitable tolling” and allow his Whistleblower Protection Act claim to go
forward. See generally Dkt. 36. The Court disagrees. Schilling relies on Arizona state court
decisions to support his equitable tolling argument, which are not binding on this Court.
Additionally, “statutes of limitation in Idaho are not tolled by judicial construction but
rather by the expressed language of the statute.” McCuskey v. Canyon County Comm'rs,
912 P.2d 100, 105 (Idaho 1996) (quoting Independent School Dist. of Boise City v.
Callister, 539 P.2d 987, 991 (1975)). Nothing in the relevant portions of the Idaho
Protection of Public Employees Act supports an argument for equitable tolling.
ORDER ADOPTING, IN PART, REPORT AND RECOMMENDATION - 4

Normally, the Court would be inclined to allow Schilling another opportunity to
amend his complaint, because he has not had the opportunity to amend since raising his
Whistleblower Protection Act claim. This is especially true given Schilling’s status as a pro
se plaintiff. See Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985) (en banc)
(explaining that courts “have an obligation where the petitioner is pro se, particularly in
civil rights cases, to construe the pleadings liberally and to afford the petitioner the benefit
of any doubt”). However, since Schilling’s Whistleblower claim is clearly time-barred, any
amendment would be futile.
Ultimately, courts cannot allow parties unlimited opportunities to amend their
complaints. At a certain point, the proper course of action is dismissal with prejudice. The
“harshness of a dismissal with prejudice is directly proportionate to the likelihood that
plaintiff would prevail if permitted to go forward to trial.” McHenry v. Renne, 84 F.3d
1172, 1179 (9th Cir. 1996) (quoting Von Poppenheim v. Portland Boxing & Wrestling
Comm'n, 442 F.2d 1047, 1053 n.4 (9th Cir. 1971)). The likelihood of Schilling prevailing
on his claims at trial is minimal. The Report concluded that Schilling has failed to “state
claims to relief that are plausible on their face.” Dkt. 35, at 15. After conducting a de novo
review, this Court agrees. Schilling’s claims are either unsupported by the facts alleged—
even after the Court allowed Schilling to amend his complaint—or Schilling cannot remedy
the deficiencies through amendment.
A review of each claim confirms this conclusion. Schilling cannot prevail on his
Eighth Amendment claims because he has not been charged or convicted of any crime
related to this dispute. See Ingraham v. Wright, 430 U.S. 651, 664 (1977) (“In the few cases
ORDER ADOPTING, IN PART, REPORT AND RECOMMENDATION - 5

where the [Supreme] Court has had occasion to confront claims that impositions outside the
criminal process constituted cruel and unusual punishment, it has had no difficulty finding
the Eighth Amendment inapplicable.”).
Similarly, as noted above, an amendment cannot remedy Schilling’s Whistleblower
Protection Act claim because it is time-barred. Additionally, any claim Schilling attempts to
bring under 42 U.S.C. § 1985 is fruitless because he has not claimed, nor has he presented
facts supporting the conclusion, that any of the Defendants’ acts were fueled by or
underscored by racial or invidiously discriminatory class-based animus. Briley v.
California, 564 F.2d 849, 859 (9th Cir. 1977) (quoting Griffin v. Breckenridge, 403 U.S.
88, 101-02 (1971) (“§ 1985 was not ‘intended to apply to all tortious, conspiratorial
interferences with the rights of others,’ but only to those which were founded upon ‘some
racial, or perhaps otherwise class-based, invidiously discriminatory animus.’”).
That leaves only Schilling’s First Amendment claims. The Court has already
provided Schilling with a formal opportunity to amend his complaint and provide additional
facts to support these claims. His amended complaint failed to do so. His Motion for
Summary Judgment (which Judge Dale essentially treated as another amended complaint)
also failed to do so. Rather than allowing yet another opportunity for Schilling to amend,
the Court deems it best to dismiss his claims with prejudice. The Court, therefore, overrules
Schilling’s objections, and adopts the Report in part.

ORDER ADOPTING, IN PART, REPORT AND RECOMMENDATION - 6

IV. ORDER
The Court HEREBY ORDERS:
1. The Report and Recommendation entered on August 1, 2018 (Dkt. 35) is
ADOPTED IN PART, consistent with the above analysis, and as set forth
below.
2. Defendants’ Motion to Dismiss (Dkt. 23) is GRANTED.
3. Schilling’s claims are DISMISSED WITH PREJUDICE.
4. Schilling’s Motion for Summary Judgment (Dkt. 27) is DENIED as MOOT.
5. Schilling’s Motion for Reconsideration (Dkt. 36) is DENIED.

DATED: September 27, 2018
_________________________
David C. Nye
U.S. District Court Judge

ORDER ADOPTING, IN PART, REPORT AND RECOMMENDATION - 7