Cherry v. Shedd et al

Filing 48

MEMORANDUM DECISION AND ORDER. All discovery shall be completed no later than 120 days after entry of this Order. Depositions, if any, shall be completed no later than 120 days after entry of this Order. All motions for summary judgment and other p otentially dispositive motions shall be filed with accompanying briefs no later than 150 days after entry of this Order. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

STEPHEN A. CHERRY,
Plaintiff,
vs.

Case No. 3:10-cv-00271-EJL
MEMORANDUM DECISION
AND ORDER

DWAYNE SHEDD, JEFF KIRKMAN,
RANDY HIGGINS, ANDREA
BLADES, BRENT REINKE, and
JESSICA LORELLO,
Defendants.

Pending before the Court is Defendants’ Motion for Summary Judgment for
Failure to Exhaust Administrative Remedies. (Dkt. 30.) The motion is now fully briefed.
(Dkt. 35, 37, 40, 46.) Both parties have consented to the jurisdiction of a United States
Magistrate Judge to conduct all proceedings in this case in accordance with 28 U.S.C. §
636(c). (Dkt. 29.)
The Court concludes that oral argument is unnecessary to decide the issues
presented in the motion. Having reviewed the record, and having considered the
arguments of the parties, the Court enters the following Order.

MEMORANDUM DECISION AND ORDER - 1

MOTION FOR SUMMARY JUDGMENT
1.

Standard of Law
The Prison Litigation Reform Act of 1995 (“PLRA”), Pub. L. No. 104-134, 110

Stat. 1321, as amended, 42 U.S.C. § 1997e, et seq., requires a prisoner to exhaust all
available administrative remedies within the prison system before he can include the
claims in a new or ongoing civil rights lawsuit challenging the conditions of confinement.
42 U.S.C. § 1997e(a); Cano v. Taylor, 739 F.3d 1214, 1220-21 (9th Cir. 2014) (a claim
may be exhausted prior to filing suit or during suit, so long as exhaustion was completed
before the first time the prisoner sought to include the claim in the suit). “Proper”
exhaustion of administrative remedies is required, meaning that the prisoner must comply
“with [the prison’s] deadlines and other critical procedural rules.” Woodford v. Ngo, 548
U.S. 81, 90-91 (2006).
“There is no question that exhaustion is mandatory under the PLRA and that
unexhausted claims cannot be brought in court.” Jones v. Bock, 549 U.S. 199, 211
(2007). The exhaustion requirement is based on the important policy concern that prison
officials should have “an opportunity to resolve disputes concerning the exercise of their
responsibilities before being haled into court.” Id. at 204. Once in court, defendants have
the right to bring motions addressing exhaustion of administrative remedies at the
beginning of litigation, and disputed factual questions relevant to exhaustion should be
decided at that time. Albino v. Baca, 747 F.3d 1162, 1171 (9th Cir. 2014) (en banc).
Failure to exhaust is an affirmative defense that may be asserted in a Federal Rule
of Civil Procedure 12(b)(6) motion to dismiss for failure to state a claim only if the
MEMORANDUM DECISION AND ORDER - 2

prisoner’s failure to exhaust is clear from the face of the complaint and any public
records subject to judicial notice. Albino, 747 F.3d at 1166. When either party relies on
evidence beyond the pleadings and public records, the exhaustion issue should be
addressed as a motion for summary judgment under Rule 56. Id. at 1170. “If the record is
sufficiently developed to permit the trial court to consider summary judgment, and if the
court finds that when viewing the evidence in the light most favorable to a moving party
the movant has not shown a genuine dispute of fact on the issue of exhaustion,” the Court
may enter summary judgment for either the moving or the nonmoving party (on the
court’s own motion). Id. at 1176; see Fed. R. Civ. P. 56(f) (“After giving notice and a
reasonable time to respond, the court may . . . grant summary judgment for a
nonmovant.”)
Rule 56 prohibits the courts from resolving genuine disputes as to material facts
on summary judgment. If a genuine dispute exists as to material facts relating to an
exhaustion defense, the motion should be denied, and the “disputed factual questions
relevant to exhaustion should be decided by the judge, in the same manner a judge rather
than a jury decides disputed factual questions relevant to jurisdiction and venue.” Id. at
1170-71. See also McNutt v. General Motors Acceptance Corp. of Ind., 298 U.S. 178,
184 (1936) (stating that the court may “inquire into the facts as they really exist”)
(internal quotation marks omitted); Murphy v. Schneider Nat’l, Inc., 362 F.3d 1133, 1139
(9th Cir. 2004) (stating that the court may “hold[] an evidentiary hearing on the disputed
facts”); Lake v. Lake, 817 F.2d 1416, 1420 (9th Cir. 1987) (stating that the court “has the
discretion to take evidence at a preliminary hearing in order to resolve any questions of
MEMORANDUM DECISION AND ORDER - 3

credibility or fact” and that the plaintiff must establish the facts “by a preponderance of
the evidence, just as he would have to do at trial”) (internal quotation marks omitted).
The issue of “[e]xhaustion should be decided, if feasible, before reaching the merits of a
prisoner’s claim.” Albino, 747 F.3d at 1170.
The defendant bears the ultimate burden of proving failure to exhaust. See Brown
v. Valoff, 422 F.3d at 936. If the defendant initially shows that (1) an available
administrative remedy existed and (2) the prisoner failed to exhaust that remedy, then the
burden of production shifts to the plaintiff to bring forth evidence “showing that there is
something in his particular case that made the existing and generally available
administrative remedies effectively unavailable to him.” Albino, 747 F.3d at 1172.
Confusing or contradictory information given to a prisoner is relevant to the
question “of whether relief was, as a practical matter, ‘available.’” Brown, 422 F.3d at
937. Administrative remedies will be deemed unavailable and exhaustion excused if the
inmate had no way of knowing the prison’s grievance procedure, if the prison improperly
processed an inmate’s grievance, if prison officials misinformed an inmate regarding
grievance procedures, if the inmate “did not have access to the necessary grievance forms
within the prison’s time limits for filing the grievance,” or if prison staff took any other
similar actions that interfered with an inmate’s efforts to exhaust. Albino, 747 F.3d at
1173.
If a prisoner has failed to exhaust available administrative remedies, the
appropriate remedy is dismissal without prejudice. Wyatt v. Terhune, 315 F.3d 1108,
1120 (9th Cir. 2003), overruled in part on other grounds by Albino, 747 F.3d 1162.
MEMORANDUM DECISION AND ORDER - 4

2.

Material Facts
The facts material to the administrative exhaustion question are included within

the following sections of this decision. The steps required to complete the IDOC
Grievance Process, which are published in the prison policy manual, are undisputed. If
the facts concerning whether the exhaustion process was properly completed or if an
excuse for failure to complete the process is in dispute, the Court has so noted.
A.

IDOC Grievance Process

There are three stages in the IDOC grievance process. First, an inmate with a
concern must seek an informal resolution by filling out an offender concern form,
addressed to the staff person “most capable of responding to and, if appropriate, resolving
the issue.” (Whittington Aff., Dkt. 30-2, ¶¶ 5-7.) If the issue cannot be resolved
informally through the use of a concern form, the inmate must then file a grievance form.
(Id., ¶ 8.)
The grievance form must be submitted within 30 days of the incident giving rise to
the grievance. (Id., ¶ 8.) Only one issue may be raised in a grievance, and there must be
“specific information including the nature of the complaint, dates, places, and names.”
(Id., ¶ 9.) After receiving the grievance, the grievance coordinator “enters the grievance
information into the Corrections Integrated System (CIS),” an electronic database used to
track grievances. (Id.) The grievance coordinator then assigns the grievance “to the staff
member most appropriate to respond to and, if appropriate, resolve the grievance issue.”
(Id..) That staff member responds to the grievance and returns it to the grievance

MEMORANDUM DECISION AND ORDER - 5

coordinator, who logs the information into the CIS database. The grievance coordinator
then forwards the grievance to a “reviewing authority,” usually a deputy warden. (Id.)
The reviewing authority reviews the grievance, including the staff member’s
response, and then must deny, grant, or modify the grievance. (Id., ¶9.) The reviewing
authority returns the grievance and response to the grievance coordinator, who logs the
response into the database and sends the completed grievance back to the inmate. (Id.)
If the decision on an inmate’s grievance is not satisfactory to the inmate, the
inmate may appeal that decision to the “appellate authority.” (Id., ¶¶ 10-11.) Usually, the
appellate authority is the warden, except as to medical grievances, where the appellate
authority is a contract medical provider administrator. (Id. at ¶ 11.) When the appellate
authority responds, the response is logged into the CIS databased, and the printed
grievance and the inmate’s original attachments are returned to the inmate. (Id.)
When all three of these steps—concern form, grievance form, and grievance
appeal—are completed, the administrative grievance process is exhausted. (Id., ¶ 12.)
3.

Discussion of Plaintiff’s Efforts to Complete the Grievance Process
Plaintiff filed his Complaint on June 1, 2010. (Dkt. 3.) The CIS database contains

no record of Plaintiff having filed any grievances within the relevant time period—June
2008 to June 2010. (Whittington Aff., Dkt. 30-2, ¶ 14 & Exhibit D.)
A.

Claims against Jeff Kirkman

Plaintiff’s claim against Jeff Kirkman arises from the following circumstances. It
is undisputed that Kirkman received but did not mail Plaintiff’s amended post-conviction
relief petition to the state court when Plaintiff presented it to Kirkman for legal mailing,
MEMORANDUM DECISION AND ORDER - 6

because the document fell behind a desk, where it lay undetected for almost a year. On
November 7, 2006, Kirkman found it and told Plaintiff he would mail it. Plaintiff asserts
that Kirkman lied to Plaintiff and never mailed the pleading to the state district court.
(Plaintiff Aff. Dkt. 35-3.)
Plaintiff asserts that he was unaware that the amended post-conviction petition
had never been filed until he received a copy of the state court register of actions on June
1, 2008, which showed that the amended petition had never been filed. (Dkt. 46, p. 2.)
The question, then, using the time periods most favorable to Plaintiff, is whether Plaintiff
had adequate opportunity to use the grievance system between June 1, 2008, and July 24,
2008, when he was transferred from ICI-O to ISCI in Boise to await transfer to North
Fork Correctional Facility (NFCF) in Oklahoma.
The record contains no evidence that prison officials interfered with Plaintiff’s
ability to use the prison grievance system at ICI-O during the 54-day period of time
before he was transferred to another IDOC facility in Idaho, ISCI. Plaintiff did not
attempt to use the established grievance system at all. Plaintiff states that, in June 2008,
Ms. Ashford suggested that he speak to Mr. Kirkman to resolve the issue. Plaintiff
attempted to do so, but Mr. Kirkman allegedly would not respond to Plaintiff’s letter or
address the subject in person. However, simply because prison personnel attempted to aid
Plaintiff informally (or ignored Plaintiff’s attempts to informally address a problem) does
not mean that such efforts amount to a sanctioned alternative to the formal grievance
system, as Plaintiff argues.

MEMORANDUM DECISION AND ORDER - 7

The record is undisputed that Plaintiff did nothing to properly exhaust his
administrative remedies through the established prison grievance system. Therefore, this
claim is subject to dismissal without prejudice.
B.

Claims against Sergeant Higgins

Plaintiff alleges that in July 2008, Defendant Higgins threatened Plaintiff at ISCI
that he would not send all of his legal materials with him to NFCF in Oklahoma. Plaintiff
further alleges that Higgins, in fact, failed to transport one of Plaintiff’s original boxes of
legal materials to Oklahoma. (Cherry Aff., ¶¶25-25.) Plaintiff used the Oklahoma
offender concern form process to contact Sergeant Higgins about the missing legal
materials, and Sergeant Higgins responded:
I confirmed with you that your large volume of legal work was active. It
was placed on the bus and went to Boise with you. I stated “Be prepared to
explain why you have a large amount of legal work. (active cases).”
(Dkt. 35-4, p. 7.) Plaintiff alleges that he eventually received the box of materials, but it
was in a new, smaller box that contained only about 50% of the materials that had been in
the original box. (Cherry Aff., ¶ 24.)
The above correspondence with Sergeant Higgins shows that Plaintiff began the
first step of the grievance process, using the NFCF offender concern form, to grieve the
loss of the legal materials while in Oklahoma. However, Defendants admit that the IDOC
grievance forms that were needed to complete the next several steps “were not available
at NFCF.” (Dkt. 40, p. 4.) In addition, Plaintiff requested by letter that Mr. Kirkman send
him IDOC grievance forms in a letter of September 12, 2008 (Dkt. 35-4, p. 16), but no
one ever provided Plaintiff with the IDOC forms while at NFCF.
MEMORANDUM DECISION AND ORDER - 8

Based on the foregoing, the Court finds that the record contains undisputed facts
that prison officials did not make the Idaho grievance forms available to Plaintiff while
he was housed in Oklahoma, and that the time period to submit the grievance regarding
Sergeant Higgins’ alleged loss or confiscation of the legal materials during transfer
expired while Plaintiff was in Oklahoma. Plaintiff is excused from filing a grievance on
the Higgins claim because the grievance system was unavailable to him.
The Court rejects Defendants’ argument that Plaintiff could have grieved Sergeant
Higgins’ alleged actions during the five-day period that he remained in an Idaho facility
between the day Higgins threatened to not send Plaintiff’s legal materials to NFCF and
the day Plaintiff was transferred to NFCF. Plaintiff had no reason to grieve a mere threat,
especially because other ISCI prison officials assured Plaintiff that, contrary to Higgins’
statement, all legal material in Plaintiff’s active cases would be transported to Oklahoma
with him. It was only when Plaintiff arrived in Oklahoma that he discovered his legal
materials had not been shipped with him, and the need to begin the grievance process
arose.
C.

Claims against Andrea Blades

Plaintiff returned to Idaho from Oklahoma on July 10, 2009. (Whittington Aff., ¶ 4
& Exhibit 30-2.) He did not receive his property from Oklahoma until July 15, 2009. At
that time, Duane Shedd told Plaintiff that someone named “Andrea” had confiscated
several of his legal items, which Plaintiff identifies as six legal cassette tapes, eleven
legal photographs, and a bundle of legal papers.

MEMORANDUM DECISION AND ORDER - 9

Plaintiff sent a concern form to Andrea Blades on July 15, 2009, and she
confirmed that she had confiscated the legal materials. She explained the process for
accessing the materials—he was to request an appointment in the Resource Center to
access the materials, or choose to send them out to his attorney. (Complaint, Ex 8(c), Dkt.
3-2, p. 3.) Plaintiff was then transferred to ICI-O, in Northern Idaho, and he submitted an
ICI-O access to courts form to the paralegal, Ms. Ashford, regarding the legal materials.
On July 29, 2009, while at ICI-O, Plaintiff received replies to two of the offender concern
forms that he had written at ISCI to check on the missing legal materials.
Plaintiff states: “Since the issues with my missing and illegally confiscated legal
materials covered so many individuals in so many different institutions, on the 3rd of
August, 2009, I wrote a grievance in the form of a letter to Brent Reinke, the Director of
Prisons, addressing my issues with Mr. Kirkman, Sgt. Higgins, and Ms. Blades.”
(Plaintiff Aff., ¶ 53,Dkt. 35-3, emphasis added.) Plaintiff alleges that he received the
cassettes and photos on August 4, 2009, but not the legal documents.
On September 2, 2009, Plaintiff received a letter from V. Southwick, an employee
of the “Division of Prisons, IDOC,” dated August 14, 2009, with a “cc” notation to
Director Reinke:
The letter you sent to Director Reinke, dated 8/3/2009, was
forwarded to me for response.
In researching this issue, I received notification that Andrea Blades,
paralegal at ISIC, sent your legal boxes to ICIO around July 24, 2009.
Jeff Kirkman, Access to Courts Coordinator for IDOC, will make
sure that Laura Ashford, paralegal at ICIO, sees to it that you have access to
the documents you need.
MEMORANDUM DECISION AND ORDER - 10

Should you have any more issues regarding access to court issues,
please contact Jeff Kirkman at IDOC’s Central Office.
(Dkt. 3-4, p. 6.)
Plaintiff alleges that he did not receive the missing legal documents. (Complaint,
Dkt. 3, p. 17.) Plaintiff had discussions with Ms. Ashford, who had discussions with Mr.
Kirkman, but the issue was never resolved. (Id., ¶¶54-55.)
Plaintiff admits that he decided to work outside the grievance procedures because
he felt that he had a multi-facility complaint, and so he decided to write to the Director of
the Department of Correction, rather than submit a grievance. The letter he received from
Ms. Southwick indicates that she checked with Ms. Blades, and the materials had already
been sent to Plaintiff at ICI-O. Plaintiff was directed to contact Mr. Kirkman if he had
additional access-to-the-courts issues.
Ms. Southwick did not inform Plaintiff that their correspondence was a substitute
for the grievance process, nor did she inform him that the grievance procedures were not
necessary if he was unable to resolve the access to courts issues with Mr. Kirkman.
No prison employee misinformed Plaintiff about use of the established grievance
system or tried to prevent him from using it to try to resolve his access-to-the courts
claim against Ms. Blades. To the contrary, Plaintiff had been advised a year earlier to use
the grievance system to resolve similar issues. On September 22, 2008, while Plaintiff
was attempting resolution of the Higgins claim with Mr. Kirkman, Plaintiff had received
a letter from Mr. Kirkman, stating: “For the grievance procedure to work properly each
affected offender needs to grieve their issue with ICI-O and Sgt. Higgins and get a
MEMORANDUM DECISION AND ORDER - 11

response from them.” (Dkt. 35-4, p. 17.) Clearly, Plaintiff was on notice that the
grievance system was the official way to solve problems, and that Mr. Kirkman required
offenders to use the grievance process.
The Court rejects Plaintiff’s argument that, because he thought the defendants
were being untruthful about their words and actions, the grievance procedures would
have been futile. Case law is clear that futility is not an excuse for failure to exhaust.
“The obligation to exhaust ‘available’ remedies persists as long as some remedy remains
‘available.’” Brown v. Valoff, 422 F.3d 926, 935 (9th Cir. 2005).
The United States Supreme Court explained the importance of proper
exhaustion—not on the prisoner’s terms, but on the prison’s terms—in Ngo v. Woodford:
Because exhaustion requirements are designed to deal with parties who do
not want to exhaust, administrative law creates an incentive for these
parties to do what they would otherwise prefer not to do, namely, to give
the agency a fair and full opportunity to adjudicate their claims.
Administrative law does this by requiring proper exhaustion of
administrative remedies, which means using all steps that the agency holds
out, and doing so properly (so that the agency addresses the issues on the
merits)…. Proper exhaustion demands compliance with an agency’s
deadlines and other critical procedural rules because no adjudicative system
can function effectively without imposing some orderly structure on the
course of its proceedings.
548 U.S. at 90 (internal citations and punctuation omitted).
Had Plaintiff used the grievance process, he might have obtained a remedy,
because the persons directly involved would be required to respond—Andrea Blades and
Jeff Kirkman—and their immediate supervisors (and the supervisors of the immediate
supervisors) would be informed of Blades’ and Kirkman’s acts or omissions or of their
failure to respond. When Plaintiff became aware that no action to return the legal
MEMORANDUM DECISION AND ORDER - 12

materials had been taken under the Southwick correspondence, Plaintiff could have filed
a grievance. However, he did not. Rather, he continued to complain verbally and by letter
to Mr. Kirkman.
Plaintiff never took any steps to properly inform Mr. Kirkman’s supervisors—via
a grievance—that Mr. Kirkman was not resolving Plaintiff’s issues. The IDOC grievance
system is particularly designed to have at least three levels of review of the prisoner’s
problem, beginning with the prison employee whose act is at issue, and ending with the
prison employee’s supervisor’s supervisor. The final step in the process is normally the
warden of the facility, not the director of the IDOC; thus, the letter Plaintiff wrote to the
director was entirely outside the grievance system and beyond the specific officials
charged with resolving the type of inmate problems reported through the grievance
system. The fact that Plaintiff knew of the proper grievance procedure, but chose to skip
it, is inexcusable under Ngo v. Woodford. Therefore, this claim is subject to dismissal.
4.

Conclusion
Based on the record, the Court concludes that the undisputed material facts show

that Plaintiff did not exhaust his administrative remedies for his claims against Mr.
Kirkman and Ms. Blades. The record reflects that Plaintiff chose to use informal means to
try to resolve his grievances. Although some prison officials responded, tried to help him
informally, and directed him to other avenues of potential help, they did not misinform
him about, interfere with, or prevent him from using, the established grievance process.
Therefore, no excuse exists for his failure to use the formal grievance procedures.
Accordingly, the Court concludes that these claims will be dismissed without prejudice.
MEMORANDUM DECISION AND ORDER - 13

The record also reflects that Plaintiff did not file a grievance regarding his claim
against Sergeant Higgins, but is excused from doing so. He had no reason to do so during
his five-day stay in Boise before transport to Oklahoma, because only a threat existed at
that time. It was only when he arrived in Oklahoma that he discovered that all of his legal
materials had not been shipped with him. It is undisputed that IDOC grievance forms
were not available to Plaintiff in Oklahoma, despite his request for the forms.
Therefore, the Court concludes that the IDOC grievance system was unavailable to
Plaintiff, and Plaintiff may proceed with his claim against Sergeant Higgins. Plaintiff will
bear the burden to show that Higgins was responsible for the loss of the legal materials1
and that Plaintiff suffered an actual injury from the loss.2

1

Plaintiff speculates: “The box had been inventoried by Sgt. Higgins on the 6th of August, 2008, so he would have
been the last one to handle that box of Legal Materials and he would have been the individual who removed over
half of my Legal materials.” (Dkt. 35-3, ¶24.) He may now conduct discovery to determine the facts.
2

Under the First Amendment, prisoners have a right of access to the courts. Lewis v. Casey, 518 U.S. 343, 346
(1996). The right is limited to the filing of direct criminal appeals, habeas petitions, and civil rights actions. Id. at
354. Claims for denial of access to the courts may arise from the frustration or hindrance of “a litigating opportunity
yet to be gained” (forward-looking access claim) or from the loss of a suit or claim that cannot now be tried
(backward-looking claim). Christopher v. Harbury, 536 U.S. 403, 412–15 (2002). To state an access to courts claim
when a prisoner claims that he suffered the loss of a suit or claim that cannot now be brought, a prisoner must allege
facts supporting three elements: (1) official acts that frustrated the inmate’s litigation; (2) loss of a “nonfrivolous” or
“arguable” underlying claim, including the level of detail necessary “as if it were being independently pursued”; (3)
specific allegations showing that remedy sought in the access-to-courts claim is not otherwise available in a suit that
otherwise could be brought. Id. at 415-17. Plaintiff now has completed his criminal appeals and habeas corpus
actions, and, thus, Plaintiff should be able to explain exactly how the missing legal materials affected his ability to
address certain claims or defenses in those actions.

MEMORANDUM DECISION AND ORDER - 14

ORDER
IT IS ORDERED that Plaintiff’s Motion for Summary Judgment (Dkt. 30) is
GRANTED in part and DENIED in part. Claims against Jeff Kirkman and Andrea Blades
are dismissed without prejudice. Plaintiff may proceed on his access-to-courts claim
against Sergeant Higgins.
IT IS FURTHER ORDERED that the parties shall adhere to the following
pretrial schedule:
1. Disclosure of Relevant Information and Documents: If the parties have not
already done so, no later than 30 days after entry of this Order, the parties shall
provide each other with relevant information and documents pertaining to the
claims and defenses in this case, including the names of individuals likely to have
discoverable information, along with the subject of the information, as well as any
relevant documents in their possession, in a redacted form if necessary for security
or privilege purposes; and, if necessary, they shall provide a security/privilege log
sufficiently describing any undisclosed relevant documents which are alleged to be
subject to nondisclosure. Any party may request that the Court conduct an in
camera review of withheld documents or information. In camera documents are to
be filed ex parte under seal, and not provided by email or mail.
2. Completion of Discovery and Requests for Subpoenas: All discovery shall be
completed no later than 120 days after entry of this Order. Discovery requests
must be made far enough in advance to allow completion of the discovery in
accordance with the applicable federal rules prior to this discovery cut-off date.
MEMORANDUM DECISION AND ORDER - 15

Discovery is exchanged between parties, not filed with the Court. The Court is not
involved in discovery unless the parties are unable to work out their differences
between themselves as to whether the discovery responses are appropriate. In
addition, all requests for subpoenas duces tecum (pretrial production of documents
by nonparties) must be made within 90 days after entry of this Order. No requests
for subpoenas duces tecum will be entertained after that date. (Subpoena requests
for trial appearances of witnesses shall not be filed until the case is set for trial.)
To obtain a subpoena duces tecum for production of documents by nonparties,
Plaintiff must first submit to the Court the names, addresses, and the type of
information sought from each person or entity to be subpoenaed, and Plaintiff
must explain the relevance of the items requested to the claims. The Court will
then determine whether the subpoenas should issue.
3. Depositions: Depositions, if any, shall be completed no later than 120 days after
entry of this Order. If Defendants wish to take the deposition of Plaintiff or other
witnesses who are incarcerated, leave to do so is hereby granted. Any such
depositions shall be preceded by 10 days’ written notice to all parties and
deponents. The parties and counsel shall be professional and courteous to one
another during the depositions. The court reporter, who is not a representative of
Defendants, will be present to record all of the words spoken by Plaintiff (or other
deponent), counsel, and any other persons at the deposition. If Plaintiff (or another
deponent) wishes to ensure that the court reporter did not make mistakes in
transcribing the deposition into a written form, then Plaintiff can request the
MEMORANDUM DECISION AND ORDER - 16

opportunity to read and sign the deposition, noting any discrepancies between
what is transcribed and what Plaintiff believes was said. If Plaintiff wishes to take
depositions, Plaintiff must file a motion requesting permission to do so,
specifically showing the ability to comply with the applicable Federal Rules of
Civil Procedure by providing the names of the proposed persons to be deposed, the
name and address of the court reporter who will take the deposition, the estimated
cost for the court reporter’s time and the recording, and the source of funds for
payment of the cost.
4. Dispositive Motions: All motions for summary judgment and other potentially
dispositive motions shall be filed with accompanying briefs no later than 150 days
after entry of this Order. Responsive briefs to such motions shall be filed within 30
days after service of motions. Reply briefs, if any, shall be filed within 14 days
after service of responses. All motions, responses, and replies shall conform to
Rule 7.1 of the Local Rules for the District of Idaho. Neither party shall file
supplemental responses, replies, affidavits, or other filings not authorized by the
Local Rules without prior leave of Court. No motion or memorandum, typed or
handwritten, shall exceed 20 pages in length.
5. Alternative Dispute Resolution (ADR): Should Plaintiff and any Defendant wish
to attend a settlement conference, they should file a stipulation to attend settlement
conference, and the case shall then be referred to the Court’s ADR Director.

MEMORANDUM DECISION AND ORDER - 17

SO ORDERED.

DATED: January 6, 2015

_________________________
Edward J. Lodge
United States District Judge

MEMORANDUM DECISION AND ORDER - 18