Allen v. Tingey, et al.

Filing 36

ORDER re 30 Motion for ADR and Contemptive Court. IT IS HEREBY ORDERED that Plaintiff's Motion for ADR and Contemptive Court (Dkt. 30 ) 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)

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

ZACHARY ALLEN,

Case No. 1:20-cv-00015-BLW

Plaintiff,

ORDER

v.
TIM McKAY; CPL. SHAPPEL
MORRISON; CPL. DRIGGS;
DEFENDANT FRAUS;, and SARA
HART,
Defendants.

INTRODUCTION
Pending before the Court is Plaintiff’s Motion for ADR and Contemptive
[sic] Court. (Dkt. 30.) Plaintiff requests the Court grant “arbitrary [sic] dispute
resolution and contemptive [sic] court on defendants.” (Id. at 1.) Additionally,
Plaintiff states that Ada County has ordered the Idaho Department of Correction
(IDOC) to produce documents and IDOC is refusing to comply with this order.
(Id.) In the interest of avoiding delay, and because the Court conclusively finds that
the decisional process would not be significantly aided by oral argument, the

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motion is decided based on the record. D. Idaho L. Rule 7.1. For the reasons that
follow, the Court will deny Plaintiff’s motion.
BACKGROUND
On January 6, 2020, Plaintiff filed a complaint against Tingey et. al,
claiming he was wrongfully put back in prison on April 29, 2019. (Dkt. 1 at 1.)
Plaintiff further states he has been verbally harassed and illegally imprisoned since
April 29, 2019. (Id.) On February 18, 2020, Plaintiff filed a supplement to his
complaint, adding that: IDOC refuses to let him meet scheduled court dates and
attorney appointments; his legal mail is being withheld from him and read by
IDOC staff; he has been segregated and the Defendants are racially prejudicial
against him; his 3rd, 4th, 5th, 6th, 7th, 8th, and 14th Amendment rights are being
violated; IDOC staff is using excessive force against him and writing false Cnotes; IDOC staff are refusing him mental and physical help he needs; and IDOC
is violating sentencing rules. (Dkt. 6.) Furthermore, Plaintiff’s Affidavit states he
was illegally arrested on December 12, 2018, for two counts of felony forgery in
Bonneville County, and the two charges for the same crime violates double
jeopardy, he was never read his Miranda rights, and an illegal search took place.
(Dkt. 7.)
On March 2, 2020, the Screening Judge determined Plaintiff had not alleged
sufficient facts to proceed with his complaint, and directed Plaintiff to file an

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amended complaint if he intended to proceed with his claims. (Dkt. 8.) Over the
next month, Plaintiff filed six amended complaints. The Court in its May 8, 2020
Order deemed the Sixth Amendment Complaint to be the operative pleading, since
it was the last one filed and Plaintiff was directed to file one amended complaint.
The Successive Review Order by Screening Judge, filed May 8, 2020, allowed
Plaintiff to proceed with the following claims: (1) First Amendment retaliation
claims against Defendants Morrison, Driggs, Hart, and McKay; (2) Eighth
Amendment failure-to-protect claims against Defendants Morrison, Driggs, and
Fraus; and (3) Eighth Amendment medical treatment claims against Defendants
Hart and McKay. (Dkt. 21 at 25.) All other claims were dismissed, and all other
defendants were terminated as parties to this action. (Id.)
Plaintiff filed a Motion for Extension of Time on July 20, 2020, requesting
an additional 20 days to complete production of mandatory disclosure required by
this Court due to the COVID-19 pandemic. (Dkt. 27.) Plaintiff additionally asked
the Court to refer this matter for alternative dispute resolution and for the
appointment of counsel. (Dkt. 27). The Court granted the motion for extension of
time but denied the request for alternative dispute resolution as premature, and
denied the request for the appointment of counsel. (Dkt. 29 at 2.)
On August 5, 2020, Plaintiff filed this present motion for ADR and contempt
of court. (Dkt. 30.) In this motion, Plaintiff states he has been continually denied

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access to public records or documents needed to properly represent himself. (Id.)
Furthermore, he states IDOC is refusing to produce these documents despite an
order from Ada County requiring IDOC to do so. (Id.)
Defendants filed a response to Plaintiff’s motion on August 26, 2020, stating
Plaintiff did not cite any authority addressing or supporting the relief sought, and
there is no mention of any order by the Court that Defendants allegedly violated.
(Dkt. 33.) Defendants further state there has been no material change since this
Court denied Plaintiff’s previous motion for ADR in July. (Id.) Furthermore,
Defendants state they did not receive notice from Plaintiff that he was seeking
contempt. (Id.)
DISPOSITION
Looking first to Plaintiff’s motion for alternative dispute resolution (ADR),
the Court finds again that this request is premature. Discovery disclosures may be
made any time prior to November 6, 2020, and it appears Plaintiff has not
discussed early dispute resolution with the Defendants. Therefore, Plaintiff’s
Motion for Alternative Dispute Resolution will be denied.
Next, regarding Plaintiff’s motion for contempt, Plaintiff did not identify
whether he is seeking civil or criminal contempt. Civil contempt “consists of a
party’s disobedience to a specific and definite order by failure to take all
reasonable steps within the party’s power to comply.” Reno Air Racing Ass’n, Inc.,

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v. McCord, 452 F.3d 1126, 1130 (9th Cir. 2006). It appears Plaintiff is seeking
remedial relief rather than punitive relief, as he asks the Court to enforce a court
order. A motion for contempt must be filed with the court that issued the order
allegedly violated.
Plaintiff does not identify a specific order of the Court he believes
Defendants have violated, or what the violation may be. There is mention of an
order from “Ada County,” which appears to be a reference to state court. If that is
the case, the motion is not properly before this Court. Accordingly, Plaintiff’s
motion for contempt will be denied.
ORDER
NOW THEREFORE IT IS HEREBY ORDERED that Plaintiff’s Motion
for ADR and Contemptive Court (Dkt. 30) is DENIED.
DATED: October 14, 2020
_________________________
B. Lynn Winmill
U.S. District Court Judge