Workman et al v. Kempf et al

Filing 56

MEMORANDUM DECISION AND ORDER - IT IS ORDERED: 1. Plaintiffs Motion to Consolidate Cases (Dkt. 53) is GRANTED to the extent specified herein above.2. The Balla classs Motion to Intervene (Dkt. 60) is DENIED. 3. All pending Motions for Extension of Ti me (Dkt. 66, 83, 88) are GRANTED to the following extent. Nothing further shall be filed in this case until the partiesattend the case management conference.... Signed by Judge B. Lynn Winmill. Associated Cases: 1:18-cv-00001-BLW, 1:16-cv-00309-BLW, 1:18-cv-00097-BLW, 1:18-cv-00099-BLW, 1:18-cv-00100-BLW(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

PHILIP A. TURNEY, an individual;
BILLY RAY BARTLETT, an individual;
MICHAEL A. McCALL, an individual;
and REUBEN J. CORTES, an individual,
Plaintiffs,

Case No. 1:18-cv-00001-BLW
1:18-cv-00097-BLW
1:18-cv-00099-BLW
1:18-cv-00100-BLW
MEMORANDUM DECISION
AND ORDER

v.
HENRY ATENCIO; RONA SEIGERT;
JOHN G. MIGLIORI; MURRAY F.
YOUNG; APRIL C. DAWSON; JOHN
and JANE DOES A-Z; CORIZON, INC.;
and IDAHO DEPARTMENT OF
CORRECTION,
Defendants.

BACKGROUND
On January 3, 2018, five pro se prisoners in custody of the Idaho Department of
Correction (IDOC)—Philip A. Turney, Billy Ray Bartlett, James S. Hendrickson, 1
Michael A. Hall, and Reuben J. Cortes (Plaintiffs)—filed a joint Complaint about
inadequate prison medical treatment for their Hepatitis C conditions, seeking monetary
and injunctive relief. (Dkt. 11.)

1

Plaintiff Hendrickson is no longer pursuing his claims and has been terminated as a party.

MEMORANDUM DECISION AND ORDER - 1

In early 2018, the Court permitted Plaintiffs to proceed, but severed their
individual claims into separate lawsuits because prison security policy generally prevents
prisoners from possessing other prisoners’ medical records (Dkts. 21, 23.) On August 13,
2018, Plaintiffs gave notice of their stipulation to consolidate their cases into one action
through newly-retained attorneys Richard Hearn and John B. Inglestrom (collectively
“Hearn”) (Dkt. 47.) On September 19, 2018, the cases were consolidated. (Dkt. 50.)
The case that Plaintiffs seek to consolidate with this case is Workman, et al. v.
Atencio, et al., No. 1:16-CV-00309-BLW, which was filed on July 8, 2016, about two
years before the Turney plaintiffs filed their pro se lawsuit. In Workman, prisoners
Kenneth Workman and Ray Nichols sought Hepatitis C treatment. They alleged that—
even though Hepatitis C can now be cured with a costly new drug, a non-interferon
direct-action antiviral medication (“DAA”)—IDOC/Corizon withholds that treatment
from all but the prisoners with the most severe symptoms because of the financial cost.
Workman and Nichols asserted that prison officials instead should treat all prisoners
infected with Hepatitis C to cure them before their symptoms become severe. In their
complaint, Workman and Nichols sought only injunctive and declaratory relief.
The parties in Workman agree that Workman recently has been treated and
essentially cured of Hepatitis C. Workman asserts that the lack of past treatment caused
permanent liver damage. Nichols has not been treated because his symptoms are not
severe, but he would like to be cured before his symptoms worsen.
Attorney Hearn now represents Workman. Nichols proceeds pro se.

MEMORANDUM DECISION AND ORDER - 2

MOTION TO CONSOLIDATE WORKMAN CASE
1. Standard of Law
Federal Rule of Civil Procedure 42(a) permits consolidation of actions that share
“a common question of law or fact.” To determine whether to exercise discretion to
consolidate cases, a reviewing court “weighs the saving of time and effort consolidation
would produce against any inconvenience, delay or expense that it would cause.” Huene
v. United States, 743 F.2d 703, 704 (9th Cir. 1984). The court may consider factors such
as disparate trial dates or different stages of discovery as weighing against consolidation
of the cases. 9 Wright & Miller, Federal Practice and Procedure § 2383 (2006).
Consolidation may take the form of a court order to “(1) join for hearing or trial
any or all matters at issue in the actions; (2) consolidate the actions; or (3) issue any other
orders to avoid unnecessary cost or delay.” Fed. R. Civ. P. 42(a). In addition, “[f]or
convenience, to avoid prejudice, or to expedite and economize, the court may order a
separate trial of one or more separate issues [or] claims.”
2. Discussion
On October 4, 2018, counsel for all plaintiffs except Nichols filed a motion to
consolidate the Workman and Turney cases. The Workman case is two years older than
the Turney case, but the Workman case took an irregular course. Plaintiffs, rather than
Defendants, first filed a pro se motion seeking summary judgment, but did so without
adequate supporting evidence. Disclosure and discovery disputes existed at the time of
the summary judgment filing, and disputes remain outstanding today even though the

MEMORANDUM DECISION AND ORDER - 3

Court previously ordered Defendants to supplement their disclosures. 2 Defendants have
now filed for summary judgment on some claims, but the motion will not dispose of all
claims in that case.
Thus, Workman is not procedurally much farther ahead than the Turney case. The
Turney case needs a new comprehensive case management plan, given the parties’
outstanding requests, which range from amendment to class action status to preliminary
injunctive relief. Consolidation of these similar cases will serve judicial efficiency. An
overarching case management plan regarding disclosure, discovery, and all other
outstanding requests will reduce duplicative attorney time spent on tasks on both sides. In
addition, the same expert witnesses and other evidence likely can be used in all the cases,
reducing the attendant costs of litigation for the parties.
Finally, no party has shown that prejudice will occur because of consolidation.
Nor has any party shown that inconveniences associated with consolidation will be
greater than the benefits. The only difficulty is that one plaintiff remains pro se; however,
the Rules of Civil Procedure provide the Court with authority to issue orders catering to
the particular needs of the claims and cases within a consolidated action.
Accordingly, the Court has concluded that consolidation of these cases is
appropriate. By separate order in the Workman case, the Court has ordered Plaintiff
Nichols to clarify how he desires to proceed. If Nichols decides to proceed pro se, then
the Court will determine whether his case will be handled differently within the

2

Defendants report: “the Court’s order does not specify which party or parties need to supplement and
does not identify what specific information needs to be supplemented.” (Dkt. 51, p. 4.)

MEMORANDUM DECISION AND ORDER - 4

consolidated case because of privacy, security, and case management concerns that arise
in pro se cases.
Hereinafter, the Workman and Turney cases will be referred to as the Turney case.
THE BALLA CLASS’S MOTION TO INTERVENE
1. Standard of Law
The Balla class asserts that it is entitled to intervene as of right under Federal Rule
of Civil Procedure 24(a)(2). The class must show that it “claims an interest relating to the
property or transaction that is the subject of the action, and is so situated that disposing of
the action may as a practical matter impair or impede the movant’s ability to protect its
interest, unless existing parties adequately represent that interest.”
The Balla class alternatively asserts that it qualifies for permissive joinder.
Pursuant to Rule 24(b)(1)(B), the court may allow intervention by a party with a “claim
or defense that shares with the main action a common question of law or fact.” As the
term itself implies, permissive intervention “is committed to the broad discretion of the
district court.” See Orange v. Air Cal., 799 F.2d 535, 539 (9th Cir. 1986).
2. Background
Balla v. Idaho, Case No. 1:81-cv-01165-BLW, is a 37-year-old class action
focusing on a single prison facility in the IDOC penal system, the Idaho State
Correctional Institution (ISCI). In the mid-1980’s, the Court ordered that IDOC take
some very general, but discrete, steps at ISCI: adopt a special dietary program for
medically infirm inmates; create 24-hour emergency medical care for inmates and hire a
full-time physician; provide a properly-staffed medical delivery system; and establish a
MEMORANDUM DECISION AND ORDER - 5

psychiatric care program. When the injunctions were issued, the IDOC created a
compliance plan. For a long time, the case lay dormant. When the IDOC sought to
terminate the injunctions in 2003, the prisoners objected, and the Court determined that
the injunctions should remain in place.
In 2012, the parties entered into a stipulated “Modified Compliance Plan” that
included an agreement by IDOC to undertake changes and implement procedures that
exceeded the requirements of the Eighth Amendment.3 But, the parties also stipulated to a
number of line actions that were intended to bring ISCI up to Eighth Amendment
standards. However, missing from the stipulation was an agreement that the current ISCI
operations violated the Eighth Amendment. 4
In 2017, the Court held a hearing in Balla that revealed the Modified Compliance
Plan had been poorly monitored by IDOC officials, IDOC attorneys, Plaintiffs’ attorneys,
and the prisoner class representatives. However, there are now indications that IDOC has
performed its obligations under Modified Compliance Plan, and the Court has strongly
encouraged counsel to bring Balla to as rapid a conclusion as possible. In any event, it
seems that the Balla Modified Compliance Plan has reached the end of, and perhaps

3

For example, in 2012, Dr. Mark Stern reported his opinion that no Eighth Amendment violations existed
in this area in his 2012 report, but the IDOC agreed to address some areas related to diet. (See Dkt. 822 in
Balla.) The IDOC’s obligations under the Modified Compliance Plan are contractually enforceable, even
if they are not specifically required by the Eighth Amendment.
4

This anomaly alone is enough for the Court to deny the intervenors’ motions because of anticipated
overcomplication and delay that would occur in resolving such an issue rather than beginning anew to
examine current Hepatitis C treatment in light of current Eighth Amendment legal standards.

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exceeded, its natural life. The Balla Defendants have indicated that they are going to file
a motion to terminate the injunctions no later than the end of February 2019.
3. Discussion
For the reasons that follow, the Court has decided to deny the Balla class’s request
to intervene in this action.
A.

No Showing that the Interests of the Class Members are Not Adequately
Represented

An example of a “class within a class” case where the interests of members of a
first class were not adequately represented in the second class is Arthur v. Sallie Mae,
Inc., No. C10-0198JLR, 2011 WL 13127651 (W.D. Wash. June 6, 2011). There, the
court permitted Ms. Harper, a class representative in a first class action to intervene in a
second class action, because she showed that her interests were not adequately
represented in the second action:
Ms. Harper filed a similar putative class action as the instant
one in the Northern District of Illinois against her loan
provider Arrow Financial for violation of the Telephone
Consumer Protection Act (“TCPA”) pursuant to 47 U.S.C. §
227. Ms. Harper now asks this court to either stay the class
action filed before it as to the Arrow Financial class members,
or permit her to intervene as a party plaintiff in this action. In
the class action before this court, class counsel attempts to
settle all claims against Arrow Financial for violation of the
TCPA, which would include Ms. Harper's claims, despite not
having a class representative whose loans were serviced by
Arrow Financial. Moreover, the record before the court
indicates that Arrow Financial class members, who appear
also to be primarily “charge-off” class members, are limited
in their recovery to prospective relief, while the remaining
class members are not so limited. Whether the “charge-off”
class members were adequately represented during the
settlement negotiations is a question that this court must
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address before approving the settlement in this case.
Accordingly, the court deems it appropriate to have a class
representative from this particular group before the final
approval hearing and therefore approves Ms. Harper's request
for intervention.
Id. at *1.
Unlike Ms. Harper, the Balla plaintiffs have not shown how their substantive
interests are different from all other prisoners’ interests and how they would not be
adequately represented. The Balla class—which consists of all prisoners at ISCI—has no
lesser or greater rights than other diagnosed or undiagnosed IDOC prisoners to have
constitutionally-adequate treatment for Hepatitis C. Whether the Turney cases proceed as
a set of individual cases or a new prisoner class action, the result of Turney is that
IDOC/Corizon’s policy will be tested, clarified, and changed (if necessary) to meet
Eighth Amendment standards regarding Hepatitis C diagnosis and treatment for all
prisoners. The Balla class members’ interests are the same as the Turney plaintiffs’
interests.
B.

Hepatitis C Issues Will Best be Addressed in a Narrowly-Focused Action

Balla is substantively broad, whereas Turney is substantively narrow. The Balla
class is a narrow representation of the entire prison population, whereas Turney can be
crafted into a case that is representative of all IDOC prisoners’ interests, no matter where
those prisoners are housed. As to substance, the only original Balla injunction that seems
to intersect with the Hepatitis C issues is the order to provide a “properly-staffed medical
delivery system.” This injunction is not so specific that it must be interpreted to include
the fine points of new Hepatitis C treatments that were not even conceivable at the time
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of the original injunctions. The remainder of the injunctions currently at issue in Balla are
not relevant to the claims in this case. Because only part of one of the injunctions in Balla
has any relevance to the issues in Turney, and because Hepatitis C relief is better
addressed in a case that focuses only on Hepatitis C diagnosis and treatment, the Court
concludes that inserting Balla in to Turney would unnecessarily complicate and delay
Turney without any benefit to the IDOC prisoners.
C.

Inserting Balla into Turney Would be a Procedural Morass

Another factor the Court has considered is the unwieldly nature of inserting a 37year-old class action that focuses on more than four different broad subjects, each
involving up to hundreds of subtopics, into a two-year-old action that focuses on recent
developments in Hepatitis C treatment. In addition, the Court has not determined that this
consolidated action will be converted into a class action. That decision will be preceded
by status conferences and other case management procedures to determine the scope and
nature of the named Turney plaintiffs’ claims and those of the proposed individual
intervenors introduced by Turney plaintiffs.
D.

Merging pre-PLRA Injunctions with post-PLRA Injunctions is Contrary
to the PLRA’s Purposes

The IDOC has indicated that it plans to file for termination of the Balla injunctions
no later than February 2019. Trying to insert the 37-year-old pre-PLRA-injunction Balla
case into a new post-PLRA action will not allow the Balla plaintiffs to bypass new court
scrutiny of the old injunction as it relates to Hepatitis C diagnosis and treatment. The
Balla plaintiffs cannot viably argue that they are entitled to have a pre-PLRA injunction
MEMORANDUM DECISION AND ORDER - 9

enforced in a post-PLRA case on res judicata grounds. Neither can they argue that
litigation of the Hepatitis C issue in this new case will cause them to lose ground gained
in Balla. Rather, in both Balla and Turney, the PLRA prevents any injunction from being
perpetuated or newly issued unless current constitutional violations exist. The Court
concludes that intervention of the Balla plaintiffs and the attendant pre-PLRA injunctions
would unnecessarily complicate and delay this new and narrow action.
E.

There Should Not be an Over-Emphasis on ISCI in this Action

The Balla class asserts that, under the current policy, IDOC prisoners with
Hepatitis C generally receive their treatment for that disease at ISCI, and, therefore, ISCI
should be front and center in Turney. However, the Turney plaintiffs do not reside at
ISCI, nor do the individual prisoners who seek to become part of a focused Hepatitis C
consolidated or class action lawsuit. The Court does not see the benefit of overlaying
ISCI-related issues from an agreement that stipulated to certain remedies but did not
stipulate that the conditions actually violated the Eighth Amendment onto a case that will
be focused solely on Eighth Amendment issues in the entire prison system—whether in a
class action or in individual cases brought by plaintiffs residing at different prisons.
F.

The Turney Counsel and the Court are Capable of Addressing the IDOC
Hepatitis C Issues without Intervention of the Balla Class

The Balla class argues that “the Turney and Workman plaintiffs lack the ability or
need to argue the applicability of the MCPs to the Hep C issue.” (Dkt. 60-1, p. 8.) The
Court rejects the Balla class’s suggestion that the Turney Plaintiffs’ counsel (who is both
a physician and an attorney) cannot, on his own and with the help of his co-counsel,
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obtain relevant evidence from the Balla parties and determine how to use it effectively
and efficiently in this action—whether as evidence of notice, knowledge, or otherwise.
The Court has confidence that Plaintiffs’ current attorneys are capable of analyzing any
overlapping concerns of the two cases and seeking appropriate relief that will work to the
benefit of all prisoners (whether by using a class action vehicle or prompting a policy
change in individual cases that will benefit all prisoners).
The Court also rejects the Balla class’s argument that the Court is incapable of
creating a class (or managing a set of consolidated individual cases) that encompasses
the needs of all inmates who either have Hepatitis C when they enter the IDOC system or
who contract the disease within the IDOC system. The Balla class asserts, “Even if the
Turney and Workman plaintiffs move to certify a class of all IDOC inmates, the nature
and contours of that class will most likely be limited, whereas the Balla class concerns all
inmates housed at ISCI without respect to medical diagnosis.” The Court believes the
opposite is true—inserting a general class action related only to ISCI into a very specific
action whose outcome will benefit all prisoners likely would cause Turney to lose its
focus on Hepatitis C treatment for all prisoners (whether at risk of cruel and unusual
punishment because of unconstitutional diagnosis or treatment) at all facilities.
G.

Duplicative Litigation is not a Concern

The Court does not agree that there is a high potential for duplicative litigation or
inconsistent outcomes between Balla and Turney, because this Court presides over both
cases. The Court has a duty to the public to manage its docket wisely. The Court is
convinced that keeping these litigations that are so different in procedural posture and
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overall subject matter separate is the best case management strategy for avoidance of
duplication in both of these actions.
4. Conclusion
Based on the foregoing, the Court will deny the Balla plaintiffs’ Motion to
Intervene. The Court concludes that they do not qualify for either mandatory or
permissive intervention, based on the particular characteristics of Balla and Turney and
the limited judicial resources of the United States District Court for the District of Idaho.
5. Case Management Conference
Also pending before the Court are various motions and disclosure/discovery issues
that need immediate attention. The Court will require counsel for the parties to meet in
person with the staff attorney in this case during the week of January 22, 2019, to
formulate an overall case management plan for the consolidated cases. An additional
order on the conference date and time and required preparations will be forthcoming.
ORDER
IT IS ORDERED:
1. Plaintiff’s Motion to Consolidate Cases (Dkt. 53) is GRANTED to the extent
specified herein above.
2. The Balla class’s Motion to Intervene (Dkt. 60) is DENIED.
3. All pending Motions for Extension of Time (Dkt. 66, 83, 88) are GRANTED to
the following extent. Nothing further shall be filed in this case until the parties
attend the case management conference.

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