Cherry v. Shedd et al

Filing 81

MEMORANDUM DECISION AND ORDER - IT IS HEREBY ORDERED THAT: 1. Plaintiff's Motion to Show Cause (Docket No. 65 ) is DENIED; 2. Plaintiff's Motion to Appoint Counsel (Docket No. 66 ) is DENIED; 3. Plaintiff's Motion for Permission to D epose Witnesses (Docket No. 67 ) is DENIED; 4. Plaintiff's Motion for Permission to Reply (Docket No. 68 ) is DENIED; 5. Plaintiff's Motion to Determine the Sufficiency of Answers Given by Defendant (Docket No. 69 ) is DENIED; 6. Plainti ff's Verified Motion to Correct the Record (Docket No. 75 ) is GRANTED; and 7. Plaintiff's Motion for Permission to File Expanded Response (Docket No. 78 ) is GRANTED. Signed by Judge Ronald E. Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (km)

UNITED STATES DISTRICT COURT
DISTRICT OF IDAHO

STEPHEN A. CHERRY,
Plaintiff,

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

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

PLAINTIFF’S MOTION TO SHOW
CAUSE
(Docket No. 65)
PLAINTIFF’S MOTION FOR
APPOINTMENT OF COUNSEL
(Docket No. 66)
PLAINTIFF’S MOTION FOR
PERMISSION TO DEPOSE
WITNESSES
(Docket No. 67)
PLAINTIFF’S MOTION FOR
PERMISSION TO REPLY
(Docket No. 68)
PLAINTIFF’S MOTION TO
DETERMINE THE SUFFICIENCY
OF ANSWERS GIVEN BY
DEFENDANT
(Docket No. 69)
PLAINTIFF’S VERIFIED MOTION
TO CORRECT THE RECORD
(Docket No. 75)
PLAINTIFF’S MOTION FOR
PERMISSION TO FILE EXPANDED
RESPONSE
(Docket No. 78)

MEMORANDUM DECISION AND ORDER/REPORT AND RECOMMENDATION - 1

REPORT AND RECOMMENDATION
RE:
DEFENDANT RANDY HIGGINS’
MOTION FOR SUMMARY
JUDGMENT
(Docket No. 71)

Now pending before the Court are the following motions: (1) Plaintiff’s Motion to Show
Cause (Docket No. 65); (2) Plaintiff’s Motion to Appoint Counsel (Docket No. 66); (3)
Plaintiff’s Motion for Permission to Depose Witnesses (Docket No. 67); (4) Plaintiff’s Motion
for Permission to Reply (Docket No. 68); (5) Plaintiff’s Motion to Determine the Sufficiency of
Answers Given by Defendant (Docket No. 69); (6) Plaintiff’s Verified Motion to Correct the
Record (Docket No. 75); (7) Plaintiff’s Motion for Permission to File Expanded Response
(Docket No. 78); and (8) Defendant Randy Higgins’ Motion for Summary Judgment (Docket
No. 71). Having carefully considered the record and otherwise being fully advised, undersigned
enters a Memorandum Decision and Order as to the first six of these non-dispositive motions,
and a Report and Recommendation as to the seventh dispositive motion.
I. RELEVANT BACKGROUND
In 1997, Plaintiff Stephen Cherry was convicted by a jury of first degree murder,
aggravated battery, and aggravated assault with a deadly weapon in Idaho state court. See Def.’s
SOF No. 2 (Docket No. 71, Att. 2). Plaintiff was sentenced to the custody of the Board of
Correction to serve life without parole for the murder conviction, thirty years for the aggravated
battery conviction, and twenty years for the aggravated assault conviction. See id.
In the Summer of 2010, Plaintiff filed the instant action, alleging that Defendants denied
him his First Amendment right of access to the courts. See Compl. (Docket No. 3). On August
MEMORANDUM DECISION AND ORDER/REPORT AND RECOMMENDATION - 2

16, 2011, United States Magistrate Judge Larry M. Boyle dismissed Plaintiff’s Complaint in its
entirety – which, relevant here, included a finding that Plaintiff had not alleged the requisite
“actual injury” to support his access-to-courts claim. See 8/16/11 Order, pp. 2-8, 13 (Docket No.
11).1 On appeal, however, the Ninth Circuit Court of Appeals vacated the district court’s
dismissal in part, remanding the case back to this Court as to Plaintiff’s access-to-courts claim
against certain Defendants, concluding:
The district court also prematurely dismissed Cherry’s access-to-courts claims
against defendants Higgins and Blades in light of this court’s intervening decision
in Silva because the allegations in the complaint, liberally construed, were “sufficient
to meet the low threshold for proceeding past the screening stage.” Wilhelm v.
Rotman, 680 F.3d 1113, 1123 (9th Cir. 2012); see Silva, 658 F.3d at 1102-04
(explaining that prisoners have the right to litigate, without active interference,
claims that have a reasonable basis in law or fact, and concluding that allegations
that defendants hindered an inmate’s ability to litigate his pending civil action
resulting in dismissal of the action were sufficient to state a claim).
See 10/25/13 Mem., p. 4 (Docket No. 18).2
Following remand, the then-remaining Defendants moved for summary judgment on May
21, 2014, arguing that Plaintiff failed to exhaust his administrative remedies. See generally
Defs.’ MSJ (Docket No. 30). On January 6, 2015, United States District Judge Edward J. Lodge3
1

On January 3, 2011, Judge Boyle initially determined that Plaintiff’s Complaint did not
contain sufficient factual allegations for Plaintiff to proceed, but nonetheless allowed Plaintiff an
opportunity to supplement his Complaint. See Initial Review Order, p. 11 (Docket No. 8). After
receiving and reviewing Plaintiff’s February 4, 2011 Supplement, Judge Boyle formally
dismissed Plaintiff’s case on August 16, 2011. See 8/16/11 Order (Docket No. 11).
2

Although vacating Judge Boyle’s dismissal of Plaintiff’s access-to-courts claims
against certain Defendants and remanding for further proceedings on those claims, the Ninth
Circuit affirmed Judge Boyle’s dismissal of Plaintiff’s Fourth, Eighth, and Fourteenth
Amendment claims and the dismissal of the access-to-courts claim against certain other
Defendants. See 10/25/13 Mem., p. 4 (Docket No. 18).
3

The action was reassigned to Judge Lodge on December 10, 2014. See 12/10/14 Order
(Docket No. 47).
MEMORANDUM DECISION AND ORDER/REPORT AND RECOMMENDATION - 3

granted, part, and denied, in part, Defendants’ Motion for Summary Judgment, dismissing all
remaining Defendants except for Defendant Randy Higgins – Plaintiff was permitted to proceed
on his access-to-courts claim against Defendant Higgins even though Plaintiff had not exhausted
his administrative remedies because the prison grievance system was unavailable when Plaintiff
was transferred to an out-of-state prison during the relevant time period he otherwise could have
grieved the issues concerning Defendant Higgins. See 1/6/15 Order, p. 15 (Docket No. 48).
On July 31, 2015, Plaintiff moved for leave to amend his Complaint, contending that he
“wishes to amend his Complaint to set out more fully the issues and the actual harm experienced
and a direct result of Defendant Higgins’ actions and/or inactions.” Mot. to Am., p. 1 (Docket
No. 58). On October 29, 2015, Judge Lodge granted Plaintiff’s Motion to Amend. See 10/29/15
Order (Docket No. 62).
The overall thrust of Plaintiff’s Amended Civil Rights Complaint is that Defendant
Higgins confiscated some of Plaintiff’s legal materials and evidence pertaining to Plaintiff’s state
criminal case when he was scheduled to be transferred to an out-of-state prison. Specifically,
Plaintiff makes the following factual allegations:
•

“But for the actions and/or inactions, lies, delays, and impediment of
Defendant Higgins, Mr. Cherry would not have suffered the permanent loss
of irreplaceable exculpatory legal materials and evidence necessary in
litigating a case which was active at the time these claims arose and which
is still on-going to date, nor would Mr. Cherry have suffered a permanent
hindrance to his attack on his criminal case; and, thus been irreversibly
harm[ed].” Am. Civ. Rights Compl., p. 2 (Docket No. 59).

•

“Defendant Higgins did deliberately and with intent to violate Mr. Cherry’s
right to unobstructed and clear access to courts as well as Mr. Cherry’s rights
guaranteed by the First Amendment to the United States Constitution when
Defendant Higgins, in violation of Idaho Department of Corrections (IDOC)
custom, practice, and policy, refused to transport Mr. Cherry’s irreplaceable
exculpatory legal materials and evidence with him for transfer to North Fork

MEMORANDUM DECISION AND ORDER/REPORT AND RECOMMENDATION - 4

Correctional Facility (NFCF) in Oklahoma. But for these actions and/or
inactions, Mr. Cherry would not have suffered permanent placement of a
hindrance to . . . Mr. Cherry’s attack on his criminal conviction[.] Defendant
Higgins, was the cause in fact of the permanent loss of Mr. Cherry’s legal
materials.” Id. at pp. 2-3.
•

“Upon notice, Defendant Higgins had the legal duty to locate and return Mr.
Cherry’s legal materials in its entirety. Instead, Defendant Higgins
deliberately opened a box which had been previously inventoried, sealed and
prepared for transport, and repackaged the legal materials. In the process,
Defendant Higgins either caused or allowed the destruction and/or loss of
about 50% of the legal materials in that original box. As a direct result, Mr.
Cherry suffered the permanent loss of his legal materials and must now rely
upon unfrivolous means to litigate this case and his on-going attack of his
criminal case.” Id. at p. 3.

•

“Defendant Higgins did first threaten Mr. Cherry, telling him that his legal
paperwork would not go with him to NFCF in Oklahoma, then Defendant
Higgins deliberately, with intent, and with full knowledge, in direct violation
of IDOC custom, practice, and policy, carried out his threat against Mr.
Cherry by in fact not shipping Mr. Cherry’s legal materials with him to
NFCF which deprived Mr. Cherry of the legal materials necessary in his then
active and still on-going attack on his criminal conviction and which was the
cause in fact of the permanent loss of 50% of the legal materials which
Defendant Higgins refused to send to NFCF. When Defendant Higgins did
finally send the legal materials to Mr. Cherry, about 50% of those legal
materials had been permanently lost and/or destroyed.” Id. at pp. 3-4.

•

“The full extent of the harm done to Mr. Cherry can not be fully estimated.
It is completely conceivable that one, all, or some combination of these lost
legal materials could have resulted in the successful litigation of his criminal
case and but for the loss of those materials, have secured Mr. Cherry’s
release from prison. Since the loss of those legal materials, Mr. Cherry has
been incarcerated for over (7) years. What is the value of that lost time? But
for Defendant Higgins’ actions and/or inactions, Mr. Cherry would not have
been harmed.” Id. at p. 4.

•

“But for Defendant Higgins’ actions and/or inactions, lies, delays, hindering,
and deliberate indifference, Mr. Cherry would not have suffered
irreconcilable harm and the loss of his irreplaceable exculpatory legal
documents, photographs, audio tapes, and other material evidence which
were and are of primary importance in challenging Mr. Cherry’s criminal
conviction and proving his innocence by using these materials.” See id. at
p. 5.

MEMORANDUM DECISION AND ORDER/REPORT AND RECOMMENDATION - 5

•

“On the 21st of July, 2008, Ms. Laura Ashford, the paralegal in charge of the
ICI-O Legal Resource Center, and Mr. Cherry inventoried, packed, and taped
up a box of legal materials which had been stored at the Resource Center.
That Box was labeled with Mr. Cherry’s name and addressed to go with him
to Oklahoma. In addition, this box was clearly labeled “Legal” on five (5)
sides.” Id. at pp. 5-6.

•

“During the Roll Up, I notified [Correctional Officer] Gibson that I had a box
of legal materials inventoried, taped up, and ready to go in the ICI-O Legal
Resource Center. [Correctional Officer] Gibson called Defendant Higgins on
the radio and asked him to come to the chapel where the Roll Ups were being
done. When Defendant Higgins arrived at the chapel, [Correctional Officer]
Gibson informed him that Mr. Cherry had one box of legal materials which
needed to be retrieved from the Resource Center and brought to property to
be loaded on the bus. [Correctional Officer] Gibson then handed Defendant
Gibson a label which would identify that Box as “Box 2 of 7" of Mr.
Cherry’s property.” Id. at pp. 6-7.

•

“Later on in the early evening of July 21, 2008, after Roll Ups were
completed, Defendant Higgins came to Mr. Cherry’s cell area on Unit C-1;
and, as he walked through the door, proclaimed ‘you might as well sue us
now because you are not taking all that legal material with you to
Oklahoma.’” id. at p. 7.

•

“IDOC custom, practice, and policy is that when an inmate has an active
legal case all legal materials are to be transported with him when he is
transferred to another institution. Based on the statement made by Defendant
Higgins, it is clear that at this point, Defendant Higgins has decided to act in
violation of IDOC custom, practices, and policy, making his actions
deliberate with complete indifference to both the harm that Mr. Cherry would
experience and the violation of Mr. Cherry’s First Amendment Right
guaranteed by the United States Constitution. As the property officer,
Defendant Higgins was well aware of IDOC customs, policies, and practices
concerning transport of inmates’ legal materials.” Id.

•

On the 29th of July, 2008, Mr. Cherry left ISCI Boise and arrived at NFCF on
the 30th of July. On the 8th of August, 2008, Mr. Cherry finally received his
property that had been transported with him to NFCF. It was at that time that
Mr. Cherry noticed that a box of legal materials was missing. That missing
box of legal was the box that was in Defendant Higgins’ possession, and
intentionally withheld and destroyed by Defendant Higgins.” Id. at pp. 8-9.

•

“On the 28th of August, 2008, Mr. Cherry received a box containing about
one-half of the missing legal materials: (36) days from the time Mr. Cherry
was Rolled Up . . . . On the 28th of August, 2008, Mr. Cherry also received

MEMORANDUM DECISION AND ORDER/REPORT AND RECOMMENDATION - 6

a ‘property description sheet’ indicating that Defendant Higgins had
inventoried ‘a box of legal material’ clearly showing that all of Mr. Cherry’s
legal materials had not went to Boise nor Oklahoma with him. Defendant
Higgins was the last one to open, inventory, and handle this box of legal
materials. The box Mr. Cherry received was not the original box which Ms.
Ashford and Mr. Cherry had inventoried, packed, taped, and addressed for
Oklahoma. The original box was a large box and was 95% full. The box Mr.
Cherry received was a much small box than the original box and was only
50% full. Defendant Higgins, being the last one to handle the legal materials,
would have been the only individual who could have removed over one-half
of the legal materials from the original box and placed half the materials in
a new box and prepared it for shipping.” Id. at pp. 10-11 (emphasis in
original).
•

“It is IDOC’s custom, practice, and policy that the inmate is to be present
when an officer opens, searches, or goes through that inmate’s legal property.
Defendant Higgins violated IDOC policy when he did open, and repackaged
Mr. Cherry’s legal documents without Mr. Cherry present. Mr. Cherry’s
legal materials were already packaged and ready for shipping. There was
absolutely no need to repackage the legal materials. It was during or as a
direct result of this repacking that one-half of Mr. Cherry’s legal materials
were irretrievably lost and/or destroyed causing Mr. Cherry permanent harm
by setting a permanent impediment to all legal proceedings [that] have to do
with Mr. Cherry’s attack of his criminal conviction.” Id. at pp. 11-12.

•

“When Defendant Higgins refused to send the legal materials with Mr.
Cherry, Defendant Higgins became the cause in fact of the loss of Mr.
Cherry’s legal materials, thus, depriving Mr. Cherry of his right to
unobstructed and clear access to courts and denying Mr. Cherry his First
Amendment Rights guaranteed by the Constitution of the United States.” Id.
at p. 12.

•

“Mr. Cherry is unsure as to what happened to the other half of legal materials
which are still missing. Mr Cherry never received any of these missing
materials.” Id.

•

“Defendant Higgins first threatened Mr. Cherry that his legal materials would
not go with him to NFCF as was required by IDOC policy. Defendant
Higgins then carried out his threat as shown by the fact that the box of legal
materials was not sent with Mr. Cherry on the bus. When Defendant Higgins
refused to send the legal materials as required, he became the cause in fact
of the loss of Mr. Cherry’s legal documents and evidence. When Defendant
Higgins did finally send the missing legal documents, he deliberately
removed about 50% of Mr. Cherry’s legal materials and repackaged them in
a smaller box. Defendant Higgins caused or allowed the destruction of the
remaining 50% of the legal materials.” Id. at pp. 13-14.

MEMORANDUM DECISION AND ORDER/REPORT AND RECOMMENDATION - 7

In turn, Plaintiff transitions these factual allegations into his parallel “Claims for Relief”
against Defendant Higgins, alleging in part:
•

“For the deliberate, malicious actions that caused the permanent loss of onehalf of the legal documents in the original box inventoried and packaged by
Ms. Ashford and Mr. Cherry, and for the deprival of Mr. Cherry’s
unobstructed access to courts and for the violation of Mr. Cherry’s rights
guaranteed under the First Amendment of the United State Constitution, and
finally, for the placing of a permanent impedance to Mr. Cherry’s then active
and still on-going attack on his criminal conviction . . . .” Id. at p. 14.

•

“Defendant Higgins, as the ICI-O property officer at the time of his claim
and as the person most responsible, first threatened Mr. Cherry with the
deprival of his legal documents when Mr. Cherry was transferred to NFCF;
then carried out his threat against Mr. Cherry by not shipping the legal
materials with Mr. Cherry. But for these actions, Mr. Cherry would not have
been harmed by the permanent loss of his legal materials necessary in
attacking his criminal conviction.” Id.

•

“Defendant Higgins, when he finally did send the legal materials, did open
the previously packaged box of legal materials and did repackage the legal
materials. In the process, one-half of Mr. Cherry’s legal materials were lost
and/or destroyed. But for these actions, Mr. Cherry would not have suffered
the permanent loss of irreplaceable legal documents necessary in attacking
his criminal conviction and would not have a permanent impediment to his
access to courts in his criminal conviction.” Id. at pp. 14-15.

•

“Defendant Higgins, by first refusing to ship Mr. Cherry’s legal documents
with him to NFCF was the cause in fact of the permanent loss and/or
destruction of Mr. Cherry’s legal documents and the placing of a permanent
impediment to his attack on his criminal conviction and violating Mr.
Cherry’s First Amendment rights under the United States Constitution.” Id.
at p. 15.

Finally, within the “Relief Requested” section of his Complaint, Plaintiff prays for the
following:
•

“Compensating relief for the extreme mental anguish caused by the loss of
Mr. Cherry’s legal materials.” Id.

•

“Compensating relief for the extreme mental anguish caused by the loss of
his legal materials and the permanent impedance in Mr. Cherry’s attack on
his criminal case.” Id. at pp. 15-16.

MEMORANDUM DECISION AND ORDER/REPORT AND RECOMMENDATION - 8

•

“Compensating and punitive relief in an amount equitable for the time Mr.
Cherry has had to remain in prison due to having to litigate his case using
inference because of the loss of his legal materials.” Id. at p. 16.

•

“Punitive damages for the permanent loss of his legal documents.” Id.

•

“Punitive damages for the placement of a permanent hindrance to Mr.
Cherry’s successful attack on his criminal case.” Id.

•

“Such other further relief as deemed necessary and just by the jury or the
Court.” Id.

The undersigned’s review of the entirety of Plaintiff’s Amended Civil Rights Complaint
confirms what this Court and the Ninth Circuit has already understood – that Plaintiff is making
an access-to-courts claim against Defendant Higgins. With that backdrop in mind, Defendant
Higgins now moves for summary judgment, arguing that there is no evidence that Plaintiff
suffered the necessary “actual injury” as a result of his legal materials being lost. See Mem. in
Supp. of MSJ, p. 3 (Docket No. 71, Att. 1).4 For the purposes of the at-issue Motion for
Summary Judgment only, Defendant Higgins does not dispute that a portion of Plaintiff’s legal
materials were “misplaced” during his transfer to NFCF. See id.
II. REPORT/DISCUSSION
A.

Defendant Randy Higgins’ Motion for Summary Judgment (Docket No. 71)
1.

Legal Standards
a.

Summary Judgment

Summary judgment is appropriate where a party can show that, as to any claim or
defense, “there is no genuine dispute as to any material fact and the movant is entitled to

4

Other motions are pending before the Court as well. See supra. Because Defendant
Higgins’ Motion for Summary Judgment is potentially dispositive of the balance of Plaintiff’s
claims, it therefore drives the Court’s consideration of all at-issue motions.
MEMORANDUM DECISION AND ORDER/REPORT AND RECOMMENDATION - 9

judgment as a matter of law.” Fed. R. Civ. P. 56(a). One of the principal purposes of the
summary judgment “is to isolate and dispose of factually unsupported claims . . . .” Celotex
Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). It is “not a disfavored procedural shortcut,” but is
instead the “principal tool[ ] by which factually insufficient claims or defenses [can] be isolated
and prevented from going to trial with the attendant unwarranted consumption of public and
private resources.” Id. at 327. “[T]he mere existence of some alleged factual dispute between
the parties will not defeat an otherwise properly supported motion for summary judgment.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). There must be a genuine dispute
as to any material fact – a fact “that may affect the outcome of the case.” 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).
The evidence must be viewed in the light most favorable to the non-moving party, and
the Court must not make credibility findings. See id. at 255. Direct testimony of the nonmovant must be believed, however implausible. See Leslie v. Grupo ICA, 198 F.3d 1152, 1159
(9th Cir. 1999). On the other hand, the Court is not required to adopt unreasonable inferences
from circumstantial evidence. See McLaughlin v. Liu, 849 F.2d 1205, 1208 (9th Cir. 1988).
The moving party bears the initial burden of demonstrating the absence of a genuine
dispute as to material fact. See Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001). To
carry this burden, the moving party need not introduce any affirmative evidence (such as
affidavits or deposition excerpts) but may simply point out the absence of evidence to support
the nonmoving party’s case. See Fairbank v. Wunderman Cato Johnson, 212 F.3d 528, 532 (9th
Cir. 2000).
MEMORANDUM DECISION AND ORDER/REPORT AND RECOMMENDATION - 10

This shifts the burden to the non-moving party to produce evidence sufficient to support a
jury verdict in his favor. See Devereaux, 263 F.3d 1t 1076. The non-moving party must go
beyond the pleadings and show “by [his] affidavits, or by the depositions, answers to
interrogatories, or admissions on file” that a genuine dispute of material fact exists. See Celotex,
477 U.S. at 324.5 The existence of a scintilla of evidence in support of the non-moving party’s
position is insufficient; rather, “there must be evidence on which the jury could reasonably find
for the [non-moving party].” Anderson, 477 U.S. at 252.
Material used to support or dispute a fact must be capable of being “presented in a form
that would be admissible in evidence.” Fed. R. Civ. P. 56(c)(2). Affidavits or declarations
submitted in support of or in opposition to a motion “must be made on personal knowledge, set
out facts that would be admissible in evidence, and show that the affiant or declarant is
competent to testify on the matters stated.” Fed. R. Civ. P. 56(c)(4). If a party “fails to properly
support an assertion of fact or fails to properly address another party’s assertion of fact,” the

5

This reality highlights the difference between motions to dismiss and motions for
summary judgment. On a motion to dismiss, courts evaluate the sufficiency of the allegations
raised in a complaint. As such, “[t]he issue is not whether a plaintiff will ultimately prevail but
whether the claimant is entitled to offer evidence to support the claims.” Scheuer v. Rhodes, 416
U.S. 232, 236 (1974). This differs from a motion for summary judgment in which courts
examine the pleadings, depositions, answers to interrogatories, and admissions on file, together
with the affidavits, if any, to determine whether a genuine issue as to any material fact actually
exists. See Fed. R. Civ. P. 56(c). Thus, the “purpose of summary judgment is to ‘pierce the
pleadings and to assess the proof in order to see whether there is a genuine need for trial.’”
Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e) advisory committee’s note on 1963
amendments). Applied here, then, the fact that Plaintiff previously survived then-Defendants’
Motion to Dismiss is of no particular moment; Plaintiff must present evidence – beyond the facts
alleged in his Complaint – that create an issue of fact to overcome Defendant Higgins’ Motion
for Summary Judgment. See, e.g., Meredith v. Ada County Sheriff’s Dept., 2016 WL 1117401,
*4 (D. Idaho 2016) (reversing undersigned’s Report and Recommendation and granting
defendants’ motion for summary judgment, concluding that “Plaintiff has failed to come forward
with evidence beyond the allegations in the Complaint to meet his burden to show genuine issues
of material facts are in dispute.”)
MEMORANDUM DECISION AND ORDER/REPORT AND RECOMMENDATION - 11

Court may consider that fact to be undisputed. Fed. R. Civ. P. 56(e)(2). The Court may grant
summary judgment for the moving party “if the motion and supporting materials – including the
facts considered undisputed – show that the movant is entitled to it.” Fed. R. Civ. P. 56(e)(3).
Statements in a brief, unsupported by the record, cannot be used to create an issue of fact.
See Barnes v. Indep. Auto. Dealers, 64 F.3d 1389, 1396 n.3 (9th Cir. 1995). The Ninth Circuit
“ha[s] repeatedly held that documents which have not had a proper foundation laid to
authenticate them cannot support a motion for summary judgment.” Beyene v. Coleman Sec.
Servs., Inc., 854 F.2d 1179, 1182 (9th Cir. 1988) (citation and internal quotation marks omitted).
Authentication, required by Federal Rules of Evidence 901(a), is not satisfied simply by
attaching a document to an affidavit. See id. The affidavit must contain “testimony of a witness
with personal knowledge of the facts who attests to the identity and due execution of the
document.” Id.
However, the Court is “not required to comb through the record to find some reason to
deny a motion for summary judgment.” Carmen v. San Francisco Unified Sch. Dist., 237 F.3d
1026, 1029 (9th Cir. 2001) (quotation omitted). Instead, the “party opposing summary judgment
must direct [the Court’s] attention to specific triable facts.” Southern California Gas Co. v. City
of Santa Ana, 336 F.3d 885, 889 (9th Cir. 2003).
b.

Access-to-Courts Claims

Prisoners have a constitutional right to access the courts. See Bounds v. Smith, 430 U.S.
817, 817, 821, 828 (1977). The Ninth Circuit has recognized two types of access to court
claims: “those involving prisoners’ right to affirmative assistance and those involving prisoners’

MEMORANDUM DECISION AND ORDER/REPORT AND RECOMMENDATION - 12

rights to litigate without active interference.” Silva v. Di Vittorio, 658 F.3d 1090, 1102 (9th Cir.
2011) (emphasis in original).
The right to assistance requires prison officials to “assist inmates in the preparation and
filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate
assistance from persons trained in the law.” Bounds, 430 U.S. at 828. The right applies only to
the “pleading stage” – that is, “preparation of a complaint and the preparation of any filings
necessary ‘to rebut the State’s arguments when a court determines that a rebuttal would be of
assistance.’” Silva, 658 F.3d at 1102 n.9 (quoting Cornett v. Donovan, 51 F.3d 894, 899 (9th Cir.
1995), emphasis in original). In addition, the right to assistance is limited to the “tools prisoners
need ‘in order to attack their sentences, [either] directly or collaterally, and in order to challenge
the conditions of their confinement.’” Id. (quoting Lewis v. Casey, 518 U.S. 343, 355 (1996)).
Emanating from the First Amendment right to petition the Government and the
Fourteenth Amendment right to substantive due process, the right to litigate without active
interference (what Plaintiff is alleging here) is somewhat broader. See id. Although it does not
require prison officials to provide affirmative assistance, this right protects inmates’ ability to
“‘pursue legal redress for claims that have a reasonable basis in law or fact.’” Id. (quoting Snyder
v. Nolen, 380 F.3d 279 (7th Cir. 2004)). The right affords prisoners “‘the opportunity to prepare,
serve, and file whatever pleadings or other documents are necessary or appropriate in order to
commence or prosecute court proceedings affecting one’s personal liability, or to assert and
sustain a defense therein, and to send and receive communications to and from judges, courts and
lawyers concerning such matters.’” Id. at 1103 (quoting Hatfield v. Bailleaux, 290 F.2d 632, 637
(9th Cir. 1961)). The right to undue interference thus extends beyond the pleading stage. See id.

MEMORANDUM DECISION AND ORDER/REPORT AND RECOMMENDATION - 13

Importantly, in both assistance and interference cases, a viable access-to-courts claim
requires a showing of “actual injury” as a result of defendants’ actions. See Lewis, 518 U.S. at
349. “Actual injury . . . is ‘actual prejudice with respect to contemplated or existing litigation,
such as the inability to meet a filing deadline or to present a claim.’” Nev. Dep’t of Corr. v.
Greene, 648 F.3d 1014, 1018 (9th Cir. 2011) (quoting Lewis, 518 U.S. at 348). It exists if the
alleged denial of access “hindered [the plaintiff’s] efforts to pursue a legal claim,” such as
having his complaint dismissed “for failure to satisfy some technical requirement,” or if he
“suffered arguably actionable harm that he wished to bring before the courts, but was so stymied
by [the defendant’s actions] that he was unable even to file a complaint.” Id. at 351. In other
words, a plaintiff must “demonstrate that a nonfrivolous legal claim has been frustrated or was
being impeded” – it is not sufficient to simply allege a lack of assistance or active interference
claim. Id. at 353; see also Christopher v. Harbury, 536 U.S. 403, 415 (2002) (“However
unsettled the basis of the constitutional right of access to courts, our cases rest on the recognition
that the right is ancillary to the underlying claim, without which a plaintiff cannot have suffered
injury by being shut out of court. . . . . [T]he named plaintiff must identify a ‘nonfrivolous,’
‘arguable’ underlying claim . . . .”) (quoting Lewis, 518 U.S. at 353, and n.3)).
Even so, the right of access to the courts is limited and applies only to direct appeals from
convictions for which the inmates are incarcerated, habeas petitions, and civil rights actions
regarding prison conditions. See id. at 354 (“Bounds does not guarantee inmates the wherewithal
to transform themselves into litigating engines capable of filing everything from shareholder
derivative actions to slip-and-fall claims. The tools it requires to be provided are those that the

MEMORANDUM DECISION AND ORDER/REPORT AND RECOMMENDATION - 14

inmates need in order to attack their sentences, directly or collaterally, and in order to challenge
the conditions of their confinement. Impairment of any other litigating capacity is simply one of
the incidental (and perfectly constitutional) consequences of conviction and incarceration.”).
2.

Plaintiff Provides No Evidence that He Suffered an Actual Injury, Owing to
Defendant Higgins’ Alleged Actions

Preliminarily, the question of whether Plaintiff’s legal materials were lost, misplaced, or
somehow destroyed is not before the Court – to be sure, for the purposes of his Motion for
Summary Judgment only, Defendant Higgins concedes that this is the case (otherwise issues of
material fact surrounding that question would almost certainly preclude the entry of summary
judgment). Instead, the question becomes whether Plaintiff suffered the required “actual injury”
in connection with such an event. Throughout his Amended Civil Rights Complaint, Plaintiff
claims this to be the case, repeatedly commenting that the loss of his legal materials impacted his
ability to litigate an “active” case as of July 2008 and “ongoing” as of July 2015. See supra
(quoting Am. Civ. Rights Compl., pp. 2-4, 14 (Docket No. 59)). Although Plaintiff’s Amended
Civil Rights Complaint does not identify the particular “active” and “ongoing” cases allegedly
impacted by the loss of his legal materials, he later noted two actions that were adversely
affected via an interrogatory response: (1) a federal habeas case in this District (Case No. 3:05cv-00413-LMB), and (2) his underlying criminal case in Idaho state court, Kootenai County
(Case No. CR-FE-1996-003624). See Interrog. Resp., attached as Ex. A to Magnelli Aff.
(Docket No. 71, Att. 4); see also Interrog. Resp., attached as Ex. B to Magnelli Aff. (Docket No.
71, Att. 4) (“The Plaintiff believes that the loss of the documents . . . placed an impedance of one
sort or another to the Plaintiff’s ability to fully present his arguments in a complete manner fully

MEMORANDUM DECISION AND ORDER/REPORT AND RECOMMENDATION - 15

supported by facts and evidence.”). However, for the reasons that follow, neither case represents
the vehicle by which Plaintiff is able to sustain an access-to-courts claim.
a.

United States District Court for the District of Idaho
Case No. 3:05-cv-00413-LMB

On October 6, 2005, Plaintiff filed a Petition for Writ of Habeas Corpus. See Docket for
Case No. 3:05-cv-00413-LMB, Docket No. 3, attached as Ex. C to Magnelli Aff. (Docket No.
71, Att. 4). On October 15, 2007, Plaintiff submitted an Amended Petition for Writ of Habeas
Corpus. See id. at Docket No. 15. The case was initially stayed to allow Plaintiff the time to
exhaust his state court remedies and was re-opened on November 13, 2007. See id. at Docket
No. 17. The progression of the case thereafter indicates that Plaintiff cannot establish a link
between the action’s ultimate termination on September 24, 2010 and any alleged impediment to
his access to the courts by virtue of any misplaced legal materials. See Hathaway v. Cote, 622
Fed. Appx. 701, 702 (9th Cir. 2015) (“Where the adverse decision in the case underlying an
access-to-courts claim would have necessarily occurred anyway, and no other adverse impact
(such as difficulty preserving the claim for appeal) can be shown, no such link can be
established.”). For example:
•

On February 11, 2008, the State filed a Motion for Partial Summary
Dismissal, with Plaintiff filing a response on April 11, 2008. See id. at
Docket Nos. 21 & 26. On September 9, 2008, Judge Boyle issued an order
dismissing the Petition in part, based on Plaintiff’s failure to exhaust his state
court remedies as he failed to raise these dismissed claims in state court. See
generally 9/9/08 MDO, pp. 10-12, attached as Ex. E to Magnelli Aff. (Docket
No. 71, Att. 5) (“Aside from the five claims that are not subject to
Respondent’s Motion for Partial Summary Dismissal, none of Petitioner’s
other claims in his timely original Petition that were reiterated in the
Amended Petition were fairly presented to the Idaho Supreme Court.

MEMORANDUM DECISION AND ORDER/REPORT AND RECOMMENDATION - 16

Because it is too late to return to state court and exhaust these claims
properly, they are now procedurally defaulted.”). In short, all substantive
filings by Plaintiff in response to the State’s Motion for Partial Summary
Dismissal were made prior to July 21, 2008, when he boxed up his legal
materials ahead of his transport to Oklahoma.
•

On November 19, 2008, Plaintiff filed a Request for Leave to File an
Amended Petition for Writ of Habeas Corpus and Request to Stay
Proceedings. See Request for Leave to File Am. Pet., attached as Ex. F to
Magnelli Aff. (Docket No. 71, Att. 5). In support of this Request, Plaintiff
alleged that he “ha[d] discovered additional issues that deserve[d] review by
the Court including a claim of actual innocence,” while also alleging
unspecified “government misconduct” and a “conspiracy.” Id. at pp. 1-2.
Judge Boyle denied the Request on June 26, 2009, pointing out again that
Plaintiff failed to exhaust his state court remedies:
Even if Petitioner’s proffered claim of innocence could
provide a basis for habeas relief, the Court nevertheless
concludes that both that claim and Petitioner’s undefined
allegation of governmental misconduct are procedurally
defaulted in this proceeding. Before raising a claim in federal
court, a habeas petitioner must have properly exhausted his
state court remedies by raising the same federal claim in the
highest state court in a procedurally proper manner under
state law. Here, Petitioner has not presented his proposed
claims in the Idaho state courts in a procedurally proper
manner, and any attempt to do so now would now be
dismissed as untimely. When it is too late to return to state
court to raise a claim, it is considered to be procedurally
defaulted. Therefore, it would be futile for the Court to allow
an amendment that must be dismissed as procedurally barred.
6/26/09 MDO, pp. 6-7, attached as Ex. G to Magnelli Aff. (Docket No. 71,
Att. 5) (internal citations omitted). Judge Boyle alternatively found that
Plaintiff’s proposed claims were “without any factual or evidentiary support”
and “plainly lacking in merit” in any event, noting the “very high” burden for
proving a claim of actual innocence. See id. at p. 7 (“The burden for proving
a claim of actual innocence is very high; assuming that such a claim could
provide a freestanding basis for relief, [Plaintiff] would be required to ‘go
beyond demonstrating doubt about his guilt, and must affirmatively prove
that he is probably innocent.’”) (quoting Carriger v. Stewart, 132 F. 3d 463,

MEMORANDUM DECISION AND ORDER/REPORT AND RECOMMENDATION - 17

476 (9th Cir. 1997)). According to Judge Boyle, Plaintiff’s inconsistent,
“unsupported and conclusory statements made many years after the events
took place,” failed to meet the applicable standards. Id. at p. 8 (emphasis in
original).6
•

On August 3, 2009, Plaintiff filed a Motion for Injunctive Order, discussing
the July 2008 confiscation of his legal materials. See Mot. for Inj. Order,
attached as Ex. H to Magnelli Aff. (Docket No. 71, Att. 6). Therein, Plaintiff
asked this Court “to issue state wide to the Idaho Department of Corrections
an ‘Injunction Order,” a “Restraining Order” or the proper term this Court
sees needed, and “Order” the IDOC to return all confiscated, missing legal
documents to [Plaintiff].” Id. at p. 8. On October 6, 2009, Judge Boyle
denied Plaintiff’s Motion without prejudice, with the following caveat:
“However, if it becomes apparent that [the State] or [its] agents are not
following IDOC policy regarding retention and access to legal material, and
[Plaintiff] can show that a lack of access has harmed his ability to fairly
litigate this case, the Court may reconsider the request at that time.” 10/6/09
Order, p. 1, attached as Ex. I to Magnelli Aff. (Docket No. 71, Att. 6).
Plaintiff never asked the Court to reconsider his request. See Mem. in Supp.
of MSJ, p. 10 (Docket No. 71, Att. 1).

•

On September 1, 2009, the State filed a Motion for Summary Judgment,
requesting the dismissal of Plaintiff’s Amended Petition for Writ of Habeas
Corpus; Plaintiff responded to the Motion on March 1, 2010. See Docket for
Case No. 3:05-cv-00413-LMB, Docket Nos. 68 & 92, attached as Ex. C to
Magnelli Aff. (Docket No. 71, Att. 4). Judge Boyle granted the Motion on
September 24, 2010, dismissed the five remaining claims, and thus denied
Plaintiff’s Amended Petition for Writ of Habeas Corpus. See 9/24/10 MDO,
attached as Ex. J to Magnelli Aff. (Docket No. 71, Att. 6). More specifically:
•

The Court dismissed two of Plaintiff’s claims – conflict of interest
and evidence of prior bad acts – on procedural grounds, noting that,
as to both, Plaintiff failed to exhaust his state court remedies. See id.
at pp. 7-10.

6

The point here is that, even if Plaintiff had his now-misplaced legal materials when
making his November 19, 2008 Request (identified by him as notes and letters from various
individuals providing their analyses of the case, Plaintiff’s legal representation during trial, his
conditions of confinement while in jail, and statements about trial strategy (see Interrog. Resp.,
attached as Ex. B to Magnelli Aff. (Docket No. 71, Att. 4))), Judge Boyle’s rationale in denying
the Request would still apply.
MEMORANDUM DECISION AND ORDER/REPORT AND RECOMMENDATION - 18

•

The Court dismissed the remaining three claims – admissibility of
incriminating statements, delay in the direct appeal, and ineffective
assistance of counsel – on the merits as follows:
•

As to Plaintiff’s claim concerning the admissibility of
incriminating statements, the Court determined that “[t]he
state court’s legal conclusion about the use of incriminating
statements is a straightforward application of clearly
established federal law, and [Plaintiff] has not shown
otherwise” or that “the state court’s decision that his
statements were voluntary was based on an unreasonable
determination of the facts in light of the evidence presented
in state court.” Id. at p. 9.

•

As to Plaintiff’s claim that his due process rights were
violated by the court reporter’s delay in preparing a transcript
of the trial (thereby holding up the direct appeal for over four
years), the Court found that Plaintiff failed to establish any
prejudice as a result of the delay. See id. at pp. 10-13 (“He
failed to establish in state court that an appellate issue was
lost or impaired because of the delay, and, because his
convictions were affirmed, he could not demonstrate that an
unjustified incarceration was needlessly prolonged while he
awaited appellate review or that the delay impacted his ability
to defend himself at a retrial.”).

•

As to Plaintiff’s ineffective assistance of counsel claim, the
Court held that “[Plaintiff’s] mere dissatisfaction with the
amount of time that his counsel spent with him before trial
does not establish a constitutional violation” or that “there
would be a reasonable probability of a different outcome had
his counsel met with him more frequently and discussed the
evidence more thoroughly.” Id. at p. 15. Moreover, the
Court determined that “the decision of which witnesses to call
at trial . . . implicates counsel’s strategic considerations that
will not be second-guessed unless the strategy is objectively
unreasonable.” Id. (“[Plaintiff] has named some of the
witnesses he believes that counsel should have subpoenaed,
but he has not provided the substance of their anticipated
testimonies, let alone shown how the evidence would have
potentially made a difference in his trial. As a result, the state
court’s resolution of these claims was not contrary to or an
unreasonable application of clearly established federal law, or
based on an unreasonable determination of the facts in light
of the evidence presented.”).

MEMORANDUM DECISION AND ORDER/REPORT AND RECOMMENDATION - 19

•

•

The Court did not issue a Certificate of Appealability because (1)
“reasonable jurists would not debate [the Court’s determination] that
several of Plaintiff’s claims are procedurally defaulted and must be
dismissed on those grounds”; and (2) “the denial of relief on the
merits of [Plaintiff’s] claims that his incriminating statements were
involuntary, that the delay on appeal violated his right to due process,
and that he was deprived of the effective assistance of counsel are not
reasonably debatable.” Id. at p. 16.

On November 30, 2010, Plaintiff filed a Notice of Appeal pursuant to Rule
22 of the Federal Rules of Appellate Procedure and Local Ninth Circuit Rule
22-1. See Docket for Case No. 3:05-cv-00413-LMB, Docket No. 112,
attached as Ex. C to Magnelli Aff. (Docket No. 71, Att. 4). On September
21, 2011, the Ninth Circuit denied Plaintiff’s certificate of appealability. See
9/21/11 Order, attached as Ex. K to Magnelli Aff. (Docket No. 71, Att. 6).

In short, given the requirement that Plaintiff establish either that federal law was applied
incorrectly, or that the state court’s decision was unreasonable based on the evidence presented,
Plaintiff cannot establish a link between the dismissal of his federal habeas petition and any
perceived impediment to his access to courts. See Hathaway, 622 Fed. Appx. at 702-03 (“As the
deprivation of Hathaway’s legal papers did not cause his claim to be lost, rejected, or impeded,
Hathaway suffered no actual injury.”) (internal citations omitted).
b.

Idaho State Court, Kootenai County
Case No. CR-FE-1996-03624

Following the remittitur from the appellate court on February 6, 2004, Defendant Higgins
claims that Plaintiff (Defendant in the state court action) did not file any motions in his state
court case until March 2013. See Mem. in Supp. of MSJ, p. 6 (Docket No. 71, Att. 1) (citing
Register of Actions in Kootenai County for Case No. CR-FE-1996-03624, attached as Ex. L to

MEMORANDUM DECISION AND ORDER/REPORT AND RECOMMENDATION - 20

Magnelli Aff. (Docket No. 71, Att. 7).7 Indeed, on March 5, 2013, Plaintiff filed a multitude of
motions, including a Motion for New Trial; and, on March 27, 2013, a Motion to Vacate
Conviction and Sentence. See Mots. for New Trial and Mot. to Vacate Convict. and Sent.,
attached as Exs. M & O to Magnelli Aff. (Docket No. 71, Atts. 7 & 8).
In his Motion for New Trial, Plaintiff admitted that his filing “f[ell] outside of the
normally accepted standards for timeliness,” but believed that “extenuating circumstances”
existed to “render the time limits impertinent, inappropriate, and moot” – namely, that, despite
his many requests for discovery materials (so that he could participate in his own defense), no
such materials were ever delivered to him until April 4, 2004 (“about eight years following his
conviction and sentencing”). Mot. for New Trial, p. 2, attached as Ex. M to Magnelli Aff.
(Docket No. 71, Att. 7). Plaintiff then proceeded to argue that he was “not guilty of murder in
the first degree” and that his Motion for New Trial was not frivolous when considering the
newly-discovered evidence of errors at trial. Id. at p. 5.8 However, ten days after filing his
Motion for New Trial, District Judge John T. Mitchell denied Plaintiff’s request as untimely,
stating:

7

From the Court’s own review of the Register, it would seem as though Plaintiff
(Defendant in the state court action) filed (1) a “Brief in Support of Petition for Special Writ
Seeking Appointment for Counsel” on or around March 29, 2004, and (2) a “Motion for Free
Docket Sheet” on December 12, 2012. See Register of Actions in Kootenai County for Case No.
CR-FE-1996-03624, attached as Ex. L to Magnelli Aff. (Docket No. 71, Att. 7). Any
discrepancy in these respects is immaterial to the arguments raised within Defendant Higgins’
Motion for Summary Judgment.
8

Plaintiff neither contended that Defendant Higgins’ alleged misplacement of his legal
materials in July 2008 contributed to the untimeliness of his March 2013 Motion for New Trial,
nor provided a basis for a new trial. See generally Mot. for New Trial, attached as Ex. M to
Magnelli Aff. (Docket No. 71, Att. 7).
MEMORANDUM DECISION AND ORDER/REPORT AND RECOMMENDATION - 21

Cherry’s Motion for New Trial, filed March 5, 2013 is untimely. Under I.C.R. 34,
Cherry had fourteen days from the verdict, finding of guilt or imposition of sentence.
The latest of these dates would be the date of sentencing. According to Cherry, he
was sentenced on December 16, 1997. Thus, Cherry is fifteen years and three and
one half months too late. The Court is without jurisdiction to grant Cherry the relief
requested. Even if Cherry’s motion for new trial were based on newly discovered
evidence, the motion must be filed within two years of judgment. In that case,
Cherry is thirteen years and four months too late. Again, the Court lacks jurisdiction
to hear Cherry’s motion for new trial.
3/15/13 Order, attached as Ex. N to Magnelli Aff. (Docket No. 71, Att. 8) (internal citations
omitted).
In his Motion to Vacate Conviction and Sentence, Plaintiff alleged that “the record before
the Court before his trial, clearly reflected the material fact that [he] was lawfully incompetent to
stand trial at the time he was subjected to both trial and conviction in violation(s) of his
constitutional rights and clearly established law(s).” Mot. to Vacate Convict. and Sent., p. 4,
attached as Ex. O to Magnelli Aff. (Docket No. 71, Att. 8) (internal quotation marks omitted).9
However, one day after filing his Motion to Vacate Conviction and Sentence, Judge Mitchell
similarly denied Plaintiff’s request as untimely, stating:
Cherry’s Motion to Vacate Conviction and Sentence . . . claims Cherry has the right
to a new trial under I.C. § 19-2406. Implicit in Cherry’s argument is the claim that
the statute somehow trumps the timelines imposed by I.C.R. 34. This Court is not
impressed with such implicit argument. Idaho Code § 19-2406 sets forth the grounds
for a new trial, but that statute does nothing to address the process in which a motion
for a new trial occurs. Idaho Criminal Rule 34 sets forth the procedural mechanism
for bringing a motion for a new trial. Cherry’s citing I.C. § 19-2406 does not provide
him with any ability to make an “end run” around the time requirements of I.C.R. 34.
As pointed out in this Court’s Memorandum Decision and Order Denying
Defendant’s Motion for New Trial and Motion to Disqualify, p. 2, Cherry’s Motion

9

Again, Plaintiff neither contended that Defendant Higgins’ alleged misplacement of his
legal materials in July 2008 contributed to the untimeliness of his March 2013 Motion to Vacate
Conviction and Sentence, nor provided a basis for altering said conviction and/or sentence. See
generally Mot. to Vacate Convict. and Sent., attached as Ex. O to Magnelli Aff. (Docket No. 71,
Att. 8).
MEMORANDUM DECISION AND ORDER/REPORT AND RECOMMENDATION - 22

for New Trial, filed March 5, 2013, is untimely. Under I.C.R. 34, Cherry had
fourteen days from the verdict, finding of guilt or imposition of sentence. The latest
of these dates would be the date of sentencing. According to Cherry, he was
sentenced on December 16, 1997. Thus, Cherry is fifteen years and three and one
half months too late. The Court is without jurisdiction to grant Cherry the relief
requested. Even if Cherry’s motion for new trial were based on newly discovered
evidence, the motion must be filed within two years of judgment. In that case,
Cherry is thirteen years and four months too late. Again, the Court lacks jurisdiction
to hear Cherry’s motion for new trial.
For those same reasons, this Court lacks jurisdiction to consider [Cherry’s] Motion
to Vacate Conviction and Sentence . . . .
3/28/13 Order, attached as Ex. P to Magnelli Aff. (Docket No. 71, Att. 8) (internal citations
omitted, emphasis in original).10, 11
Then, on May 29, 2015, Plaintiff filed another collection of motions, including a Motion
to Correct an Illegal Sentence, claiming again that he was incompetent during the time of his
trial. See Mem. in Supp. of Mot. to Correct an Illegal Sent., p. 2, attached as Ex. T to Magnelli
Aff. (Docket No. 71, Att. 9) (“Mr. Cherry now asserts that his sentence was and is illegal due to
the fact that there appeared on the face of the court record that Mr. Cherry was not able to assist
in his own defense; thus rendering him incompetent and therefore unable to be sentenced or

10

Plaintiff apparently appealed this decision, but it was dismissed by the Idaho Supreme
Court on October 29, 2013 for failing to comply with appellate rules. See 10/29/13 Order,
attached as Ex. Q to Magnelli Aff. (Docket No. 71, Att. 8).
11

Plaintiff filed a follow-up Motion to Vacate Conviction and Sentence on April 16,
2013, based on claims of ineffective assistance of counsel and incompetency. See Mot. to
Vacate Convict. and Sent., attached as Ex. R to Magnelli Aff. (Docket No. 71, Att. 8). Again,
Plaintiff never alleges or raises the loss of his legal materials as a basis for this latest Motion.
See generally id. It does not appear that the state court ever issued an order regarding this
Motion as evidenced by Plaintiff’s May 30, 2013 correspondence. See 5/30/13 Ltr., attached as
Ex. S to Magnelli Aff. (Docket No. 71, Att. 8). Still, the undersigned agrees with Defendant
Higgins that the claims raised therein are claims Plaintiff has unsuccessfully raised or tried to
raise continuously since his conviction. See Mem. in Supp. of MSJ, p. 8 (Docket No. 71, Att. 1).
MEMORANDUM DECISION AND ORDER/REPORT AND RECOMMENDATION - 23

punished . . . .”).12 On June 10, 2015, Judge Mitchell denied the Motion, finding that it was not
apparent on the record (affidavits from Plaintiff himself and another inmate) that Plaintiff was
incompetent at the time of sentencing, keeping in mind that such motions are limited to
correcting “a sentence that is illegal from the face of the record . . . . ” 6/10/15 Order, p. 4,
attached as Ex. U to Magnelli Aff. (Docket No. 71, Att. 9) (citing Idaho Crim. R. 35(a)).
According to Judge Mitchell:
If Cherry claims his life sentence was illegal ‘from the face of the record,’ then why
would Cherry submit affidavits? Idaho Criminal Rule 35(a) allows correction when
it is a matter of law, or when the facts are not in dispute from the face of the record.
An example is when a judge imposes a sentence which exceeds the statutory
maximum for a given crime to which a defendant has plead guilty or has been bound
guilty by a jury. Cherry’s fixed life sentence is within the statutory maximum for the
felony crime of first degree murder. For this Court to have the ability “at any time”
to correct Cherry’s alleged illegal sentence, that illegality must be “apparent from the
face of the record.” . . . .
In Cherry’s present motion, the factual issue of Cherry’s lack of competency at the
time of trial must be “apparent from the face of the record,” and it is not. Thus,
Cherry’s I.C.R. 35 Motion is denied.
Id. at pp. 5, 7 (internal citations omitted). Plaintiff appealed the court’s decision, which was
dismissed by the Idaho Court of Appeals on November 18, 2015 because he failed to pay the fee
for the clerk’s record. See 11/18/15 Order, attached as Ex. V to Magnelli Aff. (Docket No. 71,
Att. 9).
These circumstances, drawn from Plaintiff’s underlying criminal case in Idaho state
court, establish that Plaintiff’s efforts to secure a new trial and/or vacate/correct his
conviction/sentence were properly dismissed on procedural grounds and/or because the record of
the case did not warrant a different result. As a result, Plaintiff has not and cannot establish that

12

Again, Plaintiff neither contended that Defendant Higgins’ alleged misplacement of
his legal materials in 2008 provided a basis for correcting any sentence. See generally Mot. to
Correct an Illegal Sent., attached as Ex. T to Magnelli Aff. (Docket No. 71, Att. 9).
MEMORANDUM DECISION AND ORDER/REPORT AND RECOMMENDATION - 24

he suffered an actual injury in his state court action as a result of his legal materials being
misplaced in July 2008.13
c.

Future Legal Proceedings

In discovery responses, Plaintiff discusses in general and, at times, confusing terms how
his misplaced legal materials could impact future filings of his. See, e.g., Interrog. Resp.,
attached as Ex. B to Magnelli Aff. (Docket No. 71, Att. 4). For example, he talks of future
ineffective assistance of counsel claims, possible prison condition claims, and that he still “has
not exhausted his remedies in his criminal case” – hand-in-hand with his since-dismissed state
and federal claims. See id. at pp. 14-19.
Notwithstanding the fact that such forward-looking proceedings resemble cases that he
has already unsuccessfully raised, “the loss of evidence that might support a future civil rights

13

Although not identified by Plaintiff in his Amended Civil Right Complaint or
discovery responses in this action, Defendant Higgins points out that Plaintiff has also filed (1)
two motions for post-conviction relief in Idaho state court, Kootenai County (Case No. CV2004-8445), and (2) a § 1983 claim (Case No. 3:10-cv-00424-BLW) on August 23, 2010 in this
Court, based upon his arrest, trial, and conviction. See Mem. in Supp. of MSJ, pp. 11-12
(Docket No. 71, Att. 1). But, according to the Register of Plaintiff’s above-mentioned postconviction relief case, those motions were denied in 2005 and 2007 – prior to his legal materials
being misplaced in July 2008. See Register of Actions in Kootenai County for Case No. CV2004-8445, attached as Ex. W to Magnelli Aff. (Docket No. 71, Att. 9). Additionally, U.S.
District Judge B. Lynn Winmill dismissed Plaintiff’s above-mentioned § 1983 claim on April 10,
2011, concluding that (1) Plaintiff cannot proceed on any of his claims calling into question the
validity of his conviction or sentence under Heck v. Humphrey (convictions or sentences had not
been overturned); (2) Plaintiff’s claims are untimely; and (3) Plaintiff’s claims against the deputy
attorneys general were barred by absolute prosecutorial immunity. See generally 4/10/11 Order,
attached as Ex. Y to Magnelli Aff. (Docket No. 71, Att. 9). Judge Winmill also instructed
Plaintiff not to file any future civil rights actions arising from his arrest or conviction unless his
conviction has been reversed on direct appeal, expunged by executive order, declared invalid by
a state tribunal authorized to make such a determination, or called into question by a federal
court’s issuance of a writ of habeas corpus under 28 U.S.C. § 2254. See id. at p. 4. In any event,
while Plaintiff’s § 1983 claim arose after his legal materials went missing in July 2008, there is
no indication that it was dismissed due to such an event.
MEMORANDUM DECISION AND ORDER/REPORT AND RECOMMENDATION - 25

action is much too speculative to support an access to courts claim.” Carr v. Carlyn, 2014 WL
295236, *9 (D. Idaho 2014). “The actual injury requirement cannot be satisfied by an allegation
that a qualified legal action would have been easier to prosecute if not for a defendant’s actions.”
Id. But Plaintiff will have to overcome the same legal barriers he has already faced (timeliness,
scope of review, and exhaustion of remedies) and he has not provided any information to support
a finding that the missing materials could provide him with a means to overcome these barriers.
Regardless, Plaintiff’s allegations simply do not show that he was “so stymied [by Defendant
Higgins’ actions] that he was [(or will be)] unable to even file a complaint.” Lewis, 518 U.S. at
351.14
For the foregoing reasons, the undersigned finds that there is no genuine dispute as to any
material fact in this case, and that Defendant Higgins is entitled to judgment as a matter of law.
It is therefore recommended that Defendant Higgins’ Motion for Summary Judgment (Docket
No. 71) be granted.
B.

Plaintiff’s Motion to Show Cause (Docket No. 65)
Plaintiff moves this Court to issue an order to show cause why certain expert witnesses

should not be appointed – in particular, (1) a “non-biased criminal trial attorney, to explain to the
jury the significance and importance of even a single piece of evidence at trial or at any level of
litigation”; and (2) an “experienced Idaho Department of Correction training officer.” Mot. to
Show Cause, pp. 1-2 (Docket No. 65).

14

In this respect, it should be mentioned that Plaintiff had five cases pending in this
District as of the date of Defendant Higgins’ Motion for Summary Judgment – two of which
were filed on January 4, 2016. See Magnelli Aff., ¶ 8 (Docket No. 71, Att. 3).
MEMORANDUM DECISION AND ORDER/REPORT AND RECOMMENDATION - 26

Unlike criminal defendants, prisoners and indigents in civil actions have no constitutional
right to counsel unless their physical liberty is at stake. See Lassiter v. Dep’t of Soc. Servs., 452
U.S. 18, 25 (1981). Whether to appoint counsel for indigent litigants is within the Court’s
discretion. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986).
In civil cases, counsel should be appointed only in “exceptional circumstances.” Id. To
determine whether exceptional circumstances exist, the Court should evaluate two factors: (1)
the likelihood of success on the merits of the case, and (2) the ability of the plaintiff to articulate
his claims pro se in light of the complexity of legal issues involved. See Terrell v. Brewer,
935F.2d 1015, 1017 (9th Cir. 1990). Neither factor is dispositive, and both must be evaluated
together. See id.
Applying the factors to this case, the undersigned finds that there is no likelihood of
success on the merits as reflected in the recommendation that Defendant Higgins’ Motion for
Summary Judgment be granted. Therefore there is no basis for the Court to grant Plaintiff’s
Motion to Show Cause for the purposes of appointing either legal counsel or expert witness
familiar with Idaho Department of Correction training protocol. Plaintiff’s Motion to Show
Cause (Docket No. 65) is denied.
C.

Plaintiff’s Motion to Appoint Counsel (Docket No. 65)
Plaintiff claims that, given this action’s complexity, coupled with his inability “to

perform other tasks that normally attend litigation,” counsel should be appointed. See Mot. to
Appoint Counsel, pp. 1-2 (Docket No. 65). For the same reasons applied to Plaintiff’s Motion to
Show Cause (filed the same day), there is no basis to appoint legal counsel. Plaintiff’s Motion to
Appoint Counsel (Docket No. 65) is denied.
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D.

Plaintiff’s Motion for Permission to Depose Witnesses (Docket No. 67)
Plaintiff seeks permission to depose six individuals familiar with the circumstances

surrounding Defendant Higgins’ alleged misplacement of his legal materials. See generally Mot.
for Perm. to Depose Witnesses (Docket No. 67). However, for the purposes of Defendant
Higgins’ Motion for Summary Judgment, this fact was already assumed. See supra. And, even
with that fact assumed, Plaintiff could not establish an actual injury based upon the
misplacement of those legal materials. See id. Therefore, there is no basis for the Court to allow
Plaintiff the opportunity to depose the identified individuals. Plaintiff’s Motion for Permission
to Depose Witnesses (Docket No. 67) is denied.
E.

Plaintiff’s Motion for Permission to Reply (Docket No. 68)
Plaintiff requests permission to “reply to the Defendant’s Answer to Amended Civil

Rights Complaint.” Mot. for Perm. to Reply, p. 1 (Docket No. 68). There is no legal basis for
such a request. Just as Plaintiff is permitted to submit a pleading in the form of his Amended
Civil Rights Complaint, Defendant Higgins is permitted to submit his own responsive pleading –
in this case his Answer to Plaintiff’s Amended Civil Rights Complaint. Under applicable
procedural rules, the sufficiency of the allegations contained in either pleading is tested through
discovery and directed motion practice, not an endless volley of each party’s responses to the
other’s allegations. Plaintiff’s Motion for Permission to Reply (Docket No. 68) is denied.
F.

Plaintiff’s Motion to Determine the Sufficiency of Answers Given by Defendant
(Docket No. 69)
Plaintiff moves this Court “to determine the sufficiency” of Defendant Higgins’ Answer

to Plaintiff’s Amended Civil Rights Complaint, arguing:
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1.

The Plaintiff believes the Answer to be evasive and insufficient;

2.

The Defendant waived his Answer in several paragraphs and thus caused the
Answer to be incomplete and insufficient; and

3.

The Plaintiff believes that the Defendant failed to Answer the Complaint
because of the insufficiency of his Answer.

Mot. to Determine Sufficiency of Answers, pp. 1-2 (Docket No. 69). Plaintiff provides no
details about the specific sections of Defendant Higgins’ Answer by which the Court could
consider Plaintiff’s argument – assuming there was even a basis for determining the sufficiency
of said sections. Without such detail, the Court is unable to act upon Plaintiff’s request.
Plaintiff’s Motion to Determine the Sufficiency of Answers Given by Defendant (Docket No.
69) is denied.
G.

Plaintiff’s Verified Motion to Correct the Record (Docket No. 75).
Plaintiff attempts the clarify the record concerning the correct dates leading up to his

transport to NFCF in Oklahoma. See Mot. to Correct the Record, p. 2 (Docket No. 75) (“The
Roll Ups were actually done on the 23rd of July, 2008, instead of on the 21st of July, 2008. And
the transport to ISCI - Boise was done on the 24th of July, 2008.”). These changes are noted and
Plaintiff’s Verified Motion to Correct the Record (Docket No. 75) is granted. However, such
facts are not “material” facts that would otherwise affect the undersigned’s recommendation on
Defendant Higgins’ Motion for Summary Judgment. See supra (defining material fact as fact
“that may affect the outcome of the case”).
H.

Plaintiff’s Motion for Permission to File Expanded Response (Docket No. 78).
Plaintiff requests that he be allowed to file an overlength brief in response to Higgins’

Motion for Summary Judgment. Ordinarily, given the scope of the claims presented within
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Plaintiff’s Amended Civil Rights Complaint, such a request would be reasonable (even when
keeping in mind Defendant Higgins’ compliance with the page requirements of his underlying
briefing). Having said this, Plaintiff’s 67-page response (not including exhibits) is excessive
and, at times, creates more confusion than it resolves. Regardless, to complete a full record of
the issue, the undersigned exercises his discretion and allows the overlength brief. Plaintiff’s
Motion for Permission to File Expanded Response (Docket No. 78) is granted.
III. RECOMMENDATION/ORDER
Based on the foregoing, IT IS HEREBY RECOMMENDED THAT Defendant Randy
Higgins’ Motion for Summary Judgment (Docket No. 71) be GRANTED.
Pursuant to Local Civil Rule 72.1(b)(2), a party objecting to a Magistrate Judge’s
recommended disposition “must serve and file specific, written objections, not to exceed twenty
pages . . . within fourteen (14) days. . ., unless the magistrate or district judge sets a different
time period.” Additionally, the other party “may serve and file a response, not to exceed ten
pages, to another party’s objections within fourteen (14) days after being served with a copy
thereof.”
IT IS FURTHER HEREBY ORDERED THAT:
1.

Plaintiff’s Motion to Show Cause (Docket No. 65) is DENIED;

2.

Plaintiff’s Motion to Appoint Counsel (Docket No. 66) is DENIED;

3.

Plaintiff’s Motion for Permission to Depose Witnesses (Docket No. 67) is

DENIED;
4.

Plaintiff’s Motion for Permission to Reply (Docket No. 68) is DENIED;

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5.

Plaintiff’s Motion to Determine the Sufficiency of Answers Given by Defendant

(Docket No. 69) is DENIED;
6.

Plaintiff’s Verified Motion to Correct the Record (Docket No. 75) is GRANTED;

7.

Plaintiff’s Motion for Permission to File Expanded Response (Docket No. 78) is

and

GRANTED.
DATED: August 15, 2016

Honorable Ronald E. Bush
Chief U. S. Magistrate Judge

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