Dick v. Kempf et al

Filing 53

MEMORANDUM DECISION AND ORDER - IT IS ORDERED: 1. Plaintiffs Motion to Supplement (Dkt. 45 ), construed as a motion to amend the Complaint, is DENIED. 2. The Jefferson County Defendants Motion to Dismiss (Dkt. 21 ) isGRANTED, and this case is DISMI SSED with prejudice. 3. Plaintiffs Motion to Accept Exhibits as Response to Discovery (Dkt. 49 ) is DENIED as MOOT. 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 (cjs)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

KENNETH DICK,
Case No. 1:16-cv-00253-BLW
Plaintiff,
MEMORANDUM DECISION AND
ORDER

v.
KEVIN KEMPF; CANYON COUNTY
SHERIFF KIERAN DONAHUE;
JEFFERSON COUNTY SHERIFF
BLAIR OLSEN; LT. ORTEGA; SGT.
HERNANDEZ; SGT. BUSH; SGT.
HANSEN; ALAN STEWART; and
JEFF KIRKMAN,
Defendants.

Plaintiff Kenneth Dick, a prisoner in the custody of the Idaho Department of
Correction (“IDOC”), is proceeding pro se in this civil rights action. Pending before the
Court is a Motion to Dismiss filed by Defendants Jefferson County Sheriff Blair Olsen,
Lieutenant Ortega, Sergeant Hernandez, Sergeant Bush, and Sergeant Hansen (the
“Jefferson County Defendants”)—the only Defendants remaining in this case.1 (Dkt. 21.)

United States Magistrate Judge Ronald E. Bush initially reviewed Plaintiff’s Complaint under 28
U.S.C. § 1915A and determined that the Complaint did not state a plausible claim for relief against
Defendants Kevin Kempf, Alan Stewart, or Jeff Kirkman. (See Dkt. 7.) Judge Bush later granted
Plaintiff’s motion to voluntarily dismiss his claims against Defendant Donahue. (See Dkt. 39.) Because all
appearing parties at the time those Orders were entered had consented to magistrate judge jurisdiction, the
1

MEMORANDUM DECISION AND ORDER - 1

Also pending are Plaintiff’s Motion to Supplement his Complaint and Motion to Accept
Exhibits as Response to Discovery. (Dkt. 45, 49.)
Having fully reviewed the record, the Court finds that the facts and legal
arguments are adequately presented in the briefs and record and that oral argument is
unnecessary. Accordingly, because the Court finds that the decisional process would not
be significantly aided by oral argument, this matter shall be decided on the record before
this Court without oral argument. D. Idaho Loc. Civ. R. 7.1. Accordingly, the Court
enters the following order denying Plaintiff’s motions, granting the Jefferson County
Defendants’ motion, and dismissing this case.
BACKGROUND
Plaintiff is currently incarcerated at the Idaho State Correctional Institution.
Plaintiff claims that, after he was convicted and sentenced in his state criminal case, he
was not provided with adequate legal materials and, therefore, was unable to file a timely
appeal of his sentence. (Compl., Dkt. 3.) The Jefferson County Defendants have
established, and Plaintiff does not dispute, that Plaintiff’s judgment of conviction in his

Orders were appropriate at that time under this Court’s then-existing precedent. See Kelly v. Rolland, No.
1:16-CV-00149-CWD, 2016 WL 3349222, at *1 (D. Idaho June 14, 2016) (citing United States v. Real
Property, 135 F.3d 1312, 1316 (9th Cir. 1998) and Walters v. Astrue, 2008 WL 618933 (N.D. Cal. 2008).
However, the Ninth Circuit recently held that a magistrate judge lacks the authority to dismiss
claims unless all named parties have consented—even unserved parties. Because of the Williams decision,
and because it is unclear whether that holding applies to plaintiffs’ motions to voluntarily dismiss claims,
this case was reassigned to the undersigned district judge. See Williams v. King, ___ F.3d ___, No. 1515259, 2017 WL 5180205, at *2 (9th Cir. Nov. 9, 2017).
The Court has conducted an independent review of the initial Complaint and, though that review
has been de novo, agrees with Judge Bush’s analysis and conclusion that the Complaint does not state a
plausible claim for relief against Defendants Kempf, Stewart, or Kirkman. The Court also confirms Judge
Bush’s grant of Plaintiff’s motion for voluntary dismissal of the claims against Defendant Donahue.

MEMORANDUM DECISION AND ORDER - 2

underlying criminal case was entered on November 3, 2014. (Ex. A to Aff. of Sam L.
Angell (Dkt. 21-2).)
Plaintiff states that he was incarcerated at the Canyon County Jail from November
1, 2014, until December 17, 2014, when he was transferred to the Jefferson County Jail.
Plaintiff claims that the Jefferson County Jail failed to provide sufficient legal resources
to allow Plaintiff to appeal his conviction. (Compl. at 3.) Plaintiff remained in the
custody of Jefferson County until May 29, 2015, when he was transferred to IDOC
custody. (Id. at 4-7.)
Plaintiff claims that the Jefferson County Defendants—the sheriff and four jail
deputies—violated his right of access to the courts.
DISCUSSION
1.

Plaintiff’s Motion to Supplement
Plaintiff filed the instant action in June 2016. One year later, Plaintiff filed his

Motion to Supplement his Complaint. (Dkt. 45.) Plaintiff seeks to reassert claims against
Defendant Stewart, one of the initial Defendants in this case. Plaintiff also seeks to assert
claims against new defendants—Sergeant Barroso, Keith Yordy, Sergeant Martin,
Deputy Warden Osburn, and Deputy Warden Valley. (See Dkt. 46.)
Because the proposed supplement describes events that occurred both before and
after the date of Plaintiff’s initial Complaint, the Court construes Plaintiff’s Motion as a
motion to amend the Complaint, rather than a motion to supplement the complaint. See
Fed. R. Civ. P. 15(d) (describing a supplemental pleading as one that sets out “any

MEMORANDUM DECISION AND ORDER - 3

transaction, occurrence, or event that happened after the date of the pleading to be
supplemented” (emphasis added)).
Amendments to pleadings are governed by Rule 15 of the Federal Rules of Civil
Procedure. That rule states that the Court “should freely give leave when justice so
requires.” Fed. R. Civ. P. 15(a)(2). “In the absence of any apparent or declared reason—
such as undue delay, bad faith or dilatory motive on the part of the movant, repeated
failure to cure deficiencies by amendments previously allowed, undue prejudice to the
opposing party by virtue of allowance of the amendment, futility of amendment, etc.,” it
is appropriate for a court to grant leave to amend. Foman v. Davis, 371 U.S. 178, 182
(1962). Although several factors contribute to the analysis of whether a plaintiff should
be allowed an opportunity to amend, futility alone can justify denying such an
opportunity. Johnson v. Buckley, 356 F.3d 1067, 1077 (9th Cir. 2004).
As for the claims intended to be asserted against new defendants, Plaintiff’s
supplement describes events that took place after he was transferred out of the custody of
Jefferson County. Therefore, allowing the supplement would have no effect on the claims
against the only remaining Defendants, and amendment would be futile as to Plaintiff’s
claims against those Defendants. As for the reasserted claims against Defendant Stewart,
Plaintiff does not explain why it took him over a year from the date this case was filed—
and approximately seven months from the date that Judge Bush determined that the
Complaint failed to state a plausible claim against Defendant Stewart—to submit his
supplement. Because the delay is unexplained, the Court finds it was also undue.

MEMORANDUM DECISION AND ORDER - 4

For these reasons, Plaintiff’s motion to supplement will be denied.
2.

Jefferson County Defendants’ Motion to Dismiss
A.

Standards of Law

To survive a motion to dismiss under Federal Rule of Civil Procedure 12, a
complaint must contain sufficient factual matter, accepted as true, to “state a claim to
relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Dismissal
is appropriate if there is a lack of any cognizable legal theory or a failure to plead
sufficient facts to support a cognizable legal theory. Balistreri v. Pacifica Police Dep't,
901 F.2d 696, 699 (9th Cir. 1988).
A complaint fails to state a claim for relief if the factual assertions in the
complaint, taken as true, are insufficient for the reviewing court plausibly “to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). “Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.” Id. In other words,
although Rule 8 “does not require detailed factual allegations, . . . it demands more than
an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. (internal quotation
marks omitted). If the facts pleaded are “merely consistent with a defendant’s liability,”
the complaint has not stated a claim for relief that is plausible on its face. Id. (internal
quotation marks omitted).
Though a plaintiff must provide sufficient facts to survive a motion to dismiss,
providing too much in the complaint may also be fatal to a plaintiff. Dismissal may be

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appropriate when the plaintiff has included sufficient allegations disclosing some
absolute defense or bar to recovery. See Weisbuch v. County of Los Angeles, 119 F.3d
778, 783, n. 1 (9th Cir. 1997) (stating that “[i]f the pleadings establish facts compelling a
decision one way, that is as good as if depositions and other ... evidence on summary
judgment establishes the identical facts”). “Although Federal Rule of Civil Procedure
8(a)(2) requires only that a plaintiff’s complaint contain ‘a short and plain statement of
the claim showing that the pleader is entitled to relief,’ by going beyond the bare
minimum, a plaintiff may plead herself out of court.” Warzon v. Drew, 60 F.3d 1234,
1239 (7th Cir. 1995) (quoting Thomas v. Farley, 31 F.3d 557, 558–59 (7th Cir. 1994)).
In deciding a motion to dismiss for failure to state a claim under Rule 12(b)(6), the
court generally should not consider materials outside the complaint and pleadings. See
Cooper v. Pickett, 137 F.3d 616, 622 (9th Cir. 1997). However, the court may consider
attachments to the complaint and any document referred to in (even if not appended to)
the complaint, where the authenticity of such a document is not in question. Id. at 622-23.
A court may also take judicial notice of matters of its own records, In re Korean Air
Lines Co., Ltd., Antitrust Litigation, 642 F.3d 685, 689 n.1 (9th Cir. 2011), and public
records, such as records and reports of administrative bodies, Barron v. Reich, 13 F.3d
1370, 1377 (9th Cir. 1994); see also Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th
Cir. 2001) (explaining that a court may judicially notice matters of public record unless
the matter is a fact subject to reasonable dispute).

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Plaintiff brings access-to-courts claims under 42 U.S.C. § 1983, as well as Idaho
constitutional claims. (Dkt. 3, 7.) To state a constitutional access-to-courts claim under §
1983, a plaintiff must plausibly allege that he suffered an actual injury as a result of the
defendant’s actions. Lewis v. Casey, 518 U.S. 343, 349 (1996). Because the right of
access to the courts is not an “abstract, freestanding right to a law library or legal
assistance, an inmate cannot establish relevant actual injury simply by establishing that
his prison’s law library or legal assistance program is subpar in some theoretical sense.”
Id. at 351.
Actual injury may be manifest if the alleged denial of access “hindered [the
plaintiff’s] efforts to pursue a legal claim,” such as having his complaint dismissed “for
failure to satisfy some technical requirement,” or if he “suffered arguably actionable
harm that he wished to bring before the courts, but was so stymied by [the defendants’
actions] that he was unable even to file a complaint.” Id. at 351. The Constitution does
not require that inmates “be able to conduct generalized research, but only that they be
able to present their grievances to the courts—a more limited capability that can be
produced by a much more limited degree of legal assistance.” Id. at 360.
The right of access to the courts is limited and applies only to direct appeals from
convictions for which the inmates are incarcerated, habeas petitions, and civil rights
actions regarding prison conditions. Id. at 354. “Impairment of any other litigating
capacity is simply one of the incidental (and perfectly constitutional) consequences of
conviction and incarceration.” Id. at 355 (emphasis omitted). “In other words, Bounds

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does not guarantee inmates the wherewithal to transform themselves into litigating
engines capable of filing everything from shareholder derivative actions to slip-and-fall
claims. The tools it requires to be provided are those that the inmates need in order to
attack their sentences, directly or collaterally, and in order to challenge the conditions of
their confinement.” Id.
Claims for denial of access to the courts may arise from the frustration or
hindrance of “a litigating opportunity yet to be gained” (forward-looking access claim) or
from the loss of a suit that now cannot be tried (backward-looking claim). Christopher v.
Harbury, 536 U.S. 403, 413-15 (2002). To state an access to courts claim that a prisoner
suffered the loss of a suit that now cannot be brought, the prisoner must allege specific
facts supporting three elements: (1) official acts that frustrated the inmate’s litigation
activities; (2) loss of a “nonfrivolous” or “arguable” underlying claim that must be set
forth in the federal complaint, including the level of detail necessary “as if it were being
independently pursued”; and (3) specific allegations showing that the remedy sought in
the access to courts claim is not otherwise available in another suit that could be brought.
Id. at 415-17. “There is, after all, no point in spending time and money to establish the
facts constituting denial of access when a plaintiff would end up just as well off after
litigating a simpler case without the denial-of-access element.” Id. at 415.
A prisoner asserting an access to courts claim must also allege facts showing that
the alleged violation of his rights was proximately caused by a state actor. Phillips v.
Hust, 477 F.3d 1070, 1077 (9th Cir. 2007), vacated on other grounds, Hust v. Phillips,

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550 U.S. 1150 (2009); see also Crumpton, 947 F.2d at 1420. The proximate cause
analysis focuses on whether it was foreseeable that the state actor’s conduct would result
in a deprivation of the prisoner’s right of access to the courts. Phillips, 477 F. 3d at 1077
(citing Tahoe-Sierra Pres. Council, Inc. v. Tahoe Regional Planning Agency, 216 F.3d
764, 784-85 (9th Cir. 2000)).
B.

Plaintiff’s Claims Against the Jefferson County Defendants Must Be
Dismissed

According to Plaintiff’s Judgment of Conviction and Commitment, the criminal
judgment against Plaintiff was entered on November 3, 2014.2 (Ex. A to the Affidavit of
Sam Angell, Dkt. 21-2.) Because Plaintiff had 42 days to file a direct appeal from his
conviction and sentence (see Idaho App. R. 14), his notice of appeal was due no later
than December 15, 2014. Plaintiff acknowledges that he was not transferred to Jefferson
County custody until December 17, 2014. Therefore, any violation of Plaintiff’s right of
access to the courts, resulting in the loss of his ability to appeal, occurred before Plaintiff
was placed in the Jefferson County Jail. It necessarily follows that the actions of the
Jefferson County Defendants did not proximately cause the alleged violation of
Plaintiff’s right to access the courts. Phillips, 477 F.3d at 1077; Crumpton, 947 F.2d at
1420.
Plaintiff claims that he could have filed a late notice of appeal while incarcerated
at the Jefferson County Jail and that, therefore, dismissal of his claims against the

2

Because the Judgment is a public record and is not disputed, the Court takes judicial notice of
Plaintiff’s Judgment of Conviction and Commitment. See Fed. R. Evid. 201; Lee, 250 F.3d at 689.

MEMORANDUM DECISION AND ORDER - 9

Jefferson County Defendants is inappropriate. However, the 42-day deadline for filing a
notice of appeal in an Idaho state criminal case is jurisdictional. See Idaho App. R. 21.
Even if Petitioner had filed a late notice of appeal, that appeal would have been dismissed
for lack of jurisdiction. See State v. Fuller, 665 P.2d 190, 190 (per curiam) (Idaho Ct.
App. 1983) (holding that notice of appeal filed 43 days after judgment of conviction was
untimely and, therefore, was “a jurisdictional defect which require[d] dismissal of the
appeal”).
Therefore, the alleged constitutional violation was completed once Plaintiff’s
appeal deadline expired, and nothing the Jefferson County Defendants did after that date
could have affected Plaintiff’s right to appeal. Because the Jefferson County Defendants
did not proximately cause the alleged violation of the right to access the courts, Plaintiff’s
remaining § 1983 claims must be dismissed. Plaintiff’s state law claims against the
Jefferson County Defendants must be dismissed for the same reason.
3.

Plaintiff’s Motion to Accept Exhibits as Response to Discovery
Because the Court will grant the Jefferson County Defendants’ Motion to Dismiss,

Plaintiff’s Motion to Accept Exhibits as Responses to Discovery is moot.
4.

Conclusion
Because the actions of the Jefferson County Defendants did not proximately cause

a violation of Plaintiff’s right of access to the courts, either under § 1983 or the Idaho
State Constitution, all claims against them must be dismissed.

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ORDER
IT IS ORDERED:
1.

Plaintiff’s Motion to Supplement (Dkt. 45), construed as a motion to amend
the Complaint, is DENIED.

2.

The Jefferson County Defendants’ Motion to Dismiss (Dkt. 21) is
GRANTED, and this case is DISMISSED with prejudice.

3.

Plaintiff’s Motion to Accept Exhibits as Response to Discovery (Dkt. 49) is
DENIED as MOOT.

DATED: December 4, 2017

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

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