Drennon v. Blades

UNITED STATES DISTRICT COURT

DISTRICT OF IDAHO

RICHARD DRENNON, Case No. 1:19-cv-00021-REB

Plaintiff,

MEMORANDUM DECISION

vs. AND ORDER

RANDY BLADES, S. BROOD, JULIE

BRYANT, DISTRICT FOUR PROBATION,

ANGEL DOBREV, IDAHO BOARD OF

CORRECTIONS, IDAHO COMMISSION

OF PARDONS AND PAROLE, M. MASON,

and JANE VORHES,

Defendants.

Pending before the Court is a Motion for Summary Judgment filed by Defendants

Randy Blades, Steve Brood, Julie Bryant, District Four Probation, Angel Dobrev,

Montelito Mason, Idaho Board of Corrections, Idaho Commission of Pardons and Parole,

and Janae Vorhes. Plaintiff Richard Drennon, a prisoner in the custody of the Idaho

Department of Correction (IDOC), has filed an “Objection” and “Declaration.” (Dkt. 22.)

Defendants have filed a Reply (Dkt. 25), and Plaintiff has filed a “Supplement” and a

Sur-reply (Dkts. 26, 27.) The Motion is now fully briefed and ripe for adjudication.

All named parties have consented to the jurisdiction of a United States Magistrate

Judge to enter final orders in this case. (Dkt. 15.) See 28 U.S.C. § 636(c) and Fed. R. Civ.

P. 73. Accordingly, having considered the submissions of the parties and finding oral

argument unnecessary, the Court enters the following Order.

BACKGROUND

On July 22, 2016, Plaintiff Richard Drennon and three other plaintiffs filed a civil

rights action against a multitude of defendants under Case No. 1:16-cv-00329-REB. The

Idaho state defendants filed an Answer. (Dkt. 8.) The Ada County defendants and

Meridian City defendants filed Rule 12(b) Motions to Dismiss. (Dkt. 6, 7, 30.) On

September 19, 2017, the Court granted in part and denied in part the Ada County

defendants’ Motions to Dismiss, and granted the Meridian City defendants’ Motion to

Dismiss. (Dkt. 59.) The claim of all plaintiffs were dismissed with the exception of

Plaintiffs Drennon and Robert Coy. The year 2018 was dominated by disputes over

discovery and access to the courts.

On January 18, 2019, the Court entered an Amended Case Management Order.

(Dkt. 138.) For clarity and case management purposes, the Court severed Plaintiff

Drennon’s claims from Plaintiff Robert Coy’s claims and ordered the Clerk of Court to

file Plaintiff Drennon’s Amended Complaint in a new action (this action). The Court

further ordered Plaintiff Drennon’s claims severed into different lawsuits, grouped by

related claims and defendants, as required by Federal Rule of Civil Procedure 20. (Id.)

Pursuant to the Amended Case Management Order, this lawsuit encompasses only

those claims in the Amended Complaint that correspond to the same claims in the

original Complaint. (Id., p. 11.)

To the extent that the original Complaint asserted claims against other Defendants

that Plaintiff was ordered to, but did not, pursue in new, separate lawsuits, those claims

will be dismissed without prejudice. Those claims include the following: (1) the claim

that Plaintiff was not provided with proper medical care at ISCI and ISCC during the

time period he was detained for the parole violations; (2) the claim that he was not

provided with proper medical care at the Ada County Jail; (3) the claim that a state statute

violated Plaintiff’s constitutional rights; (4) the claim that certain Defendants colluded or

conspired to deprive him of his protected rights; (5) all the access to courts and grievance

claims against Ada County Defendants; (6) all the access to courts and grievance claims

against the ISCC and ISCI, defendants and their attorneys; (7) medical and optical care

claims for treatment that occurred since Plaintiff’s new convictions; and (8) any

ADA/RA claims against the state of Idaho or a state entity. (Id., pp. 12-14.)

PRELIMINARY MATTERS

Plaintiff asserts that he informed Defendants’ counsel prior to his scheduled

deposition that he was “taking several mind altering medications but she [Defendants’

counsel] chose to continue with the deposition.” (Dkt. 22-1, p. 4.) Plaintiff says he has

very little memory of the deposition, and the deposition should have been halted and

rescheduled. This characterization is not reflective of what happened at the deposition:

Q. Are you on any medications or substances that

can impair your ability to testify truthfully here

today?

A. Maybe, it depends. I take a plethora of

medication. Okay? But I intend to be as truthful as

possible to what I know. So it's not going to be

intentional if it’s not.

Q. What medications are you on that may impair

your ability to testify truthfully?

A. There is an antidepressant. I don't remember

the name of it. It’s a new one that they put me on.

And then there is the – it’s a medication for pain, for

neuropathy. It will come to me in a minute. And then

there is some blood pressure meds that kind of kept me

in a loop, so -- but I should be okay.

Q. Do you have any mental impairments that affect

your memory?

A. Mental impairments?

Q. That affect your memory?

A. Other than medication, no.

(Dkt. 13-4, Deposition of Richard Drennon (hereinafter “Depo.”), pp. 5-6.)

Plaintiff had an opportunity to request a review of the deposition, to make

any changes with an explanation for each change, and to sign the deposition. The

copy lodged with the Court does not contain a signature or any changes. (Depo.,

pp. 183-84.) Nothing in the transcript demonstrates that Plaintiff was not able to

understand and respond appropriately to the questions posed. The Court will not

now entertain Plaintiff’s complaints about how his mental or physical infirmities

may have affected the deposition. Plaintiff’s objections are overruled.

SUMMARY JUDGMENT STANDARD OF LAW

Summary judgment is appropriately entered when 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). “[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, a case will survive summary judgment only if there is a

genuine dispute as to a material fact. Material facts are those “that might affect the

outcome of the suit.” Id. at 248.

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 [a] jury could reasonably find for

the [non-moving party].” Anderson, 477 U.S. at 252. 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 does not determine the credibility of affiants or weigh the evidence set

forth by the parties. 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).

Pro se inmates are exempted “from strict compliance with the summary judgment

rules,” but not “from all compliance.” Soto v. Sweetman, 882 F.3d 865, 872 (9th Cir.

2018). In opposing a motion for summary judgment, a pro se inmate must submit at least

“some competent evidence,” such as a “declaration, affidavit, [or] authenticated

document,” to support his allegations or to dispute the moving party’s allegations. Id. at

873 (upholding grant of summary judgment against pro se inmate because the “only

statements supporting [plaintiff’s] ... argument are in his unsworn district court responses

to the defendants’ motion for summary judgment and to the district court’s show-cause

order”).

The content of a verified amended complaint can serve as an affidavit in

opposition to a motion for summary judgment to the extent the plaintiff’s allegations are

based on personal knowledge. See Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004)

(allegations in a pro se plaintiff’s verified pleadings must be considered as evidence in

opposition to summary judgment); Schroeder v. McDonald, 55 F.3d 454, 460 (9th Cir.

1995) (verified complaint may be used as an affidavit opposing summary judgment if it is

based on personal knowledge and sets forth specific facts admissible in evidence).

However, “if a defendant moving for summary judgment has produced enough evidence

to require the plaintiff to go beyond his or her pleadings, the plaintiff must counter by

producing evidence of his or her own.” Butler v. San Diego Dist. Attorney’s Office, 370

F.3d 956, 965 (9th Cir. 2004).

In addition, the Prison Litigation Reform Act (PLRA)1 requires the Court to screen

all pro se prisoner pleadings to determine whether they have stated a claim upon which

relief can be granted before such complaints are served on the defendants. 28 U.S.C. §§

1 Pub. L. No. 104-134, 110 Stat. 1321, as amended, 42 U.S.C. § 1997e, et seq.

1915 & 1915A. The Court retains screening authority to dismiss claims at any time

during the litigation under §1915(e).2

DISCUSSION OF MOTION FOR SUMMARY JUDGMENT:

PART ONE, PLAINTIFF’S TWELVE CLAIMS FOR RELIEF

1. First Claim for Relief

Plaintiff alleges that the Idaho parole statutes authorizing his placement in jail

pending resolution of his parole violation charge, including Idaho Code § 20-229B, are

unconstitutional because they allow parole officers to decide the length of time offending

parolees must spend in jail (up to 90 days for a first violation, and up to 180 days for a

second) and do not make allowances for disabled parolees to receive “the identical

medical treatment Plaintiff received on the street under private care.” (Dkt. 1, p. 16.)

Plaintiff was ordered to bring this claim in a separate lawsuit if he desired to pursue it. He

did not. This claim is subject to dismissal without prejudice.

2. Second Claim for Relief

Plaintiff asserts that Defendants intentionally interfered with his access to courts

rights, resulting in the loss of three legal actions and the loss of over $200,000 in

property. Plaintiff was ordered to bring this claim in a separate lawsuit if he desired to

pursue it. He did not. This claim is subject to dismissal without prejudice.

2 Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss

[an in forma pauperis] case at any time if the court determines that . . . the action or appeal . . . is frivolous

or malicious. . . [or] fails to state a claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B).

3. Third Claim for Relief

Plaintiff asserts that Defendants intentionally interfered with his grievances so as

to deprive him of a fair and timely grievance process. There is no constitutional right to a

prison grievance system. Only if prison officials’ action related to a grievance causes a

prisoner to lose a cause of action does an access to courts claim lie. As mentioned

directly above, Plaintiff was ordered to bring that claim in a separate lawsuit. He did not.

The claim in this lawsuit will be dismissed without prejudice.

4. Fourth Claim for Relief

Plaintiff alleges that workers in the IDOC mailroom intentionally interfered with

Plaintiff’s incoming legal mail from Mrs. Drennon and Plaintiff Coy. Only letters to and

from attorneys are classified as legal mail, but Plaintiff does have a right to have contact

with the outside world, limited by prison security concerns. The Court previously notified

Plaintiff that, if he desired to pursue an interference with mail claim, he must do so in a

separate lawsuit. He did not do so. The claim in this lawsuit will be dismissed without

prejudice.

5. Fifth Claim for Relief

Plaintiff alleges that the entity Defendants intentionally deprived him of necessary

and adequate medical care, meaning care equal to that which he received from medical

providers outside the jail and prison systems. Plaintiff was ordered to bring such a claim

in a separate lawsuit. He did not. The claim in this lawsuit will be dismissed without

prejudice.

6. Sixth Claim for Relief

Plaintiff alleges that Defendants deprived him of the “ability to respond to the

pleadings filed by all the initial Defendants in this lawsuit… and, as a result of this

interference, Plaintiff Drennon was unable to file responses, objections or any form of

challenge to these pleadings, and, as a result, the Court issued decisions without Plaintiff

Drennon being able to respond.” (Dkt. 1-1, p. 20.) Plaintiff was ordered to bring such a

claim in a separate lawsuit. He did not. The claim in this lawsuit will be dismissed

without prejudice.

7. Seventh Claim for Relief

The seventh cause of action that Defendant “‘Commission of Paraobation [sic] and

Parole’ violated Plaintiff Drennon’s right to a fair and impartial revocation of parole

process by allowing a named Defendant, Brood, to engage Plaintiff in a bogus form of

parole hearing.” (Dkt. 1-1, p. 47.) Plaintiff has brought forward insufficient evidence to

support his allegation that the parole revocation hearing process was bogus. The parole

revocation statutes provide that a parole revocation hearing may be conducted by

members of the Commission, a member of the Commission, or a designated Parole

Hearing Officer, like Brood. See I.C. § 20-229B.

Regardless, Plaintiff’s claims against the Commission are subject to dismissal. The

Eleventh Amendment prohibits litigants from bringing suits for monetary damages

against state agencies and state officials acting in their official capacity. Puerto Rico

Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139 (1993). All claims for

monetary damages asserted against the state entities—Idaho Board of Correction (IBOC),

District Four Parole, and the Idaho Commission of Pardons and Parole—are barred by

Eleventh Amendment sovereign immunity. These claims will be dismissed for failure to

state a federal claim upon which relief can be granted.

In addition, Plaintiff asserts that the parole violation charges were based upon

“fabricated, falsified” evidence allowed by the Commission to retaliate against Plaintiff

for exercising his right to access the courts. This allegation does not implicate the “form”

of the hearing, but the basis of the charges.

Certain types of parole claims may be brought as § 1983 claims; others must be

asserted in habeas corpus actions. In Wilkinson v. Dotson, 544 U.S. 74 (2005), the

Supreme Court held that an inmate may initiate a § 1983 action to seek invalidation of

“state procedures used to deny parole eligibility . . . and parole suitability,” but he may

not seek “an injunction ordering his immediate or speedier release into the community.”

Id. at 82. In Heck v. Humphrey, 512 U.S. 477, 481 (1994), the Court held that a prisoner

in state custody cannot use a civil rights action to challenge the fact or duration of his

confinement. Id. at 481. In addition, the Dotson Court further clarified that a state

prisoner's § 1983 action is barred (absent prior invalidation)—no matter the relief sought

(damages or equitable relief), no matter the target of the prisoner’s suit (state conduct

leading to conviction or internal prison proceedings)—if success in that action would

necessarily demonstrate the invalidity of confinement or its duration. Id. at 81-82.

Here, if this Court were to decide that Plaintiff’s parole revocation and subsequent

re-incarceration were based upon fabrication, falsification, and/or retaliation, that

decision would call into question the factual grounds for the parole violation and

revocation. Despite the way Plaintiff has framed his claim to bypass the Heck bar,

Plaintiff’s claims are not among those authorized by Dotson – that is, his claims do not

seek invalidation of “state procedures used to deny parole eligibility . . . and parole

suitability.” Id. at 82 (emphasis added). The Seventh Claim will be dismissed without

prejudice.

8. Eighth Claim for Relief

Plaintiff says he notified the Ada County [state] Court of his access to the courts

issues caused by the interference of Ada County Jail and IDOC personnel, but the Ada

County Court did nothing to remedy the problems. Instead, “Plaintiff Drennon was

unconstitutionally convicted.” (Dkt. 1-1, p. 48.) If he refers to his parole conviction, the

claim must be brought in habeas corpus. Regardless, Plaintiff was ordered to bring this

claim in a separate lawsuit if he desired to pursue it. He did not. This claim in this lawsuit

will be dismissed without prejudice.

9. Ninth Claim for Relief

Plaintiff alleges that IDOC Defendants, counsel, and paralegals engaged in

intentional acts to deprive Plaintiff of attending scheduled telephonic hearings in this

lawsuit, unnecessarily interfering with Plaintiff’s right to access the Court. The Court

does not condone any circumstances in which the IDOC failed to ensure that Plaintiff was

at the right location at the right time so as to participate telephonically in a scheduled

telephone hearing, but in each such case the hearing was either rescheduled or some other

accommodation was made to ensure that he suffered no prejudice to his case. There is no

showing that he suffered any harm from those instances where the originally scheduled

hearing did not go forward because IDOC failed to make certain the Plaintiff was where

he needed to be at the time of the telephone hearing. In any event, here also the Court

ordered Plaintiff to bring such claims in a separate lawsuit if he desired to pursue them.

He did not. This claim will be dismissed without prejudice.

10. Tenth Claim for Relief

Plaintiff asserts that the ISCC facility is not ADA or RA compliant. The Court

ordered Plaintiff to bring such claims in a separate lawsuit against the state or appropriate

state entity if he desired to pursue them. He did not. This claim will be dismissed without

prejudice.

11. Eleventh Claim for Relief

Plaintiff asserts that the IDOC legal resource centers are inadequate in their

coverage of foreclosure laws, causing him to lose investment property of over $200,000.

The right to access the courts right does not cover foreclosures, only actions that

challenge convictions and prison conditions civil rights claims. This claim will be

dismissed for failure to state a federal claim upon which relief can be granted.

12. Twelfth Claim for Relief

Plaintiff alleges that Defendants caused him to “suffer from the chill effort

resulting in Plaintiff Drennon being fearful of pursuing grievances and other avenues of

redress of grievances for fear of being verbally, physically & psychologically injured, due

to the lack of adequate medications Plaintiff Drennon received prior to incarceration.”

Plaintiff was previously instructed to bring all grievance-related claims in a separate

lawsuit. He did not. This claim will be dismissed without prejudice.

DISCUSSION OF MOTION FOR SUMMARY JUDGMENT:

PART TWO, PLAINTIFF’S UNIDENTIFIED CLAIMS ARISING FROM HIS

“SUPPORTING FACTS” ALLEGATIONS IN THE AMENDED COMPLAINT

If only the twelve “Claims for Relief” set forth in Plaintiff’s Amended Complaint

(Dkt. 1) were to be decided, the Court would end its analysis now and dismiss the

Amended Complaint. However, the Court has liberally construed the Amended

Complaint to contain “claims” that can be extrapolated from the “Supporting Facts”

section of the Amended Complaint, supplemented by Plaintiff’s explanations he gave in

deposition in March 2019.

1. Absolute Quasi-Judicial Immunity: Actions related to Hearing

Plaintiff was charged with violating Special Condition #4 of his Parole

Agreement, which required that he submit to a polygraph test at the request of treatment

providers and/or supervising personnel. On January 20, 2016, Defendant Steve Brood

conducted Plaintiff’s parole violation hearing. Plaintiff entered a guilty plea.

Defendant Brood asserts entitlement to absolute quasi-judicial immunity from suit

regarding Plaintiff’s claims against him. The Ninth Circuit has outlined the absolute

immunity analysis to be used for parole board member and parole officer defendants in

Swift v. California, 384 F.3d 1184 (9th Cir. 2004):

The Supreme Court has reserved deciding whether

members of state parole boards have absolute quasi-judicial

immunity for their official actions. Martinez v. California,

444 U.S. 277, 285 n. 11, 100 S.Ct. 553, 62 L.Ed.2d 481

(1980). We have held, however, that parole board members

are entitled to absolute immunity when they perform “quasi-

judicial” functions. Anderson [v. Boyd], 714 F.2d, 906 909-10

(9th Cir. 1983). Thus, parole board officials … are entitled to

absolute quasi-judicial immunity for decisions “to grant,

deny, or revoke parole” because these tasks are “functionally

comparable” to tasks performed by judges. Sellars, 641 F.2d

at 1303; Bermudez v. Duenas, 936 F.2d 1064, 1066 (9th

Cir.1991) (holding Sellars immunity encompasses actions

“taken when processing parole applications”). Absolute

immunity has also been extended to parole officials for the

“imposition of parole conditions” and the “execution of

parole revocation procedures,” tasks integrally related to an

official’s decision to grant or revoke parole. Anderson, 714

F.2d at 909.

We have also explained, however, that parole officials

are not “entitled to absolute immunity for conduct not

requiring the exercise of quasi-judicial discretion.” Id. “There

is no reason to clothe actions taken outside an official’s

adjudicatory role with the absolute immunity tailored to the

demands of that role.” Id. Thus, while parole officials “may

claim absolute immunity for those actions relating to their

responsibility to determine whether to revoke parole, their

immunity for conduct arising from their duty to supervise

parolees is qualified.” Id. at 910; see also Sepulveda v.

Ramirez, 967 F.2d 1413, 1415-16 (9th Cir. 1992) (holding

that a parole officer was not entitled to qualified immunity for

depriving a woman of her clearly established due process

right to bodily privacy by entering a bathroom stall and

watching her urinate). Anderson, therefore, expresses the

broad principle that, under a functional analysis, parole

officials “may be accorded one degree of immunity for one

type of activity and a different degree for a discrete function.”

Anderson, 714 F.2d at 910.

Id. at 1188-1189. Swift overruled any prior interpretation of Anderson v. Boyd that the

test for absolute immunity is only whether the act “relates to” the decision to grant, deny,

or revoke parole. Id. at 1190.

The Court will now address Plaintiff’s claims for which Defendant Brood asserts

absolute quasi-judicial immunity.

A. Conducting a “Bogus Parole Hearing”

Plaintiff alleges that he was forced to “engage in a bogus parole hearing at the

hands of defendant Brood.” (Depo., p. 177.) This claim centers on the procedures and

content of the parole hearing, and, thus, even if it was “bogus,” Brood is entitled to

absolute quasi-judicial immunity. Cf. Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir.

1986) (Once it is determined that a judge was acting in his judicial capacity, absolute

immunity applies, “however erroneous the act may have been, and however injurious in

its consequences it may have proved to the plaintiff.”); Moore v. Brewster, 96 F.3d 1240,

1244 (9th Cir. 1996) (superseded on other grounds by California statute) (quoting

Ashelman v. Pope, 793 F.2d at 1078) (judicial immunity is not lost “by allegations that a

judge conspired with one party to rule against another party: ‘a conspiracy between judge

and [a party] to predetermine the outcome of a judicial proceeding, while clearly

improper, nevertheless does not pierce the immunity extended to judges.’”). This claim

will be dismissed with prejudice.

B. Failure to Allow Plaintiff to Call Witnesses

Plaintiff also alleges that “they” (unclear as to the defendants) denied him the right

to call witnesses to challenge his accusers. He alleges he asked Brood or another person

in authority if he could call certain witnesses, and “they” said no. (Depo., p. 126.)

Plaintiff agreed in his deposition that this course of action was not outside the hearing

process. Id. Defendant Brood’s (or any other Defendant’s) responsibilities and acts in

deciding which witnesses to allow, weighing evidence, and deciding the merits of the

parole violations arise from the quasi-judicial work as a parole hearing officer. These acts

are encompassed by absolute quasi-judicial immunity and will be dismissed with

prejudice.

C. Impartial Hearing Officer

When asked in deposition why Brood was included in the lawsuit, Plaintiff

responded, “I think he lacks complete impartiality when it comes to me.” (Depo., p. 36.)

Brood’s impartiality as the factfinder in this matter is an integral part of the hearing

process. While perhaps Plaintiff is skeptical about Brood’s impartiality in not permitting

Plaintiff to call the witnesses of his choice, both Ashelman v. Pope and Moore v.

Brewster hold that a factfinder’s impropriety or bad faith is not considered in the

analysis—only whether he or she was functioning in a quasi-judicial role. Because a

charge of impartiality is aimed at the factfinding in the quasi-judicial hearing at issue,

Brood is entitled to absolute immunity. This claim will be dismissed with prejudice.

D. Denial of Access to Hearing Panel

Plaintiff alleges that Brood, along with Defendant Vorhes, “deprived [him] of his

adequate access to hearing panel that was impartial and would review the records

requested for a determination of plaintiff’s claims being accurate, in regards to funding

the polygraph test.” (Dkt. 125, p. 17.) Plaintiff explained in deposition that he meant he

requested to meet with the Parole Board, rather than have a parole hearing officer decide

the violation. (Depo., p. 126.)

Plaintiff has brought forward nothing showing who assigned his case to be heard

by Brood instead of by a Commission member or the entire Commission, why he believes

he was entitled to go before the Commission rather than a parole hearing officer, and

whether Vorhes and Brood had the authority or acted to have Plaintiff appear before

Brood rather than the Commission. The governing statute permits a Commission

member, members, or a parole hearing officer to conduct parole violation hearings. See

I.C. § 20-229B.

In any event, inasmuch as assignment of a factfinder to a case is an integral part of

the judicial process, Brood and Vorhes are entitled to absolute quasi-judicial immunity, if

they, in fact, participated in assigning Plaintiff’s parole violation hearing to Brood, an

authorized parole hearing officer. In Martinez v. Winner, 771 F.2d 424 (10th Cir. 1985),3

the “complaint state[d] that Judge Winner assigned himself, in contravention of local

practice and rules, to preside at the Martinez criminal trial, for the purpose of insuring a

conviction.” Id. at 434. The court held that “[a]lthough it is an ‘administrative’ act, in the

sense that it does not concern the decision who shall win a case, the assignment of cases

is still a judicial function in the sense that it directly concerns the case-deciding process.”

Id.

Alternatively, these allegations fail to state a claim upon which relief can be

granted for failure to show personal participation of Brood and Vorhes, because there are

no facts in the record showing they had any authority over such a decision, or even, in the

absence of authority, that they acted as Plaintiff alleges.

To the extent Plaintiff’s term “they” (referring to the person or persons who

assigned the case to Brood) means that the Commission is responsible for assigning a

3 Martinez was vacated on other grounds sub nom. Tyus v. Martinez, 475 U.S. 1138 (1986).

parole hearing officer to Plaintiff’s case, claims against individual Commission members

are barred by absolute quasi-judicial immunity, and claims against the Commission itself

for resulting damages are barred by Eleventh Amendment sovereign immunity, as

discussed elsewhere above. This claim, in all of its forms, will be dismissed with

prejudice.

E. Stalking, Harassment and Retaliation Claims Against Defendant Brood

In response to deposition questioning about the vague allegations in paragraph 47

of the Amended Complaint (Dkt. 1), Plaintiff asserted that Defendant Brood was one of

the unnamed parole officers who engaged in “interfering with and stopping plaintiff

Drennon from engaging in voluntary assistance to individuals needing to read and

understand the law, as well as stalking and harassing plaintiff Drennon beginning

between 2013 and 2015.” (Depo., p. 57.)

The first clarification Plaintiff made in deposition was that some of the stalking,

harassment, and retaliation claims arose from statements Brood made during the hearing

process:

Q. I just want to make sure I understand. So from 2013 to

2015, Steve Brood stalked and harassed you by his

participation as the hearing officer through the parole

violation process, whether that's serving the parole

violation, or acting in the capacity of a hearing officer;

is that correct?

A. That's correct.

Q. Anything else?

A. With his statements involved in that, yes, it’s very

obvious. No. I’m going to say, no, at this point. Now,

there are other things that I will bring forth to you later

if l find them, but...

Q. As we sit here today, that’s --

A. Yes, that’s good.

Q. That’s the extent of it?

A. Yes.

(Depo., p. 78.)

Because such statements were made in the course of the parole violation hearing

proceedings where Brood was the quasi-judicial officer, he is entitled to absolute quasi-

judicial immunity for these claims. They will be dismissed with prejudice.

The second type of stalking, harassment, and retaliation Plaintiff complained of in

deposition was that Brood made several statements to him during service of process of a

parole violation. These statements made outside of the parole hearing process would not

be covered by absolute quasi-judicial immunity.

Q. How did he stalk and harass you, as it relates to

paragraph 47 of your complaint?

A. His comments during the service process of the

parole violations, okay? “Told you we would

get your ass,” quote. “Told you.” He made it

very clear he was out to get me.

(Depo., p. 77.)

Also at deposition, when asked whether Brood did anything outside of the scope

of the parole violation hearing that violated Plaintiff’s constitutional rights, Plaintiff again

answered only: “Well, Brood was like this, told you we would get you doing this type of

shit, the behavior.” (Depo, pp. 128-29.)

To state a stalking, harassment, or retaliation claim, a plaintiff must provide

sufficient factual allegations that are more than “merely consistent with a defendant’s

liability”; otherwise, the complaint has not stated a claim for relief that is plausible on its

face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted).

Brood’s words can be construed as a statement that he had warned Plaintiff earlier that he

would catch him in parole violations—a construction that does not support any of

Plaintiff’s claims. The words can also be construed as harassment or retaliation; however,

Plaintiff has not presented other supporting facts that would place Brood’s statement

beyond being merely consistent with potential liability.

The Court has scoured the record for additional facts, but has found none. There

are no corresponding factual allegations in the Amended Complaint specific to Brood,

and no date or context for these comments in the deposition transcript or anywhere else in

the record. There are no factual allegations connecting Brood to any retaliatory action—

for example, there are no allegations showing how Brood knew of Plaintiff’s First

Amendment activity or why Brood had a personal interest or stake in Plaintiff’s activity

such that he had any motivation to retaliate. “[B]are allegations” of a retaliatory motive

are insufficient to support a retaliation claim. Rizzo v. Dawson, 778 F.2d 527, 532 n.4

(9th Cir. 1985); see also Wood v. Yordy, 753 F.3d 899, 905 (9th Cir. 2014) (“We have

repeatedly held that mere speculation that defendants acted out of retaliation is not

sufficient.”).

As to the stalking and harassment allegation, Plaintiff does not specify facts about

how or when Brood stalked and harassed him. Verbal abuse alone is not sufficient to state

a civil rights claim. See Oltarzewski v. Ruggiero, 830 F.2d 136 (9th Cir. 1987)

(allegations that correctional counselor told plaintiff that he would transfer him to a

higher custody status unit if he tried to go to the law library and that he would be sorry if

he filed a class action suit were not actionable under section 1983).

Plaintiff has attempted to explain his allegations in his deposition, but has stated

no set of facts that would support the elements of a retaliation, stalking, or harassment

claim. Even if the Court considers the deposition testimony as supplementing the

Amended Complaint, the totality of allegations fail to state a claim upon which relief can

be granted. Plaintiff has had adequate time to obtain discovery and evidence to support

his claims, and he has not done so. Accordingly, these claims will be dismissed with

prejudice.

2. Absolute Quasi-Judicial Immunity: Imposing Parole Conditions

Many of the claims that the Court will discuss later under the qualified immunity

section of this Order are, in fact, subject to dismissal on the basis of absolute quasi-

judicial immunity. Absolute immunity “extend[s] to parole officials for the ‘imposition of

parole conditions’” because that task is “integrally related to an official’s decision to

grant or revoke parole,” which is a “quasi-judicial” function. Thornton v. Brown, 757

F.3d 834, 840 (9th Cir. 2013) (citing Swift v. California, 384 F.3d 1184, 1189 (9th Cir.

2004) and Anderson v. Boyd, 714 F.2d 906, 909 (9th Cir. 1983)). Where “parole

conditions currently in effect” are “imposed through particularized and discretionary

decisions by parole officers,” absolute immunity applies. Id.

Plaintiff complains that, after giving him several chances to take a polygraph test

as required by his parole agreement, Defendants chose to charge Plaintiff with a violation

of parole. Significantly, Plaintiff admits he violated conditions of his parole in this

manner but claims that he did so with an excuse. The excuse is not relevant to

Defendants’ authority to exercise discretion to enforce the parole condition. Therefore,

Defendants are entitled to absolute immunity.

The same analysis holds as to Plaintiff’s complaints that (1) while living in a

house that was in foreclosure proceedings and having been served with an eviction

notice, he was charged with a violation of not having a place to live, and that (2) his new

parole officer chose to revoke permission for Plaintiff to have the type of cell phone that

violated the parole agreement, even if prior parole officers had orally agreed that he could

have it. Defendants are entitled to absolute immunity because these are questions of

imposition of parole conditions that required the exercise of discretion. These claim will

be dismissed with prejudice.

3. Qualified Immunity

Absolute immunity does not extend to claims that parole officers imposed or

enforced the conditions of parole in an unconstitutionally arbitrary or discriminatory

manner. However, parole officers may be covered under the umbrella of qualified

immunity “for conduct arising from their duty to supervise parolees.” Anderson v. Boyd,

714 F.2d at 910.

The individual defendants assert entitlement to qualified immunity. Even if a

plaintiff shows a violation of a constitutional right under § 1983, a defendant may be

entitled to summary judgment based on qualified immunity. The doctrine of qualified

immunity protects state officials from personal liability for on-the-job conduct so long as

the conduct is objectively reasonable and does not violate an inmate’s clearly-established

federal rights. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Contrarily, a state official

may be held personally liable in a § 1983 action if he knew or should have known that he

was violating a plaintiff’s clearly-established federal rights. Id. True to its dual purposes

of protecting state actors who act in good faith and redressing clear wrongs caused by

state actors, the qualified immunity standard “gives ample room for mistaken judgments

by protecting all but the plainly incompetent or those who knowingly violate the law.”

Hunter v. Bryant, 502 U.S. 224, 227 (1991) (quotation omitted).

A qualified immunity analysis consists of two prongs: (1) whether, “[t]aken in the

light most favorable to the party asserting the injury, ... the facts alleged show the

[defendant’s] conduct violated a constitutional right”; and (2) whether that right was

clearly established. Saucier v. Katz, 533 U.S. 194, 201 (2001), modified by Pearson v.

Callahan, 555 U.S. 223 (2009). Courts may “exercise their sound discretion in deciding

which of the two prongs of the qualified immunity analysis should be addressed first in

light of the circumstances in the particular case at hand.” Pearson, 555 U.S. at 236.

To determine whether the right was clearly established, a court turns to Supreme

Court and Ninth Circuit law existing at the time of the alleged act. Osolinski v. Kane, 92

F.3d 934, 936 (9th Cir. 1996). In the absence of binding precedent, the district courts

should look to available decisions of other circuits and district courts to ascertain whether

the law is clearly established. Id.

The inquiry of whether a right was clearly established “must be undertaken in

light of the specific context of the case, not as a broad general proposition.” Saucier, 533

U.S. at 201. For the law to be clearly established, “[t]he contours of the right must be

sufficiently clear that a reasonable official would understand” that his conduct violates

that right. Anderson v. Creighton, 483 U.S. 635, 640 (1987). A governmental official

“cannot be said to have violated a clearly established right unless the right’s contours

were sufficiently definite that any reasonable official in the defendant’s shoes would have

understood that he was violating it.” Plumhoff v. Rickard, 572 U.S. 765, 778-79 (2014).

See also Saucier, 533 U.S. at 202 (“The relevant, dispositive inquiry is whether it would

be clear to a reasonable officer that his conduct was unlawful in the situation he

confronted.”).

In addition, once a court determines that the constitutional right at issue was, in

fact, clearly established, the court must then consider whether—despite the clearly-

established nature of the right—a reasonable prison official still “could have believed the

conduct was lawful.” Schroeder v. McDonald, 55 F.3d 454, 461 (9th Cir. 1995).

Application of qualified immunity is appropriate where “the law did not put the

[defendant] on notice that his conduct would be clearly unlawful.” Id. Although the

Supreme Court’s qualified immunity jurisprudence “does not require a case directly on

point for a right to be clearly established, existing precedent must have placed the

statutory or constitutional question beyond debate.” Kisela v. Hughes, 138 S.Ct. 1148,

1152 (2018). However, if there is a genuine dispute as to the “facts and circumstances

within an officer’s knowledge,” or “what the officer and claimant did or failed to do,”

summary judgment is inappropriate. Act Up!/Portland v. Bagley, 988 F.2d 868, 873 (9th

Cir. 1993).

In Smith v. City of Oakland, the United States District Court for the Northern

District of California provided an excellent summary of the law governing claims of

harassment brought against parole officers:

In Samson [v. California, 547 U.S. 843, 125 S.Ct. 2193

(2006)], the Supreme Court addressed the issue of whether a

suspicionless parole search, conducted under the authority of

California Penal Code § 3067(a), violates the Fourth

Amendment. See id. at 2196.... [T]he Court concluded that a

suspicionless parole search does not necessarily violate the

Fourth Amendment. See id. at 2198–2201. Nonetheless, the

Court did not hold such searches were without any

constitutional protection. As to “[t]he concern that

California's suspicionless search system gives officers

unbridled discretion to conduct searches,” the Court stated

that this was “belied by California’s prohibition on ‘arbitrary,

capricious or harassing’ searches.” Id. at 2202. Importantly,

the Supreme Court cited, inter alia, California Penal Code §

3067(d), which provides that “[i]t is not the intent of the

Legislature to authorize law enforcement officers to conduct

searches for the sole purpose of harassment.” Cal. Pen.Code §

3067(d) (emphasis added); see also In re Anthony S., 4

Cal.App.4th 1000, 1004, 6 Cal.Rptr.2d 214 (1992) (stating

that a search condition justifies a warrantless search, but that

there are exceptions, e.g., “where the search exceeds the

scope of the consent, is conducted in an unreasonable manner,

is undertaken for harassment or is ‘... for arbitrary or

capricious reasons’”; adding that the word “arbitrary” relates

to an officer’s motivation—i.e., “[w]here the motivation is

unrelated to rehabilitative and reformative purposes or

legitimate law enforcement purposes, the search is

‘arbitrary’”) (emphasis added). Thus, pivotal to the Court’s

permitting suspicionless searches of parolees was the

safeguard that such searches may not be arbitrary, capricious,

or harassing—e.g., motivated by the “purpose of harassment.”

Accordingly, while the existence of objective probable cause

or individualized reasonable suspicion may obviate inquiry

into subjective motives..., where there is no such objective

protection, parolees subject to suspicionless searches are

entitled to at least protection against searches initiated for

arbitrary, capricious, or harassing reasons under Samson.

538 F.Supp.2d 1217, 1226-27 (N.D. Ca. March 17, 2008).

The foregoing case law is focused on whether searches amount to harassment. So,

too, does recent case law from the United States Court of Appeals for the Ninth Circuit

focus on searches. See United States v. Johnson, 875 F.3d 1265 (9th Cir. 2017)

(addressing warrantless searches of the contents of a parolee’s cell phone); United States

v. Korte, 918 F.3d 750 (9th Cir. 2019) (permitting a warrantless search of the trunk of a

parolee’s car). While these cases were not in existence at the time Plaintiff’s parole

officers acted, they do show the continuing trend of addressing searches and addressing

parolees’ privacy interests. As described in Johnson, the Ninth Circuit has “repeatedly

recognized that status as a parolee significantly diminishes one’s privacy interests as

compared to the average citizen.” Id. at 1273.

All of Plaintiff’s claims arise from the imposition or enforcement of parole

conditions notwithstanding Plaintiff’s claims of poverty, and are unrelated to case law

governing searches and privacy rights. The Court has found no decisions prohibiting

parole officers from enforcing parole conditions even where a parolee cannot afford to

pay for mandatory testing. Therefore, Defendants did not have notice of any clearly

established, existing precedent that placed the constitutional question at issue beyond

debate at the time they made their decisions regarding Plaintiff. Even today, no governing

law exists that clearly and specifically applies to Plaintiff’s claims. Therefore, as

discussed in more detail below, Defendants are entitled to qualified immunity.

Plaintiff signed a parole agreement which granted parole on January 16, 2008.

(See Affidavit of Janae Vorhes, Dkt. 13-8, p. 3 & Exhibit A.) Plaintiff agreed with “all its

terms and conditions and with the understanding that the Commission of Pardons and

Parole could, at any time, in case of violations of the terms of parole, cause the parolee to

be returned to an institution to serve the full maximum sentence or any part thereof.”

(Dkt. 13-8 & Exhibit A.)

Included in Plaintiff’s parole agreement was Special Condition 4: “Submit to a

polygraph and/or plethysmographic testing at the request of the treatment providers

and/or supervising personnel.” (Id.) Plaintiff also agreed to other conditions, including

“that he would obtain written permission to possess or use any electronic device that had

a digital camera or internet connectivity functionality (IDOC 19); that he consented to the

search of his person, residence personal property and other real property (IDOC 23); that

he would make payments for his monthly cost of supervision bill (IDOC 23-24); and that

he would cooperate with supervision (IDOC 25).” (Id.) Plaintiff “agreed to abide by and

conform to [the parole conditions] strictly, and fully understood that his failure to do so

could result in revocation of his parole. (Id.)

A. Defendants’ Act of Charging Plaintiff with a Parole Violation for

Nonpayment of a Polygraph Test

Plaintiff alleges that the individual parole official defendants knew he could not

afford to pay for a polygraph test and yet failed to suggest that he could apply for

indigent help in the form of “transitional funding or other available funding,” and failed

to give him additional time to pay for the polygraph test, but instead chose to issue him a

parole violation. (Dkt. 1, pp. 15-16.) He further alleges that they knew he qualified for

funding to help pay for the test because he was on disability without means to pay for it.

Plaintiff does not contest the chronology set forth by Vorhes regarding the several

times she asked him to schedule a polygraph, and he simply did not. It does not matter

that on the day of his arrest, he claims that his wife was ready to pay for the polygraph

test. Plaintiff did not comply at least three times with his parole officer’s request to

schedule a polygraph and did not act to correct the violation before Vorhes enforced the

provision.

Further, Plaintiff has not brought forward facts showing that indigent or low-

income funding was available to him. He has not provided his financial records from that

time period. He also paid for and took polygraph tests regularly in prior years.

Further, the record shows that Plaintiff did, in fact, have assets. Plaintiff alleges

that, “[a]fter being released from the unconstitutional parole sanction issued by

Defendant Vorhes, Plaintiff discovered that his office equipment and supplies had been

sold off by Plaintiff’s staff, and that the only items remaining were a few legal research

books and Legal CDs.” (Dkt. 1, p. 21.) He asserts that his office equipment and supplies

were worth about $25,000. While he implied that his employees did this without his

permission and did not pass any of the proceeds along to him, in deposition he clarified

that his wife was the office manager and his daughter was the secretary. (Depo, pp. 144-

45.) Plaintiff does not show why he could not have sold something to pay for the

polygraph test if his office equipment was worth $25,000. (Dkt. 1, p. 21.) Elsewhere in

his deposition, Plaintiff said he had $30,000 to $50,000 in property for his business.

(Depo., p. 131-32.) In addition, in Claim Eleven, Plaintiff asserts that the inadequacy of

IDOC legal resource centers caused him to lose investment property of over $200,000.

Regardless of whether Plaintiff had any money, assets, or friends to lend him

funds, Defendants are entitled to qualified immunity. There is no case law supporting

Plaintiff’s claims that would have put Defendants on notice that they were acting in an

unconstitutional manner by not suggesting alternative means of paying his testing fees

and instead holding him to his parole agreement in the face of his claims that he was

living on SSI. This claim will be dismissed with prejudice.

B. Defendant Vorhes’ Alleged Act of Forcing Plaintiff to Use his Disability

Income to Pay for Cost of Supervision and Polygraph Tests

As discussed above, Plaintiff has provided no case authority to demonstrate that

Vorhes was on notice that she was required to exempt him from paying the costs of his

supervision and polygraph tests because he was on SSI. The facts show that Plaintiff had

personal property and other resources he could have tapped into to pay his costs.

Regardless, Vorhes is entitled to qualified immunity on this claim, and this claim will be

dismissed with prejudice.

C. Defendant Vorhes Allegedly Denied Plaintiff Transitional Funding to

Pay for Polygraph Testing

As stated above, Plaintiff has provided no evidence that transitional funding was

available to him; that he would have qualified for it, given that he had a substantial

amount of personal property, including investment property valued at over $200,000; or

that Vorhees denied him such funds, if any existed. There are not enough facts to support

any type of claim. In addition, there is no case law showing that these allegations amount

to a constitutional violation. Vorhes is entitled to summary judgment on qualified

immunity grounds, and, alternatively these vague allegations fail to state a claim upon

which relief can be granted. This claim will be dismissed with prejudice.

D. Defendants’ Alleged Harassment and Interference with Business

1) Cell Phone

Plaintiff alleges that Vorhes searched his home on the morning of July 16, 2016, at

approximately 7:15 a.m., but could find nothing for which to arrest him. (Dkt. 1, p. 20.)

Instead, Vorhes said Plaintiff did not have authorization for a smartphone. He alleges that

she did this to interfere with his business, because Plaintiff had been authorized to have a

smartphone for over five years prior to that date. “Voorhees was trying to find anything

she could just to come up with something to violate me on. Instead of trying to help me

on parole, she was trying to keep me off of parole. That’s how I felt. She was stalking me

by doing that,” alleges Plaintiff. (Depo., p. 62.)

Vorhes’ alleged stalking and harassment consisted of identifying parole violations

and “not taking into consideration the extenuating circumstances surrounding any

violation.” (Id., p. 63.) Plaintiff does not identify any other searches or other forms of

harassment that Vorhes carried out.

As to his possession of the phone, Plaintiff admitted in deposition that his parole

agreement contained this term: “Special Conditions: Obtain written permission to possess

or use any electronic device.” (Depo., p. 119.) Plaintiff agreed that written permission

was required, but said the IDOC and parole commission had a history of saying, “Well,

don’t worry about it right now. You can have it.” (Depo., pp. 119-20.)

It is undisputed that Vorhes was new to Plaintiff’s case. There is nothing in

governing case law that provides Vorhes with notice that, if past parole officers had not

enforced each and every provision of the parole agreement, she was bound to do the

same. Accordingly, Vorhes has qualified immunity for her efforts to bring Plaintiff into

compliance with the actual written and signed parole agreement.

2) Interference with Plaintiff’s Business

The Court also considers whether Defendants interfered with Plaintiff’s business,

“Justice Barred,” by harassing him and preventing him from operating his business.

Plaintiff’s only factual allegations are that Vorhees searched his house once, took his cell

phone, and had him arrested for not taking a polygraph test—all actions authorized by the

parole agreement. Plaintiff has not stated sufficient facts to support a claim that

Defendants did anything else to harm Plaintiff’s business.

Although Plaintiff has had plenty of time to come forward with facts supporting

his position that Defendants purposely interfered with his business out of a motive to

thwart his efforts to provide legal help to persons who were alleging civil rights

violations against government officials, he has provided no set of specific facts to meet

the elements of such a claim. Plaintiff alleges that Defendants’ stalking and harassing

caused him to have to close his business, but the deposition showed otherwise.

For example, Plaintiff admits he had a judgment entered against him for $19,275

for failure to provide workers compensation insurance to his employees. (Depo., p. 86.)

When asked about that during the deposition, Plaintiff testified:

Q. Was it the Industrial Commission lawsuit that

forced you to close Justice Barred, LLC?

A. I chose to close Justice Barred, correct.

Q. Okay.

A. That was part of it, yes.

(Depo., p. 97.)

In addition, Plaintiff testified:

Q. What income were you deprived of?

A. The MAXIMUS program, the businesses, I was

deprived from having a business. I was getting --

Q. How much money --

A. I was getting -- working to get off of it. I was living

on my Social Security. The business could have kept

going, and could have kept prospering without being

interfered with by the parole commission, I would

have still had that business still going to this day.

Q. How much money --

A. None.

Q. -- were your businesses making?

A. They were losing.

Q. How much money were you being paid by your

businesses?

A. None. It doesn't mean that I'm not trying to get out of

that, though. I was trying to get it to where it paid me.

Q. And you voluntarily closed Justice Barred, LLC?

A. Uh-huh, I closed them all.

(Depo., pp. 120-21.)

The facts are undisputed that Plaintiff was violating conditions of parole when

Vorhes took over supervision of his case, and that Plaintiff did not correct those

violations, even though he was given notice and time to do so. Plaintiff has cited to no

case law, and the Court has found none, showing that Vorhes was on notice that she

should have taken into consideration whether requiring Plaintiff to come into compliance

with his parole conditions would affect his business. Vorhes is entitled to qualified

immunity on these claims. Vorhes is also entitled to summary judgment on Plaintiff’s

claims of stalking and harassing for lack of supporting facts. These claims will be

dismissed with prejudice on qualified immunity and failure-to-state-a-claim grounds.

4. Claim Two: Interference with Alleged Right to Practice Law

Plaintiff asserts that he has a right to provide paralegal services to others, and that

Defendants interfered with that right. Plaintiff has provided no case law showing that

Defendants were required to overlook his parole violations so as not to interfere with his

efforts to help others in his paralegal-type business. Defendants are entitled to qualified

immunity on this claim, and it will be dismissed.

5. Claim Three: Failure to Provide Adequate Health Care; Jail Conditions

Plaintiff brings various subclaims related to an alleged failure to provide adequate

health care to him arising from his placement in the Ada County Jail awaiting the

outcome of his parole violation charges. He more fully explained the factual basis for his

claims in his deposition:

Q. So how were you deprived of medication at the Ada

County Jail?

A. Darn. Okay. Gosh. Like all county jail and prison

facilities you go into, you meet with the provider as

soon as possible to make sure you got your chronic

care stuff taken care of. The Ada County Jail providers

flat just refuse to give me the medication that my wife

brought to them. That was, I'm supposed to have. They

just refused to give it to me, not because it wasn't

there. But because they say, we don't provide. We

don't allow you to have this medication. Okay. I'm

sorry. This is what I have on the street. This is what I

am supposed to have to stay alive. Why are you not

giving me my meds? Okay? And they just would not. I

mean, I got six meds out of the 40, and it messed me

up bad. It's still messing me up.

Q. And Ada County, it's your understanding that Ada

County Jail has been dismissed from this lawsuit; is

that correct?

A. That's my understanding so far, that's right.

Q. Okay.

A. But I've still got a contention with it, obviously.

(Dkt. 3-4, pp. 152-53.)

Q. So what role did the parole officers and state

defendants, and I guess you are focused on Vorhes and

Mason; is that correct or is it just Vorhes?

A. Yes, this is Vorhes, and actually Brood, when he came

to the Ada County Jail as well. And what relationship

did that have with medication?

Q. What role did they play in the deprivation of

medication as it relates to the Ada County Jail?

A. Why put me in jail? Why violate me, and throw me in

jail? You have the options, the defendants have the

options of ankle bracelets, so I could continue my

treatment.

Q. So the root cause of the medical care as it relates to

Ada County Jail, as it relates to the remaining

individual defendants, Vorhes and Brood, boils down

to the same complaints about the exaggerated

unnecessary parole violations; is that correct?

A. Right. Why violate me if l can be taken care of on the

street? Why violate me if l can get the decent medical

treatment on the street? Why?

Q. So when you claim in paragraph 57 that you had

informed the parole officers that you take 35 to 40

medications, and they ignored that.

A. Right. They did. Basically --

Q. Does that relate to the underlying decision to violate

you on parole, and put you in Ada County Jail, or did

you think there was an independent obligation for

them to provide you with that medication?

A. No, that -- no, not -- they didn't have an independent --

they didn’t owe me that. But the Ada County Jail did

not adhere to my Eighth Amendment right to be free

from cruel and unusual punishment by depriving me of

medication I was taking. They didn’t have to put me

there. They could have just put me on a monitor, and I

could have kept up with my medication. I'm not a

flight risk. I never ran from anything -- well, except

my mother-in-law in my life, but, okay. And so --

Q. Are you alleging as part of your complaint, that

Vorhes and Brood knew that Ada County Jail would

not provide you with medication?

A. I am.

Q. How did they know that?

A. I'm alleging they had contact with them, either right at

the time I went in, because they took me up there.

Okay? And they talked to medical when I went into

the Ada County Jail.

(Id., pp. 154-55.)

Q. Okay. So your understanding is, or your allegations are

that Vorhes and Brood went to Ada County, and

specifically told them to deprive you of necessary

medical care, because you're a litigator?

A. In some form, yes.

Q. Is that correct?

A. Yes, I've seen it.

Q. And that's based on a conversation you had with a

nurse in Ada County?

A. Yes, and I remember a corporal there talking to me

about it. And his comments were, who in the hell did

you piss off, man. Probation and parole wants you

buried, or something like that. And I'm going, really?

Surprise. Surprise.

Q. And what was the nurse’s name?

A. I want to say, Castleton, but that's not right. It's

Castilean or Castileon. I have it written down in my

notes. That’s one of the things I'm putting together.

Q. And what's the corporal’s name?

A. A nice guy. He knows my kids. I'm going to leave him

out of it.

Q. Would you be willing to withdraw the allegations as it

relates to the statements the corporal made to you?

A. Yeah.

(Id., pp. 156-57.)

To the extent that Plaintiff has withdrawn the claim that Defendants purposely put

Plaintiff in jail to deprive him of adequate medical care, it is dismissed without prejudice.

To the extent that Plaintiff is alleging that Defendants should not have had Plaintiff

arrested, knowing that he was on numerous medications, there is no case law to support

such a claim. Defendants are entitled to qualified immunity, as the Court will explain.

A. Defendants’ Alleged Thwarting of Plaintiff’s Ability to Remain on

his Medications Prescribed by Outside Providers by Choosing to File

a Parole Violation Charge against Him

Plaintiff alleges that the parole officers “failed to acquire verification from the

Defendant Ada County officials that they could ensure that Plaintiff Drennon received all

of his medications and treatment for numerous physical illnesses before they placed him

in the Ada County Jail.” (Dkt. 1, p. 16.) He further asserts that the parole officers could

have chosen a different path than charging him with a parole violation and putting him in

the Ada County Jail, knowing that the Ada County Jail may not be able to prescribe the

same medications as his outside providers prescribed for his conditions.

Defendants are entitled to qualified immunity on this claim. There is no precedent

that would have put the individual parole officers on notice that they must base decisions

of whether to charge a parolee with a parole violation on whether the parolee will be able

to obtain at the jail the exact medications prescribed by a private physician.

The Court agrees with the qualified immunity analysis in White v. Cunningham,

261 F. App'x 11 (9th Cir. 2007) (unpublished), though not a case of precedence. In that

case, the Court determined that the parole officer was entitled to qualified immunity

where a widow’s parolee husband was arrested and died in jail, because

[e]xamining the law in light of the specific context of this case, it is not

clearly established that parole officials have an Eighth Amendment

obligation to either (1) refrain from arresting a parolee who has serious, but

non-emergency, medical needs or (2) ensure that relevant authorities at the

jail obtain a parolee's medical information that the parole official happens

to possess.

Id. at 13. Here, Plaintiff’s wife actually brought Plaintiff’s medications to the jail on the

day of his intake, because Vorhes called and told her about Plaintiff’s incarceration; thus,

Vorhes did more to safeguard Plaintiff’s health than the officer did in White v.

Cunningham.

The record reflects that Vorhes made efforts to advise the jail that Plaintiff was on

prescription medications, and those medications could be brought to the jail by Plaintiff’s

wife. Once Defendants gave jail officials notice and placed Plaintiff into the jail custody,

they no longer had a duty to provide for his health care.

Plaintiff has pointed no case law that provides otherwise. Accordingly, Defendants

are entitled to qualified immunity for placing Plaintiff in the jail’s custody for a parole

violation charge and for any omissions that occurred after they placed Plaintiff in jail

officials’ custody, regardless of the number and types of medications Plaintiff was taking

at that time. Plaintiff was informed that he could bring the claims against the jail in a

separate lawsuit, but he chose not to do so. This claim against the State Defendants will

be dismissed with prejudice.

B. Defendants Allegedly Told Jail Officials to Treat Plaintiff Badly out of

Retaliation for his First Amendment Prison Litigation Activity

Plaintiff alleges that Defendants Brood and Vorhes placed him in the Ada County

Jail and told jail officials to treat him badly, in retaliation for Plaintiff’s prison litigation

activity. (Dkt. 1, p. 16.) Plaintiff has not provided the name of the nurse or the officer he

was counting on as witnesses to support these allegations. He elected to withdraw this

claim during his deposition, as described above. Therefore, this claim is subject to

dismissal without prejudice.

6. Defendant Randy Blades

After Plaintiff was placed in the Ada County Jail awaiting the outcome of his

parole violation, he was transferred into custody of the Idaho Department of Correction

(IDOC), where he was housed at the ISCI facility and, and then transferred to the ISCC

facility, under the care of Defendant Warden Randy Blades. Plaintiff alleges that the

reason for the transfer to an IDOC facility was that Ada County Jail staff could not give

him “the absolutely mandatory medication he needed.” (Dkt. 1, p. 17.) But, Plaintiff

alleges, even after he was transferred into state custody, he was denied “the absolutely

mandatory medication.” Id.

In the Amended Scheduling Order, the Court ordered that “the claim that Plaintiff

was not provided with proper medical care at ISCI and ISCC during the time period he

was detained for the parole violations” was to be severed from this case and brought in a

separate complaint and separate action. He did not do so. Therefore, the claims against

Randy Blades will be dismissed without prejudice.

7. Corizon Medical Services and Other Medical Defendants

Plaintiff alleges that, when he was released on March 8, 2016, his medical

conditions had become worse. (Dkt. 1, p. 18.) He alleges that state officials and Corizon,

the contract medical provider for the IDOC, were deliberately indifferent to his medical

needs, including care of his diabetes. These claims also fall into the aforementioned

category of “claim[s] that Plaintiff was not provided with proper medical care at ISCI and

ISCC during the time period he was detained for the parole violations.” Plaintiff was

ordered to bring any such claims in a separate complaint and separate action. He did not.

Therefore, claims against Corizon and the ISCI medical staff and administration will be

dismissed without prejudice.

8. Ada County Jail Medical Claims

As noted above, Plaintiff’s wife, Elizabeth Drennon, brought Plaintiff’s

medication to the Ada County Jail medical staff for distribution, and could have

continued to bring Plaintiff’s medication as needed. (Id., p. 16.) However, Ada County

Jail staff allegedly ignored Plaintiff’s requests and did not provide him with the

medication he needed. All claims against Ada County Defendants have been severed

from this action. Therefore, these claims are dismissed without prejudice.

9. State Defendants re: Medical Care at IDOC Facilities

Plaintiff alleges IDOC officials failed to provide adequate health care once he was

re-incarcerated after his parole violation in late 2015 and early 2016. The Court ordered

that Plaintiff bring all medical and optical care claims for treatment that occurred since

Plaintiff’s new convictions in a separate complaint. He did not. Therefore, these claims

will be dismissed without prejudice.

10. Claims against Other Parole Officers

A. Defendant Julie Bryant

Defendant Julie Bryant is a parole officer, but she was not assigned to any specific

cases. Bryant asserts that Plaintiff has stated no viable claims or specific factual

allegations against her that would show she personally participated in violating Plaintiff’s

constitutional rights. Plaintiff could not recall in deposition why he was suing Julie

Bryant. He believes it was because she signed off on some documents that, in his opinion,

were false or misrepresented in about 2015-16. (Depo, pp. 39-40.) Because Plaintiff has

not stated sufficient facts to support a federal civil rights claim against Bryant, this claim

will be dismissed with prejudice.

B. Defendant Angel Dobrev

Angel Dobrev was Parole Officer Vorhes’ supervisor. Plaintiff never met Dobrev.

(Depo., p. 43.) Plaintiff included Dobrev in his Amended Complaint only because

Dobrev’s name appears under a signature on a document signed in 2015 or 2016 that is

attached to the original complaint. At deposition, Plaintiff said that he does not know

what Dobrev did or what his role was. (Depo., p. 43.) Plaintiff has provided nothing

showing that Dobrev personally participated in any alleged constitutional violation. As a

result, claims against Dobrev will be dismissed with prejudice.

C. Defendant Montelito Mason

Montelito Mason was Plaintiff’s parole officer, but Officer Mason was on medical

leave for all of 2015. Plaintiff clarified that Mason’s acts against him occurred between

2013 and 2015. (Depo., p. 75-76.)

Plaintiff asserts that Mason engaged in “interfering with and stopping plaintiff

Drennon from engaging in voluntary assistance to individuals needing to read and

understand the law, as well as stalking and harassing Plaintiff Drennon beginning in of

October 2013, and continuing to present day.” (Drennon’s supporting facts, p. 14, para.

47; Depo., p. 57.) Plaintiff has provided no specific facts to support an allegation that

Mason crossed the line from closely supervising Plaintiff and his activities in Mason’s

parole official duties, as Plaintiff agreed to in his parole agreement, to stalking and

harassing. This claim will be dismissed on qualified immunity grounds and, alternatively,

for failure to state a claim upon which relief can be granted.

Plaintiff also alleges that Mason suggested or told him that he and his wife should

get divorced. (Depo., p. 74.) Regardless of whether such advice or direction was made,

Plaintiff did not get divorced. This allegation does not rise to the level of a civil rights

violation. It will be dismissed on qualified immunity grounds and for failure to state a

claim upon which relief can be granted.

Plaintiff alleges that Mason accompanied a sheriff who was serving an eviction

notice on Plaintiff. As background for this claim, Plaintiff explains that, even though he

was living in the house, another person owned it, and it was in foreclosure. Plaintiff

alleges that he filed an action to stop the eviction. Plaintiff faults Mason for issuing him a

parole violation, because the terms of his parole agreement required him to have a place

to live. Plaintiff said that Mason was “happy” and even “gleeful” at being able to issue

Plaintiff a parole violation. Plaintiff asserts that this was an example of how Mason took

it personally to come after him. Plaintiff explained that he considered Mason’s actions

harassment because, even though Plaintiff is required to maintain a residence while on

parole, he believes it has to be an intentional violation, and the foreclosure was the

owner’s fault, not Plaintiff’s. (Id., pp. 75-76.)

To the extent that Plaintiff is complaining that Mason served him with a parole

violation for not having a place to live, such a claim is covered by absolute immunity,

because it is a discretionary decision about the imposition of parole conditions. See

Thornton, 757 F.3d at 840.

To the extent that Plaintiff is asserting a stalking or harassment claim, Plaintiff

cannot maintain such claims without supporting facts. A parole officer is charged with

closely supervising the activities of the parolees to whom he or she is assigned. Plaintiff

cites to service of the eviction notice and issuance of a parole violation, but no dates,

times, or other details of additional acts of stalking or harassment. Plaintiff does not

provide any evidence that he was entitled to stay at the residence—for example, that the

court had issued an injunction against the foreclosure in the lawsuit he filed. In the face

of no facts that would show Plaintiff’s entitlement to continue living at the residence,

Mason’s act of helping serve an eviction notice and issuing Plaintiff a parole violation

charge in this situation cannot be considered “stalking” or “harassment,” even if Mason

spoke to Plaintiff in an unprofessional manner.

The Court has found no case law that would have provide notice to Mason that he

could not serve Plaintiff with a notice of eviction and a parole violation for not

maintaining a place to live under the legitimate foreclosure and eviction circumstances,

or that such actions of a parole officer could constitute stalking and harassment;

therefore, Mason is entitled to qualified immunity.

Alternatively, Plaintiff has failed to come forward with sufficient facts to state a

claim for relief against Mason. This claim will be dismissed with prejudice on absolute

immunity grounds, qualified immunity grounds, and for failure to state a claim upon

which relief can be granted.

11. State Law Claims

Defendants contend that Plaintiff’s state law claims should be dismissed for failure

to post bond. The Court disagrees. The provisions of Idaho Code § 6-610 which

otherwise require such a bond are inapplicable to civil rights causes of action brought by

paupers in federal court. In Pugsley v. Cole, 2005 WL 1513112 (D. Idaho June 27, 2005),

the court held that an indigent prisoner’s state-law claims will not be barred for failure to

post the requisite bond. Id. at *7. That holding later was adopted by the Idaho Court of

Appeals. See Hyde v. Fisher, 152 P.3d 653, 656 (Idaho Ct. App. 2007) (adopting

Pugsley); see also Beehler v. Fremont County, 182 P.3d 713, 717 (Idaho Ct. App. 2008).

The Court having dismissed all of the federal claims, the question remains whether

the Court should entertain any of the state law claims. Title 28 U.S.C. § 1367(c)

“confirms the discretionary nature of supplemental jurisdiction by enumerating the

circumstances in which district courts can refuse its exercise”, namely where: “(1) the

claim raises a novel or complex issue of State law, “(2) the claim substantially

predominates over the claim or claims over which the district court has original

jurisdiction, (3) the district court has dismissed all claims over which it has original

jurisdiction, or (4) in exceptional circumstances, there are other compelling reasons for

declining jurisdiction.” 28 U.S.C. § 1367(c). Other factors to be considered are “the

circumstances of the particular case, the nature of the state law claims, the character of

the governing state law, and the relationship between the state and federal claims,” which

are principles of “judicial economy, convenience, fairness, and comity.” Carnegie-

Mellon University v. Cohill, 484 U.S. 343, 350 (1988).

The Court will exercise discretion to rule on Plaintiff’s state law claims to the

extent that they shall be dismissed for the following reasons. In the introductory section

of the Amended Complaint, Plaintiff alleges that “Defendants are violating Idaho statute,

Idaho Administrative Procedures Act, [and] Idaho statutory law.” (Dkt. 1, p. 13.) Many

of these claims correlate with federal claims that Plaintiff was ordered to pursue in new,

separate complaints, if at all, or with claims of Robert Coy, which have been severed

from this action and dismissed in a separate action. Several of Plaintiff’s enumerated

claims specify that he is making a claim under both the federal and state constitutions.

Nowhere in the Complaint does Plaintiff allege state tort claims.

To the extent that Plaintiff has alleged claims under the Idaho Constitution, those

claims are dismissed with prejudice for the reasons set forth above, given that Plaintiff

has failed to allege that the Idaho Constitution offers any greater protection than the

United States Constitution on any of his claims, see State v. Sharpe, 129 Idaho 693, 931

P.2d 1211 (Idaho 1997), and thus, resolution of the federal constitutional claims above

necessarily resolves the corresponding state constitutional claims. These state law claims

will be dismissed with prejudice, as Plaintiff has had several years to amend his causes of

action to state viable claims, and yet has not done so.

For reasons of judicial economy, to the extent that Plaintiff's state law claims

correlate with causes of action that he has been ordered to pursue in new, separate

complaints, rather than in this action, those claims are dismissed without prejudice and

may be brought in those actions.

Accordingly, because all of Plaintiffs claims have been disposed of, this entire

action will be dismissed.

ORDER

IT IS ORDERED:

1. Defendants’ Motion for Summary Judgment (Dkt. 13) is GRANTED.

2. Plaintiff’s claims against all Defendants are DISMISSED, as specified above,

either with or without prejudice. This entire case shall be closed.

3. Nothing further shall be filed in this closed case other than a notice of appeal, if

Plaintiff chooses to appeal the Court’s decision.

am DATED: December 26, 2019

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bathe

Honorable Ronald E. Bush

Chief U. S. Magistrate Judge

MEMORANDUM DECISION AND ORDER - 46