Reyna v. Carlin et al

Filing 28

MEMORANDUM DECISION & ORDER Defendant's Motion for Summary Judgment (Dkt. 17 ) is GRANTED. Plaintiff's Motion for Appointment of Counsel (Dkt. 9 ) is DENIED without prejudice. Plaintiff's Motion to Compel Discovery (Dkt. 20 ) is GRANTED in part. Plaintiff's Motion for Leave to Amend Complaint (Dkt. 24 ) is GRANTED. Defendant Beardens Answer to the Amended Complaint shall be due within 60 days after entry of this Order. Any additional discovery shall be completed within 120 days after entry of this Order. 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 (jp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

OSWALD REYNA,
Plaintiff,
vs.

Case No. 3:14-cv-00207-REB
MEMORANDUM DECISION AND
ORDER ON PENDING MOTIONS

LARRY BEARDEN, Clinician,
Defendant.

Pending before the Court are Defendant’s Motion for Summary Judgment,
Plaintiff’s Motion to Compel Discovery, and Plaintiff’s Motion to Amend Complaint
(Dkts. 17, 20, 24.) The motions are now fully briefed. All parties have consented to the
jurisdiction of a United States Magistrate Judge to conduct all proceedings in this case in
accordance with 28 U.S.C. § 636(c). (Dkt. 15.)
Having reviewed the record, the Court concludes that Plaintiff’s Motion to
Compel will be granted in part, Plaintiff’s Motion to Amend will be granted in part, and
Defendant’s Motion for Summary Judgment will be granted. In particular, Plaintiff’s
retaliation claim against Defendant Bearden that is the subject of the Motion for
Summary Judgment will be dismissed with prejudice, but Plaintiff will be able to proceed

MEMORANDUM DECISION AND ORDER ON PENDING MOTIONS - 1

on other claims against Bearden brought in the Amended Complaint. He will not be
permitted to proceed against Carlin and Gimmesen.
DEFENDANT BEARDEN’S MOTION FOR SUMMARY JUDGMENT
1. Standard of Law
Summary judgment is appropriate where a party can show that, as to a particular
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 or defenses.” 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). Rather, there must be no genuine
dispute as to any material fact in order for a case to survive summary judgment. Material
facts are those “that might affect the outcome of the suit.” Id. at 248. Disputes over facts
that are not material to the resolution of the motion will not preclude summary judgment.
T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987).

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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 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].” Anderson, 477 U.S. at 252.
The required elements of a retaliation claim are the following: “(1) An assertion
that a state actor took some adverse action against an inmate (2) because of (3) that
prisoner’s protected conduct, . . . that such action (4) chilled the inmate’s exercise of his
First Amendment rights, and (5) the action did not reasonably advance a legitimate
correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (footnote
omitted). Although a “chilling effect on First Amendment rights” is enough to state an
injury, Gomez v. Vernon, 255 F.3d 1118, 1127 (9th Cir. 2001), “bare allegations of
arbitrary retaliation” are insufficient to be permitted to go forward on a retaliation claim.
Rizzo v. Dawson, 778 F.2d 527, 532 n.4 (9th Cir. 1985).

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Particularly at issue in this case is whether Plaintiff has brought forward sufficient
evidence to show that the alleged retaliatory action did not advance legitimate
penological goals, such as the preservation of institutional order, discipline, security, and
rehabilitation of prisoners. See Barnett v. Centoni, 31 F.3d 813, 815-16 (9th Cir. 1994)
(per curiam); Rizzo, 778 F.2d at 532. Federal courts “should ‘afford appropriate deference
and flexibility’ to prison officials [when evaluating the] proffered legitimate penological
reasons for conduct alleged to be retaliatory.” Pratt v. Rowland, 65 F.3d 802, 807 (9th
Cir. 1995) (quoting Sandin v. Conner, 115 S.Ct. 2293, 2299 (1995)). “Specifically, the
prison administrators cannot be held liable unless their retaliatory action did not advance
legitimate goals of the correctional institution or was not tailored narrowly enough to
achieve such goals.” Vance v. Barrett, 345 F.3d 1083, 1093 (9th Cir. 2003).
While “timing can be properly considered as circumstantial evidence of retaliatory
intent,” there generally must be something more than timing alone to support an inference
of retaliatory intent. Pratt v. Rowland, 65 F.3d at 808. Retaliation is not established
simply by showing adverse activity by defendant after protected speech; plaintiff must
show a nexus between the two. See Huskey v. City of San Jose, 204 F.3d 893, 899 (9th
Cir. 2000) (a retaliation claim cannot rest on the logical fallacy of post hoc, ergo propter
hoc, i.e., “after this, therefore because of this”).
2. Background
In this section, the Court has included the factual allegations submitted by the
parties, as well as the factual allegations Plaintiff makes in his proposed amended

MEMORANDUM DECISION AND ORDER ON PENDING MOTIONS - 4

complaint and journal. The facts are set forth in a light most favorable to Plaintiff. Where
disputes exist, that is noted. 1
Plaintiff is an inmate at the Idaho Department of Correction (IDOC), who desires
to be released on parole. Plaintiff completed a sentence for a sex offense in 2005. The
offense was having sexual relations with a 17-year-old boy. Plaintiff is now incarcerated
for drug-related crimes (not a sex offense). Prior to being paroled, Plaintiff must
complete the IDOC Sex Offender Treatment Program (SOTP).
Plaintiff alleges that he suffers from various mental illnesses and personality
disorders that make it difficult for him to complete the program, specifically, traumatic
brain injury, bipolar disorder, post-traumatic stress disorder, and high anxiety. Plaintiff
takes daily medication and also sees a psychiatrist from time to time.
The incidents at issue, alleged to have occurred at the Idaho Correctional Center –
Orofino (ICIO) SOTP, are as follows. Defendant Larry Bearden was a clinician working
in the SOTP. The SOTP unit required inmates to be “socially proactive” and use “pull
ups” to hold each other accountable for breaking the rules. The most serious rule
violations are called “cardinal” rule violations.
Plaintiff has been enrolled in the SOTP several times. In February 2013, he was
issued a DOR for writing a letter to his family during a time period when he was
prohibited from writing anything for 12 hours, and he was removed from the SOTP.
1

The Court also notes that Plaintiff’s Response to the Motion for Summary Judgment appears to be missing pages 4
through 12. However, Plaintiff has provided an extremely detailed view of what occurred during this time period in
his 123-page Amended Complaint (with exhibits). (Dkt. 24.) Therefore, the Court has considered everything
Plaintiff has submitted after the Motion for Summary Judgment was filed as responsive to the Motion. Should
Plaintiff nevertheless believe that some important fact included on those pages is missing from the record, he may
submit them with a motion to reconsider within 21 days after entry of this Order.

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Plaintiff returned to the SOTP in March 2013. Plaintiff brushed up against another inmate
in the showering area and was issued another DOR for that incident in April 2013. He
was again removed from the program. After hearing of these violations, the Idaho
Commission of Pardons and Parole (ICPP) did not change Plaintiff’s parole eligibility
status.
On August 9, 2013, Plaintiff returned to the SOTP once again. Clinician Bearden,
a counselor in the sex offender treatment program, called Plaintiff “a lucky son-of-a-gun”
and said, “Nobody gets away with it!” when he heard that Plaintiff remained parole
eligible.
Clinician Bearden’s job was to manage the sex offenders and help them progress
by making them aware of their inappropriate words and behaviors. Bearden
acknowledged that Plaintiff was a bisexual inmate and asked him to be careful not to act
in a way that could be interpreted as grooming others for sexual favors. Bearden
explained that Plaintiff should refrain from acting in an ingratiating manner (being overly
nice to others to gain favor). Plaintiff felt threatened, harassed, and anxious when
Bearden spoke with him.
Several times, Bearden told Plaintiff that he believed Plaintiff was grooming other
inmates in the SOTP by being ingratiating. On August 13, 2013, Bearden said he
believed Plaintiff was doing another inmate’s work assignments for him. Bearden
confronted Plaintiff about doing the inmate’s work. Plaintiff alleges that Bearden treated
Plaintiff in an angry, mocking manner when Plaintiff denied the accusation.

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On August 16, 2013, Bearden would not sign off on Plaintiff’s work assignment.
Bearden then warned Plaintiff not to be “acting out” in the unit and said he was keeping
an eye on Plaintiff. During this conversation, Bearden said he “had nothing against
homosexuals and bisexuals “about eight different times. Bearden learned forward toward
Plaintiff and gestured with his index finger stating, “Just between you and I, you know
what I’m talking about.” When Plaintiff told Bearden that he was wrong, Bearden told
him to come up with a coping plan to help him manage his sexual thoughts and urges,
including a time when Plaintiff was to shower alone. Bearden advised him to obtain
advice from two known homosexual men in the unit to come up with the plan. Plaintiff
alleges that part of his coping plan was to approach staff with questions about rumors and
other things that increased his anxiety. (CD of DOR Hearing, Dkt. 19.)
Plaintiff felt harassed and singled out after his talk with Bearden. Plaintiff was
especially upset that Bearden required Plaintiff to refrain from showering with other
inmates, and required Plaintiff to be “prosocial” and inform other inmates in a general
way that he “preferred to shower alone” so that other inmates would not go into the
showers with Plaintiff. He was very embarrassed and humiliated when he had to tell other
inmates that he preferred to shower alone. Several inmates noticed that Plaintiff was
scared and upset. Plaintiff told the other inmates what Bearden was requiring of him.
Other inmates thought Bearden’s actions in asking Plaintiff to shower alone and requiring
him to announce that to the others was harassment. These inmates said they did not mind
showering with Plaintiff.

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On August 27, 2013, Inmate Rosales entered the SOTP. Plaintiff said he knew
Rosales has sex with other inmates, and Plaintiff advised him to be careful about acting
out in the unit, especially in the showers. Plaintiff told Rosales about the DOR he got and
the trouble it caused him. Plaintiff wrote in his journal, “I asked Rosales to sit w/ me at
dinner and gave advi[c]e.” (Journal, Dkt. 24-4.)
On October 9, 2013, Rosales submitted a cardinal rule violation, alleging that
Plaintiff had made an inappropriate sexual comment to him (the record does not reveal
the substance of the allegations). On the same day, Inmate Senesac told other inmates in
the SOTP that Rosales had submitted the cardinal rule violation about Plaintiff. Inmates
Robinson and Carlsen wrote up a cardinal rule violation on Senesac for disclosing that
information to other inmates. Some of the inmates told Plaintiff different stories about
what Rosales had included in his cardinal rule violation on Plaintiff.
On October 9, 2013, Plaintiff approached Correctional Officer Elizabeth Cox and
began asking her questions about the cardinal rule violation. She told him the violation
was written by only one inmate, and then stated she could not give him more information
or it would be considered manipulation. Plaintiff then asked, “What happened to the bear
on the desk?” This referred to an incident where Cox had been investigated by IDOC
officials for moving a bear statue or memento from a shelf to a desk without
authorization. (Dkt. 19.) Plaintiff told her that officials had asked him about it in the
investigation, and he intimated that he had not disclosed anything that would have
harmed her in the investigation. Cox felt as if Plaintiff was trying to say that he had

MEMORANDUM DECISION AND ORDER ON PENDING MOTIONS - 8

protected her at that time. Early in the morning of October 10, 2013, Cox reported the
incident to Clinician Bearden by email. (Dkt. 17-4.)
Plaintiff alleges that, on October 10, 2013, Bearden interrogated him for two
hours. Plaintiff told Bearden he began to feel confused and anxious during the
interrogation, but it continued. Plaintiff felt Bearden coerced him into saying that his
words and actions amounted to “criminal thinking” and a “veiled threat” against Officer
Cox. Three other employees were at the meeting: Wendy Gebhart, Sergeant Hasenoerhl,
and Michael Henrie. Plaintiff alleges that Gebhart also yelled at him during the meeting.
The staff informed Plaintiff that he would receive a Disciplinary Offense Report
(“DOR”) for manipulating staff and would be removed from the SOTP. Plaintiff began to
cry.
On October 15, 2013, Bearden wrote a first disciplinary offense report (DOR),
alleging that Plaintiff committed the violation of manipulating staff. On October 22,
2013, Plaintiff attended the hearing on the DOR and admitted that he could see how his
statements to Ms. Cox could have been construed by her as manipulation, but he also
maintained that Bearden had taken advantage of Plaintiff’s mental illness and
manipulated him into agreeing that he was guilty. (Aff. Brian Curtis, ¶ 3, Dkt 17-6; CD
of hearing, Dkt. 19) Hearing officer Brian Curtis found Plaintiff guilty of the DOR.
On October 27, 2013, Plaintiff complained to Clinician Wendy Gebhart that
Bearden had been harassing him. On October 31, Warden Terema Carlin dismissed the
first DOR on appeal. At some point in October 2013, Plaintiff was removed from the

MEMORANDUM DECISION AND ORDER ON PENDING MOTIONS - 9

SOTP. (Dkt. 24-1, p. 27.) On November 8, Plaintiff complained to Warden Terema
Carlin that Bearden had been harassing him.
On November 13, 2013, Staff members Barlow, Gebhart, Bearden, Henrie,
Hasenoehrl, and Downen (the “TCM” committee) held a meeting. The Notes state:
“Reyna #55217 appears to be angling to be sent south and has continued the behaviors
that caused him to be removed from programming. Larry [Bearden] will rewrite the DOR
that was dismissed.” (Dkt. 24-4, p. 16.)
On November 15, Bearden rewrote and reissued a second DOR, adding the
following words to the DOR that had been dismissed: “Reyna admits he used criminal
thinking of (you are the only staff that understands me) and when that did not work, he
used the veiled threat of I will protect you from getting into trouble if you give me
information.” (Aff. Bearden, ¶ 11, Dkt. 17-3.) Plaintiff was permitted to address the DOR
at the hearing. (Dkt. 19.) He denied the allegations, and again said he had been forced to
“agree” with Bearden after two hours of intense interrogation, because of Plaintiff’s high
anxiety and confusion. Plaintiff did not mention the bear incident during the second
hearing, but he did state that he had written an apology to Cox, and that Cox had
responded in writing that she hadn’t felt victimized.
On November 17, Plaintiff complained to Warden Carlin that Bearden had been
harassing and threatening him due to his bisexual orientation. On November 19, Warden
Carlin responded with the following:
I have read your letter dated November 17, 2013. In the letter you
report Clinician Bearden has targeted and harassed you. I have reviewed
your letter, to include your journal excerpts, and I cannot see where your
MEMORANDUM DECISION AND ORDER ON PENDING MOTIONS - 10

written complaints meet the criteria for targeting or harassing. Clinician
Beard is one of the facilitators for the SOTP. It is his responsibility to
manage the offenders on the unit and in the program. Clinician Bearden
was assess [sic] whether you are following the rules and also if you are
programming appropriately.
Clinician Bearden works closely with Clinician Gebhart, PSRS
Henrie, and the rest of the TCM committee on B2. Your inappropriate
behavior was recognized by all of the staff and your most recent removal
was a decision made by the entire team.
Your description of Clinician Bearden’s behavior is of someone that
is trying to bring an awareness. He was willing to tell you what the staff’s
concerns were and you were unable to accept his feedback. At this time I do
not feel that his behavior fits the definition of harassing or targeting.
(Carlin Memo of 11/19/13, Dkt. 24-3, p. 1.)
On November 22, the same hearing officer, Brian Curtis, found Plaintiff guilty
again. On December 2, 2013, Warden Carlin affirmed the DOR on appeal. On December
4, 2013, Plaintiff spoke to Carlin and notified her that she relied on the wrong policy
number reference in her affirmation, but she said it didn’t matter. Policy required that a
different hearing officer conduct Plaintiff’s second hearing, but Carlin said another
hearing officer was not available. Plaintiff alleges that other hearing officers were
“available” because Defendant’s responses to discovery show that another hearing
officer, Sergeant Schweller, was supervising the chow hall and could have traded places
with Corporal Curtis to hear the DOR, or Schweller could have conducted it at another
time during his shift.
On January 14, 2014, Plaintiff was briefly returned to the SOTP. On January 15,
2014, his open parole date was suspended. On January 28, Plaintiff was removed from
the SOTP due to the suspension.
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On January 29, 2014, Barlow, Bearden, Henrie, Lynch, and Downen met for a
TCM committee meeting. There it was discussed that “Reyna was removed again for
sexually acting out. His date has been pulled and he is scheduled for board in August. He
has said that he may want to sign a refusal to program. If this is the case, he would be a
candidate for going south.” (Dkt. 24-4, p. 28.) The “sexual acting out” is not described
anywhere in the record.
On April 17, 2014, Plaintiff received a DOR for physical contact. He alleges he
was practicing “Reiki” touchless healing therapy on Inmate Wright, not massaging
Wright’s back and neck, as charged. The DOR officer, Sergeant Hartnett, found him
guilty based on the “some evidence” rule, but stated that he knew what Plaintiff was
doing, and if Plaintiff appealed, the DOR would be rewritten as a violation of having
another inmate in his cell.
Plaintiff returned to the SOTP on June 25, 2014. On July 22, 2014, Clinician
Gimmesen completed an updated psychological and SORA evaluation for Plaintiff.
Gimmesen thought Plaintiff should be on Pathway 9 (six-month program) instead of
Pathway 11 (nine-month program).
On July 25, 2014, Bearden prepared a Pathway Exception Request to raise
Plaintiff’s pathway from 11 to 13 before Plaintiff’s next parole hearing. Plaintiff alleges
the form contains exaggerated, misstated, and manufactured information. (Dkt. 24-1, p.
21.) On August 6, 2014, during Plaintiff’s parole hearing, the ICPP told Plaintiff his
Pathway had been raised from 11 to 13. Plaintiff was not granted parole, but was
“flopped” for two years. (Dkt. 24-4, p. 6.)
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On August 6, 2014, staff members Bearden, Gimmesen, Layne, Hasenoehrl,
McIntosh, Telecky, and Downen held a TCM committee meeting. They discussed the
following: “Reyna was flopped for one year. In addition, he is a PW 13. He has been
progressing well in RPP and has presented all but one of his assignments. Staff does not
feel that he should be removed from the unit until such time as that group is finished.”
(Dkt. 24-4, p. 26.)
Plaintiff asked Gimmesen why his pathway had been changed to 13. On
September 4, 2014, Gimmesen told Plaintiff that there were no complaints against him,
but that Gimmesen had been informed that Plaintiff was “being the same as he always
was.” In response, Plaintiff let loose a barrage of alarming facts that he should have
brought to the attention of staff much earlier, including facts that appear to show that
Plaintiff observed and was in close proximity to other inmates who were sexually acting
out in the SOTP. In particular, Plaintiff told Gimmesen that they were targeting the
wrong inmate for improper sexual activity—that it was another inmate (without
mentioning a name) who had told Plaintiff “he felt like kissing [Plaintiff’s] dick and
reaching around to play with [Plaintiff’s] dick,” and also that Inmate “Scott” told
Plaintiff, “he would do anything with [Plaintiff] for coffee and commissary.” Plaintiff
also mentioned that Scott had discussed Officer Elizabeth Cox while Scott was “in the
shower with hard on purposely showing to [illegible] and [illegible] Cox and tell me to
see him.” (Plaintiff’s Journal, Dkt. 24-2.)
At that time, Gimmesen told Plaintiff that he should give the names of those
involved in the sexual activity to be prosocial and help them get the help they needed.
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Plaintiff said that “[he] didn’t want this to come back on [him], and guys should not get
parole dates taken so [he] would rather not.” (Plaintiff’s Journal, Dkt. 24-2.)
On September 6, 2014, Plaintiff sent concern forms to Dr. Richard Craig, chief
psychologist; Jeremy Clark, clinician supervisor; and Jason Kessinger, supervisor.
Plaintiff complained that his pathway had been raised instead of lowered, but each
supervisor affirmed the decision, although Plaintiff asserts the responses were evasive or
repeated information submitted by SOTP staff. Plaintiff’s grievance of October 3, 2014,
complaining of this issue, was denied.
On November 4, 2014, Bearden, Gimmesen, Schmidt, Layne, Hasenoehrl, and
Downen held a TCM meeting. It was mentioned that Reyna was a PW 13 and should be
moved south for programming. (Dkt. 24-4, p. 27.)
In early December 2014, Plaintiff asked Clinician Rob Schmidt if Plaintiff could
sign up for group therapy with another offender because Plaintiff and the offender were
“related.” Schmidt told Plaintiff the request was inappropriate and opined that Plaintiff
was trying to exert some level of control over the other offender with the likely outcome
of detriment to the well-being of the other offender. (Dkt. 24-4, p. 25.) However, Schmidt
did not prepare this report until March 19, 2015. Schmidt did prepare another related
report on December 8, 2014, which states that Plaintiff spoke to him both on December 2
and December 8. (Dkt. 24-4, p. 15.) Plaintiff alleges that he spoke to Schmidt only once,
on December 8, and he points out that Schmidt entered different data between the
December 8 report (about the December 8 incident) and the March 19 report (about an
alleged December 2 incident).
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3. Discussion
The record reflects that, on the date of Plaintiff’s discussion with Correctional
Officer Elizabeth Cox, she believed that Plaintiff’s communication to her regarding the
Rosales cardinal rule violation was questionable enough to have sent an email about it to
Plaintiff’s clinician, Defendant Bearden. It is undisputed that Plaintiff brought up the
“bear on the desk” investigation with Officer Cox after she told him she could not reveal
any more information about the cardinal rule violation report to him. This is “some
evidence” that supports the DOR guilty finding. Plaintiff’s dispute over his motivation
for bringing up this topic at that time with Officer Cox does not overcome the fact that he
did, in fact, bring up this topic when she had denied his request for her to reveal
confidential information about the cardinal rule violation report.
Even if Bearden rewrote the DOR out of a retaliatory motive and Cox later
responded to Plaintiff’s apology by stating she didn’t feel victimized, a retaliation claim
cannot stand because the DOR had a legitimate penological purpose—to punish behavior
that was inappropriate. Plaintiff should not have mentioned his role in the past
investigation into Cox’s possible misconduct at the same time he was attempting to
obtain information from her about a cardinal rule violation written against him by another
inmate. Plaintiff has not offered a plausible explanation why he would mention the
investigation when he was in a very tight spot; objectively, it appears that he was
intending to send a message to Cox that they had a special relationship of trust, and that
she should favor him with the requested information in return for his having – at least in
Plaintiff’s mind – favored her when he was interviewed in that investigation. Because (1)
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the record contains undisputed facts underlying the finding of some evidence supporting
the DORs, and the disputed facts are not material to that determination and (2) there was
a legitimate penological purpose for issuance of the DOR, Defendant Bearden is entitled
to summary judgment on the retaliation claim. The Court also concludes that additional
discovery would not change the outcome because the undisputed material facts show that
Plaintiff cannot meet the element that there was no legitimate penological purpose for
issuance of the second DOR.
The Court now considers whether Plaintiff’s Amended Complaint should be
permitted and whether Defendant should provide Plaintiff with additional discovery.
PLAINTIFF’S MOTION TO AMEND COMPLAINT
As noted above, in response to the Motion for Summary Judgment, Plaintiff has
submitted an Amended Complaint with exhibits, totaling 123 pages. Plaintiff believes
additional instances of retaliation have occurred, and that Defendant Clinician Bearden,
along with Clinician Byron Gimmesen and Warden Terema Carlin, have conspired
together to retaliate against him. Plaintiff includes new and old instances of these prison
officials’ behavior that he believes are retaliatory. Plaintiff’s new allegations are subject
to screening by the Court under 28 U.S.C. § 1915.
The Court is required to review prisoner complaints seeking relief against a
governmental entity or an officer or employee of a governmental entity to determine
whether summary dismissal is appropriate. 28 U.S.C. § 1915. The Court must dismiss a
complaint or any portion thereof that states a claim that is frivolous or malicious, that

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fails to state a claim upon which relief may be granted, or that seeks monetary relief from
a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B).
A complaint should also be dismissed under Rule 8 of the Federal Rules of Civil
Procedure if the factual assertions in the Complaint, taken as true, are insufficient for the
reviewing court plausibly “to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Threadbare
recitals of the elements of a cause of action, supported by mere conclusory statements, do
not suffice.” Id. In other words, although Rule 8 “does not require detailed factual
allegations, . . . it demands more than an unadorned, the-defendant-unlawfully-harmedme accusation.” Id. (internal quotation marks omitted). If the facts pleaded are “merely
consistent with a defendant’s liability,” the complaint has not stated a claim for relief that
is plausible on its face. Id. (internal quotation marks omitted).
Plaintiff now adds to his original retaliation claim other new claims that Bearden
was retaliating against him (1) by reporting to the TCM committee that he had continued
the behaviors that led to his removal from the SOTP; (2) by informing the TCM
committee that Plaintiff had been removed due to sexual misconduct, rather than due to
parole board action; and (3) manufacturing false information and using it in a Pathway
Exception Request to raise Plaintiff’s pathway from 11 to 13, instead of lowering it to 9,
like assessment results indicated. Plaintiff also alleges that Bearden violated Plaintiff’s
right to be free from cruel and unusual punishment by interrogating Plaintiff until he
confessed that he had manipulated Cox when Bearden knew Plaintiff suffered from a
mental illness or personality disorder.
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Plaintiff may not proceed on a conspiracy claim against Bearden at this time,
because he does not have sufficient facts showing an agreement among the parties to
violate Plaintiff’s constitutional rights. Rather, the record reflects that Bearden was
Plaintiff’s clinician and, as part of that job, Bearden was required to watch and evaluate
Plaintiff and make reports and recommendations regarding Plaintiff’s progress to the
TCM committee, which in turn, would take action on the reports and recommendations.
Plaintiff’s allegations show that prison officials discussed and agreed upon Plaintiff’s fate
in the rehabilitation program, but that was simply part of their job duties, and not in itself
a manifestation of a conspiracy.
Plaintiff will be permitted to proceed on the retaliation and cruel and unusual
punishment claims against Bearden, to the extent that Plaintiff has met the procedural
requirements to do so. The Eighth Amendment claim appears to be novel, and, if there is
no similar precedent governing the claim, the Court will entertain a qualified immunity
defense.
Plaintiff also alleges that Warden Carlin retaliated against him when she did
nothing to remedy the wrong that a different hearing officer was not used to hear the
second DOR, a situation that was contrary to prison policy. Plaintiff alleges that Warden
Carlin (1) relied on the wrong policy number (a DOR dismissed by the hearing officer,
not a DOR dismissed by the appellate authority), (2) wrongly stated that the different
hearing officer requirement was optional by stating that the word “’shall’ does not mean
‘will,’” and (3) gave a completely different and wrong answer on reconsideration that no
other hearing officers were available at that time, when discovery responses reflect that
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another hearing officer could have left his post to trade places with Hearing Officer Brian
Curtis, or they could have rearranged the DOR schedule.
Plaintiff has not provided sufficient allegations showing that his exercise of a
constitutional right was the impetus for causing Defendant Carlin to give Plaintiff
misinformation or to refuse to hold a third DOR hearing. There are no allegations
showing that Carlin had any motive to retaliate against Plaintiff; rather, her
communications seemed aimed at the legitimate penological purpose of efficiently
handling DORs. And Warden Carlin had earlier granted Plaintiff’s appeal and dismissed
his first DOR guilt finding, which cuts against Plaintiff’s allegations of a retaliatory
motive. Plaintiff is also speculating that another hearing officer was “available,” without
any supporting allegations showing that prison officials can simply “trade places” during
their shifts.
Plaintiff’s allegations also fail to support a retaliation cause of action against
Gimmesen. Simply because Gimmesen changed his mind about Plaintiff’s pathway after
Gimmesen spoke to Bearden does not mean that the change of mind was due to
retaliation rather than the information provided by Bearden. In addition, it does not
appear that Gimmesen recorded in Plaintiff’s file the fact that Plaintiff had failed to
submit a “pull up” on the inmates involved in the sexual activity and discussion that
Plaintiff revealed to Gimmesen—a fact that could have greatly harmed Plaintiff’s
opportunities to be in the SOTP. There are insufficient facts in the record suggesting that
Gimmesen had any motive to retaliate against Plaintiff.

MEMORANDUM DECISION AND ORDER ON PENDING MOTIONS - 19

SUMMARY
In summary, Plaintiff will be able to proceed on his Amended Complaint
allegations against Bearden, except as to the retaliatory DOR claim that has been
disposed of in the summary judgment motion and the conspiracy claim. He will not be
permitted to proceed against Carlin and Gimmesen without more.
PLAINTIFF’S MOTION TO COMPEL DISCOVERY
Plaintiff has filed a Motion to Compel Discovery Responses, contending that
Defendant Bearden has produced only a few records relating to Plaintiff’s stay in the
SOTP. (Dkt. 20.) Plaintiff believes that the IDOC possesses a comprehensive file
encompassing all of his records pertaining to his four unsuccessful attempts in the SOTP.
He believes that he saw SOTP staff with a thick SOTP file while he was he housed in the
SOTP. (Motion, Dkt. 20-1.)
The Court agrees with Plaintiff that it seems unusual that there are few written
records to document his behavior and progress (or lack of progress) over the many times
he was housed in the SOTP. Most of the documentation consists of generalities and
conclusions, with few specific facts.2
Defendant and his counsel assert that no comprehensive file ever existed. Each
facility has its own offender file, and it has been represented that three different prison

2

The record does contain some instances that could have been interpreted as ingratiating behavior, such as Plaintiff
warning Rosales about sexual activity in the SOTP and inviting Rosales to sit with him at dinner. Another incident
that could be interpreted as ingratiating behavior was having another inmate in his cell to perform touchless “reiki”
therapy on the inmate. Yet another instance of Plaintiff attempting to form a special relationship with another inmate
is Plaintiff’s request to be in the same therapy group as one of his relatives. Other incidents of inappropriate SOTP
behavior included in Plaintiff’s journal are his multiple observations of other inmates discussing or engaging in
inappropriate sexual behavior in the SOTP without Plaintiff reporting that to SOTP staff.

MEMORANDUM DECISION AND ORDER ON PENDING MOTIONS - 20

staff have searched each facility where Plaintiff has been housed to gather and provide
the documents produced. Defendants also declare that counselors are not required to
retain or archive records, but may discard them at their discretion. (Aff. Jeremy Clark,
Dkt. 23-1.)
Plaintiff’s discovery requests sought “assessments, test[s], exams, reports,
counseling and treatment documentation, interventions, complaints, pull-ups, staff notes,
disciplinary actions, and all correspondence sent or received in reference to Plaintiff.” It
is difficult for the Court to believe that the IDOC does not require mental health staff to
document an inmate’s progress in a rehabilitative program, so that multiple staff could
have a comprehensive historical view of the inmate’s participation in the program to help
treat him, or that IDOC would not want to periodically review the records of all inmates
in the SOTP to know how the program is functioning for training and supervision
purposes. Nevertheless, Defendants and their counsel declare that this is how the program
was run (for better or worse).
Parties to litigation cannot be made to produce what they do not have. If there was
a large file of Plaintiff’s SOTP history, parts of it may have been discarded. However,
while three IDOC officials have searched for Plaintiff’s SOTP history, Defendant Larry
Bearden should disclose whether he made periodic written notations regarding what he
considered to be “grooming” behavior, and, if so, whether he or someone else discarded
Plaintiff’s SOTP history. In addition, if he has no such written records, he should disclose
his anticipated trial testimony regarding the facts supporting his observations and
conclusions of ingratiating or grooming behavior.
MEMORANDUM DECISION AND ORDER ON PENDING MOTIONS - 21

Plaintiff’s C-notes mention an MMPI-2 assessment (April 26, 2013), and a SORA
assessment (February 3, 2014), and Plaintiff alleges he had additional assessments and a
SORA in July 2014. (Dkt. 24-4.) If these relevant items have not been produced to
Plaintiff, they should be.
Plaintiff may also need to supplement his disclosures. During the August 6, 2014
parole hearing, Commissioner Scheihing asked Plaintiff “if he want[ed] to stay here
because he was sexually harassing the other inmate.” (Dkt. 24-4, p. 18.) Plaintiff
responded that “he ha[d] made amends with the inmates.” The hearing notes show that
Plaintiff stated that he “is trying to be more mindful of his surroundings,” and “admits he
was in denial for a long time.” (Id.) These statements may support the staff members’
assessment about Plaintiff’s lack of progress in the SOTP. If he has not already done so,
Plaintiff should disclose to Defendant details about who Plaintiff was sexually harassing,
how he made amends, why Plaintiff thought he needed to be more mindful of his
surroundings, and what exactly he was in denial about.
PLAINTIFF’S MOTION FOR APPOINTMENT OF COUNSEL
Unlike criminal defendants, prisoners and indigents in civil actions have no
constitutional right to counsel unless their physical liberty is at stake. Lassiter v.
Dept. of Social Services, 452 U.S. 18, 25 (1981). Whether a court appoints counsel for
indigent litigants is within the court’s discretion. Wilborn v. Escalderon, 789 F.2d 1328,
1330-31 (9th Cir. 1986).
In civil cases, counsel should be appointed only in “extraordinary cases.” Id. at
1330. To determine whether extraordinary circumstances exist, the court should evaluate
MEMORANDUM DECISION AND ORDER ON PENDING MOTIONS - 22

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. Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1990). Neither factor is
dispositive, and both must be evaluated together. Id.
Applying the factors to this case, the Court finds that Plaintiff’s Amended
Complaint, liberally construed, states a claim upon which relief could be granted if the
allegations are proven at trial. However, a review of the evidence presented by the parties
in this case, in light of the difficulty of meeting the standard of law to prove a civil rights
violation, shows that it is unlikely that Plaintiff will prevail. Plaintiff is performing at a
much higher level than most self-represented litigants. The Court has ordered Defendants
to supplement discovery, pursuant to Plaintiff’s Motion to Compel Discovery Responses.
For all of the foregoing reasons, the Court will presently deny the request for
appointment of Counsel. However, the Court will continue to re-evaluate the request for
counsel throughout the course of the proceedings, without the need for Plaintiff to file a
new motion.
AVAILABILITY OF ALTERNATIVE DISPUTE RESOLUTION
This is a good point in time for the parties to re-evaluate why this lawsuit was filed
and what could be done to resolve the problems at issue. Plaintiff requests an award of
damages, as well as injunctive relief in the form of prohibiting Bearden from retaliating
against him any further.
The Court is aware that the Idaho Department of Correction recently announced
that it has discontinued all of its previously configured therapeutic community
MEMORANDUM DECISION AND ORDER ON PENDING MOTIONS - 23

rehabilitative programs and has decided to clarify its pathways to parole.3 The record in
this case reflects some odd-to-disturbing facts on both sides.4 There is already some
evidence in the record that Plaintiff had behaviors that could be construed as ingratiating
or grooming, and that he had an inability (or he refused) to recognize questionable
behaviors in other sex offenders who were trying to demonstrate a readiness to re-enter
society. Plaintiff is encouraged to consider from an objective point-of-view whether he
believes a jury would view his evidence most favorably, of the evidence of the
Defendant, based upon all of the admissible evidence in the record.
Plaintiff may wish to pursue early settlement, if only to give him an opportunity
for a place in a new sex offender treatment program, where an inmate’s mental health
concerns are taken into consideration and meaningful treatment records are maintained.
The record has yet to be expanded with the facts necessary to show whether Plaintiff is
entitled to relief on his new claims. Negotiation is simply one way the parties might find
a common ground to problem-solve, now that new IDOC programs and philosophies are
on the horizon.

3

See Cynthia Sewell, Kempf ushers in new era for Idaho Department of Correction, Idaho Statesman, Sept. 18,
2015 (online); Betsy Z. Russell, Idaho prisons halt treatment program that actually was leading to more recidivism,
The Spokesman-Review, Sept. 22, 2015 (online); Rebecca Boone, Idaho to revamp prison treatment programs,
Associated Press, Sept. 18, 2015. The Court cites to these sources only to demonstrate that the IDOC has made
public announcements regarding its rehabilitative programs and pathways.

4

For example, the disturbing conversation Plaintiff had with Gimmesen apparently is not documented in Plaintiff’s
SOTP file (or it was discarded at some point for an unknown reason); and it appears that Plaintiff does not seem to
understand the gravity of his “turning a blind eye” to the type of behavior that the SOTP is designed to address.
Plaintiff continues in his position of being very adverse to a requirement to shower alone and to make an
announcement that he desired to shower alone, when the type of behavior that showering alone was designed to
prevent actually was occurring in the SOTP, as documented in Plaintiff’s own journal.

MEMORANDUM DECISION AND ORDER ON PENDING MOTIONS - 24

ORDER
IT IS ORDERED:
1. Defendant’s Motion for Summary Judgment (Dkt. 17) is GRANTED.
2. Plaintiff’s Motion for Appointment of Counsel (Dkt. 9) is DENIED
without prejudice.
3. Plaintiff’s Motion to Compel Discovery (Dkt. 20) is GRANTED in part, to
the extent set forth above. If Defendant has any additional documents to
produce and information to disclose, they shall be provided to Plaintiff
within 30 days after entry of this Order. Plaintiff should also provide any
additional documents or disclosures of information to Defendant within 30
days after entry of this Order.
4. Plaintiff’s Motion for Leave to Amend Complaint (Dkt. 24) is GRANTED.
5. The Clerk of Court shall file a copy of the proposed Amended Complaint,
with attachments, (Dkt. 24-1 through 24-4) as an Amended Complaint.
6. Defendant Bearden’s Answer to the Amended Complaint shall be due
within 60 days after entry of this Order.
7. Any additional discovery shall be completed within 120 days after entry of
this Order.
DATED: September 30, 2015

Honorable Ronald E. Bush
U. S. Magistrate Judge
MEMORANDUM DECISION AND ORDER ON PENDING MOTIONS - 25