Shelton v. Reinke et al

Filing 45

ORDER finding as moot and denying in part 25 Motion to Strike, finding as moot and denying in part 29 Motion to Strike ; denying 36 Motion to Compel; denying 42 Motion to Strike ; granting 19 Motion for Summary Judgment. The Clerk of the Court is directed to close this case. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

WILLIAM SHELTON,
Case No. 3:11-cv-00064-BLW
Plaintiff,
MEMORANDUM DECISION AND
ORDER

v.
BRENT REINKE, DARCELL
STAMMER, SGT. B. GUNN, OLIVIA
CRAVEN, MARK FUNAIOLE, JANIE
DRESSEN, NORMAN LANGERAK,
MIKE MATTHEWS, and BILL
YOUNG, in their official capacities,
TEREMA CARLIN, ERIC
MACEACHERN, MR. MUNDEN, MS.
ANDERSON, JENNY RUPPEL, MR.
ALDRIN, MS. ROAN, MS. FUDGE,
FRED FOWLER, and LYLE GEHRKE,
individually and in their official
capacities,
Defendants.

Pending before the Court are: (1) Defendants’ Motion for Summary Judgment
(Dkt. 19); (2) Defendants’ Motion to Strike (Dkt. 25) portions of Plaintiff’s response to
the Motion for Summary Judgment; (3) Plaintiff’s Motion to Strike (Dkt. 29) all the
affidavits submitted in support of Defendants’ Motion for Summary Judgment; (4)
Plaintiff’s Motion to Compel Production of Supplemental Documents and Supporting
MEMORANDUM DECISION AND ORDER - 1

Memorandum and Affidavit (Motion to Compel) (Dkt. 36); and (5) Plaintiff’s Objection
and Motion to Strike and Supporting Memorandum and Affidavit (Dkt. 42) regarding
Defendant Terema Carlin’s Supplemental Affidavit. The Court finds that the decisional
process would not be aided by oral argument. After reviewing the record and the
arguments of the parties, the Court enters the following Order addressing all pending
motions.
BACKGROUND
Plaintiff William Shelton, an inmate, asserts that Defendants failed to protect him
when he was housed in the protective custody unit (PC Unit) at the Idaho Correctional
Institution at Orofino (ICI-O). His claims arise from an incident in which he was
assaulted on June 2, 2010 by his cellmate, Richard Dee Williams.
After Plaintiff filed his Complaint, United States Magistrate Judge Ronald E. Bush
issued an Initial Review Order, permitting Plaintiff to proceed on an Eighth Amendment
failure-to-protect claim against Defendants Brent Reinke, Darcell Stammer, Sergeant B.
Gunn, Terema Carlin, Eric MacEachern, Mr. Munden, Ms. Anderson, Jenny Ruppel, Mr.
Alldrin, Ms. Roan, Ms. Fudge, Fred Fowler, and Lyle Gehrke. (Dkt. 6.)
Defendants' pending Motion for Summary Judgment seeks dismissal of all
remaining claims against all remaining Defendants on grounds that Defendants' actions
and decisions did not violate Plaintiff’s Eighth Amendment right to personal safety, that
the Eleventh Amendment bars claims for damages against Defendants in their official
capacities, that respondeat superior is not a viable theory under § 1983, and that qualified
MEMORANDUM DECISION AND ORDER - 2

immunity applies. (Dkt. 19.)
Also pending is Defendants' Motion to Strike portions of Plaintiff’s responsive
pleadings (Dkt. 25), and Plaintiff's Cross-Motion to Strike all of the affidavits filed in
support of Defendants’ Motion for Summary Judgment. (Dkt. 29.)
On November 5, 2012, the Court entered an Order that resolved various pending
discovery motions, ordering Defendants to produce (1) documents “related to inmate-oninmate assaults in the PC Unit during the period June 2, 2009 through June 2, 2010”; (2)
reports and other written documents related to assaults in the PC Unit that were generated
or received between June 1, 2009 and June 1, 2010; and (3) criminal records, institutional
behavior history, and Restrictive Housing Hearing reports for prisoner Richard Dee
Williams since January 1, 2008 (Dkt. 35, pp.15-20.) Once those documents were
produced, the parties were ordered to file supplemental pleadings to the Motion for
Summary Judgment. (Id., p.22.)
After Defendants produced the documents as ordered, Plaintiff filed a Motion to
Compel, requesting supplemental documents. (Dkt. 36.) He also filed a Motion to Strike
the Supplemental Affidavit of Terema Carlin (Dkt. 40), which he asserts stands in
opposition to her statements in her first Affidavit. (Dkt 42.)
The Court will first address Defendants' Motion for Summary Judgment, then the
three Motions to Strike, and finally Plaintiff’s Motion to Compel.

MEMORANDUM DECISION AND ORDER - 3

DISCUSSION
1. Defendants’ Motion for Summary Judgment
A. Standard of Law
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
judgment as a matter of law.” Fed. R. Civ. P. 56(a). One of the principal purposes of the
summary judgment rule “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). The requirement is that there be no
genuine dispute as to any material fact. Material facts are those “that might affect the
outcome of the suit.” Id. at 248. “Disputes over irrelevant or unnecessary facts will not
preclude a grant of summary judgment.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors
Ass’n, 809 F.2d 626, 630 (9th Cir. 1987). The moving party is entitled to summary
judgment if that party shows that each material fact cannot be disputed. To show that the
material facts are not in dispute, a party may cite to particular parts of materials in the

MEMORANDUM DECISION AND ORDER - 4

record, or show that the adverse party is unable to produce admissible evidence to
support the fact. Fed. R. Civ. P. 56(c)(1)(A) & (B). The Court must consider “the cited
materials,” but it may also consider “other materials in the record.” Fed. R. Civ. P.
56(c)(3).
If the moving party meets its initial responsibility, then the burden shifts to the
opposing party to establish that a genuine dispute as to any material fact actually does
exist. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). 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].” Liberty Lobby, 477 U.S. at 252.
Material used to support or dispute a fact must be “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 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).

MEMORANDUM DECISION AND ORDER - 5

The Court does not determine the credibility of affiants or weigh the evidence set
forth by the non-moving party. Although all reasonable inferences which can be drawn
from the evidence must be drawn in a light most favorable to the non-moving party, T.W.
Elec. Serv., Inc., 809 F.2d at 630-31, the Court is not required to adopt unreasonable
inferences from circumstantial evidence, McLaughlin v. Liu, 849 F.2d 1205, 1208 (9th
Cir. 1988).
B. Undisputed Facts
This section includes facts that are undisputed and material to the resolution of the
issues in this case. Where material facts are in dispute, the Court has included Plaintiff’s
version of facts, insofar as the version is not contradicted by clear documentary evidence
in the record.
The Protective Custody (PC) Unit at ICI-O is designed to provide safe housing for
inmates in need of protection; while it is not 100 percent safe, the prison has implemented
various policies and procedures to keep it as safe as reasonably possible. (Dkt. 19-3, p.2.)
The PC Unit includes Level 1 and Level 2, where inmates are housed in doubleoccupancy cells. (Id.) Level 1 is more restrictive however, because only four inmates are
allowed in the common area (dayroom) at once; in Level 2, up to 32 inmates may be in
the dayroom at once. (Id.)
IDOC policy provides that, when an inmate arrives at the PC Unit, IDOC
employees investigate the inmate and have a screening hearing to determine where the
inmate can be safely housed. (Id., p.3.) Inmates are temporarily housed in Level 1 until
MEMORANDUM DECISION AND ORDER - 6

the investigation is complete. If an inmate can be safely housed with a cellmate and have
frequent contact with other prisoners, the inmate is transferred to Level 2. (Id.) If IDOC
employees determine that an inmate poses a threat to the safety of the other PC inmates,
the inmate is removed from Level 2 and placed in segregation, which is a separate prison
unit where inmates who are a threat to property, self, staff or other offenders are housed
in single cells. (Id.) An inmate’s placement in the PC Unit is reviewed by the Restrictive
Housing Review Committee every 30 days for the first 90 days, and then every 90 to 120
days thereafter. (Id.)
To maintain safety in the facility, ICI-O policy requires correctional officers to
perform hourly checks of each cell and the common areas, as well as six official inmate
counts each day. (Id., p.6.) A control room that looks out over Level 2 is manned 24 hours
a day and has real time video surveillance of the Level 2 dayroom, cell doors and
hallway. (Id.) Furthermore, each cell is equipped with an emergency button, and officers
usually respond if the button is pressed several times. (Id., pp.6-7; Dkt. 23, p. 4.)
If an inmate in the PC Unit has a conflict with another inmate or fears for his
safety, he may submit a written concern form or speak directly to a correctional officer.
Both types of reporting are documented in the inmates “C-notes” pursuant to IDOC
policy. (Id., p.7.)
Prison records show that, between June 1, 2009 and June 1, 2010 (the day before
Plaintiff was assaulted), there were nine recorded inmate-on-inmate assaults in the PC
Unit. (Dkt. 40, p.2.) Of those nine recorded assaults, only one was classified as an
MEMORANDUM DECISION AND ORDER - 7

aggravated battery that resulted in visible, moderate injuries to an inmate. (See Dkt. 37-7,
pp. 2-32.) Four of the assaults were reported to be mutual combat between inmates. (See
Dkts. 37-1, 37-8, 37-9, 37-10, 37-11, 37-12.) The remaining four reported assaults
involved one inmate hitting, pushing or punching another inmate with minimal or no
injuries involved. (See Dkts. 37-3, 37-4, 37-5, 37-6.)
Plaintiff was transferred to the PC Unit at ICI-O and was assigned to Level 2 in
September 2008. Inmate Richard Dee Williams (Williams) was transferred to the PC Unit
at ICI-O in November 2009, and assigned to Level 2 in December 2009. (Dkt. 19-3, pp.45.)
To determine Williams' initial placement in the PC Unit in November 2009, the
Restrictive Housing Review Committee reviewed the following records: (1) on June 23,
2008, Williams was given a Segregation Housing Order at Idaho Correctional Center for
fighting, but there are no details provided as to whether Williams was the aggressor or the
victim (Dkt. 37-15, p.2); and (2) between June 19, 2007 and June 17, 2009, Williams’
Reclassification Score Sheets indicate he received no Disciplinary Offense Reports
(DORs) in that two-year time frame (Dkt. 37-15, pp.4,6; see also Dkt. 19-6, p.4.)
Then in November and December 2009 (about six months prior to the assault on
Plaintiff), Williams did not want to be housed in Level 2 because he did not want to be in
a cell with another inmate for 23 hours a day. He received four administrative DORs for
disobeying ICI-O correctional officers’ orders to move cells. (Dkt. 40-1.) Williams then
requested that he be transferred out of the PC Unit and into the administrative
MEMORANDUM DECISION AND ORDER - 8

segregation unit. His four DORs were reviewed as part of his request to be moved out of
the PC unit. (Dkt. 40, p.3.) Because the DORs “did not involve any assault, battery,
and/or violence on the part of Inmate Williams,” the Restrictive Housing Placement
Committee did not believe Williams posed a threat to his safety or the safety of other
inmates, so the Committee determined Williams should remain in the PC Unit. (Id., pp.34.) Williams’ placement in the PC Unit was reviewed six different times between
November 2009 and May 2010 (just one month before the assault). (Dkt. 19-2, p.5.)
In February 2010, Defendant Alldrin, a Correctional Officer at ICI-O, assigned
Plaintiff to be Williams’ cellmate. (Dkt. 19-10, p.2.) Plaintiff states that when he agreed
to move to 205A so that Inmate Jimison could move into 207A, Alldrin warned him that
Richard Williams was "impossible to get along with for very long." (Dkt. 37-13, p.2.)
Plaintiff also states that Alldrin said that Williams "was 'loco,'" and if Plaintiff had any
problems with him Plaintiff should let Alldrin know, and Alldrin would move him. (Dkt.
23, p.7.) There is a dispute in the record over whether Alldrin said any of those things.
However, the material issue here is not whether Williams was obnoxious; it is whether
either Alldrin or Plaintiff knew that Williams was a physical threat to Plaintiff before the
assault.
Defendant Alldrin declares that he “did not believe that Williams would assault
[Plaintiff]." (Dkt 19-10, p.2.) There is no evidence in the record that Alldrin believed
Williams would assault Plaintiff. Not even Plaintiff reported that he thought Williams
would assault him. Rather, Plaintiff's only complaints about Williams were that Williams
MEMORANDUM DECISION AND ORDER - 9

was antisocial and belligerent. (Dkt. 37-13, p.2.)
Plaintiff and Williams remained free of any reported problems for 15 weeks.
However, on June 2, 2010, Plaintiff describes Williams as verbally assaulting him
Plaintiff “in a very belligerent manner” in their cell at about 5:00 a.m. (Dkt. 3, p.12.)
When Defendants Fudge and Gehrke, Correctional Officers at ICI-O, arrived at the cell
door and asked if everything was settled, Plaintiff “merely shrugged” and remained silent.
(Id.; Dkt. 23, p.7.)
Defendants Fudge and Gehrke returned to Plaintiff's and Williams' cell about an
hour after the verbal conflict and found both inmates asleep in their cell. (Dkt. 19-12,
p.3.) At the end of Defendant Fudge’s shift at 6:30 a.m., Defendant Fudge informed
Defendant Alldrin about the verbal altercation, and reported that both inmates were now
asleep and “the conflict appeared to have resolved.” (Id.) Defendant Alldrin checked on
Plaintiff and Williams before he left the PC Unit at 11:00 a.m., and similarly found both
of them asleep in their cell. (Dkt. 19-10, p.3.)
About 10:30 a.m., Plaintiff turned in the following concern form to be delivered to
Defendant Alldrin:
"When I agreed to move to 205A so Jimison could have 207A, you warned
me that the guy who would be my new cellie, Richard Williams, was
impossible to get along with for very long. Well, I have had enough of his
antisocial and belligerent behavior and I want to be moved A.S.A.P. I
would like to check out of PC and go to C1 if possible. Please do not return
a copy of this kite. If you will talk to me, please call me out of the unit so
we can talk in private."
(Dkt. 37-13, p.2.) Plaintiff’s concern form did not indicate that Plaintiff was afraid of
MEMORANDUM DECISION AND ORDER - 10

Williams or concerned that Williams might assault him. (Dkt. 19-10, p.3.) Because
Defendant Alldrin left the PC Unit at approximately 11:00 a.m., going offsite, and the
concern form was not delivered to him before he left, he did not receive the concern form
until June 3, 2010, the day after the assault. (Id.)
Importantly, Plaintiff did not verbally report that he perceived that he would be
attacked or was in imminent danger to any officer on duty between the hours of 5:00 a.m
and 9:30 p.m., when the assault occurred. (Dkt. 19-3, p.9.) Plaintiff may have many
reasons for doing so. However, the operative material issue on summary judgment is
whether any Defendant perceived that Williams would physically harm Plaintiff (either as
a result of Williams' past history or the earlier verbal altercation), and Plaintiff's failure to
report shows that Defendants did not know. The wording of the concern form also did not
put the receiving officer on notice that Plaintiff was in fear of physical harm, nor did
Plaintiff fear harm enough to verbally report it to anyone on duty between 5:00 a.m. and
9:30 p.m.
That evening, at approximately 9:35 p.m., Williams began destroying all of
Plaintiff’s property and then beat Plaintiff with such force that Williams broke his own
hand and wrist by beating Plaintiff. (Dkt. 3, pp.13-14.) Plaintiff suffered cuts and bruises
on his forehead and ribs, and experienced moderate to slight pain for six months after the
assault. (Id.) Prior to Plaintiff’s assault, there was no information in the inmate tracking
system suggesting any conflict existed between Plaintiff and Williams, nor had Plaintiff
submitted any written concern forms expressing any concern for his safety for being
MEMORANDUM DECISION AND ORDER - 11

housed in the same cell with Williams, or for being housed in Level 2 “with allegedly
violent and predatory offenders.” (Dkt. 19-3, pp.7-8.)
C. Discussion of Failure to Protect Claim
To prevail on an Eighth Amendment “prison conditions” claim based on failure to
prevent harm, the inmate must show that he is incarcerated under conditions posing a
substantial risk of serious harm. Farmer v. Brennan, 511 U.S. 825, 834 (1994). This is the
“objective” element of the test. Id. at 829.
In addition, the inmate must show that prison officials were deliberately indifferent
to a substantial risk of serious harm, which is the “subjective” element of the test. Id. at
828. Deliberate indifference exists when an official is “aware of facts from which the
inference could be drawn that a substantial risk of harm exists,” and actually draws such
an inference. Id. at 838.
The United States Court of Appeals for the Ninth Circuit has explained that a
showing that a prison official had a “sufficiently culpable state of mind” under Farmer
“entails something more than mere negligence ... [but] is satisfied by something less than
acts or omissions for the very purpose of causing harm or with knowledge that harm will
result.” Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir. 2006) (citing Farmer, 511 U.S.
at 835). In Hearns, where a “series of planned attacks and religious-related violence” by
the ruling Muslim group against other Muslims at the prison was “‘longstanding,
pervasive, [and] well-documented,’” the court held that the allegations in the complaint
“were sufficient to raise an inference that the prison officials acted with deliberate
MEMORANDUM DECISION AND ORDER - 12

indifference, or knew that Hearns faced a substantial risk of serious harm and
‘disregard[ed] that risk by failing to take reasonable measures to abate it.’” Hearns, 413
F.3d at 1041 (quoting Farmer, 511 U.S. at 847). Hearns is instructive, but not
procedurally on point because the issue there was whether the allegations of the
complaint failed to state a claim, and, here, the issue is whether Plaintiff has sufficient
admissible evidence to rebut Defendant’s argument that no facts showing deliberate
indifference exist.
In Berg v. Kincheloe, 794 F.2d 457 (9th Cir. 1986), the Court explained
the subjective element of the test:
The standard does not require that the guard or official believe to a
moral certainty that one inmate intends to attack another at a given place at
a time certain before that officer is obligated to take steps to prevent such an
assault. But, on the other hand, he must have more than a mere suspicion
that an attack will occur.
Id. at 459 (internal punctuation and citation omitted); see also Glenn v. Berndt, 289
F.Supp. 2d 1120 (D.C. Cal. 2003).
Applying the Farmer standard to this case, Plaintiff must establish that he was
incarcerated in the ICI-O PC Unit under conditions posing a substantial risk of serious
harm to himself, and that Defendants were deliberately indifferent to such risk of serious
harm. Construing the evidence in a light most favorable to Plaintiff and for the reasons set
forth below, the Court concludes that the evidence in the record fails to satisfy either
element of the Farmer test.
As to the objective element of the Farmer test -- that Plaintiff was incarcerated
MEMORANDUM DECISION AND ORDER - 13

under conditions posing a substantial risk of serious harm -- Plaintiff makes broad
allegations such as: “Many prisoners with histories of murder and assaults have been
placed in PC units and many PC inmates have been involved in physical altercations
every year” and “I personally have complained in writing about inmates who threaten and
menace but ICI-O staff refused to remove them from Level 2 until they assaulted
someone.” (Dkt. 23, p.2.) If Plaintiff had provided the Court with specific evidence to
support these alleged physical altercations or written complaints about threatening and
menacing inmates who eventually assaulted another inmate, then perhaps a genuine issue
of material fact would arise. Instead, Plaintiff included five affidavits from other ICI-O
inmates and 16 offender concern forms that he has allegedly submitted to ICI-O staff, but
none of these affidavits or concern forms suggest there was a substantial risk of serious
harm toward Plaintiff prior to Williams assaulting him.
The five affidavits fail to raise a genuine issue of material fact as to the risk of
serious harm to Plaintiff because: (1) the Affidavit of Calob S. Fairburn describes Inmate
Fairburn being housed with two different cellmates over a two month period of time who
were alleged members of the same gang that had put a hit on him at ISCI (prior to his
transfer to the PC Unit), but Fairburn provides no dates or other facts as to whether these
cellmates threatened or assaulted him, or how his cellmates otherwise created a
substantial risk of serious harm to him or Plaintiff (Dkt. 23-2); (2) the Affidavit of Frank
Boman describes how two different inmates allegedly assaulted Inmate Boman in Level 2
of the PC Unit on August 7, 2010, and he also makes additional broad statements about
MEMORANDUM DECISION AND ORDER - 14

other unnamed inmates who initiated physical altercations in the PC Unit and were not
removed from the PC Unit. (Dkt. 23-3.) However, Inmate Boman’s alleged assaults
occurred after Plaintiff’s assault, so his testimony is not relevant to the Court’s
determination of a substantial risk of serious harm before Plaintiff’s assault, nor are
Inmate Boman’s generalized statements about unnamed inmates initiating fights in the PC
Unit and still being housed there sufficient to raise a genuine issue of material fact in this
case; and (3) the Affidavits of William Gray, Kenneth McDonald and Stanley Nebeker all
provide testimony regarding the verbal altercation they heard between Williams and
Plaintiff on the morning of the assault, but the fact that the verbal altercation occurred is
not in dispute, and therefore the content of these Affidavits are not material to the Court’s
ruling.
As to the offender concern forms Plaintiff submitted, only three pre-date the
assault on June 20, 2010, so the other thirteen concern forms are not relevant to Plaintiff's
claim. (See Dkt. 23-7, pp.3-17.) In the earliest concern form dated December 2, 2008,
Plaintiff claims that "an inmate rudely yelled at me that I was 'going to get fucked up' if I
cause the whole tier to get locked down." (Dkt. 23-7, p.3.) Plaintiff does not identify the
inmate by name, state that he is afraid for his safety, or ask to be moved out of Level 2.
Rather, Plaintiff informs ICI-O staff that "group punishment for an individual's infraction
is illegal in prisons" and if Plaintiff weren't a non-violent person, "I would never tolerate
another inmate threatening me like happened today." (Id.) Plaintiff's report of a
generalized threat toward him by an unnamed inmate does not demonstrate a substantial
MEMORANDUM DECISION AND ORDER - 15

risk of serious harm.
The next day, on December 3, 2008, Plaintiff submitted another concern form as a
follow-up to a PC Review hearing he had with prison officials and stated: "I shared my
anger and frustration at unjust, callous treatment at hands of IDOC staff" and queried "to
whom can I discuss my frustration and anger?" (Dkt. 23-7, p.3.) Plaintiff's anger and
frustration toward IDOC staff does not demonstrate a substantial risk of serious harm of
another inmate toward Plaintiff.
Finally, the last concern form Plaintiff submitted prior to Williams' assault is dated
June 22, 2009. Plaintiff states that "Chancé has been trying to bully me into insisting on
moving out of the cell we're in just like Piro did when Chancé was his cellie. He's smart
enough to not directly threaten me. . . " and Plaintiff mentions Chancé's "veiled threats"
toward Plaintiff and another inmate, and asks IDOC staff "to do something." (Dkt. 23-7,
p.4.) Although Plaintiff specifically identifies the inmate he is complaining of, Plaintiff
admits Chancé did not directly threaten him, and he did not state that he felt afraid for his
safety or ask to be moved away from this inmate. Once again, Plaintiff's complaint about
veiled threats and his vague request to IDOC staff that "you've got to do something" fails
to establish that Plaintiff was incarcerated in conditions posing a substantial risk of
serious harm.
As to Defendants' argument that Plaintiff has not satisfied the objective element of
the Farmer test, Defendants have provided IDOC records for all of the assaults that
occurred in the PC Unit in the year prior to Plaintiff’s assault. (See Dkts. 37-1 through 37MEMORANDUM DECISION AND ORDER - 16

12.) There were nine assaults in total, and only one of the assaults was classified as an
aggravated battery with moderate injuries to the inmate who was attacked. Of the
remaining eight assaults, four were reported to be mutual combat and the other four were
minor physical altercations involving one inmate hitting, pushing or punching another
inmate with minimal or no injuries resulting in such assaults. None of the IDOC records
indicate, nor has Plaintiff established, that all of the attackers were inmates with
underlying violent crimes, or that all of the victims were “vulnerable nonviolent PC
inmates known to be particularly in need of protection from assault.” (Dkt. 37, p.2.) The
Court finds that the infrequency and individual circumstances of the inmate-on-inmate
assaults in the PC Unit further undermine Plaintiff’s contention that he was incarcerated
in conditions posing a substantial risk of serious harm.
In addition, Plaintiff has not demonstrated that Defendants were aware of a
substantial risk of serious harm by housing Plaintiff in the same cell as Williams.
Defendants have submitted the Affidavits of various prison officials, including Terema
Carlin, the ICI-O Warden, who explain the IDOC policy for reviewing and assigning an
inmate to the PC Unit to ensure the safety of that inmate and the other PC inmates as well.
Pursuant to this IDOC policy, the Restrictive Housing Placement Committee reviewed
evidence such as Williams’ disciplinary record, his willingness and ability to live with
other offenders, and his classification. (See Dkt. 37-15, p.22.) Such evidence included the
Reclassification Score Sheet completed in June 2009, which indicates Williams had not
received any DORs in the preceding twelve months. Thus, Williams’ placement into the
MEMORANDUM DECISION AND ORDER - 17

PC Unit was both reasonable and in compliance with IDOC policy.
Furthermore, Plaintiff has submitted no evidence to support his allegations that
once Williams was assigned to the PC Unit, Plaintiff was at a substantial risk of being
seriously harmed by Williams and Defendants were deliberately indifferent to that risk.
During the six month time period Plaintiff and Williams were housed together in Level 2
of the PC Unit – and nearly four of those sixth months they were cellmates – Plaintiff did
not submit a single concern form or speak to any ICI-O staff member about being
threatened or harmed by Williams, or any other PC inmate for that matter. The prison’s
C-notes contain no such indication, and Plaintiff’s repeated allegations to the contrary are
unsupported and therefore without merit.
Prior to Williams' assault upon Plaintiff, the first and only conflict between these
inmates occurred earlier that day when Williams started yelling at Plaintiff. When
Defendants Fudge and Gehrke showed up at the cell to investigate the verbal altercation,
Plaintiff said nothing. Instead of informing the staff that Plaintiff now felt threatened by
Williams or feared for his safety, he simply shrugged his shoulders and remained silent.
Defendants Fudge and Gehrke's initial response to and investigation of the verbal
altercation was reasonable, as were the subsequent check-ins by prison staff who reported
that Williams and Plaintiff were both sleeping in their cell.
If Plaintiff did not wish to make his fears known in front of Williams, he had all
day and most of the evening in which to contact a prison official and verbally inform that
official of his concern. This he did not do. And, although Plaintiff did submit a written
MEMORANDUM DECISION AND ORDER - 18

concern form to Defendant Alldrin later that day – who happened to be offsite and thus
did not see the concern form until the next day – the contents of the concern form did not
indicate Plaintiff felt threatened by or in imminent danger from Williams. Plaintiff merely
stated that he had “had enough of [Williams’] antisocial and belligerent behavior and I
want to be moved ASAP.” (Dkt. 37-13, p.2.) Even if the concern form were timely
received on the day of the attack, prison officials would have had to read a lot between
the lines of Plaintiff’s concern form to interpret Plaintiff’s intolerance toward his
cellmate’s behavior as notice that Plaintiff felt threatened by or was seriously concerned
about his safety. Prison officials cannot be deliberately indifferent toward a purported
substantial risk of harm when Plaintiff fails to inform them of the risk, despite having
numerous opportunities to do so.
Based on the undisputed evidence, Plaintiff has failed to establish a genuine issue
of material fact regarding his Eighth Amendment failure to protect claim. The record does
not support Plaintiff's contention that he was incarcerated under conditions posing a
substantial risk of serious harm, nor has Plaintiff shown that Defendants were deliberately
indifferent to such a risk of harm. Prison officials did not have even a "suspicion" that an
attack would occur, and they need more than that to satisfy the subjective element set
forth in Farmer. See Berg, 794 F.2d at 459. Accordingly, the Court will grant Defendant's
Motion for Summary Judgment on Plaintiff's Eighth Amendment claim for failure to
protect him from harm.
Because this conclusion disposes of all remaining claims against all remaining
MEMORANDUM DECISION AND ORDER - 19

Defendants, the Court need not address Defendants' other arguments in support of
summary judgment. The claims that Defendants sued in their official capacities are not
"persons" under 42 U.S.C. § 1983, that the Eleventh Amendment bars claims against
individual IDOC Defendants being sued in their official capacities, that the theory of
respondeat superior precludes supervisory liability for many of the Defendants, and that
Defendants being sued in their individual capacities are entitled to qualified immunity are
all now moot. In addition, the Court will dismiss the claims against all other Defendants
in the Complaint against whom Plaintiff was not authorized to proceed for the reasons set
forth in the Initial Review Order.
2. Defendants’ Motion to Strike (Dkt. 25), Plaintiff’s Motion to Strike (Dkt. 29) and
Plaintiff’s Objection and Motion to Strike and Supporting Memorandum
Affidavit (Dkt. 42)
A. Standard of Law
Federal Rule 56(c) governs the procedures that the parties must comply with to
support or dispute a motion for summary judgment. See Fed. R. Civ. P. 56(c). Under Rule
56(c)(2), a party “may object that the material cited to support or dispute a fact cannot be
presented in a form that would be admissible in evidence.” Id. An affidavit is an
acceptable form in which to present evidence in the summary judgment context.
However, “[a]n affidavit or declaration used to support or oppose 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).
MEMORANDUM DECISION AND ORDER - 20

Rule 56 makes clear then that only admissible evidence may be considered in
ruling on a motion for summary judgment. Orr v. Bank of America, 285 F.3d 764, 773
(9th Cir. 2002); see also Fed. R. Civ. P. 56(c). However, in determining admissibility for
summary judgment purposes, it is the contents of the evidence rather than its form that
must be considered. Fraser v. Goodale, 342 F.3d 1032, 1036-37 (9th Cir. 2003). If the
contents of the evidence could be presented in an admissible form at trial, those contents
may be considered on summary judgment even if the evidence itself is hearsay. Id.
(affirming consideration of hearsay contents of plaintiff’s diary on summary judgment
because at trial, plaintiff’s testimony of contents would not be hearsay).
As to the parties filing motions to strike as a means of objecting to the evidence
submitted in support of or against the pending Motion for Summary Judgment, the
Advisory Committee Notes to the most recent amendments to Rule 56 provide that a Rule
56(c)(2) objection “functions much as an objection at trial, adjusted for the pretrial
setting. The burden is on the proponent to show that the material is admissible as
presented or to explain the admissible form that is anticipated. There is no need to make a
separate motion to strike.” Fed. R. Civ. P. 56 advisory committee’s note (2010
Amendments). Motions to strike are limited to pleadings, which are defined by Federal
Rule 7(a); affidavits and exhibits filed in support of, or in opposition to, a motion for
summary judgment are not pleadings. See Albertson v. Fremont County, Idaho, 834 F.
Supp.2d 1117, 1123 n.3 (D. Idaho 2011). Thus, the motions to strike filed in this case will
be construed as objections to the materials filed by the opposing party.
MEMORANDUM DECISION AND ORDER - 21

B. Defendants’ Motion to Strike
On June 18, 2012, Defendants filed a Motion to Strike requesting that the Court
strike portions of Plaintiff’s responsive pleadings to Defendants’ Motion for Summary
Judgment. (Dkt. 25.) In particular, Defendants argue that portions of Plaintiff’s Brief
Opposing Defendants’ Motion for Summary Judgment (Plaintiff’s Response) (see Dkt.
23-1) and Statement of Disputed Facts (see Dkt. 23) “are replete with statements which
do not cite to any materials in the record,” or contain hearsay statements or are
“unfounded statements which are not supported by admissible evidence.” (Dkt. 25-1, p.5.)
Defendants also request that the five affidavits accompanying Plaintiff’s Response should
be stricken “to the extent they lack foundation and/or personal knowledge, contain
hearsay statements, are conclusory, contain irrelevant testimony, contain testimony whose
prejudicial value outweighs the probative value, and contain expert testimony for which
the affiant is not qualified to testify.” (Id., p.2.) Finally, Defendants contend that all of the
exhibits to Plaintiff’s Response should be stricken because of Plaintiff’s failure to lay the
proper foundation for their admission. (Id.)
Having carefully considered Defendants' broad swath of objections, the Court
overrules all of the objections related to Plaintiff's Response and Statement of Disputed
Facts. The Court is mindful of the Ninth Circuit's caution that district courts “should
construe liberally motion papers and pleadings filed by pro se inmates and should avoid
applying summary judgment rules strictly." Thomas v. Ponder, 611 F.3d 1144, 1150 (9th
Cir. 2010). Here, the majority of Plaintiff's Response and Statement of Disputed Facts are
MEMORANDUM DECISION AND ORDER - 22

comprised of statements based upon Plaintiff's personal knowledge of facts that would be
admissible through his testimony at trial. In addition, Plaintiff's Response to the Motion to
Strike was filed as a declaration under penalty of perjury, wherein Plaintiff attests that the
statements were "true and correct to the best of his knowledge, understanding and belief."
(Dkt. 27, p.5.)1 To the extent the Court relied upon some of those statements in its
decision to grant Defendants' Motion for Summary Judgment, the statements are
admissible evidence and therefore Defendants' objections are overruled.
As to the five affidavits Plaintiff submitted in support of his opposition to the
Motion for Summary Judgment, the Court reviewed the contents of each affidavit and as
noted above, determined that none of the evidence therein was material to the Court’s
decision to grant Defendants’ Motion for Summary Judgment. Accordingly, Defendants’
objections are deemed moot.
Finally, Defendants' objection that Plaintiff's exhibits should be stricken for not
having a proper foundation is overruled. The exhibits attached to Plaintiff's opposition are
all offender concern forms he has purportedly submitted to ICI-O staff. Although they
were not attached to an affidavit when they were initially filed with the Court, Plaintiff
later filed his Response to the Motion to Strike as a declaration under penalty of perjury,
and in it Plaintiff states that he "has personal knowledge [of all exhibits] . . . which
support various allegations and claims made by Plaintiff in the Complaint. . . ." (Dkt. 27,
1

Plaintiff's follow-up declaration under penalty of perjury obviates the need for the Court to give
Plaintiff any opportunity to properly support or address the facts as provided in Federal Rule of Civil
Procedure 56(e)(1).
MEMORANDUM DECISION AND ORDER - 23

p.5.) The Court finds that Plaintiff's belated attempt to lay a proper foundation for their
admission, along with the minimal relevance these records provided in granting
Defendant's Motion for Summary Judgment, weigh in favor of the Court overruling
Defendants' objection.
C. Plaintiff’s Motions to Strike
On July 19, 2012, Plaintiff filed a Motion to Strike, seeking to strike all of the
affidavits filed in support of Defendant’s Motion for Summary Judgment (Dkt. 29), and
then on February 22, 2013, Plaintiff filed an Objection and Motion to Strike and
Supporting Memorandum and Affidavit (Dkt. 42), requesting that the Court strike the
Supplemental Affidavit of Terema Carlin. Plaintiff argues that the original affidavits
contain statements that are vague, conclusory, speculative, irrelevant, and/or misleading,
or constitute hearsay. (Dkt. 29-1, pp. 3-16.) As to the Supplemental Affidavit of Terema
Carlin, Plaintiff objects because it is untimely, contradicts statements in her previous
affidavit, represents a lack of good faith, and contains hearsay, deceptive, prejudicial and
conclusory statements not supported by the record. (Dkt. 42, p.2.)
In ruling on Defendants' Motion for Summary Judgment, the Court relied upon the
affidavits of Defendants Carlin (including her Supplemental Affidavit), Fudge and
Alldrin. The Court overrules all of Plaintiff's objections to these affidavits. The affiants'
statements were made on personal knowledge, set out facts that would be admissible in
evidence, and showed that the affiants were competent to testify on the matters stated
therein. See Fed. R. Civ. P. 56(c)(4). In addition, none of the statements relied upon by
MEMORANDUM DECISION AND ORDER - 24

the Court constitute hearsay. As to the remaining affidavits, the Court reviewed the
evidence provided therein but did not rely upon any of it in its summary judgment ruling.
Plaintiff's objections are therefore moot.
Plaintiff also asks the Court to strike Defendant Carlin's Supplemental Affidavit,
which clarified some of the additional discovery that Defendants were ordered to produce
in the November 5, 2012 Order, and corrected some misstatements in Defendant Carlin's
original affidavit, which she states were "based solely upon my memory and not a review
of any records . . . . I recognize that I should have reviewed records to ensure the accuracy
of my [original] statement. I take my inadvertent misstatement very seriously." (Dkt. 40,
p.2.) Because Defendant Carlin's explanation about her misstatements appear to be the
result of her own negligence or less-than-careful lawyering rather than bad faith, and
because the Supplemental Affidavit actually is more helpful to Plaintiff's case than the
first affidavit, it will not be stricken. However, Defendant Carlin and her lawyers should,
at all times in the future, be diligent in providing sworn testimony that is based on a
thorough review of all relevant evidence and not merely from memory.
3. Plaintiff's Motion to Compel
Following Defendants’ court-ordered production of documents in December 2012,
Plaintiff filed a Motion to Compel on January 2, 2013, and requests production of the
following supplemental documents in addition to those already produced by Defendants:
(1) the names of the prisoners (that were redacted per the terms of the November 5, 2012
Order) in the inmate-on-inmate assault documents; (2) all DORS ever issued to these
MEMORANDUM DECISION AND ORDER - 25

prisoners; and (3) all classification and reclassification score sheets for each of these
prisoners. (Dkt. 36.) As discussed above, the Court has already reviewed the records for
the nine assaults which occurred in the relevant time period and determined that they did
not create a triable issue of fact to defeat summary judgment. None of the supplemental
documents requested would enable Plaintiff to alter the Court’s decision to grant
summary judgment; discovering the names of the prisoners involved in the nine assaults
is not a material fact in this case and would run afoul of ICI-O’s privacy concerns.
Obtaining additional documentation regarding the disciplinary history of the inmates
involved in the nine assaults – eight of which were deemed mutual combat or a minor
fight with minimal or no injuries – likewise would fail to create a genuine issue that
Plaintiff was incarcerated under conditions posing a substantial risk of serious harm.
Accordingly, Plaintiff's Motion to Compel the production of additional documents will be
denied.
ORDER
IT IS ORDERED:
1.

Defendants' Motion for Summary Judgment (Dkt. 19) is GRANTED. All

claims against all Defendants in the Complaint are dismissed with prejudice.
2.

Defendants' Motion to Strike (Dkt. 25) is DENIED as to Plaintiff's Brief

Opposing Defendants' Motion for Summary Judgment (Dkt. 23-1), Statement of Disputed
Facts (Dkt. 23), and all Exhibits attached thereto. (Dkt. 23-7.) Defendants' Motion to
Strike (Dkt. 25) is MOOT as to Plaintiff's affidavits attached thereto. (Dkts. 23-2, 23-3,
MEMORANDUM DECISION AND ORDER - 26

23-4, 23-5, and 23-6.)
3.

Plaintiff's Motion to Strike (Dkt. 29) is DENIED as to the Affidavit of

Terema Carlin (Dkt. 19-3), the Affidavit of Kenneth Alldrin (Dkt. 19-10), and the
Affidavit of Janet Fudge. (Dkt. 19-12.) Plaintiff's Motion to Strike (Dkt. 29) is MOOT as
to the Affidavit of Amy Anderson (Dkt. 19-11), the Affidavit of Benjamin Gunn, Sr.
(Dkt. 19-13), the Affidavit of Darcell Stammer (Dkt. 19-14), and the Affidavit of Brent
Reinke. (Dkt. 19-15.)
4.

Plaintiff’s Motion to Compel Production of Supplemental Documents and

Supporting Memorandum and Affidavit (Dkt. 36) is DENIED.
5.

Plaintiff’s Objection and Motion to Strike and Supporting Memorandum

and Affidavit (Dkt. 42) is DENIED.
6.

A separate Judgment will be entered by the Court.

7.

The Clerk of the Court is directed to close this case.

DATED: March 28, 2013

Honorable B. Lynn Winmill
Chief U. S. District Judge

MEMORANDUM DECISION AND ORDER - 27