Wells v. Jerome County Jail et al

Filing 19

MEMORANDUM DECISION & ORDER Defendants' Motion for Summary Judgment (Dkt. 16 ) is GRANTED and this case is dismissed with prejudice in its entirety. 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 (jp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
GLORIA WELLS,
Case No. 4:15-cv-00336-BLW
Plaintiff,

MEMORANDUM DECISION AND
ORDER

v.
JEROME COUNTY JAIL, SHERIFF
MCFALL, LT. IBARRA, SGT. LINN,
GUARD VANHOLLAND, JEROME
COUNTY SHERIFF’S DEPARTMENT,
GEM STATE TOWING,
Defendants.

On February 23, 2016, Defendants filed a motion for summary judgment
(“Motion”) seeking dismissal of pro se Plaintiff Gloria Wells’s remaining claims.1 Dkt.
16. On February 24, 2016, the Court notified Plaintiff that she is required to file a
response to Defendants’ Motion within 21 days after the date the motion was mailed to
her. Dkt. 17. Plaintiff was further cautioned:

1

According to the Initial Review Order entered on October 5, 2015, Plaintiff was allowed to proceed on
her “conditions of confinement claims” against Jerome County and three of the named Defendants, minus
the claim of inadequate medical or dental care. IRO, Dkt. 5, pp. 20–21. The conditions of confinement
claims include allegations of overcrowding, no access to cleaning supplies, inadequate ventilation and
exposure to raw sewage from overflowing toilets in the basement, black mold in the shower, and unsafe
drinking water. Wells was also permitted to proceed on her equal protection claim based on the Jerome
County Jail’s alleged policy of allowing male inmates, but not female inmates, to work at the jail. Id., p.
15.

Memorandum Decision and Order - 1

You are warned that if you do not file your response opposing the motion
within 21 days (or such other time period set by the Court), the Court will
consider the facts provided by the moving party as undisputed and may
grant the motion based on the record before it, or it may dismiss your
entire case for failure to prosecute (abandonment of your case). See
Local Rule 7.1(e)(2); Fed. R.Civ. P. 41(b).
Dkt. 17. Plaintiff has filed no response, and the time for doing so has expired. See Local
Rule 7.1(c)(1).
Rule 56 of the Federal Rules of Civil Procedure provides, in pertinent part:
When a motion for summary judgment is made and supported as provided
in this rule, an adverse party may not rest upon the mere allegations or
denials of the adverse party’s pleading, but the adverse party’s response ...
must set forth specific facts showing that there is a genuine issue for trial. If
the adverse party does not so respond, summary judgment, if appropriate,
shall be entered against the adverse party.
Fed.R.Civ.P. 56(e) (emphasis added); see Celotex Corp. v. Catrett, 477 U.S. 317, 322–
23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (holding that summary judgment is
appropriate against a party who “fails to make a showing sufficient to establish the
existence of an element essential to that party’s case”).
Defendants’ arguments as to Wells’s conditions of confinement claims, and as to
her remaining equal protection claim, are persuasive in the absence of Plaintiff’s
opposition. Regarding the conditions of confinement claims, Wells failed to exhaust her
administrative remedies as to each claim, which is a prerequisite to bringing an action.2

2

Title 42 U.S.C. § 1997e(a) of the Prison Litigation Reform Act of 1955 (PLRA) provides:

No action shall be brought with respect to prison conditions under section 1983 of
this title, or any other Federal law, by a prisoner confined in any jail, prison, or

(Continued)
Memorandum Decision and Order - 2

Wells’s equal protection claim must also fail. Wells alleges that male inmates—but not
female inmates—were allowed to work at the jail, thereby becoming entitled to good time
credit. Sheriff McFall’s affidavit explains that for security and safety reasons, female
inmates are not permitted to work with male inmates other than under direct and
continual oversight of deputies. Dkt. 16-3, ¶ 8. He explains further that if an eligible
inmate wishes to earn good time credit, and there are no placement opportunities
available, other county jails are contacted. Id. at ¶ 9. If there is good time credit work
available at another jail, the inmate would then be transferred. Id. at ¶ 10. This is the
process used for all inmates, regardless of gender. Id. at ¶ 11. The uncontroverted facts in
Sheriff McFall’s affidavit establish that there is no unreasonable disparate treatment here.
The Court will grant Defendants’ motion for summary judgment because the undisputed
evidence offered in support of the motion “show[s] that there is no genuine issue as to
any material fact and that [Defendants are] entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(c); see Celotex, 477 U.S. at 322–23.
Alternatively, the Court will dismiss Plaintiff’s claims against Defendants for
failure to comply with the Court’s order and for lack of prosecution. The Ninth Circuit
has developed “a five-part ‘test’ to determine whether a dismissal sanction is just: ‘(1) the
public’s interest in expeditious resolution of the litigation; (2) the court’s need to manage

other correctional facility until such administrative remedies as are available are
exhausted.

Memorandum Decision and Order - 3

its docket; (3) the risk of prejudice to the party seeking sanctions; (4) the public policy
favoring disposition of cases on their merits; and (5) the availability of less drastic
sanctions.’” Valley Eng'rs, Inc. v. Electric Eng'g Co., 158 F.3d 1051, 1057 (9th Cir.1998)
(quoting Malone v. USPS, 833 F.2d 128, 130 (9th Cir.1987)); see also Yourish v. Cal.
Amplifier, 191 F.3d 983, 990 (9th Cir.1999). “[W]here a court order is violated, factors 1
and 2 support sanctions and 4 cuts against case dispositive sanctions, so 3 and 5 . . . are
decisive.” Valley Eng'rs, 158 F.3d at 1057. Factor 5 “involves consideration of three
subparts: whether the court explicitly discussed alternative sanctions, whether it tried
them, and whether it warned the recalcitrant party about the possibility of dismissal.” Id.
Considering this five-factor test, the Court concludes that dismissal is an
appropriate sanction in this case. The first two factors plainly weigh in favor of dismissal:
the public’s interest in expeditious resolution of litigation and the Court’s need to manage
its docket require action when a plaintiff refuses to prosecute a case. Regarding the third
factor, Defendants will be prejudiced if a sanction of dismissal is not imposed. After all,
Defendants are unable to move forward with their defense of this case when Plaintiff
refuses to respond to their motion and the Court’s order. As to the fifth factor, the Court
has considered less drastic sanctions, but none other than dismissal appear sufficient.
Plaintiff has not responded to the motion for summary judgment and has refused to
comply with the Court’s order. The Court informed the Plaintiff of the steps she must
take to defend against the motion for summary judgment. See Dkt. 17. The Court
concludes that the appropriate resolution is to dismiss Plaintiff’s case.

Memorandum Decision and Order - 4

Defendants have also asked this Court to limit Plaintiff’s ability to bring future
lawsuits in forma pauperis within this district. Dkt. 16-2, p. 1. Defendants ask that the
Court impose this limitation pursuant to Title 28 U.S.C.A. § 1915.3 The Court declines to
impose such relief at this time, as explained below.
The PRLA was enacted “to curb frivolous prisoner complaints and appeals.” Silva
v. Di Vittorio, 658 F.3d 1090, 1099–1100 (9th Cir.2011). Title 28 U.S.C.A. § 1915
provides:
(g) In no event shall a prisoner bring a civil action or appeal a judgment in a
civil action or proceeding under this section if the prisoner has, on 3 or
more prior occasions, while incarcerated or detained in any facility, brought
an action or appeal in a court of the United States that was dismissed on the
grounds that it is frivolous, malicious, or fails to state a claim upon which
relief may be granted, unless the prisoner is under imminent danger of
serious physical injury.
Thus, pursuant to Section 1915(g) a prisoner with three “strikes,” meaning prior cases or
appeals, brought while the plaintiff was a prisoner that were dismissed as frivolous,
malicious, or for failure to state a claim, cannot proceed in forma pauperis. Andrews v.
King, 398 F.3d 1113, 1116 n. 1 (9th Cir.2005).

3

In addition to Section 1915, a court “has the inherent power to restrict a litigant’s ability to
commence abusive litigation in forma pauperis.” Visser v. Supreme Court of California, 919 F.2d 113,
114, (9th Cir. 1990). The Court will decline to exercise its discretion in this regard, because Wells’s five
lawsuits—filed intermittently since 2009—pale in comparison to the number of lawsuits filed by other
litigants in cases where restrictions have been imposed. See Visser, 919 F.2d 113 (petitioner filed eleven
mandamus petitions in 16 months); In re Sindram, 489 U.S. 117 (1991) (petitioner filed 25 filings in one
year, and in the preceding three years filed 43 separate petitions and motions); In re McDonald, 489 U.S.
180, 109 S.Ct. 993 (1989) (petitioner made 73 filings over an 18 year period).

Memorandum Decision and Order - 5

Defendants have the burden of establishing that Plaintiff has three or more strikes
within the meaning of Section 1915(g), which requires submission of evidence sufficient
to demonstrate at least three prior qualifying dismissals. Andrews, 398 F.3d at 1120. As
the court noted in Andrews, “[n]ot all unsuccessful cases qualify as a strike under §
1915(g). Rather, § 1915(g) should be used to deny a prisoner’s IFP status only when,
after careful evaluation of the order dismissing an action, and other relevant information,
the district court determines that the action was dismissed because it was frivolous,
malicious or failed to state a claim.” Id. at 1121.
The Court declines to decide whether Wells’s previous lawsuits qualify as strikes,
because such an analysis is not necessary to resolve this case.4 Should Wells file another
case in federal court along with a motion to proceed in forma pauperis, then the court
may at that time deny the motion if it determines that Wells has previously accrued three
strikes pursuant to Section 1915(g). See Belanus v. Clark, 796 F.3d 1021, 1031–32 (9th
Cir. 2015) (J. Fernandez concurring and dissenting in part) (“It is tempting to issue an

4

The Court will note, however, that the present case does not constitute a strike against Wells.
See Martinez v. United States, 812 F. Supp. 2d 1052, 1057 (C.D. Cal. 2010) (“A case resolved by way of
summary judgment does not fall within the plain language of Section 1915(g) as it is not equivalent to a
dismissal on the grounds that an action is ‘frivolous, malicious, or fails to state a claim upon which relief
may be granted.’ ”); Butler v. Dep't of Justice, 492 F.3d 440, 442 (D.C. Cir. 2007) holding modified by
Mitchell v. Fed. Bureau of Prisons, 587 F.3d 415 (D.C. Cir. 2009) (Dismissal of appeal of prisoner's civil
suit for failure to prosecute does not count as “ strike” under the PLRA “three strikes” limitation on in
forma pauperis proceedings; such dismissal is not based on appeal's being “frivolous, malicious, or
fail[ing] to state a claim.”)

Memorandum Decision and Order - 6

advisory opinion on the strike question for future courts that might have to struggle with
deciding whether a previous piece of litigation did result in a strike, but I think that the
temptation should have been resisted by the district court and should be resisted by us.”)

ORDER
IT IS ORDERED:
1.

Defendants’ Motion for Summary Judgment (Dkt. 16) is GRANTED and

this case is dismissed with prejudice in its entirety.
2.

The Court will issue a separate judgment in accordance with Federal Rule

of Civil Procedure 58.

DATED: May 2, 2016

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

Memorandum Decision and Order - 7