Brown et al v. Yordy et al

Filing 71

MEMORANDUM DECISION AND ORDER. IT IS ORDERED that: Plaintiff's Motion to Appoint Counsel (Dkt. 48 ) and Renewed Motion to Appoint Counsel (Dkt. 53 ) are DENIED without prejudice. Defendant's Motion to Compel Discovery (Dkt. 54 ) is GR ANTED. Plaintiff's Motion to Compel Discovery (Dkt. 56 ) is GRANTED in part and DENIED in part. Plaintiff's Motion to Allow Disciplinary Records of Plaintiff into Discovery Process (Dkt. 55 ) is GRANTED. Plaintiff's Motion for Return of Appellate Filing Fee (Dkt. 50 ) is DENIED. 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 (ckh)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

KEITH A. BROWN,
Case No. 1:17-CV-00160-BLW
Plaintiff,

MEMORANDUM DECISION
AND ORDER

v.
KEITH YORDY; SGT. RAMIREZ;
SGT. SEELY; SGT. LEE; KEVIN
KEMPF; JEFF ZAMUDA; IDAHO
BOARD OF CORRECTIONS AND
IDAHO COMMISSION OF
PARDONS,
Defendant.

INTRODUCTION
Pending before the Court are six motions filed by Plaintiff Keith Brown. The
motions are ripe for adjudication. After careful consideration, and for the reasons
explained below, the Court will deny Plaintiff’s motions for appointment of
counsel (Dkt. 48; Dkt. 53), the Court will grant in part and deny in part Plaintiff’s
motions to compel discovery (Dkt. 54; Dkt. 56), the Court will conditionally grant

MEMORANDUM DECISION AND ORDER - 1

Plaintiff’s motion regarding introduction of his disciplinary records and the Balla
monthly monitoring meeting minutes (Dkt. 55), and will deny Plaintiff’s motion
for return of appellate filing fees. (Dkt. 50.)
BACKGROUND
Keith A. Brown is a prisoner in the custody of the Idaho Department of
Corrections (IDOC) and is proceeding pro se and in forma pauperis in this action.
On April 14, 2017, Plaintiff filed a Complaint alleging that Defendants violated his
rights under the First and Fourteenth Amendments of the Constitution of the
United States of America. On November 2, 2018, United States Magistrate Judge
Candy W. Dale reviewed Plaintiff’s Complaint pursuant to 28 U.S.C. §§ 1915 and
1915A, determined that it failed to state a claim upon which relief could be
granted, and gave Plaintiff an opportunity to file an amended complaint. (Dkt. 21.)
The case was reassigned to the undersigned District Judge on December 4,
2017, for consideration of dismissal. (Dkt. 22.) On December 8, 2017, Plaintiff
filed an Amended Complaint. (Dkt. 25.) On May 1, 2018, the Court issued a
Successive Review Order, wherein it reviewed the initial Complaint and Judge
Dale’s Initial Review Order de novo. (Dkt. 26.) The Court adopted Judge Dale’s
analysis and conclusions regarding the insufficiency of the initial Complaint. Id.
The Court also reviewed the Amended Complaint, concluded that Plaintiff failed to
remedy the deficiencies in the initial Complaint, and dismissed the case with
MEMORANDUM DECISION AND ORDER - 2

prejudice. (Dkt. 26; Dkt. 27.) Plaintiff appealed the Court’s decision to the United
States Court of Appeals for the Ninth Circuit.
On September 12, 2018, the Ninth Circuit issued a decision that affirmed in
part and reversed in part this Court’s order, and remanded the case for further
proceedings. The Ninth Circuit held that Plaintiff’s Amended Complaint states a
plausible due process claim based on allegations that Plaintiff was unable to
present evidence during two disciplinary hearings that led to Plaintiff being
temporarily held in enhanced confinement conditions. (Dkt. 33 at 2.)
The Ninth Circuit found also that Plaintiff pleaded plausible equal protection
and retaliation claims based on the allegation that his disciplinary category was
enhanced based on his status as a Balla case representative. Id. at 3-4. The Ninth
Circuit’s mandate issued on October 10, 2018. (Dkt. 34.) In line with the Ninth
Circuit’s judgment, the Court reopened the case (Dkt. 35), and Defendants filed
their Answer. Subsequently, Plaintiff filed the six pending motions. The Court will
analyze the merits of each motion below.
DISCUSSION
On August 30, 2019, Plaintiff filed a motion that sought, in part, clarification
of the United States Court of Appeals for the Ninth Circuit’s Memorandum and
Mandate. (Dkt. 54.) Plaintiff filed a second motion to similar effect on September

MEMORANDUM DECISION AND ORDER - 3

3, 2019. (Dkt. 56.) As such, the Court will outline Plaintiff’s surviving claims
below prior to turning to the substantive motions.
1.

Surviving Claims
A.

Due Process Claims

The Ninth Circuit affirmed the District Court’s dismissal of the following
three due process-based claims:
(1) The claim that Defendants violated prison policy during Brown’s
disciplinary hearing. This claim was dismissed by the Court
because “a § 1983 claim cannot be based on a prison’s failure to
follow its ‘own, more general procedures,’ so long as minimum
constitutional requirements are met.” (Dkt. 26 at 7; (quoting
Walker v. Sumner, 14 F.3d 1415, 1420 (9th Cir. 1994))).
(2) Plaintiff’s claim that Defendants violated the Balla injunctions.
(Dkt. 21 at 25; Dkt. 26 at 7-8.) This claim was addressed by the
Court in combination with the policy allegations in the Original
Review Order and again in the Successive Review Order. (Dkt. 21
at 25; Dkt. 26 at 7-8.) It was dismissed in both orders because “any
argument that the IDOC is not complying with an injunction in
another case cannot be brought in a separate action but must
instead be asserted in the original action.” Id. Although the Ninth
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Circuit did not address this claim separately from the other policy
claims, it affirmed this Court’s dismissal of the policy claim, and
thus did not reverse the judgment as to this claim. (See Dkt. 33.)
(3) Plaintiff’s claim that his thirty-day confinement in disciplinary
segregation violated a protected liberty interest. Id. at 2. The Ninth
Circuit found Plaintiff failed to show that this discipline imposed
an “atypical and significant hardship on the inmate in relation to
the ordinary incidents of prison life.” Id. (quoting Sandin v.
Conner, 515 U.S. 472, 484 (1995)).
Provided the foregoing, Plaintiff’s surviving due process-based claims are:
(1) the allegation that Defendants violated his procedural due process
rights because he was unable to present evidence during his
disciplinary hearing; and
(2) that he had a protected liberty interest in avoiding detention at the
Idaho State Maximum Security Institution. (See Dkt. 33 at 2-3.)
B.

Equal Protection and Retaliation Claim

The Ninth Circuit’s order revived Plaintiff’s Equal Protection and
Retaliation claim. Plaintiff alleged his disciplinary charge was enhanced in
retaliation for Plaintiff serving as a class representative in Balla v. IDOC, 1:81-cv01165-BLW, and therefore prison authorities treated him differently than other
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similarly situated inmates. (Dkt. 25 at 19.) To this end, the Ninth Circuit found
Plaintiff stated a plausible equal protection and retaliation claim and reversed the
Court’s judgment as to this claim. (Dkt. 33 at 3-4.) With the clarification surviving
claims set forth, the Court will turn to Plaintiff’s substantive motions.
2.

Plaintiff’s Motions to Appoint Counsel
The Court will begin with Plaintiff’s motion to appoint counsel and renewed

motion to appoint counsel. (Dkt. 49; Dkt. 53.) Plaintiff argues that assistance of
counsel is necessary for him to effectively conduct discovery. (See Dkts. 48 and
53.) Plaintiff cites hurdles he will face, as an incarcerated individual, in deposing
officers at the IDOC and ISCI facilities and gathering affidavits necessary to raise
disputes of material facts to survive summary judgment. Id. ‘
Generally, there is no right to appointed counsel in Section 1983 actions.
Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), withdrawn in part, 154 F.
3d 952, 951 n.1 (9th Cir. 1998). However, a court “may request an attorney for
indigent civil litigants pursuant to 28 U.S.C. § 1915(e)(1) in exceptional
circumstances. Zamaro v. Moonga, 656 F. Ap’x 297, 299 (9th Cir. 2016) (internal
quotations omitted). To determine whether exceptional circumstances exist, a court
evaluates (1) the likelihood of success on the merits of the case, and (2) the ability
of the plaintiff to articulate the claims pro se considering the complexity of legal

MEMORANDUM DECISION AND ORDER - 6

issues involved. Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). Neither
factor is dispositive, and both must be evaluated together to reach a decision. Id.
In this matter, Court is not currently equipped with sufficient information to
determine the likelihood of success on the merits of Plaintiff’s case. Without the
benefit of a more developed evidentiary record, the Court can not make a
determination regarding the first factor in the exceptional circumstances analysis.
In consideration of the second factor, Plaintiff’s ability to articulate his
claims pro se considering the complexity of legal issues, the Court finds Plaintiff
has demonstrated he has sufficient writing ability and legal knowledge to articulate
his claims. See Thompson v. Dir., California Dep’t of Corr., 42 F.3d 1402 (9th Cir.
1994). Although discovery is essential for Plaintiff to flesh out his case, “the need
for discovery does not necessarily qualify the issues” in this case as “complex.”
See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). As the Ninth
Circuit articulated in Wilborn;
Most actions require development of further facts during litigation and
a pro se litigant will seldom be in a position to investigate easily the
facts necessary to support the case. If all that was required to establish
successfully the complexity of the relevant issues was a demonstration
of the need for development of further facts, practically all cases would
involve complex legal issues.
Id.

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There is no doubt that it is difficult to litigate from a prison cell. There is
also no question that pro se individuals do not have the legal training or resources
to do what they could if they were lawyers or had lawyers. However, prisoner
status and lack of legal expertise are not enough, in and of themselves, to establish
the exceptional circumstances that warrant appointment of counsel in the civil
context. See Zamaro v. Moonga, 656 F. App’x 297, 299 (9th Cir. 2016).
Here, as in other similar cases, Plaintiff’s inability to more fully litigate his
claims is an “incidental (and perfectly constitutional) consequence[ ] of conviction
and incarceration.” Lewis v. Casey, 518 U.S. 343, 355(1996). The discovery issues
faced in his case are not exceptional when considered on balance with the
complexity of the claims involved and Plaintiff’s abilities to articulate his claims
thus far. Accordingly, the Court will deny Plaintiff’s request for appointment of
counsel without prejudice.
C.

Motions to Compel Discovery

Next, the Court will address Plaintiff’s motions to compel discovery. (See
Dkts. 54 and 56.) Plaintiff filed two motions to compel answers to Requests for
Admissions (RFAs). These motions are considered under Federal Rule of Civil
Procedure 36(a)(6) as motions regarding the sufficiency of an objection. Plaintiff
also filed a motion to compel production of extensive phone records. (Dkt. 57.)

MEMORANDUM DECISION AND ORDER - 8

This motion is considered under Rule 37 as a dispute over the production of
documents.
Federal Rule of Civil Procedure 26(b) allows parties to “obtain discovery
regarding any nonprivileged matter that is relevant to any party’s claim or defense
and proportional to the needs of the case.” Evidence is relevant if it has “any
tendency to make a fact more or less probable than it would be without the
evidence; and the fact is of consequence in determining the action.” Fed. R. Evid.
401. However, courts are given broad discretion to apply discovery rules to
properly effect the policy of the Federal Rules of Civil Procedure; namely, the
rules “should be construed, administered, and employed by the court and the
parties to secure the just, speedy, and inexpensive determination of every action
and proceeding.” Fed. R. Civ. P. 1.
(1)

Requests for Admissions

Plaintiff argues that Defendants failed to respond adequately to the
following RFAs in Plaintiff’s Second Request for Production of Documents,
Admissions, and Interrogatories. (Dkt. 54 & 56).

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- RFA No. 1 (18) 1 through RFA No. 3 (20): Plaintiff asks three of the
Defendants to admit that they have been educated, trained or informed of
the content of the injunctions in Balla. (Dkt. 57 at 6-7, citing Def.’s Resp.
to Req. for Admis. No. 1 (18) – 3 (20).)
- RFA No. 4 (21): Plaintiff asks Defendant Yordy to admit that he is aware
of the injunctions in Balla. (Dkt. 57 at 6-7, citing Def.’s Resp. to Req. for
Admis. No. 4 (21).)
Defendants object to each RFA on the same ground: “the Request relates to
claims premised on allegations that internal policies were not followed during the
disciplinary proceedings, which were dismissed by the District Court, and the
dismissal was upheld by the Ninth Circuit Court of Appeals. As this request relates
to a dismissed claim, no response is necessary.” (Dkt. 57 at 6-7, citing Def.’s Resp.
to Req. for Admis. No. 1 (18) – 4 (21).)
Federal Rule of Civil Procedure 36 governs requests for admission, which a
party may serve on another party to admit the truth of any matters within the scope
of Rule 26(b)(1) relating to facts, the application of law to fact, opinions of either,

1

Plaintiff did not continuously number these Requests for Admission with previous
requests. Defendant inserted continuous numbering parenthetically in the response to avoid
confusion. The Court has adopted Defendants’ numbering for consistency.

MEMORANDUM DECISION AND ORDER - 10

or the genuineness of any described document. Fed. R. Civ. P. 26(a)(1). A matter is
deemed admitted unless the responding party serves a written answer or objection
within 30 days after being served. Id. at 36(a)(3). As such, any answer to an RFA
must specifically deny it or state in detail why the responding party cannot admit
or deny it. Id. at 36(a)(4). The responding party may also object to a request so
long as grounds for objecting are stated. Id. at 36 (a)(5).
The Court will compel responses to Plaintiff’s RFAs because the
information sought is relevant pursuant to Rule 26(b). Notably, Defendants Seely,
Ramirez, Lee and Yordy were all involved the disciplinary hearings that form the
basis for Plaintiff’s claims. (Am. Compl. Dkt. 25 at 5-10). Provided this fact, the
IDOC employees’ education, training or knowledge of the permanent injunctions
in Balla are matters relevant to Plaintiff’s claim that he was retaliated against as a
class representative. Thus, Plaintiff’s RFAs fall within the scope of discovery and
the Court will grant Plaintiff’s motion to compel responses to RFAs 1 (18) through
4 (21).
(2)

Request for Production of Phone Logs

Plaintiff also seeks production of extensive phone records and logs. Plaintiff
requests that Defendants “produce a copy of the telephone records of the Plaintiff
which establish the time and date of calls charged to the Plaintiff’s account, AND

MEMORANDUM DECISION AND ORDER - 11

which shows from which location these calls were initiated from, from 6/17/2015
on.” (Dkt. 57 at 9.)
In response, Defendants produced a record and recordings of all phone calls
made by Plaintiff from September 16, 2016 through September 20, 2016.
Defendants object to producing any other phone records on the basis that
Plaintiff’s “request is disproportionate to the needs of the case, is overly broad and
unduly burdensome, and does not assist in proving Plaintiff’s due process and
retaliation claims.” Id. at 9-10. Defendants note that, the only calls that formed the
basis for the disciplinary action that is the subject of this suit, were the calls made
by Plaintiff from September 16, 2016 through September 20, 2016. (Id. at 10-11).
A party may move for an order compelling discovery pursuant to Federal
Rule of Civil Procedure 37(a)(1) when an opposing party fails to respond to
requests for production permissible under Federal Rule of Civil Procedure 34.
Generally, a court should deny a motion to compel if the information requested
falls outside the scope of discovery. See Nugget Hydroelectric, L.P. v. Pacific Gas
& Elec. Co., 981 F.2d 429, 438-39 (9th Cir. 1992).
Considering the foregoing in the context of Rule 26(b), the Court finds that
phone records for phone calls that did not form the basis for the disciplinary
hearing are not relevant to the contested issue of whether Plaintiff made the phone
calls that were the subject of the disciplinary hearing. Further, Plaintiff has failed
MEMORANDUM DECISION AND ORDER - 12

to demonstrate how the additional phone records requested are relevant to any
other claim or defense in this matter. Therefore, the Court finds the additional
phone logs requested by Plaintiff are not relevant to any claim or defense and are
thus not discoverable. The Court will deny Plaintiff’s motion to compel as to such
records.
3.

Motions to Introduce Evidence at Trial
In addition to the discovery-based motions above, Plaintiff filed a motion

seeking permission to introduce his disciplinary record and the minutes of monthly
monitoring meetings of the Balla case at trial. (Dkt. 55 at 2). Defendants have not
filed an objection to this motion.
Trial courts have broad discretion in deciding whether to admit or exclude
evidence. Burgess v. Premier Corp., 727 F.2d 826, 833 (9th Cir. 1984). This
discretion includes the determination whether the proffered evidence is relevant.
Diede v. Burlington N. R. Co., 772 F.2d 593, 594 (9th Cir. 1985). Evidence is
relevant if it has any tendency to make a fact more or less probable, and the fact is
of consequence in determining the action. Fed. R. Evid. 401. Relevant evidence is
admissible unless the United States Constitution, a federal statute, the Federal
Rules of Evidence or other rules prescribed by the Supreme Court provide
otherwise. Fed. R. Evid. 402.

MEMORANDUM DECISION AND ORDER - 13

In this case, Plaintiff’s disciplinary record and the minutes of the monthly
monitoring meetings for Balla are potentially relevant to Plaintiff’s retaliation
claim. Plaintiff will be allowed to introduce this evidence at trial if the Court finds
proper foundation has been laid according to the rules of evidence and no
successful evidentiary objections are raised by the Government. Provided the
foregoing, the Court will conditionally grant the motion, subject to application of
the Federal Rules of Evidence and objection from Defendants prior to or during
trial.
Additionally, because these records are within the scope of discovery, if
Defendants have not already done so, they must provide Plaintiff copies of the
Balla case monthly monitoring meeting minutes for the one-year period preceding
the Plaintiff’s first disciplinary offense.
4.

Motion for Return of Appellate Filing Fee
Finally, Plaintiff filed a motion for return of fees he paid to file his appeal to

the Ninth Circuit. Plaintiff’s case is subject to the provisions of the Prison
Litigation Reform Act (PLRA), of 1996, which amended the statutory provisions
governing the filing of prisoner in forma pauperis lawsuits. Under the PLRA,
while prisoners are entitled to begin a civil suit without prepayment of fees under
28 U.S.C. § 1915(a), they are nevertheless “required to pay the full amount of a
filing fee.” 28 U.S.C. 1915(b)(1).
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The PLRA “makes no provision for return of fees partially paid or for
cancellation of the remaining indebtedness.” Goins v. Decaro, 241 F.3d 260, 261
(2d Cir. 2001) (rejecting a request for a refund of appellate fees after voluntary
withdrawal of appeal). The Second Circuit observed that the absence of a refund
of fees provision “is not surprising, since a congressional objective in enacting the
PLRA was to ‘mak[e] all prisoners seeking to bring lawsuits or appeals feel the
deterrent effect created by liability for filing fees.’” Id. (citing Leonard v. Lacy, 88
F.3d 181, 185 (2d Cir.1996)).
Plaintiff has not identified any post-PLRA precedent supporting his request,
and this Court has not discovered any in its own research. Provided the foregoing,
the Court will deny Plaintiff’s motion for return of his appellate filing fees.

CONCLUSION
The Court will deny Plaintiff’s motions to appoint counsel. (Dkt. 48; Dkt.
53.) The Court will grant in part and deny in part Plaintiff’s motions to compel
discovery. (Dkt. 54; Dkt. 56.) The Court will conditionally grant Plaintiff’s motion
regarding introduction of his disciplinary records and the Balla monthly
monitoring meeting minutes (Dkt. 55), and will deny Plaintiff’s motion for return
of appellate filing fees. (Dkt. 50.)

MEMORANDUM DECISION AND ORDER - 15

ORDER
IT IS ORDERED that:
1.

Plaintiff’s Motion to Appoint Counsel (Dkt. 48) and Renewed Motion
to Appoint Counsel (Dkt. 53) are DENIED without prejudice.

2.

Defendant’s Motion to Compel Discovery (Dkt. 54) is GRANTED.

3.

Plaintiff’s Motion to Compel Discovery (Dkt. 56) is GRANTED in
part and DENIED in part.2

4.

Plaintiff’s Motion to Allow Disciplinary Records of Plaintiff into
Discovery Process (Dkt. 55) is GRANTED.3

5.

Plaintiff’s Motion for Return of Appellate Filing Fee (Dkt. 50) is
DENIED.
DATED: October 31, 2019

_________________________
B. Lynn Winmill
U.S. District Court Judge

2

The motion to compel is granted to the extent is seeks an order compelling Defendants
to respond to Plaintiff’s Requests for Admission 1 (18) through 4 (21) but denied to the extent it
seeks to compel production of any additional phone records.
Consistent with the Court’s finding above, if Defendants have not already done so, they
must provide Plaintiff copies of the Balla case monthly monitoring meeting minutes for the oneyear period preceding the Plaintiff’s first disciplinary offense within two weeks of the date of
entry of this order.
3

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MEMORANDUM DECISION AND ORDER - 17