Carr v. Bartlett

Filing 60

MEMORANDUM DECISION AND ORDER - Plaintiffs Motion for Summary Judgment (Dkt 35 ) is DENIED. Defendants Motion for Summary Judgment (Dkt. 48 ) is GRANTED. Plaintiffs Amended Complaint and this entire action are DISMISSED with prejudice for the rea sons set forth above and because they are legally and factually frivolous. Signed by US Magistrate Judge Raymond Edward Patricco, Jr. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (lm)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

JODY CARR,
Case No. 1:20-cv-00491-REP
Plaintiff,
MEMORANDUM DECISION
AND ORDER

vs.
ADA COUNTY SHERIFF STEPHEN
BARTLETT, BILL WIERS, TRAVIS
RUBY, and the officers involved in
investigation of DR #19-3997,
Defendants.

INTRODUCTION
Plaintiff Jody Carr, an inmate in custody of the Idaho Department of Correction
(“IDOC”), is proceeding on conspiracy, due process, and retaliation claims in his
Amended Complaint. (Dkt. 17.) He asserts that Ada County Sheriff Stephen Bartlett, and
two Ada County Sheriff’s Office (“ACSO”) investigators—William Weires1 and Travis
Ruby—violated Plaintiff’s federal rights in conducting an investigation of his March 31,
2019, Prison Rape Elimination Act (PREA) letter alleging that he was sexually assaulted
by another inmate on October 14, 2018, and January 7, 2019.2 (See Dkt. 17, Amended

1

This is the corrected name and spelling of “Bill Wiers.”

2

34 U.S.C. § 30301, et seq.

MEMORANDUM DECISION AND ORDER - 1

Complaint.) Plaintiff alleges that Defendants intimidated inmate witnesses Robert
LeGrotta and Anthony Barber, falsely reported that Plaintiff fabricated his PREA
allegations, and impermissibly released Plaintiff’s confidential information to IDOC
prison officials.
After waiving service of process, Defendants filed an Amended Answer to the
Amended Complaint. (Dkt. 29.) Now pending are cross-summary judgment motions filed
by Plaintiff and Defendants. (Dkts. 35, 48.) Having reviewed the record in this matter, the
Court enters the following Order.
STANDARD OF LAW GOVERNING SUMMARY JUDGMENT
Summary judgment should be granted when a party can show that, as to a claim or
defense, “there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). Material facts are those “that might
affect the outcome of the suit.” Id. at 248. “Disputes over irrelevant or unnecessary facts
will not preclude a grant of summary judgment.” T.W. Elec. Serv., Inc. v. Pac. Elec.
Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987).
To show that material facts are not in dispute, a party may cite to particular parts
of the record or show that the adverse party is unable to produce admissible evidence to
support a fact. Fed. R. Civ. P. 56(c)(1)(A) & (B). The Court must consider “the cited
materials,” but it may also consider “other materials in the record.” Fed. R. Civ. P.
56(c)(3).
The Court does not determine the credibility of affiants or weigh the parties’
evidence. All reasonable inferences that can be drawn from the evidence must be drawn
MEMORANDUM DECISION AND ORDER - 2

in a light most favorable to the non-moving party, T.W. Elec. Serv., 809 F.2d at 630-31,
but the Court is not required to adopt unreasonable inferences from circumstantial
evidence, McLaughlin v. Liu, 849 F.2d 1205, 1208 (9th Cir. 1988). For example, when a
videotape quite clearly contradicts the plaintiff’s version of facts, courts should view the
facts “in the light depicted by the videotape.” Scott v. Harris, 550 U.S. 372, 381-82
(2007).
In Coble v. City of White House, Tennessee, 634 F.3d 865 (6th Cir. 2011), the
court applied Scott to an audio recording, reasoning:
There is nothing in the Scott analysis that suggests that
it should be restricted to cases involving videotapes. The
Scott opinion does not focus on the characteristics of a
videotape, but on “the record.” 550 U.S. at 380–81, 127 S.Ct.
1769 (“When opposing parties tell two different stories, one
of which is blatantly contradicted by the record....”;
“Respondent’s version of events is so utterly discredited by
the record....”; “At the summary judgment stage ... once we
have determined the relevant set of facts and drawn all
inferences in favor of the nonmoving party to the extent
supportable by the record ... the reasonableness of [the
respondent’s] actions ... is a pure question of law.” (emphasis
added)). Although we have not had occasion to apply the
Scott analysis to audio recordings, courts routinely look to
Scott for guidance in determining whether the non-moving
party's version of the events is so blatantly contradicted by
objective evidence in the record that it fails to create a
genuine issue of material fact for trial, even in the absence of
a videotape.
Id. at 868–869. See also Hearn v. Town of Oak Island, No. 21-1598, 2022 WL 7935994,
at *1 (4th Cir. Oct. 14, 2022) (unpubl.) (“To the extent the [audio recording] depicts
material facts of this case, we review those facts as they are depicted in the [recording]”
(citations omitted, brackets in original); Clay v. San Bernardino Cnty., No.
MEMORANDUM DECISION AND ORDER - 3

EDCV1900032-CJCDFM, 2021 WL 4804459, at *5 (C.D. Cal. Sept. 8, 2021), report and
recommendation adopted sub nom. Antquan Durpree Clay, Plaintiff, v. San Bernardino
County et al., Defendants., No. EDCV1900032CJCDFM, 2021 WL 4806544 (C.D. Cal.
Oct. 13, 2021) (“As a preliminary matter, the Court must address Plaintiff's allegation
that his assailants had retreated to their cells before he fired the taser. See Clay Decl. ¶ 7.
The Court finds this purported evidence to be ‘blatantly contradicted’ by the audio
recording of the event, such that ‘no reasonable jury could believe it.’ Scott v. Harris, 550
U.S. 372, 380 (2007).”).
Similarly, a factual dispute cannot be created by contradicting oneself, for
example, a later affidavit cannot be submitted in opposition to summary judgment that
contradicts prior deposition testimony. Kennedy v. Allied. Mut. Ins. Co., 952 F.2d 262,
266 (9th Cir. 1991).
Pro se inmates are exempt “from strict compliance with the summary judgment
rules,” but not “from all compliance.” Soto v. Sweetman, 882 F.3d 865, 872 (9th Cir.
2018). At summary judgment, courts “do not focus on the admissibility of the evidence’s
form,” but “on the admissibility of its contents.” Fraser v. Goodale, 342 F.3d 1032, 1036
(9th Cir. 2003).
RELEVANT FACTS AND ALLEGATIONS
1. Timeline
The Court has constructed the following timeline from the evidence in the record
and from the record in Plaintiff’s related cases.

MEMORANDUM DECISION AND ORDER - 4

Date

Relevant Act or Occurrence

December 14, 2015

The Idaho Department of Correction (IDOC) and Ada County
Sheriff’s Office (ACSO) collaborated on a standard course of
action to apply to allegations of serious crimes occurring at
IDOC facilities. (Dkt. 42-5, p. 8 (sealed).)

April 7, 2016

The IDOC and the Idaho Sheriff’s Association (ISA)
collaborated on a standard course of action regarding PREA
complaints from inmates in custody of the IDOC (Dkt. 42-4,
p. 5; see Dkt. 35-3, p. 21 (IDOC PREA pamphlet).)

November 21, 2017

Plaintiff helped inmate James Davis make a PREA complaint
against Corporal Cox, alleging that Corporal Cox attempted
to sexually harass or assault Davis. Plaintiff claimed to be a
witness to Cox’s solicitation of Davis for sexual activity. (See
Plaintiff’s pleadings from Ada County Court Case CV01-1905023 settled in the Global Settlement Agreement (“GSA”),
found in federal Case 1:20-cv-00146-DCN Case, Carr v.
Page, et al., (“Case 146”), Dkts. 38 to 38-4.)

December 11, 2017

Plaintiff drafted a civil rights conditions of confinement
complaint against prison officials for inmate James Davis.
(See Case No. 1:17-cv-00505-DCN, Davis v. Atencio, et al.,
(“Case 505”).)

March 28, 2018

The IDOC served James Davis with a Disciplinary Offense
Report (“DOR”) for making a false statement about being
sexually harassed or assaulted by Corporal Cox. (See id.)

April 18, 2018

The IDOC served Plaintiff with a DOR for making a false
statement that James Davis was sexually harassed or
assaulted by Corporal Cox. (See id., pp. 26-27.)

unknown date in 2018

Plaintiff sent a PREA letter (of unknown content, not at issue
here) to ISA (referenced in Dkt. 50, p. 14).

subsequent date in 2018

The ISA forwarded Plaintiff’s PREA letter to the IDOC
PREA Coordinator, Teresa Jones (See id.).

June 14, 2018

Plaintiff drafted a second civil rights complaint for James
Davis in federal court that was assigned to District Judge B.
Lynn Winmill, Case 1:18-cv-00274-DCN, Davis v. Blades, et
al. (“Case 274”). In the complaint, Plaintiff asserted for Davis

MEMORANDUM DECISION AND ORDER - 5

that prison officials harassed Davis so much that Davis
attempted suicide, that Corporal Cox sexually harassed Davis,
and that prison officials tried to cover up the Corporal Cox
sexual harassment incident.
October 12, 2018

IDOC (Jones) sent a letter to Plaintiff stating that she
reviewed Plaintiff’s letter and saw no new PREA allegation
requiring investigation.

October 14, 2018

Plaintiff later alleges that inmate James Davis allegedly
sexually assaulted him on this date, but Plaintiff told no one
on this date. Plaintiff later said he did not report it due to “no
way to confidentially or safely report it.” (Dkt. 50-2, p. 3.)

November 30, 2018

Upon screening, Judge Winmill dismissed all of Davis’s
claims in his second civil rights action except claims against
Corporal Cox. (See Dkt. 7 in Case 274.)

January 7, 2019

Plaintiff later alleges that James Davis sexually assaulted him
on this date, but, Plaintiff again told no one on this date.
Plaintiff later said he did not report it due to “no way to
confidentially or safely report it.” (Id.)

February 13, 2019

James Davis filed a motion to dismiss and withdraw his first
civil rights complaint drafted by Plaintiff. (See Dkt. 43 in
Case 505.)

March 31, 2019

Plaintiff wrote a letter to the ISA stating that he had been
sexually assaulted by Davis on October 14, 2018, and January
7, 2019. (See Dkt. 50, p. 20-21.) Plaintiff alleges that he gave
the letter to prison paralegal Cupp for indigent mailing. ISA
did not receive the letter from Plaintiff; neither did ACSO
receive the letter from the ISA. (See Dkt. 42-4, p. 2,
Declaration of Tammara Tarvin; Dkt. 42-5, p. 2, Declaration
of William Weires; Dkt. 42-6, p. 2, Second Declaration of
Travis Ruby.)

April 3, 2019

James Davis filed a motion to withdraw his second civil
rights complaint drafted by Plaintiff. (See Case 274, Dkt. 14.)

April 4, 2019

Plaintiff signed and dated a state habeas corpus petition,
wherein he declared under penalty of perjury: “Now, on 3-3119 I sent another PREA complaint letter to the Id. Sheriff’s
Ass. and yesterday (4-3-19) paralegal Cupp returned it to me

MEMORANDUM DECISION AND ORDER - 6

marked “Denied”. I have no way to gain Relief or Safety.
Petitioner desperately needs this Court’s Help.” (Dkt. 4-1, p.
12, in Case 1:20-cv-00301-DCN, Carr v. Cupp (“Case 301”)
(verbatim)). Plaintiff then submitted his petition to Cupp for
filing in the Ada County court, but she returned it “denied,”
and did not file it. (Dkt. 44, pp. 3-7 (sealed).)
April 7, 2019

Plaintiff wrote a letter to the Idaho Commission of Pardons
and Parole (ICPP) stating that they should not parole inmate
James Davis because Plaintiff was sexually assaulted by
Davis and because Davis allegedly told Plaintiff that Davis
would “go on a raping and killing spree out of his
venge[a]nce” and “kidnap & keep as a sex slave his own
daughter” if paroled. (Dkt. 44, pp. 3-5 (sealed).)

April 10, 2019

Plaintiff wrote a letter to Chad Page, IDOC Chief of Prisons,
informing him of the alleged Davis October 14, 2018, and
January 7, 2019 sexual assault incidents. (Id., pp. 4-7.) In that
letter, Plaintiff again said he wrote a confidential letter to the
ISA on 3-31-19, but officers said they could not mark it
confidential; he then submitted it to paralegal Cupp, who
marked it “denied” and brought it back to him because it was
not an access to courts claim.

April 15, 2019

IDOC investigator Nicole Fraser emailed Defendant William
Weires of the Ada County Sheriff’s Office (ACSO) to ask the
ACSO to look into PREA concerns identified in the April 7,
2019 letter written by Plaintiff to the ICPP. (See Dkt. 44, p. 2
(sealed).)3

April 16, 2019

Fraser provide Weires with the letter Plaintiff wrote to Chad
Page, expressing the same PREA concerns. (Dkt. 44, pp. 2-7
(sealed).)

Plaintiff states in his “Supplement to All Pleadings” that “Nicole Fraser, and her investigation’s team…
had Plaintiff Sexually Assaulted, and Violently Assaulted by their Hired and Paid Inmates as Retaliation
for Plaintiff daring to try to Report them.” (Dkt. 54, p. 3 (verbatim).) This allegation of a pre-April 2019
IDOC-inmate conspiracy to harm Plaintiff is directly contrary to Judge Nye’s Order that Plaintiff not
reach back into his prior cases settled in the GSA. Plaintiff was sanctioned for breaching the GSA in Case
146. (See Dkt. 59 in that case.) Evidence in this case also shows that Plaintiff breached the GSA
confidentiality clause by revealing the outcome of his suit to various inmates. (See Dkt. 38-1; Dkt. 37
(sealed).)
3

MEMORANDUM DECISION AND ORDER - 7

Plaintiff wrote a letter to the IDOC Attorney General’s
Office, stating that James Davis sexually assaulted him twice.
(Dkt. 44-2, pp. 3-6.)
April 22, 2019

Lt. Greenland notified Sergeant Anderson that Plaintiff had
given him two concern forms that contained possible PREA
allegations that James Davis assaulted Plaintiff on 10/14/18
and 1/7/19, but that Plaintiff said he “wasn’t able to
confidentially report because he didn’t trust staff, due to
receiving a DOR from making false statements,” which
references the IDOC’s finding that Plaintiff made false
statements that Corporal Cox had sexually harassed or
assaulted James Davis. (IDOC Information Report dated
4/22/19, Dkt. 50-2, p. 12.)
IDOC (Anderson) interviewed Plaintiff and passed the
information on to Ada County detectives at the direction of
IDOC leadership. Ada County detectives started a formal
investigation (DR #19-3997) (reported in DOR, Dkt. 50-2, p.
7).

April 23, 2019

IDOC (Fraser) provided Weires with a letter written by
Plaintiff to the IDOC Attorney General’s Office, dated April
16, 2019, expressing the same PREA concerns. (Dkt. 44-2, p.
2 (sealed).)
Weires assigned Travis Ruby to follow up on the PREA
disclosure at ISCC. (Dkt. 42-6, Second Ruby Decl.)

April 23, 2019

Ruby interviewed Plaintiff Jody Carr. During the interview
with Ruby, Plaintiff informed Ruby that he did not report his
PREA incidents directly to ISA because his cellmate
previously had tried to use that route, but IDOC officials had
intercepted his cellmate’s letter, and his cellmate later
attempted suicide as a result, so Plaintiff chose a different
route for his own PREA complaint—the Chad Page letter.
(Dkt. 37, audio recording; Dkt. 42-6, Second Ruby Decl.)
Plaintiff also told Ruby that Plaintiff helped another inmate
make a PREA complaint and Plaintiff was disciplined for
making a false statement for that. Plaintiff did not tell Ruby
that the cellmate who had tried to commit suicide was James
Davis—the same inmate Plaintiff was now accusing of
sexually assaulting him. Nor did Plaintiff tell Ruby the inmate
who made the PREA complaint for which Plaintiff was

MEMORANDUM DECISION AND ORDER - 8

disciplined for making a false statement was James Davis.
Plaintiff told Ruby that Plaintiff had begun to have trouble
with Davis, who had been a “witness” to the alleged physical
assaults of inmate Marzullo-Trainer on Plaintiff that formed
the basis of his claims that he was settling with the IDOC in
the GSA, because Davis had begun to tell investigators that
the physical assault claims were untrue, jeopardizing
Plaintiff’s claims. Plaintiff told Ruby that Plaintiff would
“love it” if Davis were criminally prosecuted for sexually
assaulting him. Plaintiff told Ruby Plaintiff did not have
funds to buy new boxer short-style underwear or make a
telephone call and had been “indigent” and “poor” during his
ten years of incarceration. (Dkt. 37, audio recording (sealed).)
Before Ruby left the IDOC premises, he informed IDOC staff
that he would be continuing his investigations into Plaintiff’s
PREA concerns. (Dkt. 56-1, p. 5, Ruby Interrogatory
Responses.)
April 25, 2019

Ruby interviewed alleged perpetrator, inmate James Davis.
(Dkt. 38-1, ACSO Report DR #19-3997, and Dkt. 37, audio
recording (sealed).)

April 26, 2019

Plaintiff settled seven lawsuits in the GSA, including Case
1:17-cv-00167-DCN, Carr v. Zmuda, et al. (“Case 167”), that
alleged, “Sgt. Nicodemus used unfavorable housing as a
threat to dissuade [Plaintiff] and other P.C. inmates [from]
filing … PREA complaints, notices of tort claim, and civil
rights complaints § 1983s.” (Dkt. 19, p. 1, in Case 167
(grammar and capitalization regularized).)

April 29, 2019

Davis passed a polygraph examination, which officials
believed confirmed that he did not sexually assault Plaintiff.
(See Dkt. 38-1, Ruby Decl. and ACSO Report DR #19-3997
(sealed).)

May 1, 2019

Ruby began writing ACSO Report DR #19-3997. (See Dkt.
38-1 (sealed).)

May 21, 2019

Plaintiff reported in a grievance: “Due to conspiracy of
investigations officer c/o Lytle & possibly Cpl. Fras with
inmate James m. Davis #92595, to discredit my Testimony &
allegations of staff corruption Davis Extortin me, sexually
Assaulting me Twice with no way to confidentially or safely

MEMORANDUM DECISION AND ORDER - 9

report it, Davis lying to get Fras to take my legal property &
Davis planning to Rape & Murder staff’s families, Judge
Winmill’s Family, I told winmill he called IDOC to protect
me due to their conspiracy “investigation” protected Davis on
D-2 & on 4/8/19, threw me in close custody 22 1/2 hour a day
lockdown D1 (most violent Tier in IDOC) exactly as davis
extorted me for PREA” (Dkt. 50-2, p. 3 (verbatim).) As of
result of these allegations, the United States Marshal Service
came out to the prison and interviewed James Davis. (See
Dkt. 37 (audio recording of Ruby interviews) (sealed).)
July 3, 2019

Ruby interviewed an inmate witness. (Dkt. 38-1, ACSO
Report DR #19-3997, Dkt. 37, audio recording (both sealed).)

July 9, 2019

Ruby interviewed inmate witness Robert LaGrotta in the
presence of an IDOC investigator for about 44 minutes. Then
the IDOC investigator interviewed LaGrotta in the presence
of Ruby. (Dkt. 37 (sealed).)

September 19, 2019

Ruby completed his report and submitted it to the Ada
County Prosecutor to consider prosecution of James Davis.
(Dkt. 48-3, Third Ruby Decl.)

January 16, 2020

Ruby prepared a supplement to his report showing that the
Ada County Prosecutor declined prosecution. (Dkt. 38-1.)

March 17, 2020

IDOC (Anderson) received the sealed report with findings of
the investigation under a cover letter from Ada County
administrative personnel. (See Dkt. 7 in Case 1:20-cv-00315DCN, Carr v. Miller (“Case 315”).)

March 27, 2020

IDOC (Anderson) wrote Plaintiff a Disciplinary Offense
Report (“DOR”), #201677, for a “false statement.” The DOR
findings, in part, were: “The collective evidence shows that
Inmate Carr made false statements that resulted in a formal
investigation by the Ada County Sheriff’s department.” (Dkt.
50-2, p. 7.)

April 1, 2020

At 3:05 p.m., IDOC Warden Jay Christensen wrote an email
to Anderson in response to a forwarded email to Christensen
about the outcome of Carr’s DOR, saying “Nothing but
Net!!!! Now the truth about him will be exposed to the
courts.” The email shows: “Carr #79004 (DHO [disciplinary

MEMORANDUM DECISION AND ORDER - 10

hearing officer] confirmed) 4; Offense: #26. False Statement
1 - B. Sanction: 20 Days Commissary restriction: 4/01/20-421/20; 10 Days Recreation restriction: 4/01/20-4/11/20.”
(Dkt. 3-1, p. 1, in Case No. 1:22-cv-00396-DCN, Carr v.
Christensen, et al. (“Case 396”). The email’s existence and
time is undisputed fact. Plaintiff alleges that Warden
Christensen wrote the email minutes before the DOR hearing
was held—a fact which has not been proven and is addressed
here only to point out to Plaintiff that it is neither undisputed
nor material.
Plaintiff alleges that, at 3:17 p.m., IDOC DHO Adam Miller
held Plaintiff’s hearing for DOR #201677. Plaintiff alleges
the DOR hearing start time was “not until 3:17 PM on 4-1-20
if my memory and Journal Notes are correct.” (Dkt. 3, p. 3 in
Case 396.) Nothing in the record corroborates the starting
time of the DOR hearing or the alleged time discrepancy
between the hearing and the Christiansen response to the
forwarded email from Sergeant Anderson.4
April 5, 2020

Anthony Barber signed an Affidavit for Plaintiff, saying:
“Close to a year ago, ISCC investigation guards were
searching the tier for any inmates that would say Carr was a
liar, and/or that Carr was trying to get inmates like myself to
lie for him about his suffering. These guards threatened me
twice and I said to them, “I want to keep my head down, and
mouth shut,” because I was unable to face the retaliation
dished out at the hands of the correctional officers that act as

4

Even if prison officials reviewed the ACSO report and decided before the DOR hearing that the report
constituted “some evidence” under Superintendent v. Hill, 472 U.S. 445, 455 (1985), to find Plaintiff
guilty at the upcoming DOR hearing, that decision does not translate into a conspiracy to deprive Plaintiff
of his constitutional rights. Plaintiff litigated the propriety of the Dor guilty finding and the sanction in
Case 315, and Judge Nye found that Plaintiff had no liberty interest in not receiving the “light sanctions”
as discipline for the false statements. Therefore, is immaterial whether, prison officials together decided
Plaintiff’s fate before the hearing, because the act did not result in deprivation of a constitutional right.
Judge Nye also found that the ACSO report, in fact, constituted “some evidence,” and that Plaintiff’s
rebuttal to the evidence was insubstantial, (see Case 315, Dkt. 20, pp. 5-11), which means Plaintiff would
have lost the DOR contest, regardless whether the outcome was decided beforehand or not, and that all of
this was nothing more than what could be expected during the regular course of incarceration as a
convicted felon.
In any event, this 2020 “nothing but net” email passing between IDOC officials does not show
they were in conspiracy with ACSO officials in 2019; it does not show anything about these ACSO
Defendants.
MEMORANDUM DECISION AND ORDER - 11

if they can do whatever they wish, threatening me with
criminal charges if I were to stick up for Carr.” (Dkt. 17-1, p.
14; Dkt. 35-4, p. 13.)
April 5, 2020

Deputy Warden McKay affirmed DOR #201677 on
4/05/2020. (Dkt. 3, p. 3 in Case 396. (Dkt. 50-2, p. 8).)

April 7, 2020

Warden Christensen, the appellate authority on DOR
#201677, affirmed the DOR finding of making a false
statement. Dkt. 3, p. 3 in Case 396. (Id.)

April 20, 2020

Robert LaGrotta signed an Affidavit for Plaintiff, stating:
“That, very soon after [June 12, 2019], ‘Admin’ had Ada
County Detective and ISCC Investigation Officer pull me out
and question me. That, they even read me my rights. that, this
scared me but I stuck up for Carr by telling the truth
explaining he wasn’t doing anything wrong or harmful either
towards others or himself. That, this approach and truth
seemed to bother them, and even upset them. So in fear of
what they’d do to me, I took their side saying ‘maybe’ Carr
was up to something and his intent maybe [sic] to cause legal
issues. That, I did this out of fear of retribution because ISCC
and IDCO Admin use housing transfers, DOR’s, and even
criminal charges to retaliate against inmates like Carr and
those who back him with witness statements or grievances….
That, IDOC official successfully intimidated me into making
my friend Jody Carr look bad. I didn’t know what else to do
to protect myself.” (Dkt. 35-4, pp. 6-7.)

January 5, 2021

Travis Ruby signed a Declaration about his investigation
report that was submitted in Case 315. (See Dkt. 8 in that case
(sealed).)

October 18, 2021

Plaintiff filed a Complaint in federal court for himself and
many other inmates seeking class action status for conditions
of confinement claims, including PREA violations. (See Case
1:21-cv-00409-BLW-DKG, Carr, et al. v. Tewalt, et al.
(“Case 409”).)

May 5, 2022

Plaintiff’s claims in Case 409 are severed into a separate case
for potential violations of the GSA. (See Dkt. 19 in Case 409
(provided to Plaintiff; sealed from remainder of plaintiffs and
the public in Case 409).)

MEMORANDUM DECISION AND ORDER - 12

December 12-13, 2023

Inmates in Case 409 testify at a court hearing consistently
with other inmates’ testimony in the 2019 ACSO Report DR
#19-3997, regarding Plaintiff’s role in exaggerating PREA
allegations in the civil rights pleadings Plaintiff drafted for
the other inmates. (See Dkts. 135, 136 in Case 409 (sealed).)

2. Facts Limited by Prior Settlement Agreement
Plaintiff’s Complaint originally contained allegations that ACSO investigators
conspired with IDOC officials to violate Plaintiff’s civil rights. (Dkt. 3.) But Judge Nye
found that these conspiracy allegations violated the GSA, a prior confidential settlement
agreement signed by Plaintiff, the State of Idaho, and Ada County. (Dkt. 11; see Dkt. 15,
GSA in Case No. 1:18-cv-000247-DCN (“Case 247”) (provided to Plaintiff, but sealed
from the public.) Judge Nye required Plaintiff to amend his pleadings to omit any such
references. The Court has taken judicial notice of the GSA executed on April 26, 2019,
terminating the following seven cases: United States District Court District of Idaho Case
Nos. 1:13-cv-00380-REB, 1:14-cv-00125-BLW, 1:15-cv-00133-CWD, 1:16-cv-00182DCN, 1:17-cv-00167-DCN, and 1:18-00247-DCN, as well as Ada County Fourth Judicial
District Court Case No. CV01-19-5023.
Accordingly, the GSA delineates the boundaries of the “facts” upon which the
parties can rely. Plaintiff may not rely upon any factual allegations about IDOC officials
conspiring with anyone against him arising before April 26, 2019.
3. Allegations Blatantly Contradicted by Record
Based on the evidence in the record, the Court agrees with Defendants that
Plaintiff’s foundational factual assertion that he actually submitted his March 31, 2019
MEMORANDUM DECISION AND ORDER - 13

PREA letter to ISA is blatantly contradicted by the record. (Dkt. 17, pp. 1-2.) The record
indisputably shows—through Plaintiff’s own writings and words—that the letter was
rejected and returned to him by IDOC officers and rejected and returned to him a second
time by IDOC paralegal Cupp on April 3, 2019. Plaintiff himself told Detective Ruby that
he did not submit the letter to the ISA, but instead made his PREA report directly to Chad
Page; the Chad Page letter is contained in the record. (See Dkt. 44, pp. 2-7 (sealed).)
Abundant undisputed evidence in the record shows that Plaintiff himself notified
IDOC and ICPP officials of the PREA factual allegations in at least three different ways
prior to the start of the ACSO investigation on April 23, 2019, and these methods of
notification, in fact, were the impetus for the ACSO investigation. Besides the letter
Plaintiff sent to Chief of Prisons Chad Page, he submitted a letter to the ICPP and two
inmate concern forms to Sergeant Greenland—all of these referenced the same
“confidential” facts supporting his PREA allegations. Therefore, the Court deems it
undisputed that ISA and ACSO never received Plaintiff’s March 31, 2019, PREA letter
requesting confidentiality assurances.
RECONSIDERATION OF PLAINTIFF’S
ADDITIONAL DISCOVERY AND UNSEALING REQUESTS
Because Defendants asserted that many of the claims were subject to defenses of
failure to state a claim and qualified immunity, the Court denied Plaintiff’s request to
compel discovery and his request to view the sealed ACSO report. (Dkt. 58.) However,
the Court notified the parties that it would re-evaluate Plaintiff’s need for further
discovery and for the sealed documents during summary judgment consideration. (Id.)
MEMORANDUM DECISION AND ORDER - 14

1. Further Discovery
Pursuant to the Court’s Standard Disclosure and Discovery Order for Pro Se
Prisoner Cases (Dkt. 21), the parties engaged in disclosures and discovery. Plaintiff
persists in asserting that all government officials are in a continuous conspiracy against
him to deprive him of his civil rights. Plaintiff has presented insufficient evidence from
the appropriate time frame to support existence of such a conspiracy. The Court is aware
that it might be difficult for a prisoner to obtain such evidence, and so the Court has
scoured the record of this case and his other related cases to determine whether further
discovery would aid him in his endeavor.
As noted above, the GSA prohibits Plaintiff from using conspiracy allegations
arising before April 26, 2019, to prove his case that IDOC officials were in conspiracy
with each other and with ACSO Defendants. Here, both sexual assaults occurred prior to
April 26, 2019, and the critical communications between IDOC officials and ACSO
Defendants also occurred before that date. Evidence that arose after the ACSO
investigation—such as the IDOC Disciplinary Offense (“DOR”) proceedings and the
“nothing but net” email—has nothing to do with the ACSO Defendants here.
The Court again has reviewed Plaintiff’s requested discovery and determined that
it would not make a difference to the viability of his claims. Plaintiff has not shown that
further discovery would yield anything productive.
Plaintiff asserts that he has never received correspondence showing that ACSO
produced its report to the IDOC no earlier than March 16, 2020. Dkt. 56. (Plaintiff
speculates that the conspiracy between the ACSO and the IDOC began much earlier—
MEMORANDUM DECISION AND ORDER - 15

but, again, that reaches back into the GSA-prohibited time frame.) The ACSO
correspondence is found in the sealed report in Case 1:20-cv-00315-DCN (Case 315), at
Docket 7 ( IDOC Bates No. 000002). Plaintiff wants to know the name of the ACSO
administrative person who provided it, which is not necessary to this litigation. It is
necessary only that Plaintiff know that no Defendant sent the correspondence. (Dkt. 56-1,
p. 2.)
Similarly, Plaintiff’s at-issue Requests for Admissions would not produce
anything productive. For example, Plaintiff asks: “Please admit, that, on 3/31/2019 a
Prison Rape Elimination Act (PREA) complaint letter was sent through Idaho
Department of Corrections (IDOC) PREA Pamphlet’s “External Confidential Report”
address, e.g., Idaho Sheriff’s Association, 3100 Vista Avenue, Suite 203, Boise, ID
83706.” (Dkt. 56, p. 13.) But Plaintiff never sent his letter. Even if he did, the Request for
Admission is drafted so badly, it qualifies as unanswerable. What does Plaintiff mean by
“sent through” an address? Does he mean that he submitted a letter to the IDOC for
mailing, because it is clear that it was never mailed. Or is he insisting, against a mountain
of his own admissions, that it was mailed to and received by ISA? And how would these
ACSO Defendants know anything about Plaintiff and IDOC’s dealings regarding whether
letter was “sent through” the ISA? Further, this line of inquiry about something Plaintiff
knows did not happen is frivolous and wasteful of public resources. The ACSO
Defendants appropriately objected to and denied this request.
Plaintiff also vaguely argues that Defendants contradicted themselves in discovery
and in filings made in other cases, and he should have opportunity to probe the
MEMORANDUM DECISION AND ORDER - 16

contradictions. He makes no particular arguments, but attaches the discovery for the
Court to hunt for something to support this vague allegation. The tongue-in-cheek
adage—“Judges are not like pigs, hunting for truffles buried in briefs”—coined in United
States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991), applies here. Judges are not required
to expend limited public resources hunting for extraneous facts in exhibits to support
arguments not plainly made in the briefing. Nevertheless, the Court has searched through
the proposed discovery.
When Plaintiff refers to contradictions and lies, it is clear that he is not considering
that human perspectives differ on what the wording of a question and the wording of an
answer mean; the party asking the question may mean something completely different
from the way the answering party interpreted the question. For that reason, the Court will
not compel Defendants to answer Plaintiff’s interrogatory that asks, “If you answered yes
to Interrogatory #8 and/or #9, That is contrary to your previous Answers and Responses
wherein you Swore under Oath. So, Interrogatory is [sic], were you lying on your first
Answers and Responses, or are you lying now.” (Dkt. 56-1, p. 6.) Here, it is clear that
Plaintiff’s perspective is that the individual Defendants should have answered his
questions on behalf of the entity ACSO, but Defendants have answered on behalf of
themselves only, because the entity is not a defendant against whom Plaintiff was
authorized to proceed. The Court sees no obvious untruthful statements among the
disclosures and discovery responses these individual Defendants have provided, and it
finds that no further discovery would change the outcome of this case.

MEMORANDUM DECISION AND ORDER - 17

2. Sealed Documents
Public access to court dockets may be denied if the court determines that filed
documents may be used for improper purposes. See Nixon v. Warner Communications,
435 U.S. 589, 598 (1978); Hagestad v. Tragesser, 49 F.3d 1430, 1433–34 (9th Cir.
1995). Courts should consider “the interests advanced by the parties in light of the public
interest and the duty of the courts.” Id. at 1434 (quoting Nixon, 435 U.S. at 602). The
Supreme Court has acknowledged that the decision to seal documents is “one best left to
the sound discretion of the trial court, a discretion to be exercised in light of the relevant
facts and circumstances of the particular case.” Nixon, 435 U.S. at 599. After taking all
relevant factors into consideration, the district court must base its decision on a
compelling reason and articulate the factual basis for its ruling, without relying on
hypothesis or conjecture. Hagestad, 49 F.3d at 1434.
Because it is a party demanding access to sealed documents, not merely an
interested member of the general public, the Court has reconsidered whether due process
and fair play require disclosure of the confidential investigation report, declarations of
jail and prison officials, interviews of inmate witnesses, and court testimony of inmate
witnesses. For the following reasons, the Court finds that disclosure should not be made.
First, the totality of the record strongly supports Defendants’ position. As shown
above, Plaintiff’s position that he submitted the March 31, 2019 letter to the ISA blatantly
contradicts the record. Further, Plaintiff’s position that ACSO Defendants intimidated
witness Robert LaGrotta blatantly contradicts the audio recording and the record.
Plaintiff’s position that ACSO Defendants intimated witness Anthony Barber has no
MEMORANDUM DECISION AND ORDER - 18

support even in Barber’s own sworn Affidavit, and nothing shows Defendants
interviewed or had contact with Barber at all. The sealed evidence does not contain facts
that would support Plaintiff’s position on any of his claims; therefore, no benefit would
come from disclosing it to him.
The Court has probed the issue of the risk of harm to other inmates if disclosure is
made. Plaintiff’s cases, including this litigation and the proposed class action lawsuit he
began (Case 409), show that he had a particular litigation goal in mind—to bring a
PREA-based lawsuit against a governmental entity. His cases also show that he is willing
to make exaggerated or unfounded harmful allegations about others accomplish his
purpose—including inmate James Davis, inmate James Wolfe, inmate Robert LaGrotta,
and the inmates in his other cases.
The chronology of James Davis’s interactions with Plaintiff show that Plaintiff
turned on Davis. Initially, Plaintiff drafted civil rights complaints for Davis and “helped”
Davis make a PREA sexual assault complaint. This resulted in Davis being issued a DOR
for making a false statement to (1) accusing Davis of sexually assaulting him, (2) telling
parole officials that Davis planned to go on a raping and killing spree and make his own
daughter a sex slave if paroled, and (3) telling IDOC officials that Davis planned to kill
prison staff, federal court judges, and their families (allegedly because Judge Winmill
permitted Davis to proceed on only limited claims in the Initial Review Order issued in
Davis’s case). It also caused Davis to endure an interview with the United States Marshal
Service. In the interview with Ruby, Plaintiff, who admittedly was poor, revealed a
motive for having turned against Davis—that Davis’s interviews with other investigators
MEMORANDUM DECISION AND ORDER - 19

about whether or not Plaintiff was actually assaulted by inmate Marzullo-Trainer were
jeopardizing his GSA settlement. If that were not enough, Plaintiff chronicled even more
alleged wrongdoings, mental health issues, and character flaws of Davis in Plaintiff’s
pleadings in Cases 315, 1:20-cv-00303-DCN, Carr v. Dietz and Nicodemus (“Case 303”),
and 1:22-cv-00332-JCC, Carr v. Judge Nye, Judge Winmill, et al. (“Case 332”).
This history shows that, to accomplish his personal litigation goals, Plaintiff made
serious and potentially life-altering allegations against Davis. The United States Marshal
did not arrest Davis, and the United States Attorney’s Office did not institute a criminal
action against Davis for “threatening to kill Judge Winmill and his family.” The sexual
assault allegations made by Plaintiff were dispelled by Davis’s polygraph. The record
reflects that the Ada County Prosecutor declined to prosecute Davis based on Plaintiff’s
allegations and the totality of the record that contains many different pieces of evidence
that together show Plaintiff’s allegations of sexual assault are untrue.
Next, Plaintiff was once was a friend to former cellmate, James Wolfe, but
Plaintiff turned against Wolfe, like he did with Davis. (See allegations about Wolfe made
in pleadings in Cases 306, 315, and 332.) When put to the test, Plaintiff was unable to
state a claim against prison officials who allegedly hired Wolfe to harm Plaintiff.
Therefore, Plaintiff’s claims based on Wolfe’s “conspiracy” with IDOC officials were
dismissed with prejudice for failure to state a claim upon which relief can be granted in
Case 146 (Dkt. 44 (available to Plaintiff but sealed from the general public).)
Even inmate witness LaGrotta—whose audio-recorded interview shows he
remained true to his original assertions about Plaintiff—was convinced by Plaintiff to
MEMORANDUM DECISION AND ORDER - 20

contradict and excuse himself in an after-interview affidavit that forms the basis of this
suit. ASCO Interviewer Travis Ruby did not intimidate LaGrotta, nor did the IDOC
investigator present at the interview, and LaGrotta did not substantially change his story
during the interview. Plaintiff’s suit is based on incorrect speculation.
In summation, Plaintiff’s litigation history reflects what one inmate witness
observed: “Carr is willing to use whoever he wants to get what he wants…. Carr just won
a lawsuit and had all of his DOR’s removed from his record…. Carr is willing to find
some young kid to do something that would ruin that kid’s life....” (Dkt. 38-1, ACSO
Report DR #19-3997 (sealed).) An inmate who was the target of Plaintiff’s false
allegations said he was targeted because “Carr is very upset with him, and this is what
Carr does when he is upset with someone.” (Id.)
A witness Ruby interviewed testified that Plaintiff drafted a set of affidavits about
having witnessed PREA incidents, took them around the tier, and asked each inmate to
rewrite the affidavit in his own hand and sign it regardless of whether information in the
affidavit was true. (Dkt. 37, audio recording of interviews (sealed).) That statement was
supported by different inmates’ testimony in a hearing in Case 409 that Plaintiff
exaggerated or fabricated their allegations that they had witnessed multiple PREA
incidents when he drafted their pleadings in that case, although, as a frequent litigator,
Plaintiff is well aware of Rule 11, perjury, or other potential sanctions that the inmates
who trusted Plaintiff might suffer). (See Dkts. 135, 136 in Case 409 (sealed); see Case
409, Dkt. 48, pp. 2-11 (providing examples of previous cases where Plaintiff exaggerated
claims of other inmates or injected himself into their cases, with one inmate stating that
MEMORANDUM DECISION AND ORDER - 21

he gave Plaintiff $60 and “woman photo’s and a woman catalog” [sic] in exchange for
Plaintiff’s drafting of that inmate’s pleadings).)
If the foregoing specific examples are not enough, declarations of jail and prison
personnel submitted in this case confirm that inmates who speak to government
investigators are often tagged as “snitches” by other inmates, putting them at risk for
inmate retaliation. (See Dkt. 38, Declaration of Nicole Fraser; Dkt. 38-1, Declaration of
Travis Ruby; Dkt. 41-1, pp. 27-31, Declaration of Jay Christensen (filed by Plaintiff;
originally filed in Case 315).) In addition, investigators state that prison security and
county investigation tactics would be compromised if investigative reports and interviews
were disclosed to Plaintiff. (See id.)
Finally, the Court finds that the ability of the United States Court of Appeals to
review the sealed documents found in the record and in Plaintiff’s litigation history fills
the due process void where Plaintiff is not permitted to view evidence for security
reasons. The Court of Appeals can review the discretionary decisions of this Court in
light of the sealed items relied upon in its decisionmaking. “Lawful incarceration brings
about the necessary withdrawal or limitation of many privileges and rights, a retraction
justified by the considerations underlying our penal system.” Jones v. North Carolina
Prisoners’ Labor Union, Inc., 433 U.S. 119,125 (1977) (citation and punctuation
omitted). Being able to review documents that pose multiple threats to other inmates is an
appropriate prohibition resulting from having committed a serious crime against society.
Because the inmates who have had dealings with Plaintiff are at risk of retaliation from

MEMORANDUM DECISION AND ORDER - 22

Plaintiff or other inmates, the Court concludes that the sealed evidence in this record
must remain sealed.
REVIEW OF CLAIMS AND DEFENSES
1. Ada County Conspiracy Claim
Because of GSA limitations, Judge Nye narrowed Plaintiff’s IDOC-ACSO
conspiracy claims to permit him to proceed on only a narrow claim that the three ACSO
Defendants “created, adopted, and/or enforced customs and/or policies to violate
confidentiality assurances to inmates like [Carr], in order to assist IDOC officials in
covering-up crimes and deprivations of constitutional rights to prisoners in the
jurisdiction of Ada County.” Plaintiff’s broad IDOC-ACSO conspiracy theory was based
on facts that began in October 2018, during the GSA-covered time frame ending April
26, 2019.
The elements of a claim of conspiracy to deprive another of his civil rights are:
“(1) the existence of an express or implied agreement among the [defendants] to deprive
[the plaintiff] of his constitutional rights, and (2) an actual deprivation of those rights
resulting from that agreement.” Ting v. U.S., 927 F.2d 1504, 1512 (9th Cir. 1991) (Bivens
action relying on § 1983 case, Dooley v. Reiss, 736 F.2d 1392, 1394-95 (9th Cir. 1984)).
To allege a conspiracy, the plaintiff must bring forward plausible factual allegations
showing “an agreement or ‘meeting of the minds’ to violate constitutional rights.” See
Fonda v. Gray, 707 F.2d 435, 438 (1983) (citation omitted). Each conspirator “need not
know the exact details of the plan, but each participant must at least share the common
objective of the conspiracy.” Id. (citation and punctuation omitted).
MEMORANDUM DECISION AND ORDER - 23

Defendants first persuasively argue there is insufficient evidence in the record to
show that Plaintiff actually submitted the March 31, 2019, PREA letter asking for
“confidentiality assurances” to the ISA, or that the ISA provided the letter to the ACSO.
Accordingly, Defendants are entitled to summary judgment for Plaintiff’s failure to
support this element of a conspiracy claim.
Next, Defendants persuasively argue that any causal link between the ISA or the
ACSO violating an alleged “confidentiality assurances” duty was broken or superseded
by Plaintiff’s own separate communications with IDOC and ICPP officials, providing
them with the information that he allegedly wanted to keep secret from them. An
essential element of a § 1983 case is that the plaintiff show that the defendants’ actions
proximately (meaning legally) caused the deprivation of a constitutional right. 42 U.S.C.
§ 1983; Arnold v. International Business Machines Corp., 637 F.2d 1350, 1355 (9th Cir.
1981). Defendants did not proximately cause Plaintiff’s alleged damages. Defendants,
therefore, are entitled to summary judgment for Plaintiff’s failure to support the causation
element of a conspiracy claim.
Defendants next argue that Plaintiff’s conspiracy claim fails because the object of
a civil rights conspiracy must be a violation of a person’s constitutional or federal
statutory rights, and Plaintiff has no constitutional or statutory right to have his PREA
complaint remain confidential from his custodians, the IDOC officials. Even assuming
for the sake of argument that ACSO investigators received their information about
Plaintiff’s PREA complaints from the ISA, and not from the IDOC’s disclosure of

MEMORANDUM DECISION AND ORDER - 24

Plaintiff’s own correspondence with state government officials, Plaintiff has not shown
that he had a statutory right to “confidentiality assurances.”
Nothing in PREA shows that lawmakers included any such “right” in the statute.
The stated purposes of PREA includes preventing prison rape and “increas[ing] the
available data and information on the incidence of prison rape, consequently improving
the management and administration of correctional facilities.” 34 U.S.C. § 30302. This
purpose is contrary to Plaintiff’s assertion that county investigators must not disclose
PREA reporting information to state prison officials who have charge over the prison
where the PREA report arose.
Defendants also point out that PREA “requires that IDOC cooperate with outside
investigators and endeavor to remain informed about the progress of the investigation,”
28 C.F.R. § 115.71, and that “IDOC is also required to conduct sexual abuse incident
reviews at the conclusion of investigations and is subject to audits regarding PREA, 28
U.S.C. § 115.86; 28 C.F.R. § 115.401.” Nothing in these implementing regulations shows
that PREA requires outside agencies to keep their investigations confidential from the
prison officials who are custodians of the prisoner who alleged a PREA incident. In fact,
the regulations imply that PREA investigators have a duty to collaborate with IDOC
officials on the investigation.
Defendants also persuasively reason:
Prison officials would not be able to make meaningful change
within the prison if they did not have access to the results of
all PREA investigations. The available data and information
of incidence of prison rape, sexual abuse and sexual
harassment would not increase without prison officials having
MEMORANDUM DECISION AND ORDER - 25

access to PREA investigation reports. Additionally, 28 CFR
115.73(b) requires that if the prison did not conduct the
PREA investigation that it shall request the relevant
information from the investigative agency in order to inform
the inmate of the results.
Dkt. 48-1, p. 7.5
Accordingly, it is clear from the law that any alleged ISA or Ada County policies,
procedures, or acts to implement collaborative efforts between the investigatory agency
and prison officials are encouraged or required by, and in no way prohibited by, the
PREA statutory and regulatory scheme. For these reasons, Plaintiff has failed to provide
facts supporting the element that the object of the conspiracy must be violation of a
constitutional right.
Further, Plaintiff has not shown that Congress created a private cause of action
when it enacted PREA. Another federal district court explained the same conclusion in a
similar case, where the plaintiff alleged:
Defendants violated his rights under the PREA by failing to
keep information from his PREA records confidential. This
claim is without merit because the PREA does not provide a
private right of action. Where neither the text nor the structure
of a statute indicate that Congress intended to create new
individual rights, “there is no basis for a private suit, whether
under § 1983 or under an implied right of action.” Gonzaga
Univ. v. Doe, 536 U.S. 273, 286, 122 S.Ct. 2268, 153 L.Ed.2d
309 (2002).

5

The ISA letter from ISA to the IDOC PREA coordinator, Teresa Jones, shows that ISA acts consistent
with Tammara Tarvin’s Declaration (Dkt. 42-4) that supports the position that ISA would have sent
Plaintiff’s letter to the IDOC PREA coordinator for investigation, not to Ada County. (See Dkt. 50,
Exhibit-7- 002, p.14 of 24.)
MEMORANDUM DECISION AND ORDER - 26

Sublett v. Beavers, No. 5:17-CV-P195-TBR, 2018 WL 736272, at *4 (W.D. Ky. Feb. 6,
2018) (collecting cases). For this additional reason, Plaintiff has failed to state a claim
upon which relief can be granted.
Further, there is no case law showing that there is any independent Fourteenth
Amendment or other constitutional right to “confidentiality assurances,” outside the
PREA statutory scheme. For this additional reason and all of those above, the Court
concludes that Defendants are entitled to summary judgment for failure to state a claim as
to Plaintiff’s conspiracy claims.
2. Due Process Claims
Plaintiff asserts that he has a due process right to have the investigation of his
PREA complaint be free from ACSO investigators intimidating witnesses. Because there
is no clearly-established law governing this particular issue, the Court concludes that
Defendants are entitled to qualified immunity.
A motion for summary judgment on grounds of qualified immunity may be
granted where the allegations on the face of the complaint, taken as true, are sufficient to
show that the qualified immunity test is met. See Cooper v. Pickett, 137 F.3d 616, 622
(9th Cir. 1997). In § 1983 actions, the doctrine of qualified immunity protects state
officials from personal liability for on-the-job conduct so long as the conduct is
objectively reasonable and does not violate clearly established federal rights. Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982) (citations omitted). A qualified immunity analysis
consists of two prongs: (1) whether the facts as alleged by plaintiff establish a violation
of a constitutional right, and (2) whether that right was clearly established given the state
MEMORANDUM DECISION AND ORDER - 27

of the law at the time of the alleged misconduct. Pearson v. Callahan, 555 U.S. 223, 232
(2009) (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)).
Courts may address either prong of the qualified immunity analysis first. Pearson,
555 U.S. at 236 (overruling Saucier only as to Saucier’s mandate that a court must
consider the first prong before the second prong). The qualified immunity inquiry is “a
pure question of law.” Elder v. Holloway, 510 U.S. 510, 514 (1994) (citation omitted,
punctuation altered). However, “under either prong, courts may not resolve genuine
disputes of fact in favor of the party seeking summary judgment.” Tolan v. Cotton, 572
U.S. 650, 656 (2014).
As to the first prong, the court considers whether, “[t]aken in the light most
favorable to the party asserting the injury, . . . the facts alleged show the [defendant’s]
conduct violated a constitutional right.” Saucier, 533 U.S. at 201. As to the second prong,
qualified immunity will not apply when existing precedent shows that “the statutory or
constitutional question [is] beyond debate,” Ashcroft v. al–Kidd, 563 U.S. 731, 741
(2011) (citation and punctuation omitted), and every reasonable officer in the same
circumstance would have understood “that his conduct was unlawful in the situation he
confronted.” Saucier, 533 U.S. at 202.
A survey of case law shows there is none similar to this case. Within the criminal
context, due process protects a defendant’s right to call his own witnesses to help present
his version of the facts and assist in his defense. Webb v. Texas, 409 U.S. 95, 98
(1972), citing Washington v. Texas, 388 U.S. 14, 19, (1967). A person has a due process
right not to be subject to criminal charges on the basis of false evidence that was
MEMORANDUM DECISION AND ORDER - 28

deliberately fabricated by the government. Caldwell v. City and Cnty. of San Francisco,
889 F.3d 1105 (9th Cir. 2018). But, the United States Supreme Court has reiterated that
“mere coercion does not violate the text of the Self–Incrimination Clause absent use of
the compelled statements in a criminal case against the witness.” Chavez v. Martinez, 538
U.S. 760, 769 (2003). Here, Plaintiff was not criminally charged for having falsified
PREA allegations.
Within the prison segregation and discipline context, the Due Process Clause
prohibits the government from depriving an individual of a liberty or property interest
without following the proper procedures for doing so. See Wolfe v. McDonnell, 418 U.S.
539, 558-66 (1974). But preliminary to that question is whether a liberty interest lies.
“The Due Process Clause standing alone confers no liberty interest in freedom from state
action taken within the sentence imposed.” Sandin v. Conner, 515 U.S. 472, 480 (1995)
(citation and punctuation omitted). The Due Process Clause does not create a liberty
interest in remaining in the general population or being free from different types of
segregation. See Serrano v. Francis, 345 F.3d 1071, 1078 (9th Cir. 2003) (citing Sandin,
515 U.S. at 485-86). The ACSO has no authority to segregate or discipline IDOC
inmates, and there are no allegations that the ACSO Defendants did so here; thus, these
cases are different from the context of Plaintiff’s case.
However, even if the Court applies the Sandin liberty interest model here, and
accepts that Defendants’ alleged intimidation of witnesses resulted in discipline dictated
by IDOC authority and decisionmaking, it is undisputed that Plaintiff received only light

MEMORANDUM DECISION AND ORDER - 29

sanctions for having falsified his PREA allegations. A punishment of light sanctions does
not constitute a deprivation of a liberty interest. (See Case 315.)
Moving to the general civil litigation context, the Court finds it offers no aid to
Plaintiff’s position. A § 1983 claim alleging a denial of procedural due process requires
proof of three elements: (1) a deprivation of a constitutionally-protected liberty or
property interest; (2) state action; and (3) constitutionally-inadequate process. See Paul v.
Davis, 424 U.S. 693, 711–12 (1976). Harm or injury to a person’s interest in reputation,
even where inflicted by an officer of the State, does not result in a deprivation of any
“liberty” or “property” that requires due process of law. Id. at 693. To be actionable, a
reputation injury must be accompanied by a constitutionally-recognized injury. See id. at
711–12. For example, the Fourteenth Amendment’s concept of “liberty” includes “the
liberty to follow a trade, profession or other calling.” Pleva v. Norquist, 195 F.3d 905,
915 (7th Cir.1999) (internal quotation marks and citations omitted). No such liberty
interest is at stake here.
Recent case law from the United States Supreme Court emphasizes that the lower
federal courts are not permitted to analogize from one set of facts or one area of law to
another when considering a qualified immunity defense. For example, in 2017, the
Supreme Court repeated:
Today, it is again necessary to reiterate the
longstanding principle that “clearly established law” should
not be defined “at a high level of generality.” Ashcroft v. al–
Kidd, 563 U.S. 731, 742, 131 S.Ct. 2074, 179 L.Ed.2d 1149
(2011). As this Court explained decades ago, the clearly
established law must be “particularized” to the facts of the
case. Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct.
MEMORANDUM DECISION AND ORDER - 30

3034, 97 L.Ed.2d 523 (1987). Otherwise, “[p]laintiffs would
be able to convert the rule of qualified immunity ... into a rule
of virtually unqualified liability simply by alleging violation
of extremely abstract rights.” Id., at 639, 107 S.Ct. 3034.
White v. Pauly, 580 U.S. 73, 79 (2017).
In a slightly similar case, Costanich v. Dep't of Soc. & Health Servs., 627 F.3d
1101 (9th Cir. 2010), state actors were accused of falsifying evidence in a child abuse
investigation, but the court declined to apply law governing criminal cases to that civil
context. There, the court held that, “given the distinctions between criminal prosecutions
and civil foster care proceedings, we cannot say that … that the right not to be accused
based on deliberately falsified evidence during civil investigations which could result in
the deprivation of protected liberty or property interests was … clearly established when
the conduct at issue in this case occurred….” Id. at 1115-1116. Accordingly, qualified
immunity was proper. Id. “Thus, going forward,” the court said, “reasonable government
officials are on notice that deliberately falsifying evidence in a child abuse investigation
and including false evidentiary statements in a supporting declaration violates
constitutional rights where it results in the deprivation of liberty or property interests, be
it in a criminal or civil proceeding.” Id. at 1114. Note that this case was focused on
falsification of evidence in a child abuse investigation setting, and is not analogous here;
even if it were, the case required the deprivation of a liberty or property interest, which is
not present here. See id. at 1116.
Plaintiff also argues for application of a line of cases holding that a substantive
due process violation exists—without having to show the violation of a specific liberty or

MEMORANDUM DECISION AND ORDER - 31

property interest—if the government state’s conduct “shocks the conscience.” Crowe v.
County of San Diego, 608 F.3d 406, 431–432 (9th Cir. 2010) (interrogation techniques in
police interviews of two teenagers found to shock the conscience). Reviewing the audio
recordings of Ruby’s interview with LaGrotta, the Court finds that nothing in the
interview comes close to coercive, threatening language or tone of voice or inappropriate
content; rather, the interview was conducted in a calm, respectful, and professional
manner. (See Dkt. 37.)
Even if LaGrotta felt threatened by Ruby reading LaGrotta his rights, asking him
to take a polygraph test, or asking him about Plaintiff’s allegedly illegal activities, the
interview cannot be compared to the one in Crowe found to “shock the conscience.”
There, on the first qualified immunity prong—whether the action could equal a
constitutional violation—the court found:
The Crowes and the Housers presented testimony from
several expert and lay witnesses in support of their argument
that the interrogations of Michael and Aaron violated the
boys' substantive due process rights. Dr. Richard Leo, an
expert in coerced confessions, described Michael’s
interrogation as “the most psychologically brutal
interrogation and tortured confession that I have ever
observed.” Dr. Calvin Colarusso, Director of Child Psychiatry
Residence Training Program at the University of California,
San Diego, conducted a psychiatric evaluation of Michael and
characterized his interrogation as “the most extreme form of
emotional child abuse that I have ever observed in my nearly
forty years of observing and working with children and
adolescents.” Robert Puglia, former Chief Deputy District
Attorney for Sacramento County, testified in a sworn
declaration that Michael's statements were the product of a
“coercive police scheme.” And finally, a juror in Tuite’s
criminal trial, who viewed the videotapes of the boys’
MEMORANDUM DECISION AND ORDER - 32

interrogations, described the interrogations as “brutal and
inhumane” and “psychological torture.”
One need only read the transcripts of the boys’ interrogations,
or watch the videotapes, to understand how thoroughly the
defendants’ conduct in this case “shocks the conscience.”
Michael and Aaron—14 and 15 years old, respectively—were
isolated and subjected to hours and hours of interrogation
during which they were cajoled, threatened, lied to, and
relentlessly pressured by teams of police officers.
“Psychological torture” is not an inapt description.
Id., at 431–432.
The Crowe court held that the defendants were “not entitled to qualified immunity
because it was clearly established, at the time of the boys’ interrogations, that the
interrogation techniques defendants chose to use did ‘shock the conscience.’” Id. at 432.
For example, existing case law provided that interrogation of a minor must be conducted
with “the greatest care.” In re Gault, 387 U.S. 1, 55 (1967). LaGrotta was not a minor
when interviewed, and the tone and content of the interview is not like that described in
Crowe.
In the adult defendant context, whether government actors’ treatment of a
defendant “shocks the conscience” is determined by gauging whether coercive methods
were “brutal” and “offensive to human dignity,” which violate the Due Process Clause.
Rochin v. California, 342 U.S. 165, 172, 174 (1952). In Rochin, the Court found that
officers who authorized a hospital doctor to force an emetic solution through a tube into
the suspect’s stomach against his will that produced vomiting, which caused the suspect
to vomit up two morphine capsules he had swallowed upon arrest, met the standard of

MEMORANDUM DECISION AND ORDER - 33

brutal and offensive to human dignity. Id. at 166, 174. In LaGrotta’s interview, nothing
comes close to the facts in Rochin.
Therefore, here, the Court concludes that both prongs of the qualified immunity
test apply to Ruby’s acts: (i) there is insufficient evidence that Ruby intimidated
LaGrotta, and, (ii) even if LaGrotta felt intimidated by the appropriate content of
interrogation, there is no clearly-established law showing that Ruby should have known
that the style or content of his respectful interrogation of a potential inmate witness about
another inmate’s potentially illegal activities amounted to a Fourteenth Amendment due
process violation, or that Plaintiff had a liberty interest in not having his witnesses
interviewed in that style or for that content.
Neither Bartlett nor Weires participated in the interviews; thus, qualified immunity
for them is granted on the first qualified immunity prong. Therefore, all Defendants are
entitled to summary judgment on their qualified immunity defense.
3. Retaliation Claims
A. Standards of Law
A First Amendment retaliation claim must allege the following: “(1) An assertion
that a state actor took some adverse action against an inmate (2) because of (3) that
prisoner’s protected conduct, ... that such action (4) chilled the inmate’s exercise of his
First Amendment rights, and (5) the action did not reasonably advance a legitimate
correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (footnote
omitted). Although a “chilling effect on First Amendment rights” is enough to state an
injury, Gomez v. Vernon, 255 F.3d 1118, 1127 (9th Cir. 2001), “bare allegations of
MEMORANDUM DECISION AND ORDER - 34

arbitrary retaliation” are insufficient to state a retaliation claim, Rizzo v. Dawson, 778
F.2d 527, 532 n.4 (9th Cir. 1985).
The timing of an official’s action can constitute circumstantial evidence of
retaliation, but there generally must be something more than simply timing to support an
inference of retaliatory intent. See Pratt v. Rowland, 65 F.3d 802, 808 (9th Cir. 1995).
Retaliation is not established simply by showing adverse activity by the defendant after
protected speech; the plaintiff must show a nexus between the two. See Huskey v. City of
San Jose, 204 F.3d 893, 899 (9th Cir. 2000) (stating that a retaliation claim cannot rest on
“the logical fallacy of post hoc, ergo propter hoc, literally, ‘after this, therefore because
of this’”).
In a § 1983 case, supervisors may be held liable if (1) they had “personal
involvement in the constitutional deprivation,” or (2) there exists “a sufficient causal
connection between the supervisor’s wrongful conduct and the constitutional violation.”
Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011) (punctuation altered and citation
omitted). Allegations sufficient to show a causal connection include: (1) “setting in
motion a series of acts by others”; (2) “knowingly refus[ing] to terminate a series of acts
by others, which [the supervisor] knew or reasonably should have known would cause
others to inflict a constitutional injury”; (3) failing to act or improperly acting in “the
training, supervision, or control of his subordinates”; (4) “acquiesc[ing] in the
constitutional deprivation”; or (5) engaging in “conduct that showed a reckless or callous
indifference to the rights of others.” Id. at 1207-08 (internal citation quotations and
punctuation omitted).
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In addition, there is no respondeat superior liability under §1983, meaning that a
person cannot be sued in their personal capacity merely for being a supervisor. Id. at
1207; see also Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (same).
B. Additional Undisputed Material Facts
The evidence in the record shows that the standard policy and protocol between
ACSO and IDOC was that ACSO was to take the lead on rape and sexual assault
investigations. The record does not show that ISA communicated anything about
Plaintiff’s PREA allegations to ACSO.
The record contains no evidence of a reason or motive for any ACSO Defendant to
retaliate against Plaintiff or to invalidate his PREA claim, the alleged motive. Nor is there
any evidence in the record that the ACSO Defendants disciplined Plaintiff, changed his
housing or classification, or had any authority or control over the IDOC and the decisions
it made as to discipline, housing, or classification. (See Dkt. 42-2, Decl. Bartlett, p. 2;
Dkt. 42-5, Decl. Weires, p. 3; Dkt. 42-6, Second Ruby Decl., p. 4.)
As to the alleged intimidation of inmate witness Anthony Barber, there is no
evidence in the record that any ACSO official interviewed Barber. (See Dkt. 42-2, Decl.
Bartlett, p. 2; Dkt. 42-5, Decl. Weires, p. 3; Dkt. 38-1, ACSO Report DR #19-3997 and
Dkt. 37, audio recording (both sealed).)
There is no evidence from any party that Bartlett knew of or had any personal
participation in the investigation. (See Dkt. 42-2, Decl. Bartlett, p. 2). Bartlett never had
any contact with Plaintiff, James Davis, or any witnesses in this investigation. (Id.)
Bartlett did not conduct the subject investigation or interview anyone. (Id.)
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Defendant Weires fielded calls and emails from IDOC investigator Fraser, who
asked Weires to investigate three correspondences Plaintiff authored and sent to the
IDOC/ICPP. (See Dkt. 42-5, Weires Decl.) Weires asked ACSO Investigator Ruby Travis
to conduct the investigation. Weires did not interview the Plaintiff and never had any
contact with Plaintiff. (Id.) Nothing in the record reflects that Weires attended the
interview of Robert LaGrotta or any other witness. (See Dkt. 42-5, Decl. Weires, p. 3;
Dkt. 38-1, ACSO Report DR #19-3997 and Dkt. 37, audio recording (both sealed).)
Ruby, who interviewed Plaintiff, had never met Plaintiff, James Davis, or any
other inmate witness before Ruby conducted the investigation. (See Dkt. 42-6, Second
Ruby Decl., p. 3.) Ruby declares that when he conducted the interviews, he was in plain
clothes rather than a uniform. (Dkt. 42-6, Second Ruby Decl., p. 3.) He did not have his
service weapon or any weapons with him or on his person. (Id.) No evidence to the
contrary exists.
Ruby informed each witness that the witness was not required to speak with Ruby
if he did not want to, and Ruby informed each that he had the right to have counsel
present with him. (Dkt. 42-6, p. 3, Second Ruby Decl.) Each person voluntarily agreed to
speak with Defendant Ruby. (Id.)
C. Analysis
Summary judgment for Bartlett is appropriate, as Plaintiff has failed to show that
Bartlett had any personal participation or supervisory participation in the investigation,
which is a required element of a § 1983 claim. Nor has Plaintiff shown any reason or
motive Bartlett would have to retaliate.
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Summary judgment for Weires is appropriate, because Plaintiff has failed to show
that Weires, a supervisory investigator, did anything other than act in compliance with a
longstanding ACSO-IDOC written collaboration agreement (sealed), field IDOC calls,
review the evidence the IDOC official emailed, and assign Ruby to perform the
investigation. Nor has Plaintiff shown any reason or motive Weires would have to
retaliate against him or invalidate his PREA complaints.
Summary judgment for Ruby is appropriate on the claim that Ruby intimidated
inmate Anthony Barber (Dkt. 17-1, p. 14; Dkt. 35-4, p. 13.) Nothing in the record shows
that Ruby interviewed Barber. (See id., see Dkt. 48-3, Third Ruby Decl.) Rather, Barber’s
Affidavits refers to “ISCC investigations guards” only. (Dkt. 17-1, p. 14; Dkt. 35-4, p.
13.)
The remaining issue is whether there is any genuine dispute of material fact about
whether Ruby’s conduct in the LaGrotta interview might constitute intimidation.
Defendant desires to stand on the exact words of the LaGrotta Affidavit, which seems to
point to the IDOC official as the state actor who intimidated LaGrotta:
Admin had Ada County Detectives and ISCC Investigation
officers pull me out and question me. That, they even read me
my rights. That, this scared me but I stuck up for Carr by
telling the truth explaining he wasn’t doing anything wrong or
harmful either towards others or himself. That, this approach
and the truth seemed to bother them, and even upset them, so
in fear of what they might do to me, I took their side saying
‘maybe’ Carr was up to something and his intent maybe to
cause legal issues. That, I did this out of fear of retribution
because ISCC and IDOC admin use housing transfers, DOR’s
and even Criminal Charges to retaliate against inmates like
Carr and those who back him with witness statements and
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grievances . . . . That IDOC officials successfully intimidated
me into making my friend Jody Carr look bad.…
(See Dkt. 17-2, p. 10–12 of 18.) Because LaGrotta says that both investigators pulled him
out, questioned, him, and read him his rights, it is ambiguous whether the intimidating
came from one or both of them. It is clear that LaGrotta was fearful of future retaliation
by his custodians, the IDOC, but that does not necessarily mean that Ruby did not
participate in intimidation that might lead to sanctions by the IDOC.
However, as the Court has noted above, that question is indisputably settled by
listening to the LaGrotta interview. Reviewing the audio recordings of Ruby’s interview
with LaGrotta, the Court finds that nothing in the interview comes close to threatening
language or tone of voice or inappropriate content, but the interview was conducted in a
calm, respectful, and professional manner and was centered on appropriate content. (See
Dkt. 37 (audio recording) (sealed).) Nothing in the LaGrotta affidavit shows he was
physically threatened by either investigator. Nothing in the sealed investigation report,
the sealed interviews, or the public record shows that Ruby would have had any motive
for retaliation against Plaintiff.
Plaintiff’s alternative claim that the IDOC investigator intimidated LaGrotta, and
Ruby should have stopped the intimidation even if he did not participate in it, fails when
one listens to the interview.6 Nothing in the interview shows that the IDOC investigator
6

To the extent that Plaintiff brings forward a new theory that Ruby should have stepped up and stopped
the IDOC investigator from intimidating LaGrotta, the Court agrees that Ruby is entitled to qualified
immunity on such a claim, because neither of the investigator’s acts amounts to a constitutional violation
and no clearly established law exists showing that Ruby’s mere presence at a respectful interview would
constitute a civil rights violation in this context.
MEMORANDUM DECISION AND ORDER - 39

intimidated LaGrotta. The investigators told LaGrotta he was only a witness, not a
suspect in any wrongdoing. Regardless of what questions were asked of LaGrotta, he
firmly stuck to his story that he thought Plaintiff was joking when Plaintiff asked if he
could pay LaGrotta $1,000 to beat him up. The investigator and Plaintiff reasoned
together that, even though LaGrotta perceived Plaintiff as joking, perhaps he was not.
There was no point in the interview where LaGrotta was bullied into, intimidated into, or
even led into changing his initial position. He did not change his position but only
considered another possibility based on considering wider circumstances.
For all of the foregoing reasons, the Court concludes that Ruby is entitled to
summary judgment on the retaliation claim. Having disposed of all of Plaintiff’s claims,
the Court concludes that Plaintiff’s Amended Complaint is subject to dismissal with
prejudice.
REVIEW OF PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
As to Plaintiff’s first ground for summary judgment, the Court concluded in its
previous Order that Plaintiff had received all of the disclosures and discovery to which he
was entitled, and that he failed to show how any late-provided or late-received items
prejudiced him. (Dkt. 58.) Plaintiff’s request for summary judgment on this ground is
subject to denial.
Plaintiff’s Motion for Summary Judgment and supporting exhibits contain much
information that is irrelevant to the claims and defendants in this narrow case. The Court
agrees with Defendants that Plaintiff has exhibit-dumped a truckload of documents on the
Court without referring to the import of the exhibits individually in his briefing.
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Plaintiff’s exhibits focus on alleged IDOC wrongdoing and do not show that these
particular ACSO Defendants have any authority, control, or influence over the IDOC and
the decisions it made as to discipline, housing, or classification of Plaintiff.
As noted above, the Court has searched the record for anything that might support
Plaintiff’s claims against these Defendants, knowing he is at a disadvantage because of
the sealed documents from IDOC, ISA, ACSO, and his other cases. The entirety of the
record shows that this case is legally and factually frivolous. For all of these reasons, the
Court concludes that Plaintiff’s Motion for Summary Judgment against these Defendants
is subject to denial.
ORDER
IT IS ORDERED:
1. Plaintiff’s Motion for Summary Judgment (Dkt 35) is DENIED.
2. Defendants’ Motion for Summary Judgment (Dkt. 48) is GRANTED.
3. To the extent that the Court did not permit Plaintiff to proceed on additional
discovery or view the sealed documents referred to in this Order, the Court
has reconsidered that decision and finds that Plaintiff’s request for
additional discovery or viewing of the sealed documents would not change
the outcome of the pending summary judgment motions.
4. Plaintiff’s Amended Complaint and this entire action are DISMISSED with
prejudice for the reasons set forth above and because they are legally and
factually frivolous.

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DATED: March 27, 2024

________________________
Honorable Raymond E. Patricco
Chief U.S. Magistrate Judge

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