IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF IDAHO

WALTER D. BALLA, et. al., Plaintiffs,

1
Case No. CV81-1165-S-EJL

VS.
1
IDAHO BOARD OF CORRECTION, )
et al.,

Defendants.

1

MEMORANDUM DECISION AND ORDER

A hearing was held in this case on June 8,2005 before the Honorable James M. Fitzgerald. The class representatives for Plaintiffs were present in court with their counsel, J. Walter Sinclair and Nicole C. Hancock of Stoel Rives LLP. Defendants were represented by Paul R. Panther, Deputy Attorney General for the State of Idaho. Pending before the Court were the following motions: (1) Defendants Motion to Terminate Injunctive Relief (Docket No. 439); (2) Plaintiffs Motion for Attorney Fees and Costs (Docket No. 550); and (3) Defendants' Motion to Strike Exhibits (Docket No. 573).
Having considered the record, briefs, and oral argument in support of the pending motions, the Court has determined that Defendants' Motion to Terminate Injunctive Relief will be denied. Plaintiffs' Motion for Attorney Fees and Costs will be conditionally granted, and Defendants' Motion to Strike Exhibits is considered moot. ORDER 1

1. BACKGROUND Defendants filed a motion seeking to terminate the injunctive relief ordered in Balla v. Idaho State Board of Correction (Balla I), 595 F. Supp. 1558 (D. Idaho 1984), and Balla v. Idaho State Board of Correction (Balla 10,656 F . Supp. 1108(D. Idaho 1987) ("Balla cases"). The motion was filed pursuant to the procedure set forth in the
Prison Litigation Reform Act (PLRA), 18 U.S.C.A. 5 3626 (b)(l) and (2). The statute
authorizes Defendants to seek termination of injunctive orders within two years after the PLRA's enactment date, which was in 1996.
A. History of Balia injunctive Orders The Balla cases were filed as class action challenges to prison conditions at the Idaho State Correctional Institution (ISCI). In Balla I, the Court ordered prison officials to do the following: (1) adopt a special dietary program for medically infirm inmates; (2) provide adequate clothing for inmates in protective custody; (3) create 24-hour emergency medical care for inmates and hire a full-time physician; (4) provide a properly staffed medical delivery system; (5) establish a psychiatric care program; (6) provide adequate security staff for double-celled units; (7) report to the Court on the IDOC's progress; (8) establish an inmate classification system to protect younger offenders; and (9) implement a disciplinary procedure insuring due process protection. 595 F. Supp. at 1583. On July 11, 1985, the Court approved the compliance plans submitted in response
ORDER 2

to the Balla I Order. See Notice re Orders ofJuly 11, 1985 and August 18, 1986, (Docket No. 525), Exhibit A. The Court adopted the following compliance plans: (1) a dietary program; (2) a plan for adequate clothing for protective custody inmates; (3) a medical delivery system plan; (4) a program for psychiatric treatment; (5) implementation of security staffing for double-celled units; (6) a plan to reduce predatory attacks in protective custody units; (7) a classification procedure to protect younger offenders; and (8) a disciplinary offense procedure in compliance with due process standards. Id., Exhibit A. IDOC officials were ordered to fully implement the compliance plans by October i. i985.
At the compliance hearings in July of 1985, "the court became concerned and was persuaded that a full determination needed to be made regarding the overall overcrowded conditions at ISCI." Balla 11,665 6. Supp. 1110. "Of particular concern to [the] Court was the historical failure in the operation of ISCI to meet constitutional minima in the
housing of high-security and close custody inmates." Id. at 1109. On August 18, 1986, the Court clarified the remaining issues in the action:
"The plaintiffs have not challenged . . .the implementation of any
programs or policies ordered and adopted in the July 11, 1985 order, except the psychiatric care program. Therefore, the court will herein order that all issues except the overcrowding issue have been raised, decided, ordered, remedied and the remedial measures completed, and therefore, closed in this action. The only issue which remains to be decided and will hereafter be litigated in this action is the issue of overcrowding.
ORDER 3

IT IS FURTHER ORDERED that all issues which have been heretofore raised in this action, except the issue of overcrowding, should be, and are hereby, closed and will not be re-litigated in this action." Order ofAugust 18, 1986, (Docket No. 223), p. 6-7. The Court conducted a hearing on the overcrowding issue on October 3 1, and November 1, 1985. At the close of the hearing, both parties agreed to the appointment of a court-appointed expert. Initially, the Court appointed Thomas Lonergan as the neutral expert. After several months, the Court was forced to relieve Mr. Lonergan of his expert duties due an extended period of illness. After considering the parties' respective nominations for a new expert, the Court appointed W. Raymond Nelson. Mr. Nelson toured ISCI in January of 1987, and submitted a report to the Court in February of 1987. The Court and its staff also toured the ISCI facility in February of 1987. Another hearing was held on February 13, 1987 at which the parties had an opportunity to question Mr. Nelson about his report. After the hearing, the Court entered injunctive relief for Plaintiffs, capping the population in certain units at ISCI. See Balla v. Board of Correction (Balla 14,656 F. Supp. 1108 (D. Idaho 1987), (Docket No. 243). The injunctive relief was based on the Eighth Amendment standards as they pertained to "specific conditions of confinement." Id. at 1111 (quoting Wright v. Rushen, 642 F.2d 1129, 1133 (9th Cir. 1981). The Court was aware that it could "not use the totality of all conditions to justify federal intervention requiring remedies more extensive than are required to correct Eighth Amendment violations." Id. (quoting Wright v. Rushen). The Court indicated that the injunctive relief was based on the constitutional minima as set
ORDER 4

forth in the cases decided in the United States Supreme Court and the Ninth Circuit Court of Appeals. Id. at 1110-12.
The Court made extensive findings in support of the population cap order. The main theme of the findings was that housing inmates in an overcrowded condition "threatens the physical, mental and emotional health and certainly threatens their personal and property safety. Such conditions are dehumanizing, intolerable and certainly of no penological benefit." Balla 11,656 F. Supp. at 1114. In July of 1985,the Court had identified its concerns about the conditions arising from overcrowding, and as of March
.I -Y'I.~, -tine Defendants had faiied to adequateiy remedy the overcrowding. The Court also
determined that the plumbing issues identified at least two years earlier had not been rectified within the two-year time period. Accordingly, the Court's extensive findings, placed within the framework of the constitutional minima, resulted in a permanent injunction being issued against the IDOC, consisting of a population cap in certain ISCI units and an order pertaining to plumbing repairs. Id. at 1119.
Therefore, the injunctive orders Defendants seek to set aside have been in place since 1987, approximately eighteen years.
B. Procedural History for Motion to Terminate Injunctive Relief. After Defendants filed the Motion to Terminate Prospective Relief (Docket No. 439), the Court appointed the firm of Stoel Rives to represent the inmates for the limited purpose of preparing a response to the Motion to Terminate. See Docket No. 459.
ORDER 5

Plaintiffs' counsel worked diligently to become familiar with the facts of the lawsuit and immediately set about selecting new potential class representatives.
The Court requested that Plaintiffs' counsel designate new class representatives and provide a response to the Motion to Terminate Prospective Relief within a month of being appointed. Defendants filed numerous objections to the procedures set forth by the Court relating to new class representatives, and it became obvious that the selection of new class representatives, in addition to determining whether there were current and ongoing constitutional violations at the prison, would be a complicated endeavor.
'The Court entered a stay of the prior injunctive orders until such time as Plaintiffs could designate new class representatives and there could be a determination about the existence of current and ongoing constitutional violations at ISCI. The Court also issued notice of its intent to appoint an expert pursuant to Federal Rule of Evidence 706, and the parties jointly nominated Chase Riveland to be the Court's expert.
The parties selected Mr. Riveland based on his extensive professional background in corrections management and administration, dating back almost forty years. Mr. Riveland has served as a Superintendent of a correctional institution in Wisconsin, the Deputy Director of the Wisconsin Division of Corrections, the Executive Director of the Colorado Department of Corrections, and the Secretary of the Washington Department of Corrections. Mr. Riveland also worked as a correctional officer and correctional facility social worker in the early part of his career. He has served as an expert in over thirty
ORDER 6

cases in state and Federal courts on the issues of prison conditions, and he is the author of numerous articles on corrections issues for the National Institute of Corrections. A copy of Mr. Riveland's work history and publications is attached to the Final Expert Report of Chase Riveland, attached as Appendix A, hereto.
The parties submitted a joint set of directives to guide Mr. Riveland's appointment as the Court's expert. He was requested to offer an opinion "as to the impact on Units 9, 10, 11 and 13, and on ISCI as a whole, of hlly double-celling those units." Mr. Riveland
was informed that Defendants' Motion sought "to hlly double cell . . . Units 9, 10, 11 and
13 at ISCi [which] wouid resuit in a net increase of i s 9 inmates at iSCi." Joznt Kesponse to Order of November 12, 2004 and Instructions to Rule 706 Expert (Instructions), Docket No. 549, p. 2. The parties' instructions included a set of applicable legal standards to guide Mr. Riveland's appointment. The legal standards are substantially the same as those set forth in Balla 11,656 F. Supp. 1 1 10-12. Instructions, p. 4-6.
Mr. Riveland prepared an initial report for the Court which preliminarily recommended that the Balla 11 injunctive orders from 1987 remain in place. The Court referred the case to a settlement conference with Judge David 0.Carter of the Central District of California to provide an opportunity for the parties to explore a resolution based on the findings in Mr. Riveland's preliminary report. The parties were unable to resolve the injunctive orders issue, but they agreed to limit the evidence presented at a hearing on Defendants' Motion to Terminate the Injunctive Relief, and submit the matter
ORDER 7

on written briefs, the joint expert's report, oral argument, and affidavits. The Court must now examine whether the evidence before it shows current and
ongoing constitutional violations and whether the remedy is to preserve the Balla II injunctive orders.
11. PLRA PROSPECTIVE RELIEF STANDARDS Defendants' Motion to Terminate is brought pursuant to the Prison Litigation
Reform Act (PLRA), 18 U.S.C.A 3 3626. The PLRA was clearly designed to inhibit a
federal court's intervention into the daily operations of prisons. For example, injunctive relief can only be ordered "with respect to prison conditions" if it extends "no further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs." 18 U.S.C. § 3626 (a)(l). The Court must find that the "relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation." Id. Thus, all injunctive orders entered after the PLRA's enactment must meet this needs-nmownessintrusiveness test.
The PLRA also outlines the method for terminating prospective relief that was ordered prior to its enactment. A party may move for termination of injunctive orders two years after they are entered. Id., $3626(b). The PLRA states that when Defendants have moved to terminate an injunction:
"Prospective relief shall not be terminated if the court makes written findings based on the record that prospective relief remains necessary to
ORDER 8

correct a current and ongoing violation of the Federal right, extends no further than necessary to correct the violation of the Federal right, and that the prospective relief is narrowly drawn and the least intrusive means to
correct the violation." 18 U.S.C. 3 3626(b)(3).
A defendant is entitled to immediate termination if the relief was granted without
findings that meet the needs-narrowness-intrusiveness test. Id., 3 3626(h)(2). Thus, the
Court must first determine "whether the existing relief (in whole or in part) exceeds the constitutional minimum." Gilmore v. California,220 F.3d 987, 1007 (9th Cir. 2000). The Court must do more than "merely examine the record for 'findings"' that comply with the new PLRA standard. Gilmore,220 F.3d at 1007-08 and n. 25 (explicit findings in accordance with the new standard are not required as long as the record, the court's decision and relevant caselaw show that the injunctive orders meet the PLRA standard). If the prior injunctive relief exceeds the constitutional minimum, then those portions must be severed. But if the Court finds current and ongoing constitutional violations, "it cannot terminate or refuse to grant prospective relief necessary to correct a current and ongoing violation, so long as the relief is tailored to the constitutional minimum." Id.; § 3626(b)(3).
After reviewing the Orders set forth in Balla II, which incorporated the findings, determinations, and legal standards from Balla I, the Court has determined that the injunctive orders at issue in the Defendants' Motion meet the narrow tailoring standard of
3626(b)(2). The findings required by the PRLA are implicit in the Court's judgment in Balla II. Although the judgment did not expressly state that the relief was narrowly
ORDER 9

tailored and extended no further than necessary to correct the constitutional violations, an examination of the record shows that these elements are implicit in the injunctive Order. Accordingly, the Court "cannot terminate or refuse to grant prospective relief necessary to correct a current and ongoing violation, so long as the relief is tailored to the constitutional minimum." Gilmore, 220 F.3d at 1007-08. The Court is essentially determining whether to preserve the existing injunctive relief based on the conditions as they exist at the time of the Court's consideration of the Motion to Terminate.
111. FINDINGS OF CURRENT AND ONGOING VIOLATIONS The Court now turns to the issue of current and ongoing constitutional violations at ISCI. The Court incorporates by reference the findings set forth in Balla II. Balla 11,656 F. Supp. at 1112-15. 1. At the time the Balla I1orders were made in 1987, ISCI housed a diverse inmate population. It incarcerated mentally ill inmates, geriatric and infirm inmates, protective custody inmates, female inmates at intake, inmates held under a sentence of death, administrative segregation inmates, close custody inmates, and medium custody inmates. Final Expert Report of Chase Riveland (Riveland Report), p. 5. 2. The IDOC opened the Idaho Maximum Security Institution (IMSI) in 1989. IMSI is designed to hold 552 beds. IMSI incarcerates the inmates in protective custody, close custody, and administrative segregation. Seriously mentally ill inmates and those held under a sentence of death are also held at ISCI. Female inmates are no longer held
ORDER 10

for intake purposes at ISCI. Id., p. 5. 3. The ISCI inmate population now includes geriatric and infirm inmates, a
disciplinary segregation unit, medium custody, and some minimum custody inmates. ISCI also contains an inmate reception unit and a transition unit. Id., p. 5.
4. In 1987 the inmate population was approximately 750 inmates. The population at ISCI is now approximately 1416. Id. The enhancements made to the ISCI facility after 1987 include (1) the opening of a new chapel; (2) an upgrade to the food services building; (3) an expansion of Unit 7 and the education building; (4) the addition of Units 15 and 16; (5) the addition of 19beds in the medical facility; (6) the opening of a new laundry; (7) the addition of a new visiting center; and (8) changes to the inmate classification system. Id., p. 5. These enhancements do not counterbalance the deleterious effects of the doubling of inmates at ISCI. Id. at 16-20.
5. The IDOC plans to double-cell Unit 9. The design capacity for Unit 9 is 78 inmates, and Balla II capped the inmate population at 78. As of the date Mr. Riveland's report was written, the population in Unit 9 was 117 inmates. The planned population increase is 156 inmates in Unit 9. Id., p. 7.
6. The IDOC also plans to double-cell Unit 10. The design capacity for Unit 10 is 72 inmates, and Balla II capped the inmate population at 108. The planned increase for Unit 10 is 144 inmates. Id., p. 7.
7. The IDOC also plans to double-cell Unit 11. The design capacity for Unit 11 is
ORDER 11

72 inmates, and Balla II capped the inmate population at 108. The planned increase for Unit 11 is 144 inmates. Id.
8. Finally, the IDOC plans to double-cell Unit 13. The design capacity for Unit 13 is 96 inmates, and Balla II capped the inmate population at 144. The current inmate population for Unit 13 is approximately 192 inmates, and this represents full doublecelling of each cell in this Unit. Id. Housing inmates in the overcrowded conditions in Units 9, 10, 11, and 13 threatens the physical, mental and emotional health of the inmates at ISCI. The overcrowded conditions also threaten the inmates' personal safety and the integrity of their minimal personal property. The conditions arising from the overcrowding are dehumanizing and of no penological benefit.
9. The American Correctional Association (ACA) standard for day room space is now less than half the recommended amount per inmate in Units 9, 10, and 11. The day room space in Unit 13 is slightly higher than the recommended space per inmate. Id., p. 7-8. The Court may consider, but cannot exclusively rely on the ACA standards in determining the constitutional minima. Balla 11, 656 F. Supp. 1112 (citing Hoptowit v. Ray, 682 F.2d 1237, 1249 (9th Cir. 1982).
10. Although the number of toilets and sinks appear to be adequate for Units 9, 10, 11, and 13, the toilets and sinks are not consistently in operating condition. There are lengthy delays associated with repairing the sinks and toilets. The number of showers is deficient in Units 9, 10, 11, and 13, and not all showerheads are in working order within
ORDER 12

the Units. The showers at ISCI are typically one long shower enclosing more than one shower head and one curtain covering the entire shower. Due to safety and security concerns, the IDOC limits the number of inmates who can occupy the showers at a given time, thereby hrther limiting the shower usage. The only substantive change in the plumbing facilities for these Units from the 1987 findings is that the plumbing fixtures and pipes are eighteen years older and in need of even more frequent repairs. Id., p. 8.
11. Over the last four years, the IDOC records show 190 inmate-on-inmate assaults between January of 2001 to November of 2004. Nineteen incidents of inmate assaults on the IDOC staff were recorded in IDOC records. The number of inmate grievances recorded in the IDOC records show that in 2003, approximately 292 grievances were filed during the entire year, while 253 grievances were filed in the first quarter of 2004. This is a substantial increase in grievances from prior years. Id., p. 14.
12. Opportunities for inmates to be engaged in activities outside of their cells has diminished through double-celling practices, and exceeding the inmate population caps for Units 9, 10, 11, and 13 places an increased demand on central services. For example, work opportunities have grown increasingly scarce at ISCI. Work opportunities mitigate tension, provide funds for commissary purchases, and generate additional out-of-cell time. Several hundred inmates have no work opportunities at ISCI. Double-celling inmates in Units 9, 10, 11, and 13 will further exacerbate the lack of work opportunities at ISCI. Id., p. 9.
ORDER 13

13. Programs that offer skill building, drug and alcohol treatment, and behavioral change have been reduced and typically include only those inmate who are within two years of their release dates. These programs provide constructive use of inmates' time and provide out-of-cell opportunities that mitigate tension. Double-celling inmates at ISCI will reduce the number of skill building and treatment opportunities offered to ISCI inmates. Id., p. 9.
14. Educational and vocational programs include approximately 250 inmates at ISCI. Inmates who are within two years of release are eligible for placement in educational and vocational programs. Double-celling inmates in the affected Units will further diminish the educational and vocational programs, thereby creating tension and reduced opportunities for out-of-cell time. Id., p. 9.
15. The double-celling of inmates in Unites 9, 10, 11, and 13, is pushing the capability of the food services at ISCI to the limit. Food served at meals has been reduced, and fewer options are available to inmates. Providing sufficient nutritious food in a timely manner is crucial to the safe operation of ISCI. Id., p. 11.
16. ISCI has seven psychosocial rehabilitation specialists assigned to work with at least 200 inmates per specialist. The specialists assist the inmates with their custody, security, and protection needs while at ISCI. Many inmates are assigned to Unit sergeants or other correctional officers to manage their custody, security, and protection needs. The correctional officers do not have the specialized training that is given to the psychosocial
ORDER 14

rehabilitation specialists, nor do they have sufficient time to meet with the inmates assigned to them. Inmates have reported a wait time of several weeks when they request to meet with the either the rehabilitation specialists or the Unit sergeants to whom they are assigned. Id., p. 12.
17. Medical, dental, and pharmaceutical services at ISCI appear to be severely strained. Inmates described standing in line for up to two hours to obtain prescription medication. In October of 2004, as many as 708 inmates were being administered prescribed medication, with 292 of those inmates prescribed psychotropic medications. Id., p. 13. The Court is also acutely aware of the number of pending civil rights claims, alleging the failure to adequately provide medical care for serious medical, dental, and psychological conditions. The conditions arising from the double-ceiling of all Units at ISCI will seriously threaten the IDOC's ability to provide adequate care for inmates' medical, dental, and psychological conditions.
18. Inmates are now restricted to their own tiers and cells, and the music room was eliminated. Changes were also made to the way in which inmates can access the legal resource center at ISCI, thereby limiting inmates' ability to obtain legal information and forms. Id., p. 15.
19. Unit security staff were added for Units 15 and 16, and one additional officer was added to shiRs for Units 9, 10, 11, and 13. However, the added security staff has not kept pace with the almost fifty percent increase in inmate population at ISCI. Unit
ORDER 15

officers must double as movement staff when the inmates are allowed to move from their tiers and to the food services building. ISCI has not been provided with the enhanced resources proportionate to the large increase in inmate population. Id., p. 15.
20. Mr. Riveland's report indicates that "[mlany of the factors affecting the Court's analysis in 1987 resulting in a finding that overcrowding at ISCI was
unconstitutional remain unchanged or further exacerbated for medium custody inmates. . .
The day rooms in Units 9, 10, 11, and 13 are too small to handle the existing population, let alone an increased population." Id., p. 16-17.
21. "Over the past several years, Idaho's incarceration rate has generally been in the top ten in the country, often in the top five. Seldom have the resources maintained pace with the inmate population increases." Id., p. 17-18. Projected growth in the inmate population over the next four years anticipates an additional 1,300 inmates system-wide. No funds have been allocated to mitigate the anticipated growth in the inmate population. Double-celling inmates in ISCI Units 9, 10, 11, and 13 cannot accommodate the anticipated growth in the Idaho prison population. Id.
22. The increased staffing does not alleviate the problems associated with overcrowding, inadequate and antiquated plumbing, and medical, dental and psychological care. Id., p. 15-16.
IV. EXISTENCE OF CURRENT VIOLATIONS In Balla 11, the Court determined in its conclusions of law that "the overcrowded
ORDER 16

condition at ISCI has reached the level of unconstitutional overcrowding which is the unnecessary and wanton infliction ofpain." BaZlaZZ,656 6. Supp. at 1116-17(citing Rhodes v. Chapman, 452 U.S. 337 (1981)). The Court then proceeded to list the specific legal violations that supported the issuance of a permanent injunction. Balla 11,656 F. Supp. at 1115-19. The Court issued the permanent injunction in accordance with the present requirements of the PLRA. It ordered that Defendants were permanently enjoined
fiom (1) double-celling . . .more than seventy-eight (78) inmates in Unit 9 at any time;
(2) housing more than one hundred eight (108) inmates in Units 10 andlor 11 at any time; [and] (3) housing more than one hundred forty-four (144) inmates in A-Block [Unit 131 at any time. Id. at 1120. The Court further ordered that "no more than two (2) inmates be housed in any cell for any period of time at any time and that no inmates be housed at any time in day rooms or other non-designed cell areas or forced to sleep on mattresses on the floor." Id. Finally, the Court ordered that "defendants attend to all plumbing disorders in the housing units within twenty-four (24) hours of oral or written report to the [ISCI] staff and that those plumbing disorders be remedied within three (3) working days from such report." Id. These injunctive orders are narrowly drawn, extend no further than necessary to correct the constitutional violations, and were the least intrusive means necessary to correct the violation of the rights at issue. See Gilmore v. California, 220 F.3d 987, 1008, (9th Cir. 2000)(district court must determine whether the existing relief exceeds the constitutional minimum). Accordingly, the BalZa ZZ injunctive order provisions satisfy the
ORDER 17

tests set forth in 3 3626(b)(2) and 3 3626(b)(3)(settingforth the conditions under which
injunctive orders can be terminated or remain in place). Of particular importance to the Court in Balla II, was the length of time that
IDOC officials were aware that both the overcrowding and plumbing issues had been at the level of a constitutional violation. It appears that the Court had given the IDOC at least two years to remediate the overcrowding and plumbing violations, but the violations were not corrected. Defendants were informed that "only through adequate structural change or redesign of the housing units may the population caps ordered herein be increased." Balla 11, 656 F. Supp. at 1119; see also Balla v. Idaho State Board of Corrections,869 F.2d 461,472 (9th Cir. 1989)rEvidence of an historical failure to comply with constitutional standards is highly relevant in fashioning an effective remedy.")(citing Hutto v. Finney, 437 U.S. 678, 687 (1978)).
Seventeen years after the injunctive orders in Balla II, Defendants return to Court, requesting relief under conditions that are worse, both as to overall inmate population and plumbing problems, than when the original injunctive orders were put in place. The minimal substantive changes implemented at ISCI after Balla II have not ameliorated the unconstitutional overcrowding conditions. There have been no adequate structural or design changes made to Units 9, 10, 11, and 13, which was the Court's pre-condition to eliminatingthe injunctive orders. As the Ninth Circuit observed: "good faith efforts do not cure the constitutional violations occurring for years." Balla v. Idaho State Board of
ORDER 18

Corrections, 869 F.2d at 473. The IDOC's efforts thus far have not resolved the unconstitutional overcrowding conditions at ISCI.
The parties agreed to limit the record that would be created in support of and in opposition to the Motion to Terminate Injunctive Relief, and the record clearly shows current and ongoing constitutional violations. Gilmore, 220 F.3d at 1010 (the record
referred to in 5 3626(b)(3) means the record reflecting conditions as of the time
termination is sought). The facts before the Court areprimafacie evidence that the existing remedial scheme has not worked and that Defendants are ill-equipped to increase the existing population caps. See Ruiz v. Johnson, 154 F . Supp. 2d 975,999-1000 (S.D. Tex. 2001)("the federal courts have the power, and the duty, to make their interventions
effective:" ordering new remedial plans where existing orders had failed to correct the constitutional violations); Morales Feliciano v. Calderon Serra, 300 F. Supp. 2d 321,335 (D. Puerto Rico 2004)(failure of earlier relief to resolve the constitutional violations,
supports the extension of more intrusive relief). The Court hereby incorporates the conclusions of law and injunctive orders set
forth in Balla II. Balla 11,656 F . Supp. 1115-20.' The Court has determined that the
' The findings of fact and conclusions of law include Units 1,2,3,7, and 8. It also refers
to close custody inmates as potential occupants of Unit 9. The Court presumes that the parties' agreement to limit briefing and argument to Units 9, 10, 11, and 13 means that the orders pertaining to Units 1, 2, 3, 7, and 8 are no longer at issue in this action. It also appears that the parties are in agreement that Unit 9 will be occupied by medium custody inmates in the future. Therefore, the Court omits the inclusion of findings of fact and conclusions of law as they more particularly relate to Units 1, 2, 3, 7, and 8 and the close custody inmates. ORDER 19

prospective relief ordered in Balla I1 remains necessary to correct the current and ongoing Eighth Amendment violations at ISCL2 Therefore, the Court will preserve the permanent injunctions relating (1) to population caps in Units 9, 10, 11, and 13; (2) to the prohibition of triple-celling and placing inmates on the floor at any time, and (3) to plumbing repairs.
The legal standard applicable to the Eighth Amendment violations are set forth in the parties' Joint Instructions to the Rule 706 Expert (Docket No. 549). The Court incorporates the Eighth Amendment standards as set forth in the parties' joint submission. The Court notes that the joint submission is taken fiom the legal standards set forth in BallaII, 656F. Supp. 1108, 1110-12.
V. NARROWLY DRAWN AND LEAST INTRUSIVE REMEDY Preserving the injunctive orders set forth in Balla II, extends no further than is necessary to correct the Eighth Amendment violations, is narrowly drawn, and is the least intrusive way to correct the violations. The permanent injunction was narrowly drawn because it placed population caps on four units at ISCI, it limited the IDOC's ability to house inmates on the floor in areas other than cells, and it placed a time limit on plumbing repairs. These intrusions into the housing of inmates at ISCI were and continue to be necessary to eliminate a serious and persistent Eighth Amendment violation at this
Although the Riveland Report indicates that an exception could be made in the injunctive orders for double-celling in Unit 9, the Court is not convinced that the original order prohibiting double-celling should be set aside. Unit 9 still suffers from limited day room space, lack of showers, and available out-of-cell time. ORDER 20

institution. See Skinner v. Uphoff;234 F . Supp. 2d 1208, 1218 (D.Wyo. 2002) (prophylactic measures may be ordered if necessary to correct the continuing constitutional violations).
The intrusions are narrowly tailored to Units 9, 10, 11, and 13, and the Court does not perceive the Eighth Amendment violations arising from the overcrowding in these units to be appropriate for a case-by-case determination. The intrusions into the day-today operations of ISCI are minimal because there is no continuous supervision fiom the Court, and the IDOC has complete control over how it assigns inmates to the ISCI Units and arranges for immediate plumbing repairs. See Benjamin v. Fraser, 343 F.3d 35, 5354 (2d Cir. 2003)(directing district court to examine the appropriateness of injunctive relief that goes beyond named individuals where record shows violations in a jail system's food services; upholding findings that comprehensive repair scheme is less intrusive than having the court supervise the system-wide violations).
Defendants argue that "absent evidence of excessive violence or rioting, the Court must defer to the discretion of prison administrators" on the issue of housing inmates at ISCI. Defendants' Initial Brief (Docket No. 568-I), p. 6. The Court disagrees with this proposition. It is specifically within the Court's province to determine "when prison conditions pass beyond legitimate punishment and become cruel and unusual." Rhodes v. Chapman,452 U.S. 337,364 (1981). The Court must examine the effect upon inmates of the physical facility, sanitation, safety, inmate needs and services, and staffing. "When
ORDER 21

'the cumulative impact of the conditions of incarceration threatens the physical, mental, and emotional health and well-being of the inmates andlor creates a probability of recidivism and future incarceration,' the court must conclude that the conditions violate the Constitution." Id. (quoting Laaman v. Helgemoe, 437 F . Supp. [269], 323 [D.N.H. 19771);see also Wilson v. State ofIdaho, 746 P.2d 1022, 1025-26 (Idaho Ct. App. 1988)(theEighth Amendment protects inmates from unsanitary living conditions and unnecessary exposure to communicable diseases;judges must review conditions of confinement with concepts of dignity, civilized standards, humanity, and decency).
Afier reviewing the record in this case, the Court is convinced that the IDOC officials would prefer to incarcerate inmates within the parameters of Eighth Amendment standards, but it has continually been denied adequate funding for the tremendous growth in inmate population. The Court is hopeful that the preservation of the Balla ZI injunctive orders will result in funding that will allow for systemic changes at ISCI. Once the constitutional standards are met, the IDOC may request review of the permanent injunction.
Based on the foregoing, the Court will preserve the injunctive relief ordered in Balla II. The PLRA provides for an end to the automatic stay of the injunctive relief when the Court makes a final ruling on the necessity for continuing relief. See § 3626(e)(2)(B). The Court is aware that Defendants chose to double-cell Units 9, 10, 11, and 13 prior to a determination of the Motion to Terminate Injunctive Relief. Therefore,
ORDER 22

in order for the Defendants to fully comply with the injunctive orders, the effective date will be delayed until October 28,2005.
VI. ATTORNEY FEES MOTION Plaintiffs' counsel filed a Motion for Attorney Fees for their work in representing the inmate class. Attorney fees may be recovered if they are "directly and reasonably incurred in proving an actual violation of the plaintiffs rights." 28 U.S.C. $ 1988. Attorney fees can also be awarded in a class action where Plaintiffs defend against a motion to terminate an injunctive order. Cody v. Hillard, 304 F.3d 767, 776 (8th Cir. 2002). The Ninth Circuit has ruled that the full amount of attorney fees incurred to obtain injunctive relief may be awarded to counsel for the Plaintiffs. Dannenberg v. Valadez, 338 F.3d 1070, 1075 (9th Cir. 2003). Thus it appears that Plaintiffs' counsel are entitled to the attorney fees and costs they are requesting. The Court delayed the oral argument on the attorney fees issue, and, therefore, the Court will issue a tentative ruling on the attorney fees and cost request at this time. The Court tentatively rules that Plaintiffs' Motion for Attorney Fees and Costs is granted. To the extent costs have been paid to Plaintiffs' counsel through the Court's Pro Bono Program, the program will be reimbursed. Defendants may arrange to reimburse the Court's program directly, rather than pay the amount to Plaintiffs' counsel. In the event either side requests oral argument on the Motion, the Court's ruling will be suspended
ORDER 23

until after oral argument has taken place. The parties shall notify the Court's Pro Se Unit at (208) 334-1172 within ten days of this ruling as to whether oral argument is requested on the attorney fees issue.
VII. MOTION TO STRIKE Defendants also filed a motion to strike the exhibits attached to the Affidavit of Nicole Hancock. The exhibits were grievance forms the inmates had submitted to the IDOC, relating to alleged constitutional violations arising from the overcrowding at the prison. Defendants claim that the grievance forms were not authenticated. After the grievance forms were filed, Plaintiffs' counsel obtained affidavits from the inmates, attempting to authenticate the grievance forms. The parties agreed to limit the record the Court would consider on the Motion to Terminate Injunctive Relief. At the hearing on the Motion, the Court expressed its concern about considering affidavits without the opportunity for the parties to crossexamine the affiants' testimony. Accordingly, the Court informed the parties that it would not consider the inmate affidavits pertaining to the Motion to Terminate. Therefore, Defendants' Motion to Strike is moot.
ORDER NOW THEREFORE IT IS HEREBY ORDERED that Defendants' Motion to Terminate (Docket No. 439 and 568-1) is DENIED. The following sections of the
ORDER 24

permanent injunction in Balla II remain in effect: 1. Double-celling more than seventy-eight (78) inmates in Unit 9 at any time; 2. Housing more than one hundred eight (108) inmates in Unit 10 at any time; 3. Housing more than one hundred eight (108) inmates in Unit 11 at any time; and 4. Housing more than one hundred forty-four (144) inmates in A-Block at any time.
The effective date of the preservation of the previous injunctive orders is October 28, 2005.
IT IS FURTHER HEREBY ORDERED that no more than two (2) inmates be housed in any cell for any period of time at any time and that no inmates be housed at any time in day rooms or other non-designed cell areas or forced to sleep on mattresses on the floor. This order shall take effect immediately.
IT IS FURTHER HEREBY ORDERED that Defendants attend to all plumbing disorders in the housing units within twenty-four (24) hours of oral or written report to the Idaho State Correctional Institution (ISCI) staff and that those plumbing disorders be remedied within three (3) working days from such report.
IT IS FURTHER HEREBY ORDERED that Plaintiffs' Motion for Attorney Fees and Costs (Docket No. 550) is tentatively GRANTED. In the event the parties request oral argument on the Court's tentative ruling, the ruling will be suspended. The parties shall notify the Court's Pro Se Unit of the request for oral argument within ten (10) days
ORDER 25

of this Order's date. If no oral argument is requested, Plaintiffs' counsel shall prepare a proposed order to submit to the Court.
IT IS FURTHER HEREBY ORDERED that Defendants' Motion to Strike Affidavits in Opposition to Motion (Docket No. 573) is MOOT.
Dated t h i s a day of September, 2005. 1
Unite
ORDER 26

 
 Case 1:81-cv-01165-BLW Document 631 Filed 06/28/06 Page 1 of 13

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF IDAHO

WALTER D. BALLA, et. al.,

)

)

Plaintiffs,

)

)

vs.

)

)

IDAHO BOARD OF CORRECTION, )

et al.,

)

)

Defendants.

)

_________________________________)

Case No. CV81-1165-S-EJL MEMORANDUM ORDER

Pending before the Court are the following motions: (1) Plaintiffs’ Motion for

Temporary Restraining Order (Docket No. 604); (2) Plaintiffs’ Motion for Preliminary

Injunction (Docket No. 605); (3) Plaintiffs’ Motion for Contempt and Sanctions (Docket

No. 607); (4) Plaintiffs’ Motion to Appoint Counsel (Docket No. 608); (5) Plaintiffs’

Motion for Discovery (Docket No. 609); (6) Defendants’ Motion to Strike (Docket No.

611); (7) Plaintiffs’ Motion to Strike (Docket No. 616); (8) Plaintiffs’ Motion to Amend

or Correct (Docket No. 618); and (9) Plaintiffs’ Motion for Class Representative

Entitlements (Docket No. 629).

Plaintiffs are inmates at the Idaho State Correctional Institution (ISCI), and they

allege that Defendants’ shower repair project at ISCI violates the Court’s Order of

ORDER 1

Case 1:81-cv-01165-BLW Document 631 Filed 06/28/06 Page 2 of 13
September 26, 2005. For the following reasons, the Court does not view the Defendants’ shower repair project as a violation of the injunctive orders, nor does the project appear to violate the inmates’ Eighth Amendment rights. Therefore, Plaintiffs’ request for injunctive relief against Defendants is denied.
BACKGROUND Plaintiffs filed this motion on the basis that they are class representatives, obligated to protect the inmates at ISCI from violations of the Court’s injunctive orders in Balla II. In November of 2003, Defendants filed a motion seeking to terminate the longstanding injunctive relief ordered in Balla v. Idaho State Board of Correction (Balla I), 595 F. Supp. 1558 (D. Idaho 1984), and Balla v. Idaho State Board of Correction (Balla II), 656 F. Supp. 1108 (D. Idaho 1987) (“Balla cases”). The Balla cases were filed as class action challenges to prison conditions at ISCI, and at the time Defendants sought to terminate the injunctive relief, the injunction consisted of a population cap in certain ISCI units and an order pertaining to plumbing repairs. Id. at 1119. In the Court’s ruling on the Defendants’ Motion to Terminate the Injunctive Relief, it found that the number of toilets and sinks appeared to be adequate for Units 9, 10, 11, and 13, but that the toilets and sinks were not consistently in operating condition. The Court also found that there were lengthy delays associated with repairing the sinks and toilets. Based on the findings of the Court’s expert, it also determined that the number of showers was deficient in Units 9, 10, 11, and 13, and that not all showerheads were in working order within the Units. Therefore, the Court determined that the influx ORDER 2

Case 1:81-cv-01165-BLW Document 631 Filed 06/28/06 Page 3 of 13
of additional inmates in these ISCI units put a considerable strain on the availability of regular showers for the inmates. The Court’s expert also reported that no substantive changes in the plumbing for these Units at ISCI had been made over the past eighteen years. Therefore, the plumbing fixtures and pipes required even more frequent repairs. Docket No. 585., p. 12-13.
The Court denied Defendants’ Motion to Terminate Injunctive Relief, thereby preserving the population cap at the ISCI units. The Court also ordered that “Defendants attend to all plumbing disorders in the housing units within twenty-four (24) hours of oral or written report to the Idaho State Correctional Institution (ISCI) staff and that those plumbing disorders be remedied within three (3) working days from such report.” Id., p. 25.
STANDARD FOR PRELIMINARY INJUNCTION A Rule 65 preliminary injunction may be granted if the moving party satisfies one of two tests, designated as the “traditional standard” or the “alternative standard” of law. International Jensen, Inc. v. Metrosound U.S.A., Inc., 4 F.3d 819, 822 (9th Cir. 1993). The traditional standard requires a demonstration of the following elements: (1) that the moving party will suffer irreparable injury if the relief is denied; (2) that the moving party will probably prevail on the merits; (3) that the balance of potential harm favors the moving party; and (4) that the public interest favors granting relief. Cassim v. Bowen, 824 F.2d 791, 795 (9th Cir. 1987). Under the alternative standard, the moving party may meet its burden by demonstrating either: (1) a combination of probable success on the ORDER 3

Case 1:81-cv-01165-BLW Document 631 Filed 06/28/06 Page 4 of 13
merits and the possibility of irreparable injury,1 or (2) that serious questions are raised and the balance of hardships tips sharply in the movant’s favor. Benda v. Grand Lodge of Internat’l. Ass’n. of Machinists & Aerospace Workers, 584 F.2d 308, 315 (9th Cir. 1978), cert. dismissed, 441 U.S. 937, 99 S. Ct. 2065 (1979).
Where, as here, a party seeks a mandatory preliminary injunction, the court must deny such relief “unless the facts and law clearly favor the moving party.” See Stanley v. University of S. Cal., 13 F.3d 1313, 1320 (9th Cir. 1994) (quotation and citation omitted); Enterprise Int'l, Inc. v. Corporacion Estatal Petrolera Ecuatoriana, 762 F.2d 464, 472 (5th Cir. 1985) (because a preliminary injunction is an extraordinary remedy, it should not to be granted routinely, but only when the plaintiff, by a clear showing, carries its burden of persuasion on each of the required elements). In deciding whether to issue a preliminary injunction, the court “is not bound to decide doubtful and difficult questions of law or disputed questions of fact.” Internat’l. Molders’ and Allied Workers’ Local Union No. 164 v. Nelson, 799 F.2d 547, 551 (9th Cir. 1986) (citing Dymo Industries, Inc. v. Tapeprinter, Inc., 326 F.2d 141, 143 (9th Cir. 1964)).
A court “is not obligated to hold a hearing [on a motion for a preliminary injunction] when the moving party has not presented a colorable factual basis to support
1An irreparable injury is defined as an actual and concrete harm, or the imminent threat of an actual and concrete harm. Los Angeles Memorial Coliseum Commission v. National Football League, 634 F.2d 1197, 1200 (9th Cir. 1980). A threat of harm is not “imminent,” if it is based upon remote possibilities or mere speculation. Caribbean Marine Services Co. v. Baldrige, 844 F.2d 668, 675 (9th Cir. 1988). ORDER 4

Case 1:81-cv-01165-BLW Document 631 Filed 06/28/06 Page 5 of 13
the claim on the merits or the contention of irreparable harm.” Bradley v. Pittsburgh Board of Education, 910 F.2d 1172, 1176 (3rd Cir. 1990); see also DFW Freeport v. Mardian Const. Co., 729 F.2d 334, 341 (5th Cir.1984) (preliminary injunctions are denied without a hearing when the written evidence clearly shows the lack of a right to relief).
PLAINTIFFS’ REQUESTED RELIEF Plaintiffs assert that Defendants’ shower repair project violates the Balla II injunctive orders and the Plaintiffs’ Eighth Amendment rights. Plaintiffs request that the Defendants be enjoined from housing any inmate on any tier unless the tier “has its plumbing fixtures operational 24 hours a day, and has its shower fixtures and facilities operational 24 hours a day.” They further request an order allowing inmates to have access to their cell and property 24 hours per day. Finally, they request that Defendants submit a construction plan that proves “the shower project will be accomplished without violating the order, opinion, purpose, and spirit of the Balla II injunctions.” Plaintiffs’ Motion for Preliminary Injunction, Docket No. 605, p. 2. Plaintiffs allege that Defendants posted notices at ISCI in January of 2006, notifying the inmates that ISCI officials were undertaking a shower construction project. The inmates were informed that during the shower construction in Unit 13, they would only have access to half of the unit’s regular number of showers. The shower construction project would also allegedly disrupt the use of all plumbing during the day on Monday through Friday for half of the Unit 13 inmates. Plaintiffs also claimed that half of the inmates would be restricted from access to their cells and personal property ORDER 5

Case 1:81-cv-01165-BLW Document 631 Filed 06/28/06 Page 6 of 13
during the construction. Docket No. 606, p. 8-9. Plaintiffs argue that the shower construction violates “the constitutionally minimal
plumbing and shower ratios established by the Balla II injunctions.” Id., p. 9. Plaintiffs allege that the number of inmates using the showers would essentially double during the time of the shower construction. Affidavit of Barry Searcy, Docket No. 606-2, p. 4-6. The construction plan for Unit 13 also provides that half of the inmates may use areas in other units. Plaintiffs claim that this violates the IDOC’s “normal policy of not allowing inmates to go on tiers they don’t live on, and presents numerous crowding, safety and security issues.” Id., p. 6. Plaintiffs also allege that there is an increased risk of violence and assaults through the implementation of the construction plan, and that some inmates will be denied access to personal property during the time construction is occurring. Id.
The Deputy Warden of Operations issued a memo to the inmates at ISCI, stating that the inmates would be “allowed to shower in the gymnasium or on other tiers in the unit.” Id., Exhibit A. The memo also states that IDOC officials will attempt to lessen the impact of the construction project on the offenders. An email message from the Deputy Warden also indicates that some of the inmates in Unit 13 will lose their cell assignments in certain locations due to the expansion of the showers . Id., Exhibit B. The shower construction project was delayed on two occasions, and it appears that construction did not begin until January 30, 2006. Id., Exhibit C, D.
Defendants filed a response to the Plaintiffs’ request for a preliminary injunction, claiming that the shower construction project would have no impact on the inmates’ ORDER 6

Case 1:81-cv-01165-BLW Document 631 Filed 06/28/06 Page 7 of 13
access to urinals, toilets, sinks and water fountains in Unit 13. Affidavit of Keith Yordy, Docket No. 610-1, p. 4. Defendants also claim that inmates will be given the opportunity to have a daily shower during the construction process and that security concerns have been adequately addressed. Id., p. 4-5.
Defendants were also requested to provide information to the Court regarding the length of time the construction project would disrupt the inmates in Units 9, 11, and 13. Defendants indicated that the shower construction for Unit 13 is now complete. Affidavit of Patrick Donaldson, Docket no. 626-3, p. 2. Defendants informed the Court that the shower renovation in one tier of Unit 9 and two tiers in Unit 11 was set to begin on May 8, 2006. This work is supposed to take six weeks to complete. Defendants also report that the next phase of construction, involving two more tiers on Unit 9 and one tier in Unit 11, will allegedly be completed at the end of July. Id.
Plaintiffs submitted affidavits in response to Defendants’ description of the shower reconstruction. Plaintiffs allege that the shower renovation in Unit 13 is still not complete, despite the Defendants’ affidavit claiming the project was complete in April of 2006. Plaintiffs claim that the new showers lack towel bars and shower curtains. Plaintiffs also claim that the renovation project on Unit 13 was extremely disruptive to the inmates incarcerated on those Units. Plaintiffs allege that plans were announced to move 234 inmates, and that this caused a “huge uproar” at ISCI. The Warden at ISCI allegedly abandoned the plan that would have displaced the inmates. Plaintiffs’ Response to Defendants’ Supplemental Briefing, Docket No. 628-1, p. 3-4. ORDER 7

Case 1:81-cv-01165-BLW Document 631 Filed 06/28/06 Page 8 of 13
Plaintiffs also allege that some inmates have been forced to stay in the gym for several hours at a time, thus preventing them from obtaining sick call and receiving special medical meals. Some inmates have also allegedly missed meals because they were forced to spend time in the gym. Id., p. 5-6. Plaintiff Searcy alleges that these occurrences on Units 9 and 11 are consistent with similar events that occurred on Unit 13 during the shower renovation. Affidavit of Barry Searcy, Docket No. 628-2, p. 5. The Plaintiffs also allege that the construction has caused more inmates to temporarily be on tiers than are allowed under the population cap set forth in Balla II. Plaintiffs’ Response, Docket No. 628-1, p. 7.
DISCUSSION Plaintiffs argue that they have met their burden for a preliminary injunction against the Defendants, and that the balance of hardships tips in their favor. Plaintiffs also claim that there is a strong likelihood they will prevail on the merits of their claim. The Court does not agree with Plaintiffs’ assessment of the Defendants’ conduct, primarily because it does not view the shower construction project as a violation of the Balla II injunctive order. The Court’s injunctive order required Defendants to attend to all plumbing disorders in the housing units within twenty-four (24) hours of oral or written report to the ISCI staff. The order also requires that those plumbing disorders be remedied within three (3) working days from such report. The injunctive order was based on the failure of IDOC officials to fix broken or malfunctioning plumbing at ISCI. The Court does not view the IDOC’s attempt to add additional showers to ISCI units as the equivalent of ORDER 8

Case 1:81-cv-01165-BLW Document 631 Filed 06/28/06 Page 9 of 13
failing to address broken or malfunctioning plumbing fixtures. Therefore, the allegation that Defendants have violated the injunctive order in Balla II is not accurate.
Additionally, Plaintiffs general allegation that their Eighth Amendment rights have been violated because of the unavailability of showers during the construction project is not sufficient to support a separate injunctive relief request. In support of this general allegation, Plaintiffs argue that the report from the Court’s Rule 706 expert sets forth the constitutional minima for shower use, day room capacity, and other crowding issues at ISCI. This is not accurate because the Rule 706 expert’s report specifically states that the American Correctional Association (ACA) standards referred to in the report are not the constitutional standard, citing to Hoptowit v. Ray, 682 F.2d 1237 (9th Cir. 1982). The Rule 706 expert used the ACA standards as a reference point in describing design capacity for cells, day rooms, and plumbing fixtures. See Docket 585, Exhibit A, p. 8-9. Therefore, linking the shower construction to the standards described in the Rule 706 expert’s report does not establish a violation of Plaintiffs’ Eighth Amendment rights.
To demonstrate an Eighth Amendment violation, an inmate must show that conditions within the prison deny him “the minimal civilized measure of life’s necessities.” Farmer v. Brennan, 114 S. Ct. 1970, 1977-78 (1994). The Eighth Amendment guarantees an inmate's right to personal hygiene. See Toussaint v. McCarthy, 801 F.2d 1080, 1110-11 (9th Cir. 1986). The number of showers that an inmate takes can be limited so long as the limitation does not deny him the right to basic sanitation. Baptisto v. Ryan, 2005 WL 2416356, *13 (D. Ariz.)(upholding ORDER 9

Case 1:81-cv-01165-BLW Document 631 Filed 06/28/06 Page 10 of 13
constitutionality of providing three showers per week)(citing Davenport v. DeRobertis, 844 F.2d 1310, 1316 (7th Cir. 1988)(stating that three showers per week is adequate during 90-day lock down)).
Plaintiffs’ general allegation that the shower construction project has denied the inmates the opportunity to shower fails to state a cognizable constitutional claim. The alleged denial of showers during the construction process must be linked to dangerous hygienic conditions resulting from the lack of showers. There is nothing in the record establishing this linking. Accordingly, the Plaintiffs’ request for a mandatory preliminary injunction is not warranted because the facts and law do not clearly favor the moving party. See Stanley v. University of S. Cal., 13 F.3d 1313, 1320 (9th Cir. 1994).
OTHER PENDING MOTIONS Plaintiffs also filed a motion requesting that they be allowed to file supplemental pleadings on behalf of the inmate class at ISCI. It appears that Plaintiffs are requesting leave to file an amended complaint in this action which would include allegations of new constitutional violations. A Judgment was entered in this action on December 9, 2005, and the Court retained limited jurisdiction to enforce the provisions of the permanent injunction. Docket No. 601, p. 2. The retention of jurisdiction in this action does not permit the expansion of the lawsuit by way of an amended complaint. Accordingly, Plaintiffs’ request for leave to file an amended complaint is denied. Plaintiffs’ motion made some troubling allegations about medically infirm inmates being denied medical care, medically prescribed meals, and access to their cells during ORDER 10

Case 1:81-cv-01165-BLW Document 631 Filed 06/28/06 Page 11 of 13
the shower construction project. Plaintiff Searcy generally alleges the occurrence of these events in his affidavit, and if individual Plaintiffs believe they are being subjected to unsafe conditions at ISCI or are being denied adequate medical care, then they are advised to file individual civil rights complaints, raising these Eighth Amendment claims.
Defendants also filed a Motion to Strike portions of Plaintiff Searcy’s Affidavit based on lack of personal knowledge and foundation. Affidavits submitted on a preliminary injunction motion are not subjected to the same strict standards (personal knowledge and competency to testify) as those submitted on a summary judgment motion, and they may contain hearsay. 11A Charles Alan Wright, Federal Practice and Procedure ¶ 2949 (2d ed. 1995); see also Flynt Distributing Co. v. Harvey, 734 F. 2d 1389, 1394 (9th Cir. 1984). Therefore, Defendants’ Motion to Strike is denied.
Plaintiffs also request a finding of contempt and an award of sanctions against Defendants based on the shower construction project. Based on the Court’s determination that the shower construction project is not a violation of the permanent injunction, the request for a finding of contempt and sanctions is denied.
Plaintiffs also filed a motion requesting that they be allowed to conduct discovery on the extent of the alleged civil rights violations that have occurred during the shower construction project. As set forth above, the individual inmates whose civil rights have allegedly been violated are advised to file individual claims arising out of the shower construction project. The Court will not allow Plaintiffs to conduct discovery on this issue in the class action. ORDER 11

Case 1:81-cv-01165-BLW Document 631 Filed 06/28/06 Page 12 of 13
Finally, Plaintiffs claim that they are entitled to an appointment of counsel and other “entitlements” due to the class action designation of this lawsuit. The Court will not appoint an attorney to represent the inmate class at this time, and Plaintiffs’ request for other entitlements is also denied.
ORDER NOW THEREFORE IT IS HEREBY ORDERED that Plaintiffs’ Motion for Temporary Restraining Order (Docket No. 604, all parts therein) is DENIED. IT IS FURTHER HEREBY ORDERED that Plaintiffs’ Motion for Preliminary Injunction (Docket No. 605, all parts therein) is DENIED. IT IS FURTHER HEREBY ORDERED that Plaintiffs’ Motion for Contempt and Sanctions (Docket No. 607, all parts therein) is DENIED. IT IS FURTHER HEREBY ORDERED that Plaintiffs’ Motion to Appoint Counsel (Docket No. 608) is DENIED. IT IS FURTHER HEREBY ORDERED that Plaintiffs’ Motion for Discovery (Docket No. 609) is DENIED. IT IS FURTHER HEREBY ORDERED that Defendants’ Motion to Strike (Docket No. 611) is DENIED. IT IS FURTHER HEREBY ORDERED that Plaintiffs’ Motion to Strike (Docket No. 616) is DENIED.
ORDER 12

Case 1:81-cv-01165-BLW Document 631 Filed 06/28/06 Page 13 of 13 IT IS FURTHER HEREBY ORDERED that Plaintiffs’ Motion to Amend the Complaint (Docket No. 618) is DENIED. IT IS FURTHER HEREBY ORDERED that Plaintiffs’ Motion for Class Representative Entitlements (Docket No. 629) is DENIED.
DATED: June 28, 2006 Honorable Edward J. Lodge U. S. District Judge
ORDER 13

 
 Case 1:81-cv-01165-BLW Document 689 Filed 03/16/07 Page 1 of 10

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF IDAHO

WALTER D. BALLA, et. al.,

)

)

Plaintiffs,

)

)

vs.

)

)

IDAHO BOARD OF

)

CORRECTIONS, et al.,

)

)

Defendants.

)

______________________________ )

Case No. CV-81-1165-S-BLW
ORDER AND ORDER TO SHOW CAUSE

Pending before the Court are the following motions: (1) IDOC Defendants’

Motion to Terminate Prospective Relief (Docket No. 635); (2) Plaintiffs’ Motion

for Extension of Time to File Response (Docket No. 652, 678); (3) Plaintiffs’

Motion for Order to Provide Documents (Docket No. 655); (4) Plaintiffs’ Motion

to Appoint Counsel (Docket No. 657, 675); (5) Plaintiffs’ Motion to Postpone

Automatic Stay (Docket No. 662); (6) Plaintiffs’ Motion for Rule 11 Relief

(Docket No. 664); and (7) Plaintiffs’ Motion for Discovery (Docket No. 676).

Having reviewed the pending motions and the record in this action, the

Court has determined that it will grant Plaintiffs’ Motion to Postpone Automatic

Stay and Motion to Provide Documents. The Court will also issue an order to

show cause concerning the re-appointment of Chase Riveland as the Court’s Rule
ORDER 1

Case 1:81-cv-01165-BLW Document 689 Filed 03/16/07 Page 2 of 10
706 Expert and the appointment of counsel for the Plaintiffs in this class action. BACKGROUND
On September 26, 2005, the Honorable James M. Fitzgerald issued an order, denying the IDOC Defendants’ Motion to Terminate the injunctive orders placing a population cap at ISCI in Units 9, 10, 11 and 13 and requiring the repair of persistent plumbing problems at ISCI. The Order denying the request to terminate the population cap was based in part on the extensive findings by the Court’s Rule 706 expert, Chase Riveland. Mr. Riveland was appointed after the parties jointly agreed he would be the one to investigate the issue of current and ongoing constitutional violations at ISCI. After the Court denied Defendants’ Motion to Terminate Prospective Relief , Judge Fitzgerald granted Plaintiffs’ request for attorney fees and costs in the amount of $155,858.68.
Now, less than eighteen months after the Court denied the Defendants’ Motion to Terminate Prospective Relief in this action, the IDOC has filed the same motion, seeking substantially the same relief. According to the IDOC Defendants’ current request to terminate the population cap, the design capacity for ISCI units 9, 10, 11 and 13 is 318 inmates. The current court-ordered population cap for these ISCI units is 477 inmates, an amount equal to 150% of design capacity. The Defendants seek to terminate the population cap in these units and propose an
ORDER 2

Case 1:81-cv-01165-BLW Document 689 Filed 03/16/07 Page 3 of 10
increase in these units to 636 inmates, or 200% of the design capacity. Defendants are not seeking to terminate the injunctive orders which prohibit triple-celling of inmates and placing their mattresses on the floor. See Docket No. 635-2, p. 3.
The Court observes that the last time Defendants sought to terminate the population cap, it resulted in extensive litigation, and the Court devoted many hours to this single case. Two visiting judges also spent considerable time and effort resolving this case. Based on the foregoing, the Court is inclined to look for a way to streamline future litigation. The procedures set forth below will reflect this attempt.
MOTION TO POSTPONE AUTOMATIC STAY On behalf of the class representatives in this action, Barry Searcy filed a motion requesting that the Court postpone the effective date of the automatic stay. In 18 U.S.C. § 3626, the procedures for filing a motion to terminate prospective relief are set forth. It states that “[a]ny motion to modify or terminate prospective relief made under subsection (b) shall operate as a stay during the period– (A)(I) beginning on the 30th day after such motion is filed. . . . The court may postpone the effective date of an automatic stay specified in subsection (e)(2)(A) for not more than 60 days for good cause.” 18 U.S.C. § 3626 (e) (2)(A)(I) and (e)(3). The Court has determined that the report from the Rule 706 expert, Chase
ORDER 3

Case 1:81-cv-01165-BLW Document 689 Filed 03/16/07 Page 4 of 10
Riveland, detailing conditions of current and ongoing constitutional violations, combined with the short time span between the denial of the previous motion and the filing of the present motion, demonstrate that good cause exists to postpone the effective date of an automatic stay. See Final Report of Chase Riveland, Appendix A to Docket No. 585.
Based on the foregoing, Plaintiffs’ Motion to Postpone the Effective Date of the Stay will be granted. Therefore, the earliest date the automatic stay can go into effect is May 17, 2007.
ORDER TO SHOW CAUSE – RULE 706 EXPERT The Court also issues notice of its intent to reappoint Chase Riveland as the Court’s Federal Rule of Evidence 706 expert. During his prior appointment, the parties submitted a proposed set of directions to guide Mr. Riveland’s work in the case. The following set of directives were given to Mr. Riveland: 1. Whether the current staffing at ISCI was adequate to provide personal safety to the inmates and employees and protect property at the prison; 2. Whether adding additional inmates would increase the potential for violent acts and personal attacks at ISCI; 3. Whether there was adequate plumbing facilities (toilets, sinks, and showers) to accommodate additional inmates at ISCI;
ORDER 4

Case 1:81-cv-01165-BLW Document 689 Filed 03/16/07 Page 5 of 10
4. Whether prison officials had adequate maintenance staff to timely service plumbing facilities;
5. Whether the square footage per inmate in cells, day rooms, and other common areas was adequate;
6. Whether access to recreational areas, including the gymnasium, ball fields, and weight rooms would be affected by the population increase;
7. Whether an increase in inmate population would affect prison officials’ ability to protect the physical, mental and emotional health of inmates at ISCI;
8. Whether access to medical care, psychiatric care, treatment programs, educational programs, jobs, the resource center, and other inmate benefits would be impacted through an increased inmate population at ISCI; and
9. Whether the potential for increased noise levels would result from the population increase at ISCI.
The parties also submitted a proposed summary of the Eighth Amendment standard that would guide Mr. Riveland’s expert opinion, which the Court adopted. The Court issues notice of its intent to adopt the same guidelines and directives as previously provided to Mr. Riveland.
The Court will request that Mr. Riveland prepare a report on an expedited basis, and the IDOC Defendants will be ordered to pay for Mr. Riveland’s expert
ORDER 5

Case 1:81-cv-01165-BLW Document 689 Filed 03/16/07 Page 6 of 10
fees. See Fed. R. Ev. 706 (compensation of the Rule 706 expert “shall be paid by the parties in such proportion and at such time as the court directs.”). Defendants may request that a cap be placed on the fees Mr. Riveland will incur in preparing his report.
ORDER TO SHOW CAUSE – ATTORNEY FEES The Court also issues an order to show cause on the payment of attorney fees and costs for the Plaintiffs in this action. Because these injunctive orders arise from a class action lawsuit, the Court must appoint counsel to represent the interests of the class members. The Court previously appointed the law firm of Stoel Rives to represent the inmate class, and the law firm worked on the litigation for almost two years without being paid for their work. Ultimately, Stoel Rives was awarded at least a portion of the extensive attorney fees that were incurred by Plaintiffs in successfully defending against the termination motion. Because representing a class of inmates is difficult and time consuming, the Court issues notice of intent to appoint counsel for Plaintiffs and notice of intent to order Defendants to pay the attorney fees and costs to Plaintiffs’ counsel on a monthly basis. See Webb v. Ada County, 285 F.3d 829, 834-35 (9th Cir. 2002)(holding that post-judgment monitoring and enforcement are compensable without necessity of proving a new constitutional violation); Cody v. Hillard, 304
ORDER 6

Case 1:81-cv-01165-BLW Document 689 Filed 03/16/07 Page 7 of 10
F.3d 767, 776 (8th Cir. 2002)(approving fees for defending against a motion to terminate because “the class’s effort to prolong the efficacy of the remedial decree was time spent ‘enforcing’ that decree under the statute.”).
The Court will attempt to locate counsel for Plaintiffs and in the event the class representatives are able to locate counsel through their own efforts, they shall notify the Pro Se Unit, U.S. Courthouse, 550 W. Fort Street, Boise, ID 83724.
HEARING ON ORDERS TO SHOW CAUSE In the event the parties request a hearing on the orders to show cause, they shall notify the Pro Se Unit within the next ten (10) days. A hearing on the orders to show cause shall be held no later than April 13, 2007. The parties may also submit briefing in response to the Court’s orders to show cause. The supplemental briefing from Defendants shall be submitted on or before March 30, 2007. Plaintiffs will be given an opportunity to provide supplemental briefing when counsel has been appointed to represent them.
OTHER PENDING MOTIONS Plaintiffs’ filed a Motion for Extension of Time to File Response to Defendants’ Motion to Terminate Prospective Relief, and Plaintiffs’ motion will be granted. A response to Defendants’ motion will be filed after counsel is appointed
ORDER 7

Case 1:81-cv-01165-BLW Document 689 Filed 03/16/07 Page 8 of 10
for the inmate class.1 Plaintiffs’ class representative, Barry Searcy, filed a Motion for Order to
Provide Documents, requesting that the class representatives be given copies of the entire Motion to Terminate Prospective Relief. The Court will grant Plaintiff Searcy’s motion, and to the extent Defendants have not previously provided copies of the entire Motion to the class representatives, they shall do so within five (5) days of this Order’s date.
Inmate Lance Wood also filed a Motion for Rule 11 Relief, accusing Defendants of filing a “frivolous and fraudulent” motion in this action. He requests that the Court deny Defendants’ Motion to Terminate Prospective Relief on this basis. It does not appear that inmate Wood is a class representative in this action, and the Court will order that all future motions be filed only by a class representative until counsel is appointed for Plaintiffs. Once counsel is appointed for Plaintiffs, they can review the Fed. R. Civ. Proc. 11 issue with their counsel.
Finally, Plaintiffs filed a motion requesting the opportunity to conduct discovery in this matter. The Court will defer a ruling on this issue until after
1 Inmate Raymond Roles filed the Motion for Extension of Time, and it does not appear that Mr. Roles is a class representative in this action. In the future, the Court will only accept motions from previously designated class representatives. The Court has already received numerous letters and other documents from inmates in this action, and the Court’s record will be maintained in a more orderly and concise manner through a limitation on filings from inmates. ORDER 8

Case 1:81-cv-01165-BLW Document 689 Filed 03/16/07 Page 9 of 10
counsel is appointed for Plaintiffs.
ORDER NOW THEREFORE IT IS HEREBY ORDERED that Plaintiffs’ Motion for Extension of Time to File Response (Docket No. 652, 678) is GRANTED as set forth above. IT IS FURTHER HEREBY ORDERED that Plaintiffs’ Motion for Order to Provide Documents (Docket No. 655) is GRANTED as set forth above. IT IS FURTHER HEREBY ORDERED that Plaintiffs’ Motion to Appoint Counsel (Docket No. 657, 675) is GRANTED. The Court will only accept motions from the class representatives in this action, until the time counsel is appointed, and thereafter, only Plaintiffs’ counsel shall file motions and other documents with the Court on their behalf. IT IS FURTHER HEREBY ORDERED that Plaintiffs’ Motion to Postpone Automatic Stay (Docket No. 662) is GRANTED as set forth above. The automatic stay shall not take effect prior to May 17, 2007. IT IS FURTHER HEREBY ORDERED that Plaintiffs’ Motion for Rule 11 Relief (Docket No. 664) is DENIED without prejudice. IT IS FURTHER HEREBY ORDERED that Plaintiffs’ Motion for
ORDER 9

Case 1:81-cv-01165-BLW Document 689 Filed 03/16/07 Page 10 of 10
Discovery (Docket No. 676) is DENIED without prejudice to re-filing it. IT IS FURTHER HEREBY ORDERED that the Defendants shall respond to
the orders to show cause as set forth above on or before March 30, 2007 and a hearing on these orders shall be held on or before April 13, 2007. If the parties request a hearing, they shall contact the Pro Se Unit at 334-1172.
DATED: March 16, 2007 Honorable B. Lynn Winmill Chief U. S. District Judge
ORDER 10

 
 IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF IDAHO

WALTER D. BALLA, et. al.,

)

)

Plaintiffs,

)

)

vs.

)

)

IDAHO BOARD OF CORRECTION,)

et al.,

)

)

Defendants.

)

______________________________ )

Case No. CV-81-1165-S-BLW ORDER

A hearing on the pending motions in this case was held on December 10,

2007. Present in Court were the following attorneys: Walter Sinclair of Stoel

Rives on behalf of the Plaintiffs’ inmate class; and Michael Gilmore and Mark

Kubinski, Deputy Attorneys General, on behalf the Idaho Department of

Correction Defendants. The Court heard oral argument on the following motions:

(1) Plaintiffs’ Motion to Appoint Class Representatives (Docket No. 707); and (2)

Plaintiffs’ Motion for Attorney Fees and Costs (Docket No. 714). The Court also

considered two motions filed by individual inmates: Randall Davis’ Motion and

Petition (Docket No. 711); and Allen Brandt’s Request for Appearance (Docket

No. 720).

Having reviewed the pending motions and the record in this action, the

ORDER 1

Court has determined that it will grant both Plaintiffs’ Motion to Appoint Class Representatives and the Motion for Attorney Fees for Plaintiffs’ counsel. Mr. Davis’ motion will be denied, and he may re-file his petition as a separate civil rights complaint. Mr. Brandt’s request to be reinstated as a class representative is denied, and he may file a separate civil rights lawsuit.
BACKGROUND On September 26, 2005, the Honorable James M. Fitzgerald issued an order, denying the IDOC Defendants’ Motion to Terminate the injunctive orders placing a population cap at ISCI in Units 9, 10, 11 and 13 and requiring the repair of persistent plumbing problems at ISCI (Balla III). The Order denying the request to terminate the population cap was based in part on the extensive findings by the Court’s Rule 706 expert, Chase Riveland. Mr. Riveland’s report provided the basis for the Court’s determination that there were current and ongoing constitutional violations at ISCI, warranting the continued enforcement of the population cap and plumbing repair order. After the Court denied Defendants’ Motion to Terminate Prospective Relief, Judge Fitzgerald granted Plaintiffs’ request for attorney fees and costs in the amount of $155,858.68 because they had successfully defended the existing injunction. Approximately eighteen months after the Court denied the Defendants’
ORDER 2

Motion to Terminate Prospective Relief, the IDOC filed the same motion, requesting that the Court terminate the current court-ordered population cap, and allowing them to house 636 inmates in these previously capped units. The addition of these extra inmates would raise the inmate population to 200% of the original design capacity for these units. Defendants did not seek to terminate the injunctive orders which prohibited triple-celling of inmates and placing their mattresses on the floor. See Docket No. 635-2, p. 3.
Plaintiffs filed a Motion to Postpone the automatic stay provided for in the PLRA, and issued an Order to Show Cause as to why the Court should not appoint Chase Riveland to conduct a further investigation of the prison conditions at ISCI. Docket No. 689, p. 9. The Court issued a notice of intent to reappoint Stoel Rives, the attorneys who represented Plaintiffs in Defendants’ first attempt to terminate the injunctive order. The Court also issued notice of intent to order payments to Stoel Rives on a monthly basis. Id.
On March 26, 2007, Defendants filed a “Notice of Partial Withdrawal of Motion to Terminate Prospective Relief.” Docket No. 691. Defendants notified Plaintiffs that they only intended to seek termination of the population cap for Units 9 and 13, rather than all four units subject to the cap. Id., p. 2. Stoel Rives filed a Notice of Appearance on April 5, 2007, along with a brief relating to their
ORDER 3

appointment as class counsel. Docket No. 695.
The Court held a status conference on April 6, 2007 at which Defendants’
counsel informed the Court that they would not pursue the Motion to Terminate.
The IDOC counsel indicated that they might re-file the motion within six to
eighteen months. On April 9, 2007, Defendants filed an official “Notice of
Withdrawal of Motion to Terminate Prospective Relief.” Docket No. 699. The
Notice stated that the request to terminate the population cap was withdrawn in its
entirety.
On August 14, 2007, Defendants filed a supplement to the Notice of
Withdrawal of Motion to Terminate Prospective Relief “for the purpose of
advising the Court and the parties of their intent regarding this action.” Docket No.
704, p. 2. Defendants stated that the Idaho Board of Correction had
reassessed its goals and priorities in light of current circumstances. As a result of that process, the IDOC does not have any present intent to seek termination of the permanent injunctions in effect in this action. Nor does the IDOC intend within the foreseeable future to seek termination of the permanent injunction. Id., p. 2.
Plaintiffs’ counsel filed a Motion to Appoint Class Representatives (Docket
No. 707) on September 6, 2007, and a Motion for Attorney Fees (Docket No. 714)
on October 22, 2007. Plaintiffs’ counsel seeks the appointment of four inmates,
ORDER 4

Mr. Searcy (Unit 13), Mr. Glass (Unit 9), Mr. Ibarra (Unit 11), Mr. Slaughter (Unit 10), and Mr. Wood (Unit 10), as the new class representatives. Barry Searcy was also a class representative in Balla III, the IDOC’s prior attempt to terminate the population cap orders. Plaintiffs argue that the inmates are unable to communicate with each other because they live in different units at ISCI, and they need to be able to provide information about the prison conditions in their respective units to their counsel.
Plaintiffs’ counsel informed Defendants that they were interviewing potential class representatives at ISCI and that they had decided upon a list of candidates. Plaintiffs’ counsel prepared a stipulation for appointment of new class representatives, and sent it to Defendants’ counsel, Jeremy Chou. in July of 2007. Defendants’ counsel then informed Plaintiffs’ counsel that they were going to inform the Court of their intention not to re-file the motion to terminate the injunctive relief. Docket No. 712-2, p. 3-4. Defendants subsequently filed the notice with the Court in August of 2007.
Defendants argue that it is no longer necessary to appoint new class representatives because they have withdrawn their Motion to Terminate the population caps at ISCI. Defendants also argue that appointing class representatives based on their current housing assignments in the capped Units at
ORDER 5

ISCI could change between now and the time Defendants may seek termination of the population caps. They argue that appointing new class representatives prior to the actual filing of a motion to terminate would only set the stage for another motion to appoint class representatives, in the event the class representatives are transferred to other units. Defendants allege that Mr. Glass and Mr. Ibarra are eligible for parole in 2008, and therefore, these inmates may only be able to serve as class representatives for a short duration.
At oral argument, Plaintiffs’ counsel argued that appointment of the class representatives facilitates consultation with the inmates about prison conditions arising from the alleged overcrowding, and counsel is then in a position to advise the inmates about claims that have no merit, thereby reducing the number of individual claims that may arise from the alleged overcrowding conditions.
Plaintiffs’ counsel also filed a Motion for Attorney Fees and Costs. Plaintiffs’ counsel requested $18, 322.60 in attorney fees for representing the inmate class through October 18, 2007. See Docket No. 714-3, Affidavit of J. Walter Sinclair and Exhibits A, B, and C, thereto. Exhibit A contains a billing summary of time spent on representing the inmate class from the time Stoel Rives was reappointed in March of 2007.
Defendants appear to have conceded the reasonableness of the attorney fees
ORDER 6

billed up through April 9, 2007, the date Defendants withdrew the Motion to Terminate Prospective Relief. Docket No. 718, p. 2. They agree that Plaintiffs are entitled to attorney fees in the amount of $4,341.05, which represents the fees billed from March 16, 2007 to April 9, 2007. Id., p. 3. They argue that billing fees beyond this date is unreasonable and that any fees incurred thereafter should be denied or reduced. As part of Defendants’ response to the attorney fees motion, they submitted an affidavit from IDOC Director Brent Reinke in which he discusses the various mechanisms the IDOC is using in order to accommodate the current inmate population. Docket No. 718-2, p. 2. Director Reinke states that “the IDOC does not intend in the foreseeable future to seek termination of the 1987 injunction involving population caps in Units 9, 10, 11, and 13" at ISCI. Id. The Director states that “it is my intention to continue to direct the IDOC’s resources toward other means of alleviating the prison population problem.” Id., p. 5. He indicates that he will direct the IDOC’s counsel to give Plaintiffs at least thirty days notice prior to the filing of another motion to terminate the population caps at ISCI. Id., p. 5-6.
MOTION TO APPOINT CLASS REPRESENTATIVES Despite the Defendants’ complete withdrawal of the Motion to Terminate Prospective Relief, the Court has determined that appointment of new class
ORDER 7

representatives is necessary. IDOC Director Reinke has indicated that there is no present intention to re-file a motion to terminate the injunctive orders placing a population cap in Units 9, 10, 11 and 13 and requiring plumbing repairs in these units at ISCI. But the Director was not willing to rule out the possible re-filing of a motion to terminate the Balla III injunctive orders. It is obvious that naming class representatives and appointing counsel for the inmate class after the motion to terminate is re-filed is inefficient and unworkable, given the short time within which the Court is required to rule on a motion to terminate injunctive relief. In 18 U.S.C. § 3626, the procedures for filing a motion to terminate prospective relief under the PLRA are set forth. It states that “[a]ny motion to modify or terminate prospective relief made under subsection (b) shall operate as a stay during the period– (A)(I) beginning on the 30th day after such motion is filed. . . . The court may postpone the effective date of an automatic stay specified in subsection (e)(2)(A) for not more than 60 days for good cause.” 18 U.S.C. § 3626 (e) (2)(A)(I) and (e)(3). Therefore, by the time the Court is made aware of the refiling of the motion, there is a narrow window of time in which the class representatives can meet with their counsel and respond to the motion. It is also important for the class representatives to have access to counsel in order to report on alleged violations of the Balla III injunctive orders. If the class representatives
ORDER 8

are not in place to serve as the conduit for inmate complaints about the injunctive orders, the attorneys are bombarded by an overwhelming number of inmate complaints.
Plaintiffs submitted Affidavits from three inmates at ISCI, stating that they believe there is a present intention to seek termination of the population cap. In support of this argument, Plaintiff Barry Searcy states that the IDOC has failed to remove the second bunk and locker from the single cells in his unit. Docket No. 721-2, p. 3-4. He also states that the visiting hours are being reduced, the school and library are being closed in the evening hours, and the laundry swing shift is being eliminated. Mr. Searcy also indicates that the amount of time inmates are allowed to spend on the ball field and in the gym are being reduced. Id., p. 5.
Inmate Dennis Slaughter filed an affidavit stating that medically prescribed diets are not being provided to inmates and access to medical care is being delayed “up to months at a time.” Docket No. 721-3, p. 2. He also states that the pill call policy forces inmates to stand in long lines of up to 150 inmates for up to an hour at a time. Id. Inmate Franklin Johnson also submitted an affidavit, stating that he had been denied adequate medical for colon cancer. He claims that the significant delays in providing medical care caused him further injury and untreated pain. Docket No. 721-4, p. 2-3. It appears that the alleged inadequate medical care
ORDER 9

scenarios arise from the additional inmates added to ISCI as a whole, rather than conditions arising specifically in Units 9, 10, 11, and 13.
While the Affidavits from Inmates Searcy, Slaughter, and Johnson make compelling arguments, their allegations are not within the relief provided in the Balla III orders. The permanent injunction places a population cap on four units at ISCI, and it also provides for ongoing attention to plumbing repairs on these units. There are presently no class-wide injunctive orders relating to the provision of medical diets and adequate medical care because years ago, a remedial plan was accepted to address these issues. Therefore, it appears that the Court may be restricted in terms of what it can address within the parameters of the Balla III injunction. Presently, the recourse for inmates at ISCI is to file individual civil rights claims pertaining to the alleged constitutional violations occurring at ISCI.1
As the parties are no doubt aware, Congress enacted the PLRA as a way to limit the type and duration of injunctions the federal courts can order for prison condition claims. 18 U.S.C. § 3626 (a)(2) states that “[p]reliminary injunctive relief must be narrowly drawn, extend no further than necessary to correct the harm the court finds . . . , and be the least intrusive means necessary to correct that
1 The Court is aware that the number of civil filings from inmates in IDOC facilities has increased by almost 50 % during 2007. Although it is difficult to directly attribute the increased filings to prison conditions arising from overcrowding of inmates, it may be a statistic the IDOC will find noteworthy. ORDER 10

harm.” The PLRA also states that injunctive relief “shall be terminable upon the motion of any party . . . (i) 2 years after the date the court granted or approved the prospective relief; or (ii) 1 year after the date the court has entered an order denying termination of prospective relief.” 18 U.S.C. § 3626 (b)(1). Therefore, the PLRA specifically provides for the type of motion to terminate prospective relief that Defendants filed eighteen months after the Balla III orders were entered.
Based on the foregoing, the Court has determined that it provides efficiency and constancy to reappoint class representatives, despite the IDOC’s decision not to attempt termination of the population cap in the foreseeable future. Therefore, the Court will appoint the four new class representatives requested by Stoel Rives. See Gluth v. Kangas, 951 F.2d 1504, 1509 (9th Cir. 1991)(district court properly added three new class representatives because turnover of named class representatives is high due to frequent transfers or releases); Benjamin v. Fraser, 343 F.3d 35, 41 (2d Cir. 2003)(pre-trial detainees in correctional facility opposed the termination of injunctive orders resulting from a class action filed by a different group of pre-trial detainees in 1975 and demonstrated continuing constitutional violations which warranted the continuation of injunctive orders).
The proposed class representatives have adequately alleged the existence of current, ongoing constitutional violations, affecting them personally and on behalf
ORDER 11

of the inmates at ISCI. See Fed. R. Civ. Proc. 23(a)(4)(person representing the class must be able “fairly and adequately to protect the interests” of all members in the class); United States Parole Commission v. Geraghty, 445 U.S. 388, 403 (1980)(an action brought on behalf of a class does not become moot upon the expiration of the class representatives’ substantive claim). The existence of injunctive orders which were maintained after the IDOC’s Motion to Terminate Prospective Relief in Balla III gives rise to an inference that the orders were designed to provide current protection for the inmate class at ISCI.
The following class representatives will be appointed to replace the class representatives who were named in the Balla III portion of the case: (1) Jimmy Glass, (2) Jesse Ibarra, (3) Dennis Slaughter; and (4) Lance Wood. Barry Searcy will continue to act as a class representative in this action.
The IDOC Director has also indicated that he would direct his counsel to provide thirty days notice in the event the motion to terminate the injunctive order is re-filed. Therefore, the Court will order that IDOC counsel provide thirty days written notice to Plaintiffs’ counsel in the event they decide to re-file the motion to terminate the Balla III injunctive orders.
MOTION FOR ATTORNEY FEES When the Court reappointed Stoel Rives to represent the inmate class in this
ORDER 12

action, it also issued an order to show cause on the payment of attorney fees and costs on a monthly basis to Plaintiffs’ counsel. Because the Balla III injunctive orders arise from a class action lawsuit, the Court must appoint counsel to represent the interests of the class members because the inmates cannot proceed pro se. Therefore, Defendants were immediately put on notice that there was a potential for attorney fees and costs to be incurred by the inmate class and that the Court intended to pay the attorneys on a monthly basis. See Webb v. Ada County, 285 F.3d 829, 834-35 (9th Cir. 2002)(holding that post-judgment fees incurred in enforcing existing injunctive orders was compensable without necessity of proving a new constitutional violation); Cody v. Hillard, 304 F.3d 767, 776 (8th Cir. 2002)(approving fees for defending against a motion to terminate because “the class’s effort to prolong the efficacy of the remedial decree was time spent ‘enforcing’ that decree under the statute.”).
Defendants argue that it would be unreasonable to award all of the attorney fees Plaintiffs’ counsel have requested because the IDOC withdrew the Motion to Terminate on April 9, 2007. This ignores the statements made during the status conference, indicating that the motion to terminate could be re-filed between six to eighteen months. The record also shows that Plaintiffs’ counsel were attempting to arrive at an agreement with the IDOC Defendants to name the new class
ORDER 13

representatives up until at least three months after the status conference. It appears that the IDOC Defendants were still considering re-filing the motion to terminate because in August of 2007, another Notice of Withdrawal of Motion to Terminate Prospective Relief was filed. This new Notice informed Plaintiffs’ counsel and the Court that there was no intention to seek termination of the permanent injunction “within the foreseeable future.” Docket No. 704, p. 2.
Additionally, in response to Plaintiffs’ Motion for Attorney Fees, IDOC Director Reinke explained the manner in which the agency was attempting to manage the burgeoning prison population. Director Reinke outlined eight different tactics the IDOC was implementing to address the prison population issues without resorting to a termination of the population caps in the ISCI units. Director Reinke’s Affidavit was filed on November 16, 2007. Therefore, it has only become clear to the Court through these most recent filings that the IDOC intends to abandon its attempt to terminate the Balla III injunctive orders and make a good faith effort to pursue other means for addressing the inmate crowding issues.
In Dannenberg v. Valadez, 338 F.3d 1070, 1075 (9th Cir. 2003), the Ninth Circuit Court of Appeals held that “fees incurred to obtain injunctive relief, whether or not monetary relief was also obtained as a result of those fees, are not
ORDER 14

limited by [42 U.S.C. § 1997e(d)(2)].” Therefore, the full amount of attorney fees incurred to obtain injunctive relief may be awarded when the Plaintiffs prevail. The Dannenberg opinion also states that “‘the most critical factor’ in determining the reasonableness of a fee award’ is the degree of success obtained.’” Id. at 1075 (quoting Farrar v. Hobby, 506 U.S. 103, 114 (1992)). District courts have great discretion in assessing the reasonableness of attorney fees, and the court “must exercise its discretion with an eye toward ‘the relationship between the extent of success and the amount of the fee award.’” Id. (quoting Farrar, 506 U.S. at 11516.)
In the circumstances giving rise to Balla III. the inmates were placed in the position of defending against the termination of the prior injunctive relief orders within eighteen months of their successful opposition to the termination of the population caps at ISCI. When the IDOC withdrew the Motion to Terminate Prospective Relief, the prior injunctive orders were preserved, and, therefore, the attorney fees were “directly and reasonably incurred in enforcing the relief ordered” in the prior permanent injunction. 42 U.S.C. § 1997e(d) (1)(B)(ii); see also Cody v. Hillard, 304 F.3d at 777 (holding that “the inmate class’s effort to prolong the efficacy of the remedial decree was time spent ‘enforcing’ that decree,” and is fully compensable); Webb v. Ada County, 285 F.3d at 835 (holding that
ORDER 15

district court correctly awarded attorney fees for post-judgment work in enforcing

and monitoring the court’s prior judgment).

The PLRA caps the hourly rate for attorney fees at no “greater than 150

percent of the hourly rate established under section 3006A of Title 18, for payment

of court-appointed counsel.” 42 U.S.C. § 1997e(d)(3). The current hourly fee rate

for court-appointed counsel is $113.00 per hour. Therefore, the PLRA fee cap for

attorney fees in this case would be $169.50. See Webb v. Ada County, 285 F.3d at

839 (the PLRA provides for the payment of the established rate for court-appointed

counsel). “The starting point for determining a reasonable fee is the ‘lodestar’

figure, which is the number of hours reasonably expended multiplied by a

reasonable hourly rate.” Gates v. Deukmejian, 987 F.2d 1392, 1297 (9th Cir.

1992)(citations omitted). The attorney fees request must properly document the

time spent on the plaintiff’s claims. Id. “The party opposing the fee application

carries the burden of rebuttal” . . . [which] “requires submission of evidence

challenging the accuracy and reasonableness of hours charged, or factual assertions

made in affidavits submitted by the prevailing party.” Lozeau v. Lake County,

Montana, 98 F. Supp. 2d 1157, 1169 (D. Montana 2000).

Plaintiffs request an award of the following fees billed under the PLRA cap:

Stoel Rives Staff

Hours

Rate

Total

ORDER 16

J. Walter Sinclair/partner Bradley J. Dixon/associate Samia McCall/associate Jason Prince/associate Emily Strong/case assistant

22 28.2 10.6 44.4 26.1
Total:

$169.50 $169.50 $169.50 $160.00 $ 35.00

$3,729.00 $4,799.90 $1, 796.70 $7, 104.00 $ 913.00
$ 18, 322.60

Defendants object to the total fees billed, arguing that it was unnecessary to staff the case with three associates and a case assistant. They also question why four attorneys continued to work on the case after the Defendants withdrew the Motion to Terminate in April of 2007. Docket No. 718, p. 9. Defendants also object to time entries from attorney Brad Dixon totaling $575.00, relating to a lawsuit Barry Searcy filed in Ada County.
The Court has reviewed the time entries submitted by Plaintiffs’ counsel, and the amount of time spent on defending the inmate class appears reasonable, with the exception of one category. The Court will disallow fees in the amount of $575.00 billed by Bradley Dixon for a lawsuit Barry Searcy filed in Ada County. These fees appear unrelated to representation of the inmate class.
Based on the foregoing, the Court will order the IDOC Defendants to pay the attorney fees incurred by Stoel Rives in the amount of $17, 747.60. The IDOC Defendants shall also pay the additional fees Plaintiffs incurred for filing a reply brief to the Motion for Attorney Fees and for Mr. Sinclair’s appearance at the oral
ORDER 17

argument on the pending motions. Stoel Rives shall filed a supplemental affidavit,
including this category of fees in the total amount requested. The issues on which
Plaintiffs’ counsel worked are “inextricably intertwined with those on which the
plaintiff[s] prevailed” in the Defendants’ first Motion to Terminate Prospective
Relief. See Cody v. Hillard, 304 F.3d at 772. Accordingly, Plaintiffs’ counsel are
entitled to an award of attorney fees for their successful representation of Plaintiffs
on Defendants’ second Motion to Terminate Prospective Relief.
Costs Award
Plaintiffs seek a costs award of $486.06. Federal Rule of Civil Procedure
54(d) provides, in pertinent part, as follows:
Except when express provision therefor is made either in a statute of the United States or in these rules, costs other than attorneys' fees shall be allowed as of course to the prevailing party unless the court otherwise directs; but costs against the United States, its officers, and agencies shall be imposed only to the extent permitted by law. Such costs may be taxed by the clerk on one day's notice. On motion served within 5 days thereafter, the action of the clerk may be reviewed by the court. (emphasis added.)
In exercising its discretion under Rule 54(d) regarding whether to award
costs in civil rights cases, a district court “should consider the financial resources
of the plaintiff and the amount of costs.” Stanley v. University of Southern
ORDER 18

California, 178 F.3d 1069, 1079 (9th Cir. 1999) (internal citations omitted). Accordingly, the district court may consider the indigency of a party as a factor in awarding costs. Id. (internal citations omitted).
The Court has reviewed the Plaintiffs’ costs request and has determined that the expenditures were reasonable. Therefore, Plaintiffs’ counsel will also be awarded the costs incurred in representing the inmate class. To the extent Barry Searcy incurred out-of-pocket costs for responding to the motion prior to appointment of counsel, the IDOC shall also pay those costs to Mr. Searcy.
OTHER PENDING MOTIONS In the Court’s previous Order, the inmate Plaintiffs were directed to file motions and affidavits only through their appointed counsel, Stoel Rives. Two inmates, Randall Davis and Allen Brandt, filed their own motions, requesting relief. Mr. Davis’ motion appears to raise issues outside the parameters of the Balla III injunctive order, and therefore, Mr. Davis will be directed to pursue the issues in his Motion as a separate civil rights complaint after he has exhausted the prison grievance system. Mr. Brandt’s Motion sets forth his objection to being excluded as a possible class representative. He served as a class representative in the Balla II portion of the case, until the time he was released from prison. Mr. Brandt was recently
ORDER 19

transferred to Oklahoma, and he asserts that the transfer was retaliatory in nature. In the event Mr. Brandt decides to pursue a retaliation claim against the IDOC, then he must do so in a separate civil rights lawsuit after he has exhausted the prison grievance system. The Court will deny Mr. Brandt’s request to be named as a class representative.
ORDER NOW THEREFORE IT IS HEREBY ORDERED that Plaintiff’s Motion to Appoint Class Representatives (Docket No. 707) is GRANTED as set forth above. IT IS FURTHER HEREBY ORDERED that Plaintiffs’ Motion for Attorney Fees and Costs (Docket No. 714) is GRANTED as set forth above. The IDOC Defendants shall pay the attorney fees incurred by Stoel Rives in the amount of $17, 747.60, plus the additional amount indicated above. Costs in the amount of $486.06 shall also be awarded. Payment of these amounts shall be within thirty (30) days of this Order’s date. The Court’s Order to Show Cause as to why attorney fees should not be paid on a monthly basis to Stoel Rives is withdrawn without prejudice to Plaintiffs’ counsel reopening the request. IT IS FURTHER HEREBY ORDERED that Randall Davis’ Motion and Petition (Docket No. 711) is DENIED; and Allen Brandt’s Request for Appearance (Docket No. 720) is DENIED.
ORDER 20

IT IS FURTHER HEREBY ORDERED that Defendants’ counsel shall provide thirty (30) days advance notice to Plaintiffs in the event they decide to refile the motion to terminate the permanent injunctive relief. The notice shall also be sent to the Pro Se Unit at the Court.
DATED: December 18, 2007 B. LYNN WINMILL Chief Judge United States District Court
ORDER 21

 
 IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF IDAHO

WALTER D. BALLA, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

IDAHO STATE BOARD OF

)

CORRECTION, et al.,

)

)

Defendants.

)

______________________________ )

Case No. CV 81-1165-S-BLW
MEMORANDUM DECISION AND ORDER

INTRODUCTION

Pending before the Court is Plaintiffs’ Motion for Order to Show Cause

Why Defendants Should Not Be Held in Contempt of Court. (Docket No. 740.)

Plaintiffs have requested that the Court hold Defendants in contempt for

temporarily exceeding court-imposed population caps on Units 9, 10, 11, and 13 at

Idaho State Correctional Institution (ISCI), and for transferring and double-celling

inmates in administrative segregation units at the Idaho Maximum Security

Institution (IMSI). (Docket Nos. 740, 751, 762.)

The Court held an evidentiary hearing on February 18 and 20, 2009, and the

parties have since submitted post-hearing briefing. For the reasons set forth more

MEMORANDUM DECISION AND ORDER - 1

fully herein, the Court declines to hold the Defendants in contempt.1
THE BALLA II AND BALLA III INJUNCTIVE ORDERS
In Balla v. Idaho State Board of Corrections, 656 F.Supp. 1108, 1109 (D.
Idaho 1987) (Balla II), District Judge Harold Ryan granted injunctive relief to the
prisoner Plaintiffs at ISCI by imposing population caps in certain housing units. In
relevant part, the Court prohibited Defendants from:
1. Double-celling maximum custody inmates or housing more than seventy-eight (78) inmates in Unit 8 [the restrictive housing unit] at any time.
2. Double-celling close custody inmates or housing more than seventy-eight (78) inmates in Unit 9 at any time [later modified to no more than 117 inmates].
3. Housing more than one hundred eight (108) inmates in Units 10 and/or 11 at any time.
4. Housing more than one hundred forty-four (144) inmates in A-Block [Unit 13] at any time.
Balla II, 656 F. Supp. at 1119-20. The Court also enjoined Defendants from using
“any other vehicle, scheme or mechanism designed to undermine the spirit and
letter of this opinion and order.” Id. at 1119.
1 The parties have also submitted supplemental briefing addressing the Court’s December 4, 2008 Notice of Tentative Ruling and Order, in which the Court ruled preliminarily that Plaintiffs are entitled to pursue contempt motions for Defendants’ alleged failure to comply with remedial plans that were adopted in 1985. The Court will issue a separate opinion on that matter. MEMORANDUM DECISION AND ORDER - 2

In 2003, Defendants filed a Motion to Terminate Prospective Relief, seeking an end to the population caps imposed on Units 9, 10, 11, and 13. When a stay of the injunction was briefly in place, Defendants prepared the units for doublecelling by installing additional bunks (the “Balla beds”). On September 26, 2005, Judge James M. Fitzgerald denied Defendants’ Motion. (Docket No. 585) (Balla III). Judge Fitzgerald reaffirmed and preserved the injunction “relating (1) to population caps in Units 9, 10, 11, and 13, (2) to the prohibition of triple-celling and placing inmates on the floor at any time, and (3) to plumbing repairs.” Id. at 20.
After a riot in early January 2009, Defendants filled the extra beds in these units for about three and one-half weeks, exceeding the population caps during that time. Plaintiffs now seek an order holding Defendants in contempt for that violation. As a remedy, they ask for monetary sanctions in the amount of $5,000 for each day that the Defendants “have violated and continue to violate the Balla injunctions.”2 (Docket No. 751, p. 5.) They also request the Court to order Defendants to remove the additional Balla beds as a preventative measure to make it more difficult for the Defendants to repeat the violation. (Docket No. 740, p. 2.)
2 In their original Motion, Plaintiffs also suggested deadlines for compliance. Defendants are no longer double-celling the Balla units, and those dates have since passed. Thus, that aspect of the Motion is moot. MEMORANDUM DECISION AND ORDER - 3

Plaintiffs further claim that the Defendants decreased the population at ISCI only through a game of “musical cells,” in part by moving administrative segregation inmates from Unit 8 at ISCI to IMSI and double-celling them there. (Docket No. 751, p. 4.) Plaintiffs assert that this violates Balla II’s injunction against double-celling in Unit 8 at ISCI and against “using any other vehicle, scheme, or mechanism designed to undermine the spirit and letter” of the injunction. (Docket No. 751, pp. 4-6.)
With this background in mind, and after considering all of the evidence presented, the Court makes the following findings of fact.
FINDINGS OF FACT Bringing Inmates Back to Idaho 1. In 2008, as many as 650 Idaho prisoners were housed in facilities in Texas and Oklahoma due to a lack of sufficient bed space in Idaho prisons. (Evidentiary Hearing Transcript (Tr.), p. 31.) The Texas facility was operated by the GEO Group, a private corporation, which held a contract with the Idaho Department of Correction (IDOC) for managing the Idaho inmates. (Tr., pp. 3132.) 2. In October 2008, IDOC officials decided to terminate the contract with the GEO Group and transfer the 300 Idaho inmates that remained in Texas.
MEMORANDUM DECISION AND ORDER - 4

(Tr., p. 51.) This decision was driven both by a concern about chronic staff shortages at that particular facility and by a desire to save IDOC money in an increasingly tight budgetary environment. (Tr., pp. 32, 51, 180, 197-98.)
3. On November 5, the Director of IDOC, Brent Reinke, notified GEO Group that IDOC intended to remove all of the Idaho inmates from the Texas facility by January 5, 2009. (Defendants’ Exhibit 2001 (“Def. Ex.”); Tr., p. 33.) At that time, IDOC officials were weighing various options for placing these inmates, including transferring them to the Oklahoma contract prison, but no plans had yet been finalized. (Tr., pp. 52-53, 198-99.)
4. By mid-November, Defendants had decided to bring these inmates back to Idaho for financial reasons. (Tr., pp. 54-55, 198-99.) Returning the inmates would save the IDOC over one million dollars during the fiscal year. (Tr., pp. 54, 198-99.)
5. In late November, approximately four to six weeks before the inmates were scheduled to arrive, Defendants resolved to convert a warehouse at ISCI that formerly contained an upholstery shop into a new housing unit--Unit 24. (Tr., pp. 133, 201.) ISCI was operating at full capacity, and without the new unit, the prison would lack sufficient space to handle the increase in population. (Tr., p. 133.)
6. The design for Unit 24 called for housing approximately 200 inmates
MEMORANDUM DECISION AND ORDER - 5

in two “tiers” of bunk beds in a dormitory setting, separated by a central walkway. The unit would include two furnished day rooms, an indoor bathroom with four toilets and three urinals, and two outdoor plumbing trailers containing additional bathroom facilities. (Tr., pp. 134-36.) The outdoor trailers each were designed for ten showers, eight toilets, and eight sinks. (Tr., pp. 134-35.) Once completed, Unit 24 would have twenty toilets, twenty showers, twenty sinks, and three urinals; that is, one toilet and one shower for about every ten inmates.
7. Defendants intended to open Unit 24 on or about January 1, 2009, just a few days before the out of state inmates would arrive. (Tr., p. 202.) Unit 24 would be populated mainly with parole violators awaiting a hearing before the Parole Commission. (Tr., p. 175.)
8. In late December, IDOC staff members arrived at the Texas facility to oversee the transfer of the inmates back to Idaho. (Tr., p. 88.) The facility was in the process of being shut down: files and boxes were packed, and GEO Group had notified staff that the institution would close immediately after the Idaho inmates departed. (Tr., pp. 89, 98.)
Movement into Unit 24 and the Riot 9. By Friday, January 2, Unit 24 was still under construction. (Tr., p. 203.) Sinks, toilets, and plumbing fixtures had been left out in one of the two day
MEMORANDUM DECISION AND ORDER - 6

rooms, which was marked with yellow “caution tape” and was off-limits to inmates. (Tr., pp. 135-36, 163-64, 245, 28-384.) Only one outdoor bathroom trailer was on-site, and it was not functioning. (Tr., pp. 163-64.)
10. As a result, the inmates would be required to use the indoor bathroom with a limited number of toilets and urinals until the outdoor trailers were finished. Although the on-site trailer was scheduled to be finished the following day, the second trailer would not be completed for at least another week or two. (Tr., pp. 164, 195.)
11. Despite this apparent lack of readiness, the warden or deputy warden at ISCI authorized the transfer of approximately 200 inmates into Unit 24 in the evening hours of January 2. (Tr., pp. 140, 203.)
12. The inmates had been notified only about 45 minutes in advance that they would be moved into a new unit. (Tr., p. 238.) Several had accumulated valuable electronic items that were confiscated by correctional officers for storage elsewhere. (Tr., pp. 138-39, 250.) The bunk beds, essentially two surplus army cots wielded together, were smaller and flimsier than the beds in the other units. (Tr., pp. 139, 236-36.) There was a shortage of plastic totes for inmates to store their belongings. (Tr., p. 139.) Many were upset about their new living conditions. (Tr., p. 250.)
MEMORANDUM DECISION AND ORDER - 7

13. A few minutes after the lights were turned down for the night, a small group of inmates started a disturbance. (Tr., p. 253.) The two correctional officers who were still present quickly lost control of the situation and retreated into an enclosed control room. (Tr., p. 253.) Rioting inmates converged on the room and attempted to break the plexiglass window. (Tr., p. 253.) The interior window shattered, but the plexiglass barrier held. (Tr., pp. 253-54.)
14. Undaunted, inmates climbed onto the roof of the room and began to stomp a hole through the plywood. (Tr., p. 254.) One of the officers grabbed a shovel and broke an exterior window, and both crawled to safety. (Tr., p. 254.)
15. Certain inmates“tore the place apart” and started a small fire in the control room. (Tr., p. 254.) The riot continued until the unlocked exterior doors were opened. (Tr., p. 255.) Inmates then rushed out of the building. (Tr., p. 255.)
16. IDOC officials soon learned that Unit 24 was in no shape to be used as a housing unit. (Tr., p. 231.)
Filling and Emptying the Balla Beds 17. The first group of Texas inmates was scheduled to arrive at 9:00 a.m. on Sunday, January 4, the day after the riot had been put down. (Def. Ex. 2004.) 18. With bed space no longer available in Unit 24, Defendants had to quickly consider their options for housing these inmates.
MEMORANDUM DECISION AND ORDER - 8

19. Holding the inmates at the Texas facility was not a realistic option. The facility was closing, and only a skeleton crew would remain to wind down operations after the inmates left. (Tr., pp. 98-99, 113.) The inmates’ personal belongings had already been sent to Idaho. (Tr., p. 93.) The preparations for transport were well underway when the riot occurred. Buses and planes had been chartered, and the first group of inmates were scheduled to depart in the early morning hours of January 4. (Def. Ex. 2004.)
20. While the IDOC’s other contract prison in Oklahoma had the infrastructure in place to handle an increase in population, housing units at that prison had been “mothballed,” and the prison did not have sufficient staff to manage more inmates. (Tr., pp. 112-13, 219.) Moreover, placing inmates in a different state generally requires a contracting process that takes significant time to complete. (Tr., pp. 217-220.)
21. Some county jails in Idaho accept IDOC inmates when they have space, but Chief of Prisons Pam Sonnen was aware that the county jails were full the weekend of the riot. (Tr., pp. 171-72, 213.) Further, every inmate who came back to Idaho would need to be screened, processed, and assessed before being sent to a county jail. (Tr., p. 174.) This would also be true if the Governor had declared a state of emergency, which was a prerequisite to placing inmates in jails
MEMORANDUM DECISION AND ORDER - 9

and prisons in surrounding states. (Tr., pp. 190-92.) 22. Defendants had tents available to them, but Chief Sonnen and other
prison officials determined that placing inmates in tents was not feasible in the middle of winter because of inadequate heating. (Tr., pp. 144, 212.)
23. Faced with these options, Defendants decided to place inmates in the Balla beds in Units 9, 10, 11, and 13. (Tr., p. 144.) By doing so, the Defendants exceeded the population caps set for these units in Balla II and reaffirmed in Balla III.
24. Defendants resolved to move inmates out of the Balla beds as quickly as possible. Their plan was to (a) “back up” the county jails by asking counties to retain prisoners that would otherwise be moved to IDOC facilities, (b) transfer inmates out of ISCI to other institutions when beds opened, and (c) release inmates through the ordinary process of parole and completion of sentences. (Tr., pp. 161, 182-83, 222-23.)
25. Using these methods, by January 29 Defendants were in back into compliance with the Balla injunctions relating to the population caps for Units 9, 10, 11, and 13. (Docket No. 748.)
Transferring Administrative Segregation Inmates to IMSI 26. In Balla II, the Court prohibited the double-celling of inmates in Unit
MEMORANDUM DECISION AND ORDER - 10

8. At that time, Unit 8 was a restrictive housing unit that contained all maximum custody inmates in the state prison, which included inmates under a sentence of death, inmates in punitive segregation, and inmates in other types of administrative segregation. Balla II, 656 F.Supp. at 1113.
27. When IMSI opened as in 1989, maximum custody inmates were placed in that institution. (Tr., pp. 184-85.) ISCI became a medium custody prison. (Tr., p. 22.)
28. Unit 8 at ISCI is still the restrictive housing unit, but inmates who are to be held in longer-term administrative segregation are generally transferred to IMSI, provided that space is available there. (Tr., pp. 184-85, 267-68, 275-77.)
29. Defendants have not double-celled inmates in Unit 8 at ISCI since the riot, but 50 inmates were transferred from ISCI to administrative segregation at IMSI immediately following the riot. (Tr., pp. 146-50.)
30. These transferred inmates were placed in administrative segregation either because they were being investigated for involvement in the riot, or because they were already slated to be housed in longer-term administrative segregation before January 2. (Tr., pp. 146, 149, 269-70, 275-77.)
31. The IDOC subsequently changed its policy to allow double-celling at IMSI and to permit more out of cell time for those inmates who were double-
MEMORANDUM DECISION AND ORDER - 11

celled. (Tr., pp. 270-71.) 32. Some of the inmates transferred from ISCI were double-celled at
IMSI, though the precise number is unknown. (Tr., pp. 150-51, 269-70.) STANDARD OF LAW
A court may hold a party in contempt when the party disobeys a specific and definite order by failing to take all reasonable steps within its power to comply. In re Dual-Deck Video Cassette Recorder Antitrust Litigation, 10 F.3d 693, 695 (9th Cir. 1993). In a civil contempt proceeding, the party alleging contempt must demonstrate that the alleged contemnor violated the court’s order by clear and convincing evidence, not merely a preponderance of the evidence. Id.
After violation has been proven, the burden then shifts to the alleged contemnor to show that he or she was unable to comply with the order. United States v. Rylander, 460 U.S. 752, 757 (1983); Falstaff Brewing Corp. v. Miller Brewing Co., 702 F.2d 770, 781 (9th Cir. 1983). The “[a]bility to comply is the crucial inquiry, and ‘a court should weigh all the evidence properly before it determines whether or not there is actually a present ability to obey.’ ” United States v. Drollinger, 80 F.3d 389, 393 (9th Cir. 1996).
MEMORANDUM DECISION AND ORDER - 12

DISCUSSION Units 9, 10, 11, and 13 There is no dispute that Defendants were in violation of Balla II and Balla III orders setting the population caps for these units from January 4 through January 29. Defendants argue, however, that the riot created an emergency that forced them to double-cell inmates temporarily until the population could be reduced. They further contend that they should not be held in contempt or sanctioned because they are now back in compliance. Plaintiffs counter that Defendants made a series of decisions that were driven primarily by a desire to save money. They assert that the IDOC’s plan to use Unit 24 was flawed from its inception and that the new unit was not ready for habitation when it became apparent that 300 additional inmates would be returned from Texas. The Plaintiffs argue that Defendants should be held accountable for the foreseeable consequences of their faulty planning. Initially, the Court agrees with Plaintiffs that Defendants’ preparation for the influx of an additional 300 inmates into Idaho prisons was flawed. Director Reinke’s letter to GEO Group created a self-imposed 60-day deadline with no firm plan in place to manage the 300 Texas inmates. The subsequent decision to convert a former upholstery shop into a housing unit was made just a little over a
MEMORANDUM DECISION AND ORDER - 13

month before the inmates were set to arrive. It is difficult to understand how Defendants believed they were going to retrofit a warehouse with the necessary facilities to contain a large group of prisoners in a little over four weeks.
Not surprisingly, the new unit was not ready. The only bathroom that was available contained four toilets and three urinals for 200 inmates. A second day room was inaccessible because uninstalled sinks, toilets, and plumbing materials were stored there, and only one non-functioning outdoor bathroom trailer was present. The inmates were moved hastily into the unit, where some personal items were confiscated apparently without notice or an explanation. At each step in this process, Defendants displayed a tendency to work exceptionally close to the margins.
On the other hand, there are appropriate and lawful means by which inmates can seek to vindicate their rights, and rioting is not one of them. Furthermore, while it is now obvious that Unit 24 was still under construction on January 2, it would have been much closer to completion, had the riot not occurred, within as little as twenty-four hours. The sinks, toilets, and fixtures stored in the second day room were scheduled to be installed in the bathroom trailer the next day, freeing much needed space. Showers were to be taken in the gym, and the second outdoor trailer with additional toilets and sinks was set to be completed within a week or
MEMORANDUM DECISION AND ORDER - 14

two. The Court concludes that the decision by a group of inmates to destroy Unit 24 hours after they moved into it created a true exigency in this case.
Defendants have further persuaded the Court that no good choices were open to them for managing the increased population in the immediate aftermath of the riot, short of using the Balla beds. The county jails were full that weekend. The Texas facility was being shut down, and the Oklahoma prison was not ready for a sudden increase in inmates. Chief Sonnen testified that all inmates must be processed and reviewed before other states will accept them, and there is no indication in this record that the transfer of inmates to other states would have prevented temporary filling of the Balla units during that processing period. Placing inmates on mattresses in the gym or in day rooms, an alternative to doublecelling, would have likely violated other aspects of the Balla injunctions. Using large tents in the middle of winter, a theoretical possibility, would have been less humane than double-celling inmates in heated buildings for a short period of time.
Therefore, regardless of the obvious missteps that Defendants took in preparing Unit 24, the Court finds no evidence that they intended to exceed the population caps before the riot occurred or that they thereafter used that situation as a pretext for long-term double-celling. Instead, the Court finds that the riot led directly to a shortage of beds, and the Court concludes that Defendants have
MEMORANDUM DECISION AND ORDER - 15

demonstrated that they were temporarily unable to comply with the population
caps. See United States v. Rylander, 460 U.S. 752, 757 (1983) (noting that the
inability to comply is a defense to contempt).
In reaching this conclusion, it is of no small importance to the Court that the
Balla beds were vacated in about three and one-half weeks. If Defendants had
remained non-committal about setting a firm deadline for decreasing the
population in the units while the period of non-compliance grew, the Plaintiffs’
argument that Defendants were not acting quickly and in good faith would have
had much more force.
For these reasons, the Court declines to hold Defendants in contempt or to
impose sanctions for temporarily violating the Balla II and III population caps set
for Units 9, 10, 11 and 13.3
3 The Court notes that because the Defendants are presently in compliance, a question arises whether the requested monetary sanctions would be remedial or punitive in nature. Sanctions in a civil contempt proceeding are designed to coerce a recalcitrant party back into compliance or to compensate a party for a loss caused by the violation. United States v. Rylander, 714 F.2d 996, 1001 (9th Cir. 1983). When sanctions can instead be characterized as punishment for the alleged contemnor’s past defiance of the court’s authority, the proceeding implicates criminal, rather than civil, contempt. Id. Criminal contempt proceedings require a higher burden of proof in addition to other constitutional safeguards. See Id. at 1001, 1004-05 (requiring proof beyond a reasonable doubt, the right to counsel, the privilege against selfincrimination, and even jury trials in some cases).
The Court need not parse the distinctions between civil and criminal contempt too finely for purposes of the present action. For the reasons given, the Defendants will not be found in contempt or sanctioned under either standard.
MEMORANDUM DECISION AND ORDER - 16

Unit 8 and Administrative Segregation In Balla II, Judge Ryan enjoined Defendants from double-celling maximum custody inmates in Unit 8 at any time. Judge Ryan also prohibited “any other vehicle, scheme or mechanism designed to undermine the spirit and letter of this opinion.” 656 F.Supp. at 1117, 1119. Plaintiffs argue that Defendants should be held in contempt for transferring and double-celling inmates in administrative segregation units at IMSI. Plaintiffs suggest that Defendants were playing a shell game with inmates, particularly by allegedly transferring some inmates to IMSI, with greater restrictions, in order to relieve pressure at ISCI. But the evidence is simply not compelling enough to support a contempt finding on that basis. While it is clear inmates were sent from ISCI to IMSI after the riot, the evidence before the Court shows that these inmates were either being investigated as participants in the riot or were destined for administrative segregation at IMSI for other reasons. The Court cannot say, then, that Defendants moved inmates solely as a contrivance to evade court-imposed restrictions at ISCI. In addition, the scope of the injunctive relief in this case encompasses only ISCI, and the Court has declined previous invitations to find that Balla extended to other prisons within the IDOC system. (Docket No. 433.) The wisdom of that
MEMORANDUM DECISION AND ORDER - 17

view is illustrated again here; according to Chief Sonnen and Warden Johanna Smith, the circumstances under which inmates are held in administrative segregation at IMSI differ significantly from those in the restrictive housing unit at ISCI. (Tr., p. 184-86.) While some of the concerns that led to the prohibition on double-celling of administrative segregation inmates at ISCI may be applicable to the units at IMSI, others may not. The Court must leave for another day and a different case any overcrowding issues that may exist at IMSI.
Conclusion Based on the foregoing, Plaintiffs’ Motion shall be denied, and the Court will not impose sanctions on Defendants for the temporary violation of the injunctions.
ORDER NOW THEREFORE IT IS HEREBY ORDERED that Plaintiffs’ Motion for Order to Show Cause Why Defendants Should Not Be Held in Contempt (Docket No. 740) is DENIED.
DATED: May 28, 2009
Honorable B. Lynn Winmill Chief U. S. District Judge
MEMORANDUM DECISION AND ORDER - 18

 
 IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF IDAHO

WALTER D. BALLA, et. al.,

)

)

Plaintiffs,

)

)

vs.

)

)

IDAHO BOARD OF

)

CORRECTION, et al.,

)

)

Defendants.

)

_____________________________ )

Case No. CV81-1165-S-BLW
MEMORANDUM DECISION AND ORDER

Pending before the Court is Plaintiffs’ Motion for Clarification of the

Court’s Order of December 18, 2007. (Docket No. 729.) The Court previously

issued a Notice of Tentative Ruling and Proposed Order, indicating that it intended

to grant Plaintiffs’ Motion, and clarifying that Plaintiffs are entitled to pursue

contempt motions for Defendants’ failure to comply with remedial plans that were

previously ordered in this action. (Docket No. 734.) The parties have since

responded to the Court’s Tentative Ruling by filing written submissions, and the

Court is now prepared to enter its final ruling.

For the reasons that follow, the Plaintiffs’ Motion for Clarification shall be

MEMORANDUM DECISION AND ORDER - 1

granted.1 BACKGROUND
History of the Injunctive Orders 1. Balla I The Balla cases were filed as class action challenges to prison conditions at the Idaho State Correctional Institution (ISCI). In Balla I, the Court ordered prison officials to do the following: (1) adopt a special dietary program for medically infirm inmates; (2) provide adequate clothing for inmates in protective custody; (3) create 24-hour emergency medical care for inmates and hire a full-time physician; (4) provide a properly staffed medical delivery system; (5) establish a psychiatric care program; (6) provide adequate security staff for double-celled units; (7) report to the Court on the IDOC’s progress; (8) establish an inmate classification system to protect younger offenders; and (9) implement a disciplinary procedure insuring due process protection. Balla v. Idaho State Board of Correction, 595 F. Supp. 1558, 1583 (D. Idaho 1984)(Balla I). The Court also ordered Defendants to submit compliance plans to the Court, outlining how the IDOC would accomplish the Court’s Order. Id.
1 This Memorandum Decision and Order functions as the official ruling of the Court, superseding the December 4, 2008 Notice of Tentative Ruling and Proposed Order (Docket No. 734). MEMORANDUM DECISION AND ORDER - 2

On July 11, 1985, the Court approved the compliance plans submitted in response to the Balla I Order. The Court adopted the following compliance plans: (1) a dietary program; (2) a plan for adequate clothing for protective custody inmates; (3) a medical delivery system plan; (4) a program for psychiatric treatment; (5) implementation of security staffing for double-celled units; (6) a plan to reduce predatory attacks in protective custody units; (7) a classification procedure to protect younger offenders; and (8) a disciplinary offense procedure in compliance with due process standards. (Docket No. 525, Exhibit A.) IDOC officials were ordered to fully implement the compliance plans by October 1, 1985.
During compliance hearings, the Court also became persuaded that “a full determination needed to be made regarding the overall overcrowded conditions at ISCI.” Balla II, 656 F. Supp. at 1110. “Of particular concern to [the] Court was the historical failure in the operation of ISCI to meet constitutional minima in the housing of high-security and close custody inmates.” Id. at 1109.
Plaintiffs filed a Motion for Contempt in October 1985, alleging that Defendants had failed to comply with the plan implementing psychiatric care. After a two-day hearing, in an Order dated August 16, 1986, the Court ruled that Defendants were not violating the remedial plan. (Docket No. 223, p. 4.)
MEMORANDUM DECISION AND ORDER - 3

Plaintiffs were informed that the Court would not make a re-determination of
whether the psychiatric care plan satisfied the Eighth Amendment constitutional
minima. (Docket No. 223, p. 6.)
The Court also clarified the remaining issues in the action:
The plaintiffs have not challenged . . . the im plementation of any programs or policies ordered and adopted in the July 11, 1985 order, except the psychiatric care program. Therefore, the court will herein order that all issues except the overcrowding issue have been raised, decided, ordered, remedied and the remedial measures compl eted, and therefore, closed in this action. The only issue which remains to be decided and will hereafter be litigated in this action is the issue of overcrowding.
. . .
IT IS FURTHER ORDERED that all issues which h ave been heretofore raised in this action, except the issue of overcrowding, should be, and are hereby, closed and will not be re-litigated in this action.
(Docket No. 223, p. 6-7.)
2. Balla II
The Court conducted a hearing on the overcrowding issue on October 31,
and November 1, 1985. At the close of the hearing, both parties agreed to the
appointment of a court-appointed expert. The Court appointed W. Raymond
Nelson as its expert. Mr. Nelson toured ISCI in January of 1987, and submitted a
report to the Court in February of 1987. The Court and its staff also toured the
ISCI facility.
MEMORANDUM DECISION AND ORDER - 4

Another hearing was held, at which the parties had an opportunity to question Mr. Nelson about his report. On March 25, 1987, the Court entered its Findings of Fact and Conclusions of Law, and ordered injunctive relief for Plaintiffs, capping the population in certain units at ISCI (Balla II). See Id. 656 F.Supp. at 1119. The injunctive relief was based on the Eighth Amendment standards as they pertained to “specific conditions of confinement.” Id. at 1111 (quoting Wright v. Rushen, 642 F.2d 1129, 1133 (9th Cir. 1981)). The Court was aware that it could “not use the totality of all conditions to justify federal intervention requiring remedies more extensive than are required to correct Eighth Amendment violations.” Id.
The Court made extensive findings in support of the population cap order. The main theme of the findings was that housing inmates in an overcrowded condition “threatens the physical, mental and emotional health and certainly threatens their personal and property safety. Such conditions are dehumanizing, intolerable and certainly of no penological benefit.” Balla II, 656 F. Supp. at 1114. A permanent injunction was issued against the IDOC, consisting of a population cap in certain ISCI units and an order pertaining to plumbing repairs. Id. at 1119.
The Court incorporated the terms of the Balla I Order of November 1984,
MEMORANDUM DECISION AND ORDER - 5

into the Balla II Order of March 1987. Id. at 1116. Defendants were “enjoined
from engaging in any reclassification inconsistent with this court’s November 1,
1984 opinion, or in any other vehicle, scheme or mechanism designed to
undermine the spirit and letter of this opinion and order.” Id. at 1119. The Court
also wrote:
[w]hile the clerk will cause this action to be closed, plaintiffs will retain the right and opportunity topetition this court to reopen this matter in the even t th e term s of the perm anent injunction are violated. Violation of the terms of this injunction may be deemed a contempt of court. This c ourt will not hesita te to invoke its broad power to impose punishment for contempt of court and to take any other action necessary to deter sim ilar conduct in the future.
Id.
3. The Appeal
Plaintiffs filed an appeal of Judge Ryan’s August 1986 ruling on the
contempt motion for the psychiatric care compliance plan. The Ninth Circuit Court
of Appeals held, in pertinent part, that the District Court was correct in evaluating
Defendants’ compliance under the July 11, 1985 Order, in which Defendants’
remedial plans were adopted, rather than the November 1984 opinion, which was
not sufficiently specific. Balla v. Idaho State Board of Corrections, 869 F.2d 461
(9th Cir. 1989). The Court of Appeals also held that the District Court did not
abuse its discretion in denying Plaintiffs’ Motion for Contempt. Id. at 465-66. The
MEMORANDUM DECISION AND ORDER - 6

Ninth Circuit wrote that “[i]t is well settled that a ‘contempt proceeding does not open to reconsideration the legal or factual basis of the order alleged to have been disobeyed and thus become a retrial of the original controversy.” Id. at 465.
4. Motion to Reopen In August of 1990, the Court heard Plaintiffs’ Motion to Reopen Cases, Motion for Enforcement of Orders, and Motion for Finding of Contempt. (Docket No. 317.) After characterizing the motions as an “order to show cause why defendants should not be held in contempt for violating” the Orders in Balla I and Balla II, the Court denied them. Id. at 1. Recent History and Balla III In November of 2003, Defendants filed a motion seeking to terminate the injunctive relief ordered in Balla I and Balla II. The motion was filed pursuant to the procedure set forth in the Prison Litigation Reform Act (PLRA), 18 U.S.C.A. § 3626 (b)(1) and (2). (Docket No. 439.) The Court appointed the law firm of Stoel Rives to represent the inmate class. (Docket No. 459.) Plaintiffs’ counsel designated new class representatives and began sending discovery requests to Defendants. The discovery requests were designed to glean information about all of the orders set forth in Balla I and Balla II because Defendants were seeking termination of all injunctive orders in the case.
MEMORANDUM DECISION AND ORDER - 7

Defendants filed a Motion for Protective Order, requesting that discovery be

limited to the issues of the population cap and plumbing repairs, arguing that they

had mistakenly sought termination of injunctive orders in both Balla I and Balla II.

Judge Lodge interpreted Defendants’ Motion for Protective Order as a request to

narrow the Motion to Terminate Prospective Relief, and Plaintiffs were asked to

withdraw the discovery requests beyond those related to the population cap and

plumbing repair orders in Balla II. (Docket No. 543.) In making his ruling, Judge

Lodge noted that “the only injunctive orders sought to be terminated are those

relating to overcrowding and population caps on units at ISCI.” (Docket No. 543,

pp. 6-7.)

In September of 2005, Judge James Fitzgerald denied Defendants’ Motion to

Terminate Prospective Relief and ordered that the population cap for ISCI and the

plumbing repair orders remain in place. (Docket No. 585 (Balla III).) Relying

upon an expert’s report, Judge Fitzgerald stated that

Seventeen years after the injunctive orders in

Balla II ,

Defendants return to Court, requesting relief under conditions

that are worse, both as to overall inm ate population and

plumbing problems, than when the original injunctive orders

were put in place.

Balla III at 18-19.

Within two years, Defendants filed a second Motion to Terminate

MEMORANDUM DECISION AND ORDER - 8

Prospective Relief, which was ultimately withdrawn in April of 2007. (Docket Nos. 635, 691, 699.) By then, the case had been reassigned to Chief Judge Winmill, who issued an Order granting Plaintiffs’ Motion to Appoint Class Counsel and Motion for Attorneys Fees and Costs. In that Order, the Court noted that in its opinion Balla I did not provide ongoing class-wide injunctive relief on issues relating to prison conditions such as adequate medical care and food, “because years ago, a remedial plan was accepted to address these issues.” (Docket No. 724, p. 10.) The Court indicated that “it appears that the Court may be restricted in terms of what it can address within the parameters of the Balla III injunction.” Id.
This passage regarding the continued viability of Balla I relief prompted Plaintiffs to file the pending Motion for Clarification, in which they seek confirmation that Balla I injunctive relief is in fact ongoing and that they have the ability to enforce it through contempt proceedings.
DISCUSSION The issue before the Court is whether Judge Ryan’s Order incorporating the findings, conclusions, and orders from Balla I into Balla II allows Plaintiffs to file contempt motions on the issues resolved through the adoption of compliance plans
MEMORANDUM DECISION AND ORDER - 9

to remediate constitutional violations at ISCI. Plaintiffs argue that Defendants’ compliance plans were adopted to remedy
the Balla I violations, creating injunctive relief that has never been terminated. According to Plaintiffs, when Judge Ryan indicated in his August 1986 Order that “all issues heretofore raised in this action, except the issue of overcrowding, should be, and are hereby, closed and will not be re-litigated in this action,” he was making a distinction between relitigating whether the compliance plans were themselves adequate, which would be prohibited, and litigating whether the Defendants had failed to comply with the terms of the plans, which would be allowed. As proof, Plaintiffs point to the Judge Ryan’s Order in 1990 in which he denied Plaintiffs’ requests to hold Defendants in contempt, without indicating in any fashion that Balla I injunctive relief no longer existed.
Conversely, Defendants take the position that once the compliance plans had been developed and submitted, Judge Ryan was satisfied that all constitutional violations, except the issue of overcrowding, had been remedied. According to Defendants, Judge Ryan closed all Balla I issues to future litigation in his August 1986 Order. Defendants further argue that Judge Ryan’s incorporation of Balla I into the Balla II Order did not create a valid injunction under Rule 65 of the Federal Rules of Civil Procedure because it lacked sufficient specificity.
MEMORANDUM DECISION AND ORDER - 10

The resolution of this issue lies in the Ninth Circuit Court of Appeals’ 1989 decision on appeal. Balla v. Idaho State Board of Correction, 869 F.2d 461, 465 (9th Cir. 1989). Plaintiffs had filed a contempt action against Defendants, alleging that IDOC officials had failed to comply with the Court’s order to implement a constitutionally adequate psychiatric care plan. The Ninth Circuit held that “the district court properly measured compliance against its July 11, 1985 order, which approved and incorporated concrete plans for compliance with the November 1, 1984 opinion.” Id. at 464. In affirming the District Court’s decision not to relitigate the adequacy of the plans, the Ninth Circuit noted that “‘a contempt proceeding does not open to reconsideration the legal or factual basis of the order alleged to have been disobeyed and thus become a retrial of the original controversy.’” Id. (quoting United States v. Rylander, 460 U.S. 752, 756 (1983)).
In other words, the Ninth Circuit necessarily determined that while the adequacy of the remedial plans cannot be relitigated, the District Court’s adoption of the plans created an order that was specific and definite enough to be enforced through contempt proceedings. This is consistent with Plaintiffs’ reading of Judge Ryan’s August 1986 Order, in which he “closed” to relitigation whether the remedial plans satisfied constitutional minima, but did not foreclose the possibility of future contempt motions to enforce compliance with the terms of the plans.
MEMORANDUM DECISION AND ORDER - 11

Judge Ryan’s 1990 Order denying Plaintiffs’ new contempt motion further supports this view. It makes little sense for the Court to adopt plans as a remedial measure and then to absolve Defendants of complying with the terms of those plans after a date certain, as Defendants seem to suggest.
Nor is the Court persuaded by Defendants’ new argument that incorporation of the findings and conclusions from Balla I into Balla II rendered any attempt at ordering injunctive relief invalid under Rule 65 of the Federal Rules of Civil Procedure. While it is true that Rule 65(d)(1)(C) requires every injunction to “describe in reasonable detail–and not by referring to the complaint or other document–the act or acts restrained or required,” the Ninth Circuit has held that incorporation may be permissible if the primary purpose of the Rule–to provide adequate notice to a party facing possible contempt–has been satisfied. Davis v. San Francisco, 890 F.2d 1438, 1450 (9th Cir. 1989). Here, Defendants drafted the plans that would govern their own actions, satisfying the notice requirement. See Davis, 890 F.2d at 1450 (“[t]he document incorporated into the 1988 injunction consisted of fire department rules already binding upon the officers of the SFFD. It is unlikely the officers could argue they were unaware of these rules”).
Nevertheless, the Court recognizes that practical considerations may now make enforcement extremely difficult. Circumstances appear to have changed
MEMORANDUM DECISION AND ORDER - 12

significantly over the past twenty years; the Idaho Department of Correction has built several new prisons, and Defendants have implemented new policies and amended old ones. Indeed, due to the passage of time, the initial step of reconstructing all of the terms in the plans that were adopted by the Court in 1985 may prove to be challenging. But these considerations are more appropriately addressed in a subsequent proceeding. The Court notes that the burden in any contempt action will be on Plaintiffs to prove by clear and convincing evidence that Defendants are in contempt of a clear and definite order, before the burden shifts to Defendants to show why they were unable to comply. In re Bennett, 298 F.3d 1059, 1069 (9th Cir. 2002). “Substantial compliance with the court order is a defense to civil contempt, and is not vitiated by a few technical violations where every reasonable effort has been made to comply.” In re Dual-Deck Video Cassette Recorder Antitrust Litig., 10 F.3d 693, 695 (9th Cir.1993) (quotations omitted).
Based on the foregoing, the Court will grant Plaintiffs’ Motion for Clarification, thereby ordering that the compliance plans adopted by the Court in Balla I and incorporated into Balla II are enforceable through contempt motions. As previously set forth herein, the compliance plans are not subject to re-litigation.
ORDER NOW THEREFORE IT IS HEREBY ORDERED that Plaintiffs’ Motion for
MEMORANDUM DECISION AND ORDER - 13

Clarification of the Court’s Order of December 18, 2007 (Docket No. 729) is GRANTED as set forth above.
DATED: May 28, 2009 Honorable B. Lynn Winmill Chief U. S. District Judge
MEMORANDUM DECISION AND ORDER - 14

 
 IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF IDAHO

WALTER D. BALLA, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

IDAHO STATE BOARD OF

)

CORRECTION, et al.,

)

)

Defendants.

)

______________________________ )

Case No. CV 81-1165-S-BLW ORDER

Pending before the Court in the above-entitled matter is Plaintiffs’ Petition for the

Award of Interim Attorneys Fees and Costs (Docket No. 769). Having fully reviewed the

record, the Court finds that the facts and legal arguments are adequately presented in the

briefs and record. Accordingly, in the interest of avoiding further delay, and because the

Court conclusively finds that the decisional process would not be significantly aided by

oral argument, this matter shall be decided on the record before this Court without oral

argument.

FACTUAL BACKGROUND

The detailed history of the Balla cases was set forth in the Court’s May 28, 2009

Memorandum Decision and Order, Docket No. 768, and is incorporated by reference into

this Order. Plaintiffs now seek reimbursement for attorneys fees directly and reasonably

incurred in the monitoring and enforcing the Balla injunctive relief for the period of

December 11, 2007 through June 22, 2009 in the amount of $77,608.20 and costs in the

amount of $2,249.20 as well as costs for a class representative, Mr. Barry Searcy, in the amount of $269.10. The Defendants object to the requested fees and costs on numerous grounds including that the motion is untimely, the Plaintiffs were not the prevailing party, the legal issues did not need to be addressed, the hourly rates are not properly calculated, and the number of hours are excessive.
This Court has previously awarded interim attorneys fees and costs to Stoel Rives in the amount of $17,747.60 for fees and $486.06 in costs. See Order, December 18, 2007, Docket No. 724. The Court also awarded additional fees for attorneys fees associated with the petition for fees $4,776.65 and $63.60 in costs to Plaintiff Searcy. See Order, October 21, 2008, Docket No. 733.
The Court having reviewed the record in detail finds that certain attorneys fees and costs should be awarded, postage and some office supply costs for Mr. Searcy should be awarded and a plan for future monitoring should be developed.
ANALYSIS 1. Timeliness
Defendants argue that the petition of fees and costs should be denied as it was not filed within fourteen days of the Court’s ruling granting the motion for clarification and denying the motion for contempt on May 28, 2009. This argument is not well-taken. The Court’s Order of May 28, 2009 (Docket No. 768) was not a final order and Plaintiffs were seeking interim fees for on-going monitoring responsibilities, so the fourteen day deadline for final judgments is not applicable. The Court further finds the petition for fees and

costs filed on June 23, 2009 (Docket No. 769) was filed in a timely manner after the Court’s May 28, 2009 ruling and consistent with this Court’s appointment of Stoel Rives for monitoring on behalf of the class. 2. Prevailing Party
It is undisputed that Plaintiffs were the prevailing parties in Balla I, II and III. Plaintiffs argue they are entitled to recover for monitoring expenses directly and reasonably related to the enforcement of such injunctions. Defendants argue the Plaintiffs are not entitled to fees as they were not the prevailing party on their motion for contempt and the motion for clarification was not necessary. The Court respectfully disagrees with Defendants.
The Prison Litigation Reform Act (“PLRA”) applies to all civil rights actions by prisoners. The PLRA limits the availability of attorneys' fees under § 1988 “[i]n any action brought by a prisoner who is confined to any jail, prison, or other correctional facility.” 42 U.S.C. § 1997e(d)(1). Under the PLRA, attorneys fees can be awarded for post-judgment work in enforcing and monitoring the court’s prior judgments. Webb v. Ada County, 285 F.3d 829, 835 (9th Cir. 2002). The Plaintiff need not prove a new constitutional violation. Id. at 834-35. Attorneys fees incurred to preserve the fruits of of prior judicial remedies are within the purpose and scope of the attorneys’ fees provisions of 24 U.S.C. § 1988. Plyler v. Evatt, 902 f.2d 273, 281 (4th Cir. 1990). The attorneys fees requested must be “directly and reasonbly incurred in enforcing the relief ordered” for violation. Cody v. Hillard, 304 F.3d 767 (8th Cir. 2002).

While it is true that a critical factor in determining the reasonableness of a fee award is the degree of success obtained, district courts have great discretion in assessing the reasonableness of any attorneys fees and the relationship between the extent of success and the fee awarded. Dannenberg v. Valadez, 338 F.3d 1070, 1075 (9th Cir. 2003). In this case, the Court granted the Plaintiffs’ motion for clarification and while the Court did not grant the motion to hold the Defendants in contempt, the Plaintiffs played a key role in monitoring and working with the IDOC to resolve the overcrowding issue that arose in January 2009 when a large number of inmates were transferred to ISCI. It was undisputed that overcrowding conditions existed for a short period of time while the IDOC was implementing a housing plan for the transferred inmates and after a inmate riot in the unit had occurred. The Court held that the IDOC did not intentionally violate the Balla injunction and the overcrowding only occurred for a short time and these facts did not warrant finding the Defendants in contempt.
Moreover, this Court had previously appointed Stoel Rives for the specific purpose of monitoring the injunctive relief of the Balla cases. The State of Idaho should not be surprised that the attorneys appointed to represent the new class representatives approved by the Court in December 2007, have incurred fees monitoring compliance and bringing motions when there is a need for clarification or to ensure the injunctive relief is being complied with by the IDOC at ISCI. The Court finds the legal services provided by Stoel Rives are within the purpose of § 1988 and were “inextricably intertwined with those on which the plainiff[s] prevailed. See Cody v. Hillard, 304 F.3d at 772. Further, the Court

finds the legal services were directly and reasonably incurred in monitoring the Balla injunctions. Id. 3. Necessity of the Clarification Motion
Next, Defendants argue the Plaintiff’s motion for clarification was not necessary. The Court respectfully disagrees. After all the litigation involving possible termination of the injunctive relief, the Plaintiffs’ attorneys requested clarification as to the status of the injunctions and such was granted by the Court. While Defendants now claim the motion was unnecessary, their legal positions in earlier proceedings and in response to the motion for clarification establish the motion for clarification was necessary. 4. Hourly Rates
Having determined the Plaintiffs are entitled to the award of attorneys fees, the Court will now consider the applicable hourly rate and the reasonableness of the hours requested. “The starting point for determining a reasonable fee is the ‘lodestar’ firgure, which is the number of hours reasonably expended multiplied by a reasonable hourly rate.” Gates v. Deukmejian, 987 F.2d 1392, 1397 (9th Cir. 1992). The Court notes that the market hourly rates for the Plaintiffs’ attorneys exceed PLRA cap rate, so the PLRA hourly rates are presumptively reasonable.
Defendants argue that the applicable hourly rates should be reduced to 150% of the actual CJA rates being paid to attorneys in the District of Idaho. This argument was specifically rejected by the Ninth Circuit in Webb v. Ada County, 285 F.3d 829 (9th Cir. 2002), where the court held that the PLRA cap is calculated by taking 150% of the CJA

hourly rated approved by the Judicial Conference, not the hourly rate actually funded by Congress. Accordingly, the effective hourly rates for work done between December 2007 and March 10, 2009 is $169.50 per hour for an attorney and $177.00 for work provided from March 11, 2009 to June 2009 when the hourly CJA rate approved by the Judicial Council was increased.
Plaintiffs argue that the Court should set the hourly rate at $177.00 for all hours performed as counsel has been delayed from receiving payment for the services and in light of the market rates normally charged by counsel. This Court disagrees. Plaintiffs’ counsel agreed to take this case at the PLRA rates in effect at the time they accepted representation. Therefore, the Court will award hourly attorneys fees at the rate in effect when the work was performed, not when the request for fees was submitted.
As to case assistants or paralegals, the Plaintiffs have submitted an hourly rate of $90 for Melanie Miller and $65 for Rachel Murray. The Court finds that the paralegal hourly rate of $90 is excessive in this type of case. In the previous petitions for attorneys fees the hourly rates submitted for case assistants by Stoel Rives was $35 per hour. See Docket Nos. 714-2 and 726. One of the case assistants listed in the previous requests was Melanie Miller. Docket No. 726. The Court has not been provided with justification for an hourly increase of $55 per hour for Ms. Miller’s services between supplemental request in January 2008 and services provided later in 2008.
The Court agrees it is wise and in the client’s best economical interests for attorneys to use paralegals for certain litigation duties, however, the reimbursement for

such paralegal services must be reasonable based on the type of litigation and the nature of the duties performed by the paralegal. Based on the Court’s experience with the market rate for paralegals working on this type of case in the Treasure Valley and the description of the duties performed in this case by the case assistants, the hourly rate approved for case assistant or paralegal services will be set at $65.00 per hour which is a $30 per hour increase from previous awards in this case and is justified based on the market rates provided by counsel.

5. Hours

A. Monitoring and Litigation Hours

The Court has completed a detailed analysis of the fees requested. The Court notes that the on-going monitoring hours between December 10, 2007 and December 2008 were as follows:

Month December 2007 January 2008 February 2008 March 2008 April 2008 May 2008 June 2008 July 2008 August 2008 September 2008 October 2008 November 2008

Hours 5.4 3.5 .6 7.6 2.8 36.8 15.3 9 32.1 10.2 7 1.1

December 2008

21.9

Total

Average per month

153.3 11.79 at $177 per hour = $2,087

From January 2009 to June 2009, the nature of the monitoring and motions practice was based on the need for clarification of previous orders and the Plaintiffs’ motion to hold Defendants in contempt. These matters were hotly contested and are not indicative of normal monitoring fees.
The Court finds the average monitoring hours are not excessive and supported by detailed descriptions of attorney and/or paralegal services provided. The hours related to litigation of the motion for clarification and the motion for contempt appear reasonable to the Court based on the description of the services provided. Accordingly, the requested hours through June 2009 are deemed reasonable by the Court.
B. Fees on fees Attorneys are generally entitled to file a request for an award of attorney’s fees for submitting the fee application. See Thompson v. Gomez, 45 F.3d 1365 (9th Cir. 1995). This is the third petition for interim attorneys fees filed by Stoel Rives. The attorneys fees associated with the current petition (and included in the above total hours being allowed) are 39.3 hours at $177.00 for a total of $6,956.10. This does not include the fees associated with filing the supplemental petition for the costs of Mr. Searcy (Docket No. 771) or the reply briefing (Docket No. 774). Because this is the third petition for interim fees filed by Stoel Rives in the past three years, the Court finds the amount of time

required for filing a third motion for interim payment was somewhat excessive. The law has not changed regarding the award of fees since the earlier petitions and the legal issues presented in the petition were not complex. The Court will award a total of 39.3 hours for all legal work associated with the current petition, but no additional or supplemental requests related to the motion for fees will be entertained by the Court.
Therefore, based on the minor changes to the hourly rates submitted and the reasonableness of the hours worked, the total attorney and paralegal fees awarded will be $76,185.60. 6. Costs
Plaintiffs’ attorneys’ request $2,249.20 in costs primarily for photocopies associated with the case. Defendants object and argue pursuant to Dist. Idaho Loc. Civ. R. 54.1 (c)(5) “the cost of reproducing copies of motions, pleadings, notices and other routine case papers is not taxable.” The Court has previously awarded Plaintiffs’ counsel costs for photocopying when it first became involved in the case. The Court agrees with Defendants that the photocopies in the normal course of representation should be absorbed in the hourly rate being charged by the attorney. However, much of the cost in copies is related to special copies of United States District Court files and a small amount of special postage for a total of approximately $778 which should be allowed since Stoel Rives has not been involved in the case since its inception. Additionally, “the cost of an exhibit necessarily attached to a document (or maybe part of a deposition transcript) required to be filed and served is taxable.” Dist. Idaho Loc. Civ. R. 54.1(c)(5). The

Court cannot determine from the affidavit of Mr. Sinclair which photocopies were necessary as attachments to pleadings but assumes this number would not exceed $400. The Court finds that the costs for copies is reasonable, but not entirely allowable under Dist. Idaho Loc. Civ. R. 54.1. Accordingly, the Court will award 50% of the costs requested or $1,124.60 in costs.
The Court has also reviewed the supplemental cost affidavit of Plaintiff Searcy contained in Docket No. 771. Mr. Searcy requests reimbursement for postage in the amount of $26.94, books, copies and documents purchased in the amount of $80.05, office supplies in the amount of $66.71 and a typewriter expense of $95.40. The Court finds as reasonable costs the postage of $26.94 and $20 in office supplies. Plaintiff is represented by counsel and the books are not a necessary expense that the Defendants should have to pay. The Court also finds the cost of the typewriter for a plaintiff is not a required tool to litigate this action nor is it a cost normally taxed under the local rules. Therefore, the Court will award costs of $46.94 to be paid to Mr. Searcy.
FUTURE MONITORING The Court appreciates Stoel Rives agreeing to accept representation of the Plaintiffs in this on-going prisoner case. The Court also acknowledges that the State of Idaho has raised valid concerns regarding the expense to the taxpayers of continuing to monitor the injunctive relief granted by previous orders. The Court will schedule a status conference to discuss with counsel the manner in which monitoring shall occur in the future and whether this case should continue to be reopened or have new actions filed if

there are future violations. The federal courts do not want to be involved micro-managing the state prisons.
When the actions of state corrections officials have been found to rise to the level of a constitutional violation, this is bad for the state corrections department as well as the inmates. While the Court is confident that state officials are acting in good faith in attempting to comply with conditions of confinement that satisfy the constitution as well as any fiscal restraints set by the legislature, this Court has a duty to ensure that past violations are prevented from reoccurring and one mechanism for doing this is on-going monitoring until it is necessary to raise a legal issue to the court and counsel can then move for re-appointment. Defendants argue this is not the least intrusive method available to ensure compliance. Plaintiffs believe monthly monitoring is necessary to ensure compliance.
The Balla injunctive orders arise from a class action lawsuit, therefore, the Court appointed counsel to represent the interests of the class members because inmates cannot proceed pro se in a class action. The Court looks forward to sharing ideas with counsel on the best method to achieve both oversight and compliance while limiting attorneys fees as much as possible to those times when the Court needs to resolve legal issues.
ORDER Being fully advised in the premises, the Court hereby orders that Plaintiffs’ motion for attorneys’ fees and costs (Docket No. 769) is GRANTED IN PART AND DENIED IN PART consistent with this Order. Plaintiffs shall be awarded $76,185.60 in fees,

$1,249.20 in costs incurred by Plaintiffs’ attorneys and $46.94 in postage and office supply costs for Mr. Searcy. The fees and costs shall be paid within thirty (30) days of the date of this Order.
The Court’s in court deputy shall contact counsel for an available date for the conference regarding future monitoring.
DATED: March 30, 2010
Honorable B. Lynn Winmill Chief U. S. District Judge

 
 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

WALTER D. BALLA, et al. Plaintiffs,
v.
IDAHO STATE BOARD OF CORRECTION, et al.,
Defendants.

Case No. 1:CV 81-1165-BLW
MEMORANDUM DECISION AND ORDER

After the completion of the recent litigation on Plaintiffs’ motion for clarification and motion for contempt, the Court ordered Defendants to pay attorneys’ fees and costs to Plaintiffs within 30 days. (Dkt. 775.) Defendants have now filed a Motion to Stay the execution of that Order pending their appeal to the Ninth Circuit Court of Appeals. (Dkt. 777.) They have also asked the Court to waive the requirement that they post a supersedeas bond as a condition of receiving a stay. (Dkt. 777-1, p. 1-2.)
Rule 62(d) of the Federal Rules of Civil Procedure provides that “[i]f an appeal is taken, the appellant may obtain a stay by supersedeas bond.” The purpose of the bond requirement is to protect the non-appealing party’s rights while recognizing that “there can be no certainty about who is in the right until the appeals are done.” Exxon Valdez v. Exxon Mobil, 568 F.3d 1077, 1084 (9th Cir. 2009). Still, a district court retains the

MEMORANDUM DECISION AND ORDER - 1

discretion to stay the enforcement of a judgment without requiring the losing party to post a bond. Townsend v. Holman Consulting Corp., 881 F.2d 788, 796-97 (9th Cir.1989), vacated on other grounds, 929 F .2d 1358 (9th Cir. 1990). This is an equitable decision, and the court should consider (1) the likelihood of success on the merits, (2) the extent of irreparable injury if a stay does not issue, (3) the balance of the hardships, and (4) the public interest. United States v. Peninsula Communications, Inc., 287 F.3d 832, 838 (9th Cir. 2002).
Defendants have chosen not to address these factors directly in their briefing. Instead, they rely on a test from the Seventh Circuit that focuses primarily on the ability of a governmental entity to pay an adverse judgment. Because the Ninth Circuit test weighs traditional equitable concerns, the Court finds it to be more appropriate and will apply it here.
Defendants have made no showing of a substantial likelihood of success on the merits, and a recent decision from the Ninth Circuit, Prison Legal News v. Schwarzenegger, 608 F.3d 446 (9th Cir. 2010), appears to have further weakened their position. There, the Ninth Circuit held that an award of attorneys’ fees for monitoring and enforcing the terms of a judicially approved settlement agreement in an prison civil rights case was an appropriate exercise of the district court’s authority under 42 U.S.C. § 1988. Id. at 451-52. That was also one of the primary reasons for this Court’s decision to award fees and costs in the present case.
Defendants have also not shown that they will be irreparably harmed if the stay is
MEMORANDUM DECISION AND ORDER - 2

not granted or if a supersedeas bond is required before a stay is entered. Part of their argument for waiving the requirement of a bond is that the State, the real party in interest, is financially solvent and will be able to pay the fees and costs if they lose on appeal. This argument cuts both ways, however; while financial stability may make future payment more certain, it “also makes a supersedeas bond little more than a minor inconvenience.” O’Callaghan v. SPX Corp., 2010 WL 299497 at * 2 (E.D.Mich. 2010).
Though Defendants note that delaying the payment of attorneys’ fees to counsel who accepted the case in a pro bono capacity may not impose the same degree of harm as delaying a judgment for money damages (Dkt. 783, p. 2), Plaintiffs nonetheless have an interest in obtaining prompt collection of fees and costs, or at least security that fees and costs will be paid. And while the public interest might not be best served by requiring a transfer of taxpayer funds directly to Plaintiffs’ counsel, which may then need to be recouped after the appeal, Defendants have not shown how the public interest would be harmed by posting a bond prior to obtaining a stay.
For these reasons, Defendants are not entitled to a stay without the necessity of posting a bond.
ORDER IT IS HEREBY ORDERED that Defendants’ Motion to Stay Execution of Order Pending Appeal (Dkt. 777) is DENIED. Within fourteen (14) days of the date of this Order, Defendants shall pay the fees and costs awarded to Plaintiffs by the Court’s March 30, 2010 Order (Dkt. 775, pp. 11-12), or post a supersedeas bond to obtain a stay in
MEMORANDUM DECISION AND ORDER - 3

accordance with Rule 62(d) of the Federal Rules of Civil Procedure.
DATED: July 28, 2010 Honorable B. Lynn Winmill Chief U. S. District Judge
MEMORANDUM DECISION AND ORDER - 4

 
 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

WALTER BALLA, et al., Plaintiffs,
v.
IDAHO STATE BOARD OF CORRECTION, et al.,
Defendants.

Case No. 1:81-cv-1165-BLW ORDER

In its May 19, 2010 Notice of Preliminary Case Management Order (Dkt. 780), the Court outlined an approach to managing this 30-year-old case in a way that minimizes oversight, both by the Court and by counsel, while protecting the rights of the inmate class. The main pillars of the Court’s suggested approach were: (1) to require a brief investigation by Plaintiffs’ pro bono counsel into “Balla I” compliance issues; (2) if counsel did not find areas of non-compliance, or if Balla I relief could no longer be effectively enforced due to changing conditions and the passage of time, the Court would consider Balla I to be “closed,” and new actions could be brought that would more accurately reflect current practices; and (3) monitoring by Plaintiffs’ counsel would be drawn down as long as Defendants showed a willingness to remain in compliance with the injunctive orders in Balla II and III. (Dkt. 780, pp. 1-3.) The Court also expressed a

ORDER - 1

preference to refer all disputes to mediation. (Id.) In response, Plaintiffs allege that Defendants are continuing to violate their Eighth
Amendment rights with respect to medical treatment (including medical diets) and psychiatric care, areas that Balla I injunctive relief was intended to address. (Dkt. 784.) Plaintiffs argue that the Court cannot “close” or terminate Balla I without first finding that there are no current and ongoing violations of the Eighth Amendment. (Id. at. 12-13.) They also contend that to the extent that conditions may have changed in the intervening years, the Court must modify relief to fit those conditions rather than terminate the injunction. (Id. at 13-14.) Plaintiffs request that the Court appoint a special master or an expert who could assist in investigating, evaluating, and addressing these complex issues. (Id.)
Defendants, in contrast, contend that the appointment of a special master is not warranted, and they urge the Court to take no action at this time. (Dkt. 791.) Alternatively, Defendants suggest that the appointment of an expert under Rule 706 of the Federal Rules of Civil Procedure would be less intrusive than a special master. (Id. at 13.)
After considering the parties’ written submissions and oral arguments, the Court finds that Plaintiffs have come forward with evidence that supports colorable allegations of continuing class-wide Eighth Amendment violations with respect to inadequate medical and psychiatric care, and Plaintiffs have persuaded the Court that it cannot
ORDER - 2

“close” Balla I under these circumstances.1 See Gilmore v. California, 220 F.3d 987, 1000 (9th Cir. 2000). In its current posture, however, the case languishes in a sort of noman’s land, with neither side apparently ready or willing to take the offensive, which does not further the Court’s goal of moving the case in a positive direction, decreasing oversight, and protecting the rights of the inmate class. In short, the Court and the parties need assistance in breaking this stalemate and moving toward finality.
The Prison Litigation Reform Act (PLRA) authorizes a district court to appoint a special master when necessary in a prison conditions case, “who shall be disinterested and objective and who will give due regard to the public safety, to conduct hearings on the record and prepare proposed findings of fact.” 18 U.S.C. § 3626(f)(1)(A). Rule 53 of the Federal Rules of Civil Procedure also permits a court to appoint a special master to “hold trial proceedings and make or recommend findings of fact on issues to be decided without a jury if the appointment is warranted by ... some exceptional condition.” Fed. R. Civil P. 53(a). Under the PLRA, a court may appoint a special master during the remedial phase of an action only upon a finding that the phase will be “sufficiently complex to warrant the appointment.” 18 U.S.C. § 3626(f)(1)(B). A special master appointed under these provisions is compensated “with funds appropriated to the Judiciary,” at an “hourly rate not greater than the hourly rate established under section 3006A for payment of court-appointed counsel.” 18 U.S.C. § 3626(f)(4).
1The Court finds only that the allegations show “colorable” Eighth Amendment violations in the sense that the claim has sufficient substance at this stage that it cannot be dismissed summarily. ORDER - 3

The Court agrees with Plaintiffs that the most cost-effective and efficient route to resolving the unique challenges posed by this difficult case is through the appointment of a special master. The Court finds that the remedial phase is sufficiently complex to warrant such an appointment, 18 U.S.C. § 3626(f)(1)(B), and the Court is not persuaded by Defendants’ argument that the status quo is a desirable option. Defendants’ contention that a change in circumstances regarding the delivery of medical care since the Balla I injunctive relief was ordered is premature and may be addressed during subsequent proceedings.
Each side will have an opportunity to submit the names of not more than five candidates who can serve as a special master in this case. 18 U.S.C. § 3626(f)(2)(A). Each side will then be permitted to strike up to three of the opposing side’s candidates, 18 U.S.C. § 3626(f)(2)(B), and shall offer proposed instructions to govern the scope of the special master’s authority and duties. The Court will thereafter select one of the remaining candidates, and will instruct the special master as to his or her duties in the case.
ORDER IT IS ORDERED: 1. On or before February 7, 2011, the parties shall submit the names of no
more than five candidates who are qualified to serve as special masters given the facts and circumstances in this case. 2. On or before March 4, 2011, the parties may strike up to three candidates
ORDER - 4

from the opposing side’s list. 3. Also on or before March 4, 2011, the parties shall submit to the Court
proposed instructions for the Court to give the special master, which shall address the areas listed in Rule 53(b)(2) of the Federal Rules of Civil Procedure, to the extent they are applicable.
DATED: January 6, 2011 Honorable B. Lynn Winmill Chief U. S. District Judge
ORDER - 5

 
 Case 1:81-cv-01165-BLW Document 822 Filed 03/19/12 Page 1 of 24
N o ti c e : T h i s R e p o rt i s o n l y a r e c o m m e n d a ti o n t o t h e C o u rt. It i s n o t a C o u rt O r d e r o r a d e c i s i o n b y t h e C o u rt. N e it h e r t h e I d a h o D e p a rt m e n t o f C o rr e c ti o n , n o r C o ri z o n , I n c ., i s r e q u ir e d t o a d o p t a n y o f t h e s u g g e s ti o n s o r o p i n i o n s s t a t e d i n t h e R e p o rt.
Marc F. Stern, MD, MPH
R E D A C T E D
R E D A C T E D
February 2, 2012
I. Introduction
This report contains my medical opinions regarding the health-related care provided to inmates at the Idaho State Correctional Institution (ISCI), Boise, Idaho, in compliance with Order 806 (July 20, 2011) by Judge Windmill, U.S. District Court for the District of Idaho, in the case Walter Balla, et al. v. Idaho State Board of Correction (IDOC), et al. (Balla).
My report is based on information from a variety of sources. I reviewed numerous court, IDOC, ISCI and patient-generated documents (including video) provided by both parties. I conducted an informal status conference with current and previous counsel for the parties on September 9, 2011 at which time both parties presented summaries of Balla and the issues at hand from their vantage points. On July 7, 8, and 9, 2011 and January 2, 3, and 4, 2012 I visited ISCI. On the latter three days, I was accompanied by Dr. Amanda Ruiz, a forensic and correctional psychiatrist. At my request, the Court appointed Dr. Ruiz as Deputy Special Master; Dr. Ruiz concentrated her review on Balla issues related to mental health care. During those visits I (or Dr. Ruiz) met with over 60 patients (including the three Class Representatives) and reviewed over 45 patient medical records. We visited all key areas of the facility including the Health Services Unit in Unit 20 (HSU) which houses most outpatient and inpatient medical and dental activities, the dining hall (Pendyne), Unit 16 which houses the Behavior Health Unit (BHU), Unit 15 which houses the Receiving Unit (RDU), Unit 8 which houses the Segregated Housing Unit (SHU), Unit 20a which houses the Medical Annex for inmates who have health care needs requiring some level of sheltered housing, and living units 9, 10, 11, 13. Dr. Ruiz and/or I met with a variety of IDOC, ISCI, and Corizon (the contractor providing medical, dental, and psychiatric care) employees, including but not limited to:
IDOC IDOC Health Services Director; IDOC Dietary Services Manager
ISCI Warden; Deputy Warden of Programs; Deputy Warden of Security; internal investigator; numerous custody lieutenants, sergeants, corporals and front line officers; Acting Food Service Manager and food service staff; Grievance Coordinator; Clinical Supervisor of Mental Health Care; inmates who function as Companions in the Suicide Observation Program

N o t i c e C: aT hsi es R 1e :p 8o r 1t i -s co vn l-y 0a 1r 1e c6o 5m -m Be Ln d Wa t i o n Dt o ot h ce uC mo u ret . nI t ti s 8n 2o 2t a C Fo u irlteOdr d 0e r 3o /r 1a 9d /e 1c i2s i o n Pb yat gh eeC 2o u or t . f N 2e i4t h e r t h e I d a h o
D e p a rt m e n t o f C o rr e c ti o n , n o r C o ri z o n , I n c ., i s r e q u ir e d t o a d o p t a n y o f t h e s u g g e s ti o n s o r o p i n i o n s s t a t e d i n t h e R e p o rt.

Corizon Regional Medical Director; Regional Vice President; Regional Director of Nursing; Facility Medical Director; former Facility Medical Director (by phone); facility Director of Psychiatry; facility Director of Dental Care; facility Health Services Administrator (former and current); facility Director of Nurses; Correctional Medical Specialists (CMS)1, nurses, dental assistant, and support staff in all areas of the health care operation, including inpatient and outpatient (for medical, mental health, and dental), dialysis, medical records, pharmacy; Grievance Coordinator; off-site appointment scheduler.
With the permission of both parties, I conducted an exit briefing on January 4, 2011 attended by counsel for both parties, and representatives of IDOC, ISCI, Corizon, and the Class. At the briefing Dr. Ruiz and I presented our preliminary factual findings. I asked both parties to provide information to correct any factual errors they heard during the briefing and informed them I would take such information under advisement prior to issuing this report.
I felt Dr. Ruiz and I were afforded unfettered access to people, places, and documents during our review and note the full cooperation received from Defendants in order to obtain the information we required. At the conclusion of our review, Dr. Ruiz presented her findings to me. I have incorporated them into my report; however, I accept full responsibility for the contents and conclusions herein.
In its Memorandum of October 30, 1984 in Balla I, the Court identified several areas requiring remediation. Four orders pertained to health care specifically:
-Order 1 (Balla I): This order addressed the need for an adequate dietary program to serve the needs of the medically infirm.
-Order 3 (Balla I): This order addressed the need for (a) 24-hour emergency medical care and (b) unimpeded access to medical care (including, at the time, the addition of at least one full-time physician).
-Order 4 (Balla I): This order addressed the need for a properly staffed and organized health care system to allow for effective utilization of the HSU.
-Order 5 (Balla I): This order addressed the need for an effective psychiatric care program.
These four orders form the backbone of the health care issues in Balla. For simplicity, in the remainder of this report, I will refer to issues contained in Order 1 (Balla I) as “Special Diets,” the issues contained jointly in Orders 3 and 4 (Balla I) as “Medical Care.” and the issued contained in Order 5 (Balla I) as “Mental Health Care.”
The Court asked me to address two items: 1. the status of conditions at ISCI relative to Compliance Plans (or “Plans”) created as part of this case in or around 1984 (Order #5 within Order Appointing Special Master, Docket 806), and 2. the constitutionality of
1 CMSs are staff who have received limited training (and state certification) in how to administer medications.

Special Master’s Report – February 2, 2012

Page 2

N o t i c eC: aT sh i es R 1e :p 8o r 1t i -s co vn -l y0a1r 1e c6o 5m -m Be Ln d Wa t i o n Dt o ot h ce uC mo u er t . nI t ti s8n2o 2t a C Fo uilr et Odr d 0e r3o /r 1a 9d /e1c 2i s i o n Pb ay t gh ee C 3o u or t . f N 2e 4i t h e r t h e I d a h o
D e p a rt m e n t o f C o rr e c ti o n , n o r C o ri z o n , I n c ., i s r e q u ir e d t o a d o p t a n y o f t h e s u g g e s ti o n s o r o p i n i o n s s t a t e d i n t h e R e p o rt.

health care currently (Order #6 within the same docket). I found it difficult to fully parse my findings into these two items as there is tremendous overlap between the two. Moreover, for reasons explained in Section III of my report, the Compliance Plans bear little relevance to the ISCI and the science of correctional health care delivery of today. As such, I believed it would be more useful to the Court and the parties to couch the bulk of my findings and conclusions within the second item. Nonetheless, Section IV of this report contains a brief analysis specifically responsive to the first item, i.e. the Court’s Order #5.
II. Executive Summary
In my capacity as Special Master in the case Balla, et al. v. Idaho State Board of Correction, and with the assistance of Deputy Special Master, Dr. Amanda Ruiz, I reviewed the state of health care at ISCI in three domains (medical diets; medical/dental care; mental health care) using the benchmark of three (presumptive, see below) Compliance Plans from Balla I and the U.S. Constitution’s Eighth Amendment prohibition against cruel and unusual punishment.
I found the state of health care with respect to medical diets to be fraught with some problems, but, (a) to be compliant with the spirit of the Balla I Compliance Plan, and (b) to not result in violations of inmates’ constitutional rights.
I found serious problems with the delivery of medical and mental health care. Many of these problems either have resulted or risk resulting in serious harm to inmates at ISCI. In multiple ways, these conditions violate the right of inmates at ISCI to be protected from cruel and unusual punishment. Since many of these problems are frequent, pervasive, long standing, and authorities are or should have been aware of them, it is my opinion that authorities are deliberately indifferent to the serious health care needs of their charges.
That there are problems with the delivery of health services should not come as an unexpected conclusion. IDOC staff monitor care delivered by Corizon under IDOC’s contract with Corizon via annual and follow up audits. During the annual audit of 2010, Corizon failed 23 of the 33 categories of the audit. Despite feedback and follow up (and assessment of liquidated damages), Corizon failed 26 of the 33 audit categories in the 2011 annual audit.
In response to my invitation to both parties to provide corrections to any errors in the factual findings Dr. Ruiz and I shared at our exit briefing, I only received a response from the Defendants. Their response did not lead to any factual corrections in my findings. According to their response, IDOC had made some changes to their ISCI operation prior to my first site visit, made some further changes after my first site visit, and are in the process of, or are planning other changes. None of the changes IDOC made prior to my first visit affect my conclusions, but I did note any changes that were significant in the relevant sections of my report. As to any changes IDOC reported making after my first visit, I did not audit to those changes, so I cannot comment on their effectiveness.

Special Master’s Report – February 2, 2012

Page 3

N o t i c eC: aT sh i es R 1e :p 8o r 1t i -s co vn -l y0a1r 1e c6o 5m -m Be Ln d Wa t i o n Dt o ot h ce uC mo u er t . nI t ti s8n2o 2t a C Fo uilr et Odr d 0e r3o /r 1a 9d /e1c 2i s i o n Pb ay t gh ee C 4o u or t . f N 2e 4i t h e r t h e I d a h o
D e p a rt m e n t o f C o rr e c ti o n , n o r C o ri z o n , I n c ., i s r e q u ir e d t o a d o p t a n y o f t h e s u g g e s ti o n s o r o p i n i o n s s t a t e d i n t h e R e p o rt.
Despite these comments, the willingness of IDOC to entertain change is very positive and commendable, and I include a copy of IDOC’s response (without attachments) so the Court can appreciate their efforts (Appendix A).
In a similar vein, I think it is very important to note some of the uplifting bright lights at ISCI which bodes well for change and improvement. The Warden recognizes the critical importance of health care delivery, is progressive, and is willing to entertain change. The ISCI Mental Health Program Director is energetic and actively involved in the health care delivery system. Corizon has hired a new Health Services Administrator and a new Director of Nursing, both of whom come with a lot of experience, devotion to their work, and ideas for improvement. The chief psychiatrist is well trained, hard working, dedicated, and trying to do his best. The dental program is without problems. With few exceptions, the most important members of the health care team – the front line health care and custody professionals – are hard working, dedicated people who clearly want to do a good job. Finally, while this report describes examples of problematic health care, many instances of health care delivery at ISCI are good or excellent. But many is not enough.
III. Analysis of Order #5 (Docket 806): Compliance Plans
In Order #5 (Docket 806), the Court instructed:
Dr. Stern shall investigate and attempt to reconstruct the injunctive relief issued by the Court in Balla I, 595 F.Supp. 1558 (D. Idaho 1984), pertaining to the delivery of medical care – including special medical diets – and mental health care at the Idaho State Correctional Institution (ISCI). To that end, Dr. Stern should determine, to the extent that he is able:
(a) the terms of the compliance plans that were adopted by the Court to remedy the constitutional violations in these areas,
(b) whether changes in circumstances have rendered these plans ineffective or unworkable as a practical matter, and, if still applicable,
(c) whether Defendants are presently in compliance.
With regard to the terms of the Compliance Plans (part (a) above), as the Court is aware, neither the Court, nor the Plaintiffs, nor the Defendants have retained copies of the original Compliance Plans. Plaintiffs provided me with three documents from historical court filings in this case. Both parties believe that these likely represent the Compliance Plans for Special Diets, Medical Care, and Mental Health Care (Appendices B, C, D, respectively). My analysis is based on these documents, however, it is important to note that no one is certain that these documents are indeed the original Compliance Plans.

Special Master’s Report – February 2, 2012

Page 4

N o t i c e C: aT hsi es R 1e :p 8o r 1t i -s co vn l-y 0a 1r 1e c6o 5m -m Be Ln d Wa t i o n Dt o ot h ce uC mo u ret . nI t ti s 8n 2o 2t a C Fo u irlteOdr d 0e r 3o /r 1a 9d /e 1c i2s i o n Pb yat gh eeC 5o u or t . f N 2e i4t h e r t h e I d a h o
D e p a rt m e n t o f C o rr e c ti o n , n o r C o ri z o n , I n c ., i s r e q u ir e d t o a d o p t a n y o f t h e s u g g e s ti o n s o r o p i n i o n s s t a t e d i n t h e R e p o rt.
Below I address parts (b) and (c) of the Order for each of the three disciplines.
1. Special Diets The presumptive Compliance Plan for Special Diets is a Field Memorandum (similar to a Policy/Procedure). The Memorandum is largely still relevant.
Conclusion 1. Special Diets In my opinion, ISCI is largely compliant with the provisions of the Plan dealing with Special Diets. I did not evaluate those portions of the Plan that were not relevant to Special Diets.
2. Medical Care Unfortunately, this presumptive Compliance Plan is largely stated in terms of the expected structure of the health care delivery system (e.g. actual number of employees needed) rather than expected processes or outcomes (e.g. there will be a sufficient number of employees to conduct certain business within a specified period of time). In my opinion, the circumstances at ISCI have changed sufficiently in the past three decades to render much of this Plan irrelevant. The nature of these changes include such things as: increased number of inmates; changes in physical plant; changes in operations and mission of ISCI; increased complexity of medical science and health care delivery (such as the existence of MRI scanners); increased severity of illness among inmates (such as HIV/AIDS, Hepatitis C, and an aging population).
A few items within the Compliance Plan have or may have some relevance in 2012. Defendants are in compliance with the requirement for 24-hour physician phone availability for emergencies. Medical Request Form boxes were envisioned in the Plan to eliminate barriers to access to care. The boxes are no longer relevant because the system for accessing care has changed, but access to care remains a problem. The Plan described the organization of a typical patient medical record. The current medical record is compliant with the Plan. However, as noted later in the report, this state of compliance is relatively recent. The Plan prescribed the number and hours of a number of employee positions. As noted above, it is difficult to extrapolate the relevance of most of these prescriptions to 2012. Two positions, however, deserve separate mention: dietician and pharmacist. The Plan called for one full-time therapeutic dietician and one full-time pharmacist (adjusting for the change in population size since 1984, these would now be approximately two full-time positions each). ISCI is not in compliance with either position at either staffing level. In my opinion these positions are not absolutely necessary. On the other hand, ISCI continues to face challenges in delivery of special diets and pharmaceuticals in 2012, and lack of these positions may be a contributing factor. Both issues are discussed in more detail elsewhere. Finally, the Plan called for some measures with which ISCI is not – in my opinion, appropriately – compliant. For example, ISCI was to have purchased and operated blood testing equipment. In 2012, blood tests are more accurately and reliably tested at nationally certified commercial laboratories than on prison-owned and operated machines.

Special Master’s Report – February 2, 2012

Page 5

N o t i c e C: aT hsi es R 1e :p 8o r 1t i -s co vn l-y 0a 1r 1e c6o 5m -m Be Ln d Wa t i o n Dt o ot h ce uC mo u ret . nI t ti s 8n 2o 2t a C Fo u irlteOdr d 0e r 3o /r 1a 9d /e 1c i2s i o n Pb yat gh eeC 6o u or t . f N 2e i4t h e r t h e I d a h o
D e p a rt m e n t o f C o rr e c ti o n , n o r C o ri z o n , I n c ., i s r e q u ir e d t o a d o p t a n y o f t h e s u g g e s ti o n s o r o p i n i o n s s t a t e d i n t h e R e p o rt.

Conclusion 2. Medical Care Most of the elements of the Medical Care Compliance Plan are no longer relevant. Of two elements which are or may be relevant, ISCI is compliant with one (medical records) and not compliant with the other (staffing for pharmacy and therapeutic diets).
3. Mental Health Care The presumptive Compliance Plan is a two-page memorandum authored by the then Deputy Warden. It is largely a description of operations. Further analysis per the Court’s instruction was impossible.
Conclusion 3. Mental Health Care I was not able to analyze adherence with this compliance plan.

*

* *

In Order #6 (Docket 806), the Court instructed:
Dr. Stern shall also assess the overall medical and mental health care delivery system ISCI at the present time and offer his opinion as to whether members of the inmate class are experiencing current and ongoing violations of their Eighth Amendment rights against cruel and unusual punishment in these areas…
The following three sections (IV, V, VI) address this order with regard to Special Diets, Medical Care, and Mental Health, respectively.
IV. Analysis of Order #6 (Docket 806): Constitutionality, Special Diets
Special diets are those diets which differ from the usual prison diet (“main line diet”) and are administered pursuant to a practitioner’s2 order for medical reasons. There are two components to successful delivery of special diets to patients: planning and execution.
IDOC and ISCI have developed an effective system for planning. There is a full-time Dietary Services Manager in headquarters who has been there for several years. There are several standard special diets which cover the most common medical dietary needs. There is a system in place to ensure that the contents for each of these special diets is established centrally and that local staff have the materials and skill to produce them. The nutritional content of the special diets appears appropriate to me. There are regular audits (which I reviewed) of the menu by a Registered Dietician to assure that the nutritional plan is translated into meals which actually contain what they should. There are also quarterly audits of the preparation and delivery of special diets (which I reviewed) by the Food Service Manager. These audits suggest a reasonable degree of compliance.
2 I use the term practitioner or prescriber to connote an individual licensed to write medical orders. Generally this is a physician, but can also be a physician assistant or nurse practitioner.

Special Master’s Report – February 2, 2012

Page 6

N o t i c e C: aT h si s eR 1e p :o8r t1i s-co vn l -y 0a 1r e1c 6o 5m -m Be n Ld Wa t i o n t Do toh ce uC mo u r et . nI t ti s 8n 2o t 2a C Fo u ir lt eO dr d 0e r 3o /r 1a 9d /e 1c i 2s i o n Pb y at gh e eC 7o u r ot . fN 2e i 4t h e r t h e I d a h o
D e p a rt m e n t o f C o rr e c ti o n , n o r C o ri z o n , I n c ., i s r e q u ir e d t o a d o p t a n y o f t h e s u g g e s ti o n s o r o p i n i o n s s t a t e d i n t h e R e p o rt.

Execution entails getting the right diet to the right patient. It appears that in some aspects, this has improved over the past few years. In the past, the system for ordering special diets was very complex and it is possible that practitioners did not have complete autonomy over the orders. Based on my evaluation, those flaws no longer exist. The order for special diets at ISCI is currently the sole province of a health care practitioner, as it should be. The form for such orders is quite simple and is only subject to review by a supervising physician, which is also reasonable.
It is difficult to audit the effectiveness of the execution phase. One tool is assessment of complaints. There have certainly been some patient complaints and I have reviewed those brought to my attention by Class members. Complaints can also come to light through the Grievance process. The Grievance process at ISCI has a gap in it which makes it easy for patterns of complaints to go unnoticed. The gap is that diet-related grievances may be channeled through any one of three different chains of command (Dietary Services Manager, Food Service Manager, Medical Service), each with a different final appeal authority. It appears, however, that most special diet-related grievances go through the Food Service Manager, and based on my review of grievances, there appear to be few. Another assessment tool is customer surveys. IDOC conducts annual satisfaction surveys (which is actually quite progressive for corrections). I reviewed a number of these. ISCI generally scores in the middle to just below the middle of all IDOC prisons. ISCI scores for individual scales are rarely at the very bottom. In 2008 ISCI scores were considerably lower than in other years; however, scores for all facilities appear to fluctuate significantly from year to year.
Based on audit results, interviews with patients, and interviews with staff, I found that at least two significant problems still exist with the execution phase of special diets. First, it is not uncommon to have a delay (days to weeks) in the ordering or communicating to the kitchen of special diets upon arrival of new patients to ISCI. On the other hand, though, (a) kitchen staff seem very sensitive to this and make an effort to accommodate the special need, even in the absence of an order, and (b) in the short-term, it is unlikely that getting the wrong diet would cause serious medical harm, especially for diabetes, which is the most common special diet.3 Second, communication and coordination between the HSU and kitchen with regard to unusual special diets is severely lacking. For example, food service recognizes two mechanically altered diets: a “fractured jaw” diet, consisting of liquids drinkable through a straw, and a “modified consistency” diet, consisting of main line foods that are either soft or processed in a blender. A practitioner recently ordered a “fractured jaw/modified consistency” diet for a patient. Kitchen staff have been understandably confused about the composition of such a diet and have been unable to receive clear direction from HSU staff. On the other hand, though, these types of problems seem to have arisen, not from deliberate indifference, but rather from just the opposite – a well-intentioned effort to fine tune or tailor dietary needs to specific patients when there is no appropriate “off-the-shelf” solution. Similar confusion has occurred with other patients requiring special diets such as diets with high or low residue (fiber).

3 Of course, this would not be true for food allergies. However, I saw no evidence that this has happened.

Special Master’s Report – February 2, 2012

Page 7

N o t i c e : CT ah iss eR e 1p :o 8r t 1i s -co nvl y-0a 1r e 1c o6m 5m -Be n Ld aWt i o n t Do t oh e cCuo mu r t e. Int its 8n o2t 2a C o Fu r it leO dr d e 0r 3o r /1a 9d e /c1i s 2i o n bPy at h ge eC o 8u r to. fN e2i t 4h e r t h e I d a h o
D e p a rt m e n t o f C o rr e c ti o n , n o r C o ri z o n , I n c ., i s r e q u ir e d t o a d o p t a n y o f t h e s u g g e s ti o n s o r o p i n i o n s s t a t e d i n t h e R e p o rt.
Conclusion IV. Constitutionality, Special Diets It is my opinion that problems exist with the successful delivery of special diets at ISCI. There is no question that these issues need to be addressed. However, I do not believe the problem is pervasive enough nor the consequences generally serious enough that these problems rise to the level of a violation of patients’ constitutionally protected rights as defined by the Court; where there are problems, the conduct of ISCI is better characterized by “well-intentioned confusion” than “deliberate indifference.”
V. Analysis of Order #6 (Docket 806): Constitutionality, Medical Care
1. Sick call (SC) Sick call at ISCI is the process by which patients are evaluated for non-urgent health problems. The vast majority of care delivered at ISCI is through the SC process. Generally patients communicate their need in writing on a Health Service Request (HSR) form and are seen at a scheduled time. The initial evaluation is conducted by a nurse. In Units 8 and 15 the HSRs are collected by HSU staff. Patients in all other units personally deliver their HSRs to the SC nurse stationed at the SC window in Unit 20 at a scheduled time each day.
Based on my review of health care at ISCI I believe there are three serious problems with the SC system: (a) delays or no response to HSRs; (b) poor quality of nursing care when it is delivered; (c) lack of confidentiality during care.
a. Delays or no response to HSRs Delays or lack of response to HSRs was identified as a problem at ISCI as far back as Balla I (HSRs were referred to as “kites”). The problem persists. I found delays as long as five weeks between the time a patient submitted an HSR and when he was seen for the problem. One patient stated on an HSR that he thought his blood sugar might be too low and that he might have diabetes; he was not seen for 11 days. A patient who requested to be seen 15 days earlier had not yet been seen on the day of my chart review; there is no way of knowing if his care will occur late or not at all.
Timely response to HSRs is an essential component of adequate access to care. Generally, patients should be seen within two to three days (slightly longer on weekends or holidays) of submitting non-urgent requests for health care. This time frame is subject to some variation depending on other factors such as the ease with which patients can be seen during off-tour hours, the presence and quality of triaging of the HSR, etc. In any case, delays of the order of magnitude occurring at ISCI are too long. They pose a significant risk of serious medical harm. For example, if the patient above who thought he might have low blood sugar did indeed have that condition, he was at risk of becoming unconscious and either falling and injuring himself, or simply dying. In the RDU (Unit 15), where SC is conducted in the living unit, the delays in access to care seem to arise, in part, from insufficient staff and/or space. I did not determine the underlying reason(s) for delays elsewhere. Corizon has implemented a relatively novel approach to submission of HSRs in units other than 8 and 15: patients deliver their HSRs personally to a nurse in the

Special Master’s Report – February 2, 2012

Page 8

N o t i c e C: aT h si seR 1e p:8o r t1i -s co vn l -y 0a 1r 1e c 6o 5m -m Be nLd Wa t i o n tDo toh ce uC mo u ret . nI t ti s 8n 2o t2a C Fo u ir lt eO dr d 0e r 3o /r 1a 9d /e 1c i 2s i o n Pb y at gh e eC 9o u rot . fN 2e i 4t h e r t h e I d a h o
D e p a rt m e n t o f C o rr e c ti o n , n o r C o ri z o n , I n c ., i s r e q u ir e d t o a d o p t a n y o f t h e s u g g e s ti o n s o r o p i n i o n s s t a t e d i n t h e R e p o rt.
HSU. It is likely that this innovation has reduced lost HSRs and delays to responses. However, as noted above, this innovation is insufficient.
b. Poor quality of nursing care when it is delivered Once a patient is seen, the quality of care in SC is, at times, of poor quality. The first (and usually only) patient evaluation in SC is usually conducted by a Licensed Practice Nurse (LPN). These nurses often operate independently, i.e. taking the patient’s history, conducting examinations, making conclusions about the patient’s condition, and providing treatment, all without input from a Licensed Professional Nurse (RN)4 or practitioner. Most states’ nurse practice acts, including that of Idaho, draw a clear distinction between the scopes of practice of LPNs and RNs. Generally LPNs collect data which they provide to RNs or practitioners and execute care plans as developed by RNs and practitioners. Making independent assessments (the nursing equivalent of a diagnosis) and prescribing nursing interventions is the sole domain of the RN and is beyond the scope of an LPN.5

4 Licensed Professional Nurse and Licensed Practical Nurse are two different licensures. The former receives significantly more training and can supervise the latter. Unfortunately, in Idaho, the acronym for both nurses is the same. To avoid confusion in this report, I abbreviate the Licensed Professional Nurse with “RN,” which is the more common designation used outside Idaho. 5 Nurse Practice Act, Idaho Statues TITLE 54, CHAPTER 14, 54-1402. (Emphasis added) “(3) "Licensed practical nurse" [LPN] means a person who practices nursing by:
(a) Functioning at the direction of a licensed professional nurse, licensed physician, or licensed dentist; (b) Contributing to the assessment of the health status of individuals and groups of individuals; (c) Participating in the development and modification of the strategy of care; (d) Implementing the appropriate aspects of the strategy of care as defined by the board, including administering medications and treatments as prescribed by those health care providers authorized to prescribe medication; (e) Maintaining safe and effective nursing care rendered directly or indirectly; (f) Participating in the evaluation of responses to interventions; and (g) Delegating nursing interventions that may be performed by others and that do not conflict with this act.
(4) "Licensed professional nurse" [RN] means a person who practices nursing by: (a) Assessing the health status of individuals and groups of individuals; (b) Identifying health care problems that are amenable to nursing intervention; (c) Establishing goals to meet identified health care needs; (d) Planning a strategy of care; (e) Prescribing nursing interventions to implement the strategy of care; (f) Implementing the strategy of care, including administering medications and treatments as prescribed
by those health care providers authorized to prescribe medication; (g) Authorizing nursing interventions that may be performed by others and that do not conflict with this act; (h) Maintaining safe and effective nursing care rendered directly or indirectly; (i) Evaluating responses to interventions; (j) Teaching the theory and practice of nursing; (k) Managing the practice of nursing; and (l) Collaborating with other health professionals in the management of health care.”

Special Master’s Report – February 2, 2012

Page 9

N o t i c Ce : aT sh ies R1e :p8o 1r t -i scvo n -l 0y 1a 1r e 6c o5m -Bm e Ln Wd a t i o n Dt o ot hce uCmo u er t n. I tt i 8s 2n o2t a C Fo iu lret dO r d0e 3r /o 1r 9a /d 1e c 2i s i o n Pb ay gt h ee C1o 0u r t o. fN e 2i t 4h e r t h e I d a h o
D e p a rt m e n t o f C o rr e c ti o n , n o r C o ri z o n , I n c ., i s r e q u ir e d t o a d o p t a n y o f t h e s u g g e s ti o n s o r o p i n i o n s s t a t e d i n t h e R e p o rt.

It is the expectation of Corizon administrators that LPNs at ISCI use condition-specific nursing protocols6 when evaluating patients; they believe that these protocols represent the input of an RN or practitioner and that, as such, LPNs are not operating independently. This reasoning is flawed for two reasons. First, LPNs do not always use the protocols. Second, protocols cannot substitute for clinical judgment. Nursing and medicine are professions which cannot be practiced by recipe, which essentially is what a protocol is in the hands of an LPN. At the outset of the patient encounter, the mere selection of the correct protocol to use for that encounter requires the LPN to have made a diagnosis. For example, if a patient complains of pain in the area of the chest wall, should the LPN select the “chest pain” protocol, which is heavily geared towards managing a patient with life-threatening heart problems, or the “strains, sprains, pains” protocol, which does not? Selecting the correct protocol at the beginning of an encounter is tremendously challenging, even for a physician, and once the incorrect protocol is selected, the likelihood of arriving at a correct diagnosis and treatment is markedly decreased. Another challenge in choosing the correct protocol is when a patient has two symptoms. For example, if a patient complains of vomiting and diarrhea, should the LPN select the “nausea and vomiting” protocol or the “diarrhea” protocol? In this case it would not be correct to select either or both – a very different approach is needed. In summary, making a correct nursing assessment or diagnosis (leading to a correct treatment plan) is a very complex task requiring training and skills beyond the level of an LPN, even one aided by a single page set of instructions. Thus the use of protocols by LPNs without the assistance of an RN or practitioner poses an ongoing threat to the safety of patients at ISCI.
Protocol use or not, care delivered at SC is poor at times. This is most true when patients are triaged or treated and then released by the first nurse they encounter (as opposed to being shunted immediately to a higher level professional as does happen in certain cases). I found instances when those evaluations were cursory, leading to great risk of patient harm. It is not uncommon for the nurse to omit any examination of the patient (including measurement of vital signs) prior to arriving at a conclusion. I personally observed this, such as a patient presenting with foot pain prescribed a corn pad and a patient presenting with a tooth ache prescribed no pain medication and told his request would be forwarded to the dental clinic. Neither patient was afforded further history taking or examination. While patients with symptoms like these usually turn out to have benign problems which resolve on their own, these same symptoms can occasionally accompany much more serious conditions; only a more thorough evaluation can tell the difference. Even more serious presenting symptoms, such as bleeding from the rectum (which can be a sign of life-threatening disease such as intestinal hemorrhage or colon cancer), resulted in release from SC by the LPN without further diagnosis, treatment, or plan for follow up. When nurses do appreciate that significant disease is present, care is not necessarily better or provided at all. Patients with dental infections may be treated with regimens that are not aggressive enough, with the patients later developing more serious infections. One such patient presented to an LPN. The LPN’s only documentation was two words: “abscess
6 The nursing protocol is a sheet of paper that guides the nurse through specific steps to take during a clinical encounter. The same sheet of paper also provides blank spaces for the nurse to document the results of each step.

Special Master’s Report – February 2, 2012

Page 10

N o t i c Ce : aT sh ei s 1R e :8p o 1r t -i cs vo n-l 0y 1a 1r e 6c o5m -Bm eLn Wd a t i o n Dt o ot ch e uCmo uer t n. I tt i 8s 2n o2t a CFo iuler t dO r 0d e 3r /o 1r 9a /d 1e c2i s i o nPb ay gt h ee 1C o 1u r to. fN e2i t 4h e r t h e I d a h o
D e p a rt m e n t o f C o rr e c ti o n , n o r C o ri z o n , I n c ., i s r e q u ir e d t o a d o p t a n y o f t h e s u g g e s ti o n s o r o p i n i o n s s t a t e d i n t h e R e p o rt.

[sic] tooth” followed by a verbal order from a practitioner for oral antibiotics. The following day the patient’s abscess had gotten much worse, requiring admission to the infirmary for intravenous antibiotics.7
c. Lack of confidentiality during care Upon submission of an HSR, for most patients in the facility, first contact with a nurse occurs at the SC window in the lobby of the HSU (indicated by the arrow in photograph, Appendix E). During SC, the lobby can be extremely crowded. Patients waiting to be seen in SC line up in front of the window through which the nurse conducts his/her evaluation. Due to the proximity of patients in the lobby and the need to speak loudly due to the din, it is impossible for other patients not to overhear the nurse-patient encounter. These conditions constitute a blatant violation of a patient’s right to privacy during a medical encounter. Not only does our society consider confidentiality of health care encounters a basic social right (which does not evaporate behind bars), but when patients cannot share health care information freely without fear of breach of their privacy, they tend to withhold information. And when clinicians do not get the whole story from a patient, patient safety is at risk.8
Conclusion 1. Sick call Patient requests for routine care through the sick call process result in no care, delayed care, or care which is dangerous, all of which deprive patients of their constitutional right to access to care and the opinion of a qualified health care professional.
2. Urgencies/emergencies An urgency or emergency is when a patient has a health care need which cannot – or the patient believes cannot – wait until the next regularly scheduled SC. There are medical staff present on site and a physician9 on-call 24/7 to respond to these needs. There is always an RN on duty. However, the first responder (Emergency Responder) to urgencies and emergencies is not always an RN; the Emergency Responder currently can be an RN or an LPN. Further, according to information I received, this is a recent change; previously a less highly trained person than even an LPN could fulfill the Emergency Responder role. It is the expectation of Corizon administrators that nurses use nursing protocols for every encounter and that each encounter conducted by an LPN is immediately reviewed with an RN.
Based on my observations, the system in place for response to urgencies and emergencies at ISCI is seriously flawed, both in planning or design as well as execution of the plan. In parallel to my assessment of care for Sick Call above, two flaws are: (a) delays or no response to urgencies or emergencies; and (b) poor quality of medical care when it is

7 There was no documentation of any examination of the patient on the day of infirmary admission either; the first time the patient appears to have been adequately examined was on the third day of his illness. 8 I have been informed that following my first visit, the HSU lobby window is no longer used for sick call evaluations. I did not personally verify this during my second visit. 9 The first level practitioner may be a nurse practitioner or physician assistant, but a physician is still available. Such an arrangement is acceptable.

Special Master’s Report – February 2, 2012

Page 11

N o t i c Ce : aT sh ei s 1R e :8p o 1r t -i cs vo n-l 0y 1a 1r e 6c o5m -Bm eLn Wd a t i o n Dt o ot ch e uCmo uer t n. I tt i 8s 2n o2t a CFo iuler t dO r 0d e 3r /o 1r 9a /d 1e c2i s i o nPb ay gt h ee 1C o 2u r to. fN e2i t 4h e r t h e I d a h o
D e p a rt m e n t o f C o rr e c ti o n , n o r C o ri z o n , I n c ., i s r e q u ir e d t o a d o p t a n y o f t h e s u g g e s ti o n s o r o p i n i o n s s t a t e d i n t h e R e p o rt.

delivered. In addition, urgent/emergent care suffers from: (c) poor continuity of care upon return from the hospital emergency room (ER); and (d) emergency response equipment which is either not kept in order or not carefully tracked.
a. Delays or no response to urgencies or emergencies Patients report, and many correctional officers confirmed, that when correctional officers contact HSU for an urgency, it is not uncommon for the nurse to either take a long time to respond, sometimes requiring repeat calls to the HSU, or for the nurse to obtain some second hand clinical information from the officer, and based on this, to instruct the officer to have the patient submit an HSR on the next regular business day.10 This state of operation places patients at an unacceptable risk of harm. While many urgencies which sound benign over the phone are benign, some are not. The only way to determine the difference is through basic – and timely – nursing triage which usually requires taking a patient history and conducting an examination.
b. Poor quality of nursing care when it is delivered Nursing care given during urgent and emergent situations suffers from all the same defects described above for care during Sick Call (see Section 1.b.); by reference that section is included here. The following example illustrates many of these defects as they apply specifically to an emergency response. An LPN responded to a living unit for a patient suffering from an extremely low blood sugar (too low to register on a meter). The patient had an altered mental status. This is a life threatening situation. The LPN prescribed and administered an injection of a medication, without use of a protocol or an order from a physician. Without further determination of the cause of the episode (which is important for predicting and preventing a recurrence) and without arranging further follow up, the LPN discharged the patient back to his living unit. The LPN acted independently without any oversight or input from an RN or practitioner.
In addition to problems which are common to both SC and urgencies/emergencies, I found a number of troubling cases of poor care demonstrating problems specific to urgency/emergency care. The following two examples are illustrative. In the first, the Emergency Responder was emergently summoned by staff for an unconscious person in a living unit. This nurse found the patient to have agonal respirations (respirations which are very weak, very intermittent, and are insufficient to sustain life). The nurse failed to measure any other vital signs such as blood pressure, pulse, or amount of oxygen in the blood. Such evaluation was critically important at this point because it was highly likely the patient was not getting enough blood to his brain and required resuscitation. Instead, the nurse moved the patient to the HSU. During the move, the patient’s vital signs were not monitored and he received no supplemental oxygen. Upon arrival at the HSU (a few minutes later) the nurse finally assessed the patient (including application of an automatic external defibrillator [AED] for the first time), found him to be in cardiac arrest, and began CPR. The patient died. It is impossible to know if immediate application of life saving measures in the living unit would have saved this patient. However, failure to provide these measures greatly reduced any chance for survival.
10 It should be noted that I was told of, but could not confirm any cases of, a delayed or deferred HSU response when the situation was clearly life threatening.

Special Master’s Report – February 2, 2012

Page 12

N o t i c Ce : aT sh i es R1e :p 8o 1r t -i scovn -l 0y 1a r1e 6c o 5m -Bm e Ln Wd a t i o n Dt o ot hce uC mo u er t .nI tt i 8s 2n o 2t a C Fo iu lr et dO r d0e 3r o/1r a9d/1e c 2i s i o n Pb ay gt h ee C 1o 3u r t o. Nf e 2i t 4h e r t h e I d a h o
D e p a rt m e n t o f C o rr e c ti o n , n o r C o ri z o n , I n c ., i s r e q u ir e d t o a d o p t a n y o f t h e s u g g e s ti o n s o r o p i n i o n s s t a t e d i n t h e R e p o rt.

In the second example, an Emergency Responder was emergently summoned by staff for another unconscious patient. This nurse only brought part of the emergency equipment with her to the scene (she failed to bring oxygen, a bag-mask resuscitator to provide rescue breathing, or an AED, all of which are available in the emergency response vehicle). It is not clear from the video footage I reviewed whether or not she checked the patient’s pulse, but it is clear that in the 19 seconds she was at the patient’s side she did not check any other vital signs such as blood pressure, respirations, or blood oxygen level. The nurse then left the patient unattended (i.e. unattended by any other health care professionals) for approximately 2.5 minutes11 after which she had the patient loaded on a gurney and transported to HSU. The confused and apparently ineffectual behavior of the nurse so concerned one of the correctional officers that he described it in his incident report. This case also highlights problems ensuring staff competency, discussed in Section V. 7.
Finally, an additional problem with urgent/emergent care relates to interpretation of electrocardiograms (heart tracing or EKG). Interpretation of an EKG requires considerable training and expertise. Therefore Corizon administrators expect that nurses will fax urgently obtained EKGs to on-call practitioners to interpret. However, I found that nurses sometimes interpret EKGs themselves. Since these nurses do not have the requisite skill, this puts patients at risk because serious heart conditions may be missed.
c. Poor continuity of care upon return from the hospital ER To ensure that patients are safe when they return from an ER trip, the following should occur: the patient should be evaluated by a nurse (including condition-specific evaluations and often including measurement of vital signs); the nurse’s findings as well as those of the ER (found on the ER medical records) should be communicated immediately to the on-call practitioner; the practitioner should then issue appropriate orders (which usually includes implementation of the ER physician’s recommendations or some explanation why not); on the next business day the practitioner should personally review the ER medical record provided. During my review, I found examples of violation of each of these steps.
d. Emergency response equipment which is either not kept in order or not carefully tracked I found a number of problems with the condition or use of emergency response medical equipment or maintenance of logs. There are no oropharyngeal or nasopharyngeal airways in the Emergency Response kit taken to the scene of emergencies. These are basic tools used to maintain an open airway in an unconscious patient during rescue breathing. There is a set12 of oropharyngeal airways in the HSU emergency room.

11 As the most qualified health care professional at the scene, there is rarely a reason for a nurse to leave the patient’s side. My review of the documentation of this case failed to indicate any justifiable reason. Leaving a patient unattended for such a long period of time puts the patient at risk for serious harm such as their breathing or heart stopping unnoticed, or vomiting and having the vomit enter their lungs. 12 Since the proper sized airway must be used based on the size of the patient, an emergency kit should contain a set with various size airways.

Special Master’s Report – February 2, 2012

Page 13

N o t i c Ce : aT sh ies R1e :p8o 1r t -i scvo n -l 0y 1a 1r e 6c o5m -Bm e Ln Wd a t i o n Dt o ot hce uCmo u er t n. I tt i 8s 2n o2t a C Fo iu lret dO r d0e 3r /o 1r 9a /d 1e c 2i s i o n Pb ay gt h ee C1o 4u r t o. fN e 2i t 4h e r t h e I d a h o
D e p a rt m e n t o f C o rr e c ti o n , n o r C o ri z o n , I n c ., i s r e q u ir e d t o a d o p t a n y o f t h e s u g g e s ti o n s o r o p i n i o n s s t a t e d i n t h e R e p o rt.

However, of the set of five or six, the two sizes most commonly used on adults were missing. Based on the inoperable condition of the bag-mask ventilator in the Emergency Response vehicle and the caked dust on its protective container, it is apparent that this essential piece of equipment is rarely if ever taken to the scene of emergencies and is never checked for operability.
There is a log book in the HSU emergency room which is supposed to be used by staff to document periodic checks of essential equipment. The book was in disarray. Pages for different devices and different (past and current) months were intermingled. Some were filed in the rings of the binders, others were stuck in the binder’s pockets. Many spaces corresponding to checks which were supposed to have been completed and initialed were blank. Where the facility owns multiples of the same piece of equipment (e.g. machines for checking blood sugars), the titles on the log sheets were very unclear as to which units were to be checked. Given the condition of the log book, it is impossible to imagine how staff can effectively assure that all emergency equipment is in working order. The following observations supports this impression.
During my first visit I found that the main oxygen tank in the HSU emergency room was significantly depleted.13 I brought this immediately to the attention of HSU administrators who were accompanying me. They said they would address it. Apparently, some time between my first and second trip, there was a need for oxygen, and the tank opened by staff during the emergency was empty. During my second trip (and unaware of the second incident), I checked the same oxygen tank I had checked during my first trip. This time it was completely empty.
Conclusion 2. Urgencies/emergencies Patient requests for urgent or emergency care result in no care on the day of request, delayed care on the day of request, or care which is of substandard quality. Much of this care is delivered by LPNs, practicing well beyond the scope of their training and abilities, without protocols, and without direct supervision. Some equipment required for emergency responses is missing or non-functional. When returning from ER trips, steps important for safe continuity of care fall through the cracks. These conditions are dangerous and deprive patients of their constitutional right to access to care and the opinion of a qualified health care professional.
3. Outpatient medical care by practitioners Most outpatient medical care provided by practitioners occurs in the following settings: referrals from nurses conducting SC; Chronic Care Clinics; over the phone for unexpected events such as urgencies or ER trips. I found instances where the quality of care delivered was poor. Some examples follow. One patient was found to have a lesion

13 It should be noted that there are several extra full tanks of oxygen in the HSU emergency. Thus ISCI will not run out of oxygen. However, the tank I checked was the tank which has the regulator and oxygen tubing already set up on it. It is the tank to which staff turn first in an emergency. If that tank is empty, it will add time delay (and anxiety) to an emergency situation while staff obtain and prepare another tank for use.

Special Master’s Report – February 2, 2012

Page 14

N o t i c Ce : aT sh ies R1e :p8o 1r t -i scvo n -l 0y 1a 1r e 6c o5m -Bm e Ln Wd a t i o n Dt o ot hce uCmo u er t n. I tt i 8s 2n o2t a C Fo iu lret dO r d0e 3r /o 1r 9a /d 1e c 2i s i o n Pb ay gt h ee C1o 5u r t o. fN e 2i t 4h e r t h e I d a h o
D e p a rt m e n t o f C o rr e c ti o n , n o r C o ri z o n , I n c ., i s r e q u ir e d t o a d o p t a n y o f t h e s u g g e s ti o n s o r o p i n i o n s s t a t e d i n t h e R e p o rt.

on a chest x-ray which was suspicious for cancer. Practitioners were aware of the finding and followed it with several tests but never discussed the possible cancer with the patient until a full seven months later. Though the patient may have chosen the route followed by the practitioners (i.e. periodic repeat x-rays), that route was not the only acceptable route. Indeed the patient may have opted for more aggressive diagnostic tests at an early stage, such as bronchoscopy or biopsy, or consultation with a lung or cancer specialist. Or he may have decided not to undergo the tests that he was given.14 Recent tests showed that cancer was highly likely and he is currently receiving treatment. I was unable to determine his current prognosis or whether or not a more aggressive approach would have affected it. However, failure to tell the patient what was going on for seven critically important months denied him of his basic human right to participate in his care and to provide informed consent for the care delivered.
In a second case, a patient who had an ER evaluation for a possible heart attack felt dizzy and fell four days after returning from the ER. A nurse responded, measured a blood pressure of 170/109, obtained an EKG, and informed the on-call practitioner. This blood pressure was quite high, and given the recent evaluation for a possible heart condition, was particularly dangerous. The practitioner should have either sent the patient back to the ER or have done a complete assessment to determine that the patient was stable, including reviewing the patient’s EKG. The practitioner did none of this. The practitioner did order some treatment for the blood pressure and requested repeat checks. However, despite these measures, the blood pressure went higher (183/111; 200/115; 188/110). Even if the patient did not have a heart condition, these blood pressures are so high as to place him at risk of a heart attack or stroke. The practitioner’s failure to treat this patient’s high blood pressures swiftly and aggressively – especially in light of the patient’s recent history of a possible heart condition – put the patient at grave risk of injury or death.15
In a third case, a patient with a history of heart disease was inexplicably dropped from the rolls of the heart disease Chronic Care Clinic. Thus practitioners ceased to conduct regular check ups focusing on the patient’s heart disease. A couple of years later, during a routine visit to a practitioner for other problems, the practitioner noted that the patient was having occasional angina (heart-related chest pain). The practitioner did no further evaluation and provided no change in treatment. Four days later the patient died suddenly of a heart attack. Practitioners failed to manage the patient’s heart disease on a chronic basis, and failed to manage it on an acute basis. This death may have been preventable.
Conclusion 3. Outpatient medical care by practitioners
14 These tests were not without risk. Without knowing what was going on, it was impossible for the patient to have given informed consent for the tests to be conducted. 15 Additionally, despite knowing of the extremely high last blood pressure (188/110), shortly after this blood pressure was measured, the practitioner allowed the patient to return to his living unit. Three hours later the patient fell and hit his head. I was unable to determine if the fall was due to high blood pressure, the treatment for high blood pressure, or another process exacerbated by the high blood pressure, such as a heart problem. In any case, this patient was clearly not stable and should not have been allowed to return to his living unit.

Special Master’s Report – February 2, 2012

Page 15

N o t i c Ce : aT sh i es R 1e :p 8o r1t i-s covn -l y0a1r 1e 6c o 5m -mBe Ln dWa t i o n Dt o ot h ce uC mo u er t .nI tti 8s n2o 2t a C Fo uilr et dO r d 0e 3r o/r1a 9d /1e c 2i s i o n Pb ay tgh ee C 1o 6u r t .oNf e 2i t h4e r t h e I d a h o
D e p a rt m e n t o f C o rr e c ti o n , n o r C o ri z o n , I n c ., i s r e q u ir e d t o a d o p t a n y o f t h e s u g g e s ti o n s o r o p i n i o n s s t a t e d i n t h e R e p o rt.
Care delivered by medical practitioners in routine and urgent settings is at times substandard and as a result, dangerous. A prisoner’s Eighth Amendment protection includes the right to a qualified medical opinion. The quality of medical opinions at ISCI is at time so poor as to render them unqualified. In those situations patients are deprived of their constitutional right.
4. Long term care Patients bemoan changes to a previous program for dying or physically incapacitated patients. Part of that program included training and provision of inmate companions. In and of itself, the existence of a hospice program, Life Transitions Program, or use of inmate companions are not requisite for constitutionally adequate care. However, in whatever manner they are provided, certain components of care must be present. Patients who cannot feed themselves must be fed. Patients who cannot get to the sink must be provided hydration. Patients who cannot write for themselves must be provided a mechanism of submitting medical grievances or HSRs. Patients who cannot move independently must have their bedding cleaned when it is soiled. Patients in significant pain must be provided comfort.
Based on my evaluation of long term (and terminal) care at ISCI, it is my opinion that none of these essential elements of health care are provided consistently. For example, one terminally ill patient was ordered to receive pain medication up to three times a day as needed. During the several days prior to his death, nurses only assessed the patient twice a day. Thus it was de facto impossible for nurses to execute the practitioner’s order for pain relief. Another patient who cannot feed himself has not had food provided for some meals.
On balance, it should be noted that Corizon has increased the amount of staffing in the Long Term Care unit to try to address some of these deficiencies. The staffing change is fairly recent and, unfortunately, helpful but insufficient. The remaining deficiencies result in inhumane conditions.
Conclusion 4. Long term care Care delivered to patients who cannot fend for themselves, such as providing food and water, cleaning soiled linen, and treating pain, is at times inadequate at ISCI, resulting in conditions which are inhumane and thus violative of patients’ constitutional right to care which is not cruel and unusual.

Special Master’s Report – February 2, 2012

Page 16

N o t i c Ce : aT sh ies R1e :p8o 1r t -i scvo n -l 0y 1a 1r e 6c o5m -Bm e Ln Wd a t i o n Dt o ot hce uCmo u er t n. I tt i 8s 2n o2t a C Fo iu lret dO r d0e 3r /o 1r 9a /d 1e c 2i s i o n Pb ay gt h ee C1o 7u r t o. fN e 2i t 4h e r t h e I d a h o
D e p a rt m e n t o f C o rr e c ti o n , n o r C o ri z o n , I n c ., i s r e q u ir e d t o a d o p t a n y o f t h e s u g g e s ti o n s o r o p i n i o n s s t a t e d i n t h e R e p o rt.

5. Pharmacy The two most serious and pervasive problems with provision of medications at ISCI are a failure to ensure seamless provision of medication as ordered, and poor documentation of medication delivery or administration.16 It is not possible to totally disentangle these issues from one another. A third problem is use of expired medications.
There are gaps in delivery of medications to patients who will keep the medication on their person (KOP). When patients see that they are running low on a KOP medication, they are to notify staff who then order the medication from an off-site pharmacy. At times (hopefully rarely) these medications arrive late, i.e. after the patient has run out of medications. When this happens, there are back-up systems in place which are supposed to provide an interim supply of medication. However, medications arrive late more often than is expected and the back-up systems are not always successful in providing medications to cover the hiatus. Thus patients at ISCI may go several days to – reportedly – weeks without essential medications. Similar things happen with medications which are directly administered by nurses. An additional complication in the system is that the decision of whether or not to invoke one of the back up systems is a subjective one made by the medication nurse based on the nurse’s perception of the necessity of the medication. Unfortunately, the medication nurse making that decision may be an LPN (or even a less-trained non-licensed person such as a CMS, a person who is not licensed or trained to make such decisions. This entire area was a very difficult one for me to evaluate due to extremely poor record keeping. However, I feel confident of my findings based on triangulation among patient complaints, officer reports, the few records I was able to find (and their poor condition), and a Corizon administrator’s statement.
One particularly troubling area of medication provision is how ISCI deals with patients who refuse nurse-administered medications. It is presumed that patients are only prescribed medications they need and if they don’t take them, their health is endangered. On that basis, a safe health care system takes remedial steps when a patient refuses their medications. The nature of the remediation is a function, among other things, of the particular medication and the number of doses missed. For example a long acting medication for pain can be missed more safely than a single dose of an antiretroviral for HIV/AIDS. Thus it was troubling to find that not all staff I interviewed who regularly administer medications were sure what to do in the event of a missed medications. There were staff who were vaguely aware of a “critical medication list” but didn’t know what medications were on that list or the exact rules to be followed.
Whether as a result of this confusion of other factors, the outcome is that patients are able to miss even one of the “critical medications” without staff taking any remedial action. A

16 Delivery of medication means the provision of a package of medication to a patient that he will administer to himself. Administration of medication is the provision of a single dose of medication to a patient by a nurse. Anyone can deliver medications (e.g. US Postal Service). Administration is a much more complex task requiring a more highly trained person – usually a licensed professional such as a nurse – who makes assurances such as the right patient is getting the right medication at the right dose by the right route at the right time.

Special Master’s Report – February 2, 2012

Page 17

N o t i c Ce : aT sh ei s 1R e :8p o 1r t -i cs vo n-l 0y 1a 1r e 6c o5m -Bm eLn Wd a t i o n Dt o ot ch e uCmo uer t n. I tt i 8s 2n o2t a CFo iuler t dO r 0d e 3r /o 1r 9a /d 1e c2i s i o nPb ay gt h ee 1C o 8u r to. fN e2i t 4h e r t h e I d a h o
D e p a rt m e n t o f C o rr e c ti o n , n o r C o ri z o n , I n c ., i s r e q u ir e d t o a d o p t a n y o f t h e s u g g e s ti o n s o r o p i n i o n s s t a t e d i n t h e R e p o rt.

staff member was able to provide me the “critical medication list.” It contains three items (isoniazide, used for treatment of tuberculosis; all HIV/AIDS medications; and a blood thinner). I was easily able to find instances of patients missing these medications with no action taken. For example, Appendix F shows the medication administration record for a patient on the tuberculosis medication. He missed a dose on December 2, 2011 and five doses in a row starting on December 5, 2011. There was no record of any remedial action taken.
Medication-related documentation at ISCI is extremely sloppy. The log on which nurses are supposed to record missing medications was replete with missing or incorrect information, making it impossible to trace whether some patients actually received bridge medications during a hiatus of their regular supply. The other record in shambles was the individual patient medication administration record (MAR). These pages are the contemporaneous record on which nurses are to document every dose of medication they administer. If a dose is not administered, the reason must also be documented. In other words, it is unacceptable and unsafe to have blank spaces on an MAR (except for medications prescribed “as needed”). During my inspection of MARs (at various locations throughout ISCI) I found an alarmingly high number of MARs with blank spaces, often with several blanks on a single MAR.
While it is difficult if not impossible to determine with certainty whether all these doses were actually missed, the lack of complete and accurate documentation in and of itself creates a danger for patient care. Indeed, if a patient becomes ill, it might be difficult to determine whether that illness were due to the medication (or despite the medication) or due to its absence.
Finally, HSU staff continue to administer medications which have expired. Without much effort, I found three packages of actively used medications which had expired five months earlier, and another which had expired a year earlier.
Conclusion 5. Pharmacy Medication management practices at ISCI are dangerous. Medications are not seamlessly provided as ordered. Record keeping of medication delivery and administration is markedly deficient. Expired medications are used. These contribute to and/or constitute deprivation of patients’ constitutional right to the care which is ordered.
6. Segregation I identified two areas of concern related to health care delivery to persons housed in Segregation (Unit 8): deficient welfare checks and lack of seamless provision of medications.
Inmates in Segregation are at particularly high risk of physical and mental health problems, either due to the segregation itself or due to limited access to services or both. As such, it is imperative that health care staff – independent of custody staff – conduct regular welfare checks. A welfare check must involve a face to face visualization and

Special Master’s Report – February 2, 2012

Page 18

N o t i c Ce : aT sh ies R1e :p8o 1r t -i scvo n -l 0y 1a 1r e 6c o5m -Bm e Ln Wd a t i o n Dt o ot hce uCmo u er t n. I tt i 8s 2n o2t a C Fo iu lret dO r d0e 3r /o 1r 9a /d 1e c 2i s i o n Pb ay gt h ee C1o 9u r t o. fN e 2i t 4h e r t h e I d a h o
D e p a rt m e n t o f C o rr e c ti o n , n o r C o ri z o n , I n c ., i s r e q u ir e d t o a d o p t a n y o f t h e s u g g e s ti o n s o r o p i n i o n s s t a t e d i n t h e R e p o rt.

interaction with each and every inmate. At ISCI these checks are assigned to a nurse and are planned for three times a week (which is reasonable). Unfortunately, the checks do not always occur. In the recent past, it was a common practice for a nurse to fail to make cell-to-cell rounds, instead standing at the entrance to the unit and yelling that he/she was present if anyone wanted him/her. There is evidence that just recently this has improved, though at times, the individual nurse-inmate interaction may too often be limited to visualization.
As noted elsewhere, there is a problem with seamless provision of medications to patients throughout ISCI. This problem seems particularly common in the Segregation unit, especially when inmates are first assigned there. It falls on unit officers to notify – and re-notify – HSU staff that inmates have not received their previous medications for days, and sometimes weeks. Such discontinuity of prescribed medications is clearly dangerous.
Conclusion 6. Segregation The general welfare of inmates in segregation has not consistently been monitored by health care staff (although there have been some recent improvements). There are gaps in the provision of medications. While failure to conduct welfare checks may not, in and of itself, be unconstitutional, it is a safety mechanism to assure that problems – such as gaps in provision of medications – do not go unchecked. Thus, overall, I found that conditions of confinement in Segregation resulted in deprivation of patients’ right to access to health care. Additional problems specific to access to mental health care is discussed in Section VI.
7. Ensuring staff competency A safe health care system has systems in place to prevent or detect and respond to health care professionals who are not performing in a minimally acceptable way. I learned of two specific circumstances demonstrating that these safety mechanisms are not functioning properly at ISCI.
With regard to prevention, in Section V.2.b I described an example of a problem with the competency of a staff member responding to an emergency. That problem arose from flaws in the system for selecting and training Emergency Responders. It should be noted that as a result of this incident (which occurred very recently), Corizon has made significant positive changes such as improvements to its method for selecting and training Emergency Responders.
Since staff competency cannot be guaranteed – even with proper systems for selecting and training qualified staff – a health care organization must also be able to detect and respond to evidence of lack of competency. The following case reveals that this did not happen at ISCI. ISCI received troubling allegations regarding a nurse (Corizon employee) in the dialysis suite in the HSU. Allegations included suspicion that she overtly did not like inmates, was failing to provide food and water during dialysis, prematurely aborted dialysis sessions or simply did not provide them at all, and failed to provide ordered medications resulting in patients becoming anemic (low red blood

Special Master’s Report – February 2, 2012

Page 19

N o t i c Ce : aT sh ei s 1R e :8p o 1r t -i cs vo n-l 0y 1a 1r e 6c o5m -Bm eLn Wd a t i o n Dt o ot ch e uCmo uer t n. I tt i 8s 2n o2t a CFo iuler t dO r 0d e 3r /o 1r 9a /d 1e c2i s i o nPb ay gt h ee 2C o 0u r to. fN e2i t 4h e r t h e I d a h o
D e p a rt m e n t o f C o rr e c ti o n , n o r C o ri z o n , I n c ., i s r e q u ir e d t o a d o p t a n y o f t h e s u g g e s ti o n s o r o p i n i o n s s t a t e d i n t h e R e p o rt.

count). Based on my discussion with staff members and review of available documents,17 it is more likely than not that authorities were aware of the potential danger to the safety of patients for several months but unduly delayed taking action to protect them. Further, IDOC’s internal investigation strongly suggests that the delay was based on financial rather than patient safety or labor relations considerations. This fact set is very troubling and indicates a conscious disregard for patient safety.
Conclusion 7. Ensuring staff competency Systems to prevent, or detect and respond to incompetent staff are deficient, resulting in dangerous conditions for patients at ISCI. In one very troubling case, authorities were aware of ongoing employee poor performance and/or misconduct which presented a significant risk of serious harm to patients, yet deliberately took no action. Such conditions violate patients’ rights under the Eighth Amendment.
8. Medical Records A well organized and complete medical record is a necessary element of a constitutionally adequate health care delivery system. In my opinion, medical records are currently well organized and complete, and all loose papers have been filed. However, this state of affairs is a recent development. According to staff, until May 2011, most medical records did not have clearly marked sections, were disorganized, and were missing many essential documents, such as lab and x-ray reports which were in loose stacks waiting to be filed. If this is true, the medical record at that time would likely not have been able to support constitutionally adequate care.
It is a basic patient right to be able to review one’s medical record. Aside from other purposes, a patient’s review of his medical record is one mechanism to help ensure that information in the record is accurate. Patients at ISCI do not have this right. It is important to note that this deficiency is not under the control of ISCI; it is dictated by Idaho Code 9-342, 3, e. Unfortunately, this Code lumps medical records together with all other state records from which prisoners are barred access.
Conclusion 8. Medical records Prior to the middle of last year, the medical record was likely insufficient to support constitutionally adequate care; that is no longer the case. Patients should, but do not, have the right to access their medical record; this is not under the

17 I requested the employee’s personnel file (a document maintained by Corizon) and any IDOC/ISCI documents related to any investigations and actions taken. The employee had been dismissed about 18 months prior to my request. I was originally informed that Corizon had already “purged” all of this employee’s personnel records (with the exception of payroll data). After a repeat request, I was informed that the records had not been purged but had been sent to an off-site storage facility and would be forwarded to me prior to issuing my report. They were not received as of the date of this report. IDOC conducted an investigation about one month after the employee’s dismissal. I was provided IDOC’s 22page investigation report. The report is an accounting of the facts in the case. My subsequent request for any other IDOC documents containing conclusions and action plans based on the investigation also remains outstanding as of the date of this report.

Special Master’s Report – February 2, 2012

Page 20

N o t i c Ce : aT sh i es R 1e :p 8o r1t i-s covn -l y0a1r 1e 6c o 5m -mBe Ln dWa t i o n Dt o ot h ce uC mo u er t .nI tti 8s n2o 2t a C Fo uilr et dO r d 0e 3r o/r1a 9d /1e c 2i s i o n Pb ay tgh ee C 2o 1u r t .oNf e 2i t h4e r t h e I d a h o
D e p a rt m e n t o f C o rr e c ti o n , n o r C o ri z o n , I n c ., i s r e q u ir e d t o a d o p t a n y o f t h e s u g g e s ti o n s o r o p i n i o n s s t a t e d i n t h e R e p o rt.
control of ISCI or IDOC. Problems with inadequate entries into the medical record for mental health care are discussed in Section VI.
9. Systems to support a constitutionally adequate health care delivery system This subsection addresses three ancillary systems which support health care delivery: policies and procedures, inmate grievances, and death reviews. Absence or dysfunction of these systems does not in and of itself mean a system of care is constitutionally inadequate. However, these systems are so important that when they are absent or dysfunctional, it is hard for a correctional health care system to provide constitutionally adequate care. These three ancillary systems are dysfunctional at ISCI. Given the problems with the health care delivery system at ISCI described in this report, the dysfunction of these three systems should be considered as one of the contributing causes. I will discuss them briefly.
I did not review many individual policies or procedures and do not offer an opinion about their specific content. However, I did find that the overall structure of policies and procedures at ISCI it very cumbersome. IDOC has policies. IDOC also has Standard Operating Procedures. For each IDOC policy ISCI may have its own Field Memoranda, which essentially expand on policy and procedures. Corizon, a national health care vendor, has corporate level policies. In addition, state or facility operations within Corizon may have local instructions. Not only does the mere existence of these various (and overlapping) sets of documents make for confusion, but the platforms on which they reside (i.e. internet, Corizon intranet, IDOC intranet, paper) are disparate and not coordinated, making it very difficult for an individual staff member to use them. This difficulty of use was apparent to me during a number of interactions with staff on issues about relevant policy and procedure. From floor nurses to secretaries to medical records staff to HSU supervisors and even Corizon regional supervisors, everyone had difficulty finding relevant policies and procedures.
In the IDOC Grievance system, inmates may submit Concerns and then Complaints; under PRLA they must exhaust these remedies prior to seeking judicial relief. Dr. Ruiz and I reviewed over 100 Concerns and over 75 Complaints. I found a number of problems with the Grievance system which erode its value. First, when addressing a Concern or Complaint, with rare exception, staff never talk directly with the inmate to better understand (and attempt to resolve) the issue. Second, at least half the Concerns I reviewed are essentially HSRs. Staff allow inmates to use Concerns in that way. However, policy for handling Concerns does not have the same clinical rigor as policy for handling HSRs. Thus, Concerns about clinical issues are not necessarily triaged according to clinical protocol, are not responded to within a short time period, etc. For example, a patient submitted a Concern stating he was on lithium pills and was experiencing extreme tremors. This might have been a symptom of a toxic, lifethreatening lithium blood level. Staff responded to the Concern several days later, indicating simply that the Concern was satisfied because the patient had already been seen in a clinic six days after submitting the Concern. Instead, the Concern should have prompted an immediate (i.e. within hours) face-to-face clinical evaluation. The way the Concern was handled placed the patient’s life at risk during the six days after submitting

Special Master’s Report – February 2, 2012

Page 21

N o t i c Ce : aT sh ies R1e :p8o 1r t -i scvo n -l 0y 1a 1r e 6c o5m -Bm e Ln Wd a t i o n Dt o ot hce uCmo u er t n. I tt i 8s 2n o2t a C Fo iu lret dO r d0e 3r /o 1r 9a /d 1e c 2i s i o n Pb ay gt h ee C2o 2u r t o. fN e 2i t 4h e r t h e I d a h o
D e p a rt m e n t o f C o rr e c ti o n , n o r C o ri z o n , I n c ., i s r e q u ir e d t o a d o p t a n y o f t h e s u g g e s ti o n s o r o p i n i o n s s t a t e d i n t h e R e p o rt.

the Concern. Third, appeals of Complaint responses are not always reviewed by Corizon’s Regional Manager, as required by policy. Additionally, they are often responded to by an LPN – who is sometimes the same staff member who was the subject of the Concern leading to the Complaint. Such responses are inconsistent with the facility’s high level of response to Complaint appeals for non-health care related issues (which require the Warden’s concurrence), and can present a conflict of interest. Fourth, and most importantly, facility responses are often non-responsive to the issue, flippant, and/or fail to address any underlying system problem leading to the Complaint.
According to IDOC Policy18 and good medical practice, deaths are “sentinel events” which should be reviewed to evaluate the quality of health care delivered and make remedial changes based on lessons learned. At ISCI no such review occurs. Corizon conducts an internal peer review which is protected from review by anyone outside Corizon, including IDOC. Corizon does not prepare a report for IDOC, it does not forward any recommendations for improvement to IDOC, and IDOC does not request or require this from Corizon, despite policy to the contrary. As an example of the importance of the death review process, in Section V.3. I described a death. My own review suggested that there were errors which may have contributed to the death. However, no review was conducted by IDOC nor was any report created by Corizon and provided to IDOC. Thus if there were indeed preventable errors, to my knowledge ISCI has not taken any remedial measures to prevent the errors from causing future deaths.
Conclusion 9. Systems to support a constitutionally adequate health care delivery system The state of guiding documents, the inmate grievance system, and death reviews at ISCI is poor. While not in and of themselves unconstitutional, it is important for the Court to be aware of this and its possible contribution to other unconstitutional conditions.
VI. Analysis of Order #6 (Docket 806): Constitutionality, Mental Health Care
In Balla I, the Court described a constitutionally adequate mental health care program as one which contained six elements19:

18 “Within 30 days of the offender’s death, the facility health authority and facility medical director (or designees), shall jointly conduct a clinical mortality review, and submit a written report to the health authority. ..[The report shall contain]… Events leading to the terminal event; Diagnosis as established at the time of the clinical mortality review; The primary cause of death…For the period prior to the terminal event- the timeliness and appropriateness of diagnoses, treatments, preventive measures taken, and staff responses; For the period of the terminal event- the timeliness and appropriateness of diagnoses, treatments, preventive measures taken, and staff responses; The reviewer's opinion of whether the level of housing and available healthcare was appropriate; and A narrative – prepared and signed by the facility medical director and other participant in the clinical mortality review process, to include conclusions, findings, and the reviewer's recommendations for improvement….The [IDOC] health authority (or designee) shall review the completed and signed Clinical Mortality Review Report (and other relevant documentation) to determine whether the death may be part of an emerging pattern or indicative of opportunities for improvement in the overall healthcare delivery system.” IDOC SOP 401.05.03.11 19 The Court’s source was Ruiz v. Estelle, 503 F. Supp. 1265 (S.D.Tex. 1980).

Special Master’s Report – February 2, 2012

Page 22

Case 1:81-cv-01165-BLW Document 822 Filed 03/19/12 Page 23 of 24
N o ti c e : T h i s R e p o rt i s o n l y a r e c o m m e n d a ti o n t o t h e C o u rt. It i s n o t a C o u rt O r d e r o r a d e c i s i o n b y t h e C o u rt. N e it h e r t h e I d a h o D e p a rt m e n t o f C o rr e c ti o n , n o r C o ri z o n , I n c ., i s r e q u ir e d t o a d o p t a n y o f t h e s u g g e s ti o n s o r o p i n i o n s s t a t e d i n t h e R e p o rt.

1. A systematic program for screening and evaluating inmates to identify those in need of mental health care;
2. A treatment program that involves more than segregation and close supervision of mentally ill inmates;
3. Employment of a sufficient number of trained mental health professionals; 4. Maintenance of accurate, complete, and confidential mental health treatment records; 5. Administration of psychotropic medication only with appropriate supervision and periodic evaluation; and 6. A basic program to identify, treat, and supervise inmates at risk for suicide.
These elements remain viable in 2012.20 Along with an additional element,
7. Systems to support a constitutionally adequate mental health care delivery system,
they form the framework for my analysis of current conditions at ISCI.
1. A systematic program for screening and evaluating inmates to identify those in need of mental health care Screening is the process by which all arriving inmates are tested for mental illness, whether or not there is any overt indication or history. The screening does not have to be conducted by a mental health professional. If the screening suggests possible mental illness, an inmate should be referred to a qualified mental health professional for an evaluation to determine if mental illness truly exists, and if so, implement (or continue) therapy. If the screening score crosses a certain threshold, the inmate is considered at imminent risk of danger to self or others and merits immediate referral to a mental health professional, prior to a bed assignment.
ISCI recognizes the need to screen newly arriving inmates for serious mental illness (SMI) and has nurses screen for SMI on a regular basis using preprinted screening forms. However, when the screening clearly flags an inmate as requiring professional mental health care, appropriate referrals do not consistently take place. Dr. Ruiz found several cases in which the inmate scored well more than seven points (the cutoff over which the screener should immediately contact a mental health professional) but no such referral was generated, putting the inmate (and/or others with whom he might come in contact) at significant risk of harm. One such inmate was described as angry, rambling, hostile, and unable to sit still, yet was assigned a bed in general population without prior mental health consultation. Another had a documented history of psychiatric illness and a recent episode of self-injury. Not only did he not receive immediate referral to a mental health professional as dictated by his screening results, his routine referral did not materialize until three weeks later, a week beyond the facility’s own 14-day limit dictated by policy. A more tragic example is a patient whose intake screening revealed five risk factors for suicidality. Contrary to protocol, he was not immediately referred to a mental health
20 see NCCHC Guidelines for Mental Health Care in Correctional Facilities 2008; Coleman v. Wilson, 912 F. Supp. 1282, 1298 n.10 (E.D. Cal. 1995), appeal dismissed, 101 F.3d 705 (9th Cir. 1996)

Special Master’s Report – February 2, 2012

Page 23

N o t i c Ce : aT sh i es R1e :p 8o 1r t -i scovn -l 0y 1a r1e 6c o 5m -Bm e Ln Wd a t i o n Dt o ot hce uC mo u er t .nI tt i 8s 2n o 2t a C Fo iu lr et dO r d0e 3r o/1r a9d/1e c 2i s i o n Pb ay gt h ee C 2o 4u r t o. Nf e 2i t 4h e r t h e I d a h o
D e p a rt m e n t o f C o rr e c ti o n , n o r C o ri z o n , I n c ., i s r e q u ir e d t o a d o p t a n y o f t h e s u g g e s ti o n s o r o p i n i o n s s t a t e d i n t h e R e p o rt.

professional. Eleven days later fellow inmates found him hanging and he died shortly afterwards.
Conclusion 1. A systematic program for screening and evaluating inmates to identify those in need of mental health care ISCI does not have an adequate program for screening and evaluating inmates to identify those in need of mental health care. The program’s design is adequate, however, it suffers from poor implementation and lack of appropriate referral after screening. Failure to identify and treat mental disease can lead to patient harm or death or harm to others, and violates patients’ constitutional right to access to care for serious health conditions.
2. A treatment program that involves more than segregation and close supervision of mentally ill inmates Dr. Ruiz found four fundamental deficiencies in the mental health treatment program at ISCI: (a) inadequate work up of and treatment plan for patients enrolled in the program; (b) underuse of group and individual therapy; (c) inadequate care during acute illness; and (d) misuse of segregation for mental health problems.
a. Inadequate work up of and treatment plan for patients enrolled in the program ISCI staff informed Dr. Ruiz that of the several hundred inmates enrolled and being treated in the mental health program, 144 do not have adequate psychological intake assessments or treatment plans. This poses a fundamental challenge to providing adequate mental health care.
b. Underuse of group and individual therapy Group and individual therapy are important tools for treatment of mental illness. They are markedly underutilized at ISCI both in terms of the number of groups being run and individual sessions being offered as well as the amount of time an individual patient spends in group therapy. Because of their non-invasive and effective nature as treatment modalities, group and individual therapy should be the first line options for many patients (before use of medications). Thus the number of patients in group therapy at ISCI should be much higher than the number of patients on medication. Instead, approximately 474 patients are on psychotropic medications and 464 are in group therapy.21 These data demonstrate the underuse of group therapy as well as suggest the overuse of medications. The proportion of the ISCI population on psychotropic medication (about 28%) is unexpectedly high compared to national norms for a non-specialized, male, medium custody facility. For those patients who are placed in group treatment, they average one to four hours per week in treatment sessions. This “dosage” is too low.22
Use of group therapy is largely limited to patients in the BHU (Unit 16). However, only a fraction of patients with SMI – those who are most unstable – are housed in the BHU; the rest reside in general population. Dr. Ruiz was informed that in general population select
21 These are not mutually exclusive groups, i.e. some patients are on medications and in group therapy. 22For example see Coleman v. Schwarzenegger which mandates 10 hours per week of out-of-cell structured time for mentally ill inmates.

Special Master’s Report – February 2, 2012

Page 24

N o t i Cc e :asT hei s 1R :e 8p 1o r t-ci s vo -n 0l y 1a 1r 6e c 5o -m Bm Le nWd a t i o Dn t oo tch ue mC o eu rnt . tI t 8i s 2n 2o t-1a C o Fu r it leO r dd e 0r o3r /a1d9e /c 1i s 2i o n b Py at h ge eC o 1u r t o. Nf e 2i t 3h e r t h e I d a h o
D e p a rt m e n t o f C o rr e c ti o n , n o r C o ri z o n , I n c ., i s r e q u ir e d t o a d o p t a n y o f t h e s u g g e s ti o n s o r o p i n i o n s s t a t e d i n t h e R e p o rt.

group therapy was being offered, but this was the exception, not the rule.23 For example, she was told that groups were occasionally offered to patients with SMI who were 12-24 months from parole. No group therapy (or one-on-one therapy) is offered to patients with SMI if they are convicted of life sentences.
c. Inadequate care during acute illness SMI patients with the most acutely severe illnesses (other than suicidality) are placed in the infirmary. They require the highest level of mental health care, which includes close involvement by the psychiatrist. The following case reviewed by Dr. Ruiz illustrates how that does not invariably occur at ISCI. A patient with Schizoaffective Disorder, bipolar type, became nearly catatonic. He had previously been receiving a long acting antipsychotic medication by injection every two weeks. Upon presenting with catatonia, he was given intramuscular injections of two other medications (Cogentin and Ativan). He has some improvement with the medications. However, the medications wore off, his psychotic symptoms returned, and two days after receiving the two medications he was admitted to the infirmary with a provisional diagnosis of toxic reaction to antipsychotic medication. During our visit – 14 days after his admission to the infirmary – the patient was still in the infirmary, had still not been seen by the psychiatrist, and had still not received any specific treatment. In Dr. Ruiz’s opinion, his presentation was most consistent with catatonia due to psychosis/mania (not due to a toxic medication reaction) and would respond rapidly to higher doses of the type of drug which he received two weeks earlier (i.e. the drug which provided a mild transient improvement until it wore off). Whether or not this would happen, it is clear that this patient has a serious mental illness which required the expertise of a psychiatrist. For 14 days (at least, as of the time of our visit) the patient was not evaluated by a psychiatrist and thus was deprived access to appropriate mental health care. He may have been suffering in a catatonic state unnecessarily.
d. Misuse of segregation for mental health problems There is insufficient treatment for patients in segregation with bona fide mental illness, and misuse of segregation for behavior which is driven by mental illness. By design, inmates in segregation with SMI (including those taking anti-psychotic medications and sedatives) or inmates being closely observed due to suicide risk receive no group therapy and no one-onone therapy. This situation not only constitutes a denial of necessary health care, but also violates IDOC’s own policy.24 Inmates interviewed by Dr. Ruiz said they are put in a segregated cell for such reasons as not taking their medications. Dr. Ruiz was unable to confirm many of these allegations due to the poor state of documentation (discussed elsewhere). However, at least one medical record indicated a patient was placed in a segregated cell for 15 days for disruptive behavior during class. The patient had a diagnosis of Asperger’s Syndrome, a mental illness that is closely related to autism, and was on an antidepressant medication. Patients with this disease have trouble relating with others, thus it is very possible that his “misbehavior” was really a manifestation of his disease. If this

23 Dr. Ruiz was unable to confirm the provision of even these limited group therapy offerings because group therapists do not document any treatment provided in the patient’s medical record. 24 Offenders placed in restrictive housing for greater than 30 days “shall be offered an opportunity to participate in therapeutic groups” (IDOC Correctional Mental Health Services System, page 68).

Special Master’s Report – February 2, 2012

Page 25

N o t i cCe : asT h ei s 1R :e 8p o1r t-ics vo -n 0l y 1a 1r e6c 5o -m Bm Le n Wd a t i o nDt oo tch ue mC o eu r nt . tI t 8i s 2n 2o t -1a C o Fu r tileO r dd e 0r o3r /a 1d 9e /c 1i s i2o n b Py tah ge eC o 2u r t .oNf e 2i t h3e r t h e I d a h o
D e p a rt m e n t o f C o rr e c ti o n , n o r C o ri z o n , I n c ., i s r e q u ir e d t o a d o p t a n y o f t h e s u g g e s ti o n s o r o p i n i o n s s t a t e d i n t h e R e p o rt.

was what happened, he was essentially punished for being ill. Unfortunately, his medical record does not reflect that mental health staff explored this possibility. Further, even if it had been established that his misbehavior were not the result of his illness, patients with Asperger’s Syndrome also suffer from anxiety and depression (as this patient did). Thus placement in the severe environment of a segregated cell for a protracted period of time was especially risky because it can exacerbate the anxiety and depression.
The preceding paragraph addressed the issue of using segregated housing as de facto punishment for behaviors related to mental illness. A related, but distinct issue is attempting to provide mental health care, but doing so via the inappropriate use of segregated housing. Frequently, when inmates are considered to be at risk of self-harm, they should be placed in special cells where they can be closely watched. At ISCI, inmates at risk of self-harm are placed in segregated cells and either placed on “suicide watch” (for inmates at high risk) or “close observation” (for inmates at medium risk). ISCI provided Dr. Ruiz with a list of 137 individuals who were identified as having been placed in segregated cells on “suicide watch” or “close observation” in the last quarter of calendar year 2011. Based on Dr. Ruiz’s review of these lists, 45 of the 137 individuals were placed in specialized segregated cells called “dry cells.” A dry cell is a cell that is not plumbed with a faucet or toilet. At ISCI, the dry cells in the BHU (Unit 16) are equipped with a hole in the middle of the cell covered by a grate which functions as a toilet. Aside from that hole, the room has four bare walls, a door, and nothing else.
There are five problems with the way individuals at risk of self-harm are handled during these acute periods. First, there is a dearth of documentation of events in the patient’s medical record. The mere fact that the patient was suicidal and placed in a protective cell was missing from the medical records Dr. Ruiz reviewed, as well as other information such as the reason the individual was placed there, when the individual was placed there, when and why the patient “promoted” from suicide watch to close observation, when and why they were discharged, etc. Some or all of this information is apparently contained in other prison (custody) records but is not readily available to all mental and medical treatment staff. Thus key staff who should know about a patient’s history of suicidal behavior do not have that information.25 For example, a psychiatrist coming on duty a few weeks after an individual was fully discharged from one of these events might find no indication at all in the medical record that his/her patient had recently been acutely suicidal. Under those circumstances, it would be impossible for the psychiatrist to safely care for the patient. Second, the dearth of documentation in the medical record also means that patients are experiencing changes in their clinical treatment in the absence of medical orders. Indeed, anyone – including an custody officer – should be able to, and is able to, place an individual in one of these protective environments emergently. However, after that point, all decisions about protective living conditions should be made by a licensed mental health clinician (and documented in the medical record). Dr. Ruiz was unable to determine if this is what happens due to the lack of documentation. Third, by practice or policy, patients intentionally are not provided group or one-on-one therapy
25 Other than the fact that individuals were on the list of suicide watches or close observations, it was even difficult for Dr. Ruiz to determine if, in fact, these individuals had been placed in segregated cells due to an actual suicide risk.

Special Master’s Report – February 2, 2012

Page 26

N o t i cCe : aTsh ei s 1R :e 8p o1r t -i cs vo -n 0l y 1a 1r e6c 5o -m Bm Le n Wd a t i o nDt oot ch ue mC o eu r nt . tI t 8i s 2n 2o t -a1C o uFr t ilOer dd e r0o 3r /a 1d 9e /c i1s i2o n b Py t ah ge eC o 3u r t . oN fe 2i t h 3e r t h e I d a h o
D e p a rt m e n t o f C o rr e c ti o n , n o r C o ri z o n , I n c ., i s r e q u ir e d t o a d o p t a n y o f t h e s u g g e s ti o n s o r o p i n i o n s s t a t e d i n t h e R e p o rt.
when they are in segregated cells on suicide watch, a time when such therapy is of paramount importance. Fourth, the number of individuals at ISCI on suicide watch or close observation, and especially the number placed in dry cells, is in excess of the number that would be expected for an institution of the size and composition of ISCI. Due to the poor documentation we encountered, it was impossible for Dr. Ruiz to determine if these high numbers are clinically justifiable, if they represent clinically unnecessary overuse of these specialized cells, or if they are a reflection of gaps elsewhere in the mental health system resulting in higher incidence of suicidality.
The fifth problem is one of the most distressing: patients with SMI spend far too much time in dry cells. In a three month period, eight individuals spent five or more days in a dry cell (six of these stays lasted 10 days or more, the longest of which was 16 days). According to Dr. Ruiz, the use of these dry cells on a long-term basis can only be described as degrading and inhumane.
The following capstone case illustrates the problem with the use of dry cells (as well as other problems with the mental health treatment system described elsewhere). A 20 year old male was admitted to ISCI. His intake mental health screening revealed seven positive findings, including prior sex offense and prior history of victimization, which should have triggered an immediate referral to a mental health professional. Instead the screener checked the box for ‘no referral’ to mental health. Ten days later the patient was placed in segregation and was (in this case) seen by a psychiatrist. The patient reported symptoms of depression and ‘voices.’ The psychiatrist’s diagnosis was polysubstance abuse. No medications were prescribed and follow-up with a mental health professional was only recommended as needed. About six weeks later the patient was placed on close observation in a dry cell, presumably due to some risk to the patient due to his psychotic and/or depressive condition. His only contact during this depressed and/or psychotic state was another mentally ill inmate-companion who was marginally trained for the task. There was no documentation in the medical record of this placement in a dry cell on close observation (including lack of a medical order placing him in that status). He remained there on close observation status for 10 days during which time he had no initial mental health assessment, no follow-up by mental health staff, and no treatment plan. At each of his three encounters with the mental health system (at screening, in segregation, and in close observation), the care he received was inadequate. Lapses in care at the first two encounters likely led to his subsequent two deteriorations. All three encounters, especially the third, reflect diminished or absent access to mental health care.
Conclusion 2. A treatment program that involves more than segregation and close supervision of mentally ill inmates There are significant deficiencies in the treatment program at ISCI such as inadequate work up of and treatment plans for patients enrolled in the program, underuse of group and individual therapy, and misuse of segregation. These deficiencies result in denial of medically necessary care to patients with serious mental illness and are therefore violative of patients’ constitutional right to health care.

Special Master’s Report – February 2, 2012

Page 27

N o t i Cc e :asT hei s 1R :e 8p 1o r t-ci s vo -n 0l y 1a 1r 6e c 5o -m Bm Le nWd a t i o Dn t oo tch ue mC o eu rnt . tI t 8i s 2n 2o t-1a C o Fu r it leO r dd e 0r o3r /a1d9e /c 1i s 2i o n b Py at h ge eC o 4u r t o. Nf e 2i t 3h e r t h e I d a h o
D e p a rt m e n t o f C o rr e c ti o n , n o r C o ri z o n , I n c ., i s r e q u ir e d t o a d o p t a n y o f t h e s u g g e s ti o n s o r o p i n i o n s s t a t e d i n t h e R e p o rt.

3. Employment of a sufficient number of trained mental health professionals Professionals from a number of disciplines provide health care to inmates. In mental health, these disciplines include psychiatry, psychology, mental health counseling, and nursing, among others. With one exception (psychiatry), it is difficult to establish a formula for calculating the proper staffing level of different correctional health care disciplines. The best proxy measure – albeit imperfect – of the adequacy of staffing is the effectiveness of operations that are staff-dependent. Using this proxy, based on information I provide elsewhere in Section VI showing deficiencies in staff-dependent activities (such as sparse provision of group therapy), there may be insufficient staffing of non-psychiatric mental health personnel. For a variety of reasons, it is easier to directly assess the adequacy of psychiatric staffing at ISCI. Based on this assessment, it is my opinion that there is insufficient staffing of psychiatry services. The data supporting this conclusion come from local and national metrics.
The local metric is the Balla record itself. When Balla I was adjudicated in 1985, the average daily population was 923. Nine percent of the population, or about 83 inmates, were on psychotropic medication. As a result of a finding of deliberate indifference, psychiatric staffing was increased to 0.65 FTE. Currently the institutional count is about 1664; 28% of the population, or about 474 inmates, are on psychotropic medication, and psychiatric staffing is 1.25 FTE. Thus the number of patients on psychotropic medications has increased over five-fold (from 83 to 474) while psychiatric staffing has increased less than two-fold (from 0.65 FTE to 1.25 FTE).26 To keep pace with the population increase, ISCI should currently have 3.7 FTE psychiatric staffing.
A useful national metric is provided by the American Psychiatric Association (APA). APA states that for every 75-150 inmate-patients with SMI who are receiving psychotropic medication, there should be 1.0 FTE psychiatrist or equivalent. Using this metric, and assuming there are 474 medicated SMI patients, ISCI should have between 3.2 and 6.327 FTE psychiatric staffing.
Another way of looking at the adequacy of psychiatric staffing is at the level of individual patient encounters with the psychiatrist. The ISCI psychiatrist spends an average of ten minutes per encounter with enrolled patients and 20 to 30 minutes per encounter with new patients. There is no time allotted for administrative duties, comprehensive assessments, or discussions with other staff about difficult cases. Nationally, the correctional norm for encounters with enrolled patients is about 30 minutes and for new patients is about 60 minutes. Based on these numbers, the psychiatrist cannot be expected to have enough time to safely evaluate and treat patients. Based on Dr. Ruiz’s review of medical records, the psychiatrist does not have enough time to safely evaluate and treat patients.

26 The reason for tying psychiatric staffing time to psychotropic medications is that medications are prescribed and followed by a psychiatrist, psychiatric physician assistant, or psychiatric nurse practitioner. Other mental health professionals cannot prescribe medications. 27 The estimate of the number of medicated SMI patients (474) is likely conservative. Thus the resulting calculation of FTE based on the APA formula (3.2 to 6.3 FTE) is also likely conservative.

Special Master’s Report – February 2, 2012

Page 28

N o t i cCe : asT h ei s 1R :e 8p o1r t-ics vo -n 0l y 1a 1r e6c 5o -m Bm Le n Wd a t i o nDt oo tch ue mC o eu r nt . tI t 8i s 2n 2o t -1a C o Fu r tileO r dd e 0r o3r /a 1d 9e /c 1i s i2o n b Py tah ge eC o 5u r t .oNf e 2i t h3e r t h e I d a h o
D e p a rt m e n t o f C o rr e c ti o n , n o r C o ri z o n , I n c ., i s r e q u ir e d t o a d o p t a n y o f t h e s u g g e s ti o n s o r o p i n i o n s s t a t e d i n t h e R e p o rt.
In summary, based on Balla I guidelines, ISCI should currently have 3.7 FTE psychiatrist; based on the APA benchmark, ISCI should currently have (at least) between 3.2 and 6.3 FTE psychiatrist. ISCI currently has 1.25 FTE. Thus whether using Balla I metrics or APA metrics, psychiatric staffing is clearly inadequate. Empiric review of the amount of time psychiatric practitioners have to spend with their patients and evaluation of the actual care delivered during these brief encounters confirms the staffing inadequacy.
Conclusion 3. Employment of a sufficient number of trained mental health professionals There are deficiencies in the delivery of psychiatric and non-psychiatric mental health services at ISCI. The deficiencies in non-psychiatric mental health services may be the result of insufficient staffing, however, I cannot state this with certainty. I can state with greater certainty that there is an insufficient number of psychiatric practitioners at ISCI to provide the care needed for mentally ill patients. As such, inmates at ISCI do not have sufficient access to mental health care to satisfy constitutional requirements.
4. Maintenance of accurate, complete and confidential mental health treatment records Dr. Ruiz found significant problems with documentation of care provided to suicidal patients placed in segregated/protective cells during crises, documentation of mental health treatment plans, and documentation of care delivered in group therapy. Problems with documentation of care provided to suicidal patients placed in segregated/protective cells during crises was described in Section VI.2.
Generally, mental health treatment plans were inadequate. Charts contained generic boiler-plate plans. For example, each of the cases Dr. Ruiz reviewed contained the same first two treatment goals, “Will voice an understanding of how he can kite a clinician for support” and “If prescribed medication, will take any medication prescribed by his psychiatrist as indicated reporting any changes, concerns, or side effects.” In several cases the psychiatrist had clearly decided not to prescribe the patient medication, yet the treatment plan goal remained to discuss medication with the psychiatrist. For example, Dr. Ruiz reviewed the record of a patient who had previously been on an anti-depressant, but was currently off the medication. He was described as having a labile (abnormally fluctuating) mood, being anxious, and doing sexual favors for others so that they will be his friends. He also had a history of self-injurious behavior. Thus he had complex mental illness and was not stable. Proper care demanded that he have a specific treatment plan to address these needs. Instead, his treatment plan contained the same generic plans cited above without any additional plans specific to this patient’s individual needs. His other problems were simply not addressed. While it is not wrong for a patient’s treatment plan to contain some generic elements, the entire plan cannot be generic; treatment plans must be individualized. Lack of individualized planning and coordination contributes to poor outcomes.

Special Master’s Report – February 2, 2012

Page 29

N o t i Cc e :asT hei s 1R :e 8p 1o r t-ci s vo -n 0l y 1a 1r 6e c 5o -m Bm Le nWd a t i o Dn t oo tch ue mC o eu rnt . tI t 8i s 2n 2o t-1a C o Fu r it leO r dd e 0r o3r /a1d9e /c 1i s 2i o n b Py at h ge eC o 6u r t o. Nf e 2i t 3h e r t h e I d a h o
D e p a rt m e n t o f C o rr e c ti o n , n o r C o ri z o n , I n c ., i s r e q u ir e d t o a d o p t a n y o f t h e s u g g e s ti o n s o r o p i n i o n s s t a t e d i n t h e R e p o rt.
Group therapy treatment is not documented in patients’ medical records. Thus any pertinent mental health information the group therapist generates is not available to the rest of the patient’s health care team.
Conclusion 4. Maintenance of accurate, complete and confidential mental health treatment records ISCI does not maintain complete – and therefore accurate – mental health treatment records of care delivered during acute suicidal events, of treatment plans for SMI patients, and of treatment provided during group therapy. It is impossible to deliver constitutionally adequate care if pertinent patient information is not recorded so that it can be shared among the care team.
5. Administration of psychotropic medication only with appropriate supervision and periodic evaluation I have described elsewhere the challenge faced by psychiatric prescribers due to significant understaffing. The following example illustrates how this challenge impacts ISCI’s ability to administer psychotropic medications with appropriate supervision and periodic evaluation.
Dr. Ruiz learned that due to time constraints, psychiatric practitioners sometimes write orders for psychotropic medications without face-to-face visits and without stating definite time limits, e.g. “Risperidone 4 mg orally nightly until next visit.” Since some patients do not get a “next visit” (i.e. a face-to-face encounter) scheduled with the psychiatrist, a patient can continue for a long time on psychotropic medications without examination by the psychiatric prescriber. Psychiatry cannot be safely practiced without occasionally “laying hands” on the patient for whom medications are prescribed. The practitioner must assure that medications are working, that their dosages are appropriate, and that patients are not developing serious medication-related side effects. Thus psychotropic medications are not always provided at ISCI with appropriate supervision by a psychiatric prescriber.
Conclusion 5. Administration of psychotropic medication only with appropriate supervision and periodic evaluation Psychiatric prescribers cannot routinely provide adequate supervision of medication administration without the time to conduct initial and periodic patient evaluations. In the absence of such evaluations, patients are deprived of a qualified medical opinion, rendering care unconstitutional.
6. A basic program to identify, treat, and supervise inmates at risk for suicide Dr. Ruiz identified five areas of deficiency in the basic program for self-injurious behavior and/or suicidality management. I have discussed three of these deficiencies in depth elsewhere: (a) inadequate medical records such that relevant information about suicidal behavior and suicide observation periods is missing from the medical record and not routinely available to key people who need to know, e.g. the patient’s psychiatrist; (b) lack of treatment for the most acutely ill patients at risk of suicide: those on suicide watch; (c) placement of patients in suicide watch or close observation, sometimes in dry

Special Master’s Report – February 2, 2012

Page 30

N o t i Cc e a: sT eh i s 1R :e 8p 1o r -t ci s vo -n 0l y 1a 1r 6e c 5o -m Bm Le Wn d a t i o Dn t oo ct h ue mC o eu rnt . tI t 8i s 2n 2o t-1a C o Fu r it leO rdd e 0r 3o r /1a 9d e /c 1i s 2i o n b Py at h ge eC o 7u r t o. fN e 2i t 3h e r t h e I d a h o
D e p a rt m e n t o f C o rr e c ti o n , n o r C o ri z o n , I n c ., i s r e q u ir e d t o a d o p t a n y o f t h e s u g g e s ti o n s o r o p i n i o n s s t a t e d i n t h e R e p o rt.
cells, for extended periods of time, amounting to inhumane conditions without access to adequate mental health care.
Two additional areas of deficiency, described below, are: (d) inadequate suicide prevention training for staff, and (e) unsafe use of Companion Offenders during suicide watch.
d. Inadequate suicide prevention training for staff The suicide prevention training program addresses three constituencies: Corizon health care staff (medical and mental health), ISCI (IDOC) mental health care staff, and custody staff. There are deficiencies in training provided to all three.
IDOC provided documentation that Corizon conducted suicide training for its staff during a staff meeting in December, 2011. The length of the training could not be verified. When questioned about the training, two key front line staff could “not recall” having been trained in suicide prevention during 2011. Assuming that some training did occur, the intensity/quality was therefore of questionable effectiveness.
Training for ISCI mental health care staff was provided in 2011. It was provided as “self-study” training in the form of pamphlets and take-home test; there was no video, CD or interactive component. In Dr. Ruiz’s estimation, this training would require an investment of less than 15-30 minutes annually of an employee’s time, which in insufficient.
For the entire two-year period ending in December, 2011, ISCI provided a single training session on Suicide Risk Management in April 2010 to 110 of 283 of their custody officers. This training is inadequate both in the amount of training per officer and the number of officers trained. In terms of the amount of training, when training was provided, it was a one hour long presentation. In Dr. Ruiz’s estimation, this is insufficient. By comparison, many law enforcement agencies (an environment where suicide prevention and treatment are less germane than prison) provide one to two hours of training per year. Mr. Lindsay Hayes, one of the nation’s foremost experts in suicide prevention in prisons and jails, recommends eight hours of training for general duty custody staff.
In terms of the number of officers trained, this too is problematic. Every officer should receive the training, at a minimum, annually. Thus less than half of the custody staff received mandated training in 2010 and none of the custody staff received mandated training in 2011. Further, certain custody officers require more frequent training. IDOC policy states, “Because of the high risk for suicide attempts in restrictive housing, staff working in these units will receive supplemental training once each quarter. If a staff member has not attended restrictive house supplemental training within the previous quarter, they must complete it before working on the unit.” Thus, at least some officers should have received eight training sessions (quarterly over two years) during this same time period; none of them did.

Special Master’s Report – February 2, 2012

Page 31

N o t i cCe : asT h ei s 1R :e 8p o1r t-ics vo -n 0l y 1a 1r e6c 5o -m Bm Le n Wd a t i o nDt oo tch ue mC o eu r nt . tI t 8i s 2n 2o t -1a C o Fu r tileO r dd e 0r o3r /a 1d 9e /c 1i s i2o n b Py tah ge eC o 8u r t .oNf e 2i t h3e r t h e I d a h o
D e p a rt m e n t o f C o rr e c ti o n , n o r C o ri z o n , I n c ., i s r e q u ir e d t o a d o p t a n y o f t h e s u g g e s ti o n s o r o p i n i o n s s t a t e d i n t h e R e p o rt.

e. Unsafe use of Companion Offenders during suicide watch ISCI utilizes a Companion Offender Program whereby trained inmate volunteers help monitor patients during suicide watch or close observation. The program, as operated, has three serious flaws. First, the program operates without adequate screening of the participants. In contrast to the current policy and principles of safe patient care, some applicants chosen have significant mental illness themselves. This puts the inmates they work with at risk. The second serious flaw concerns the way in which the volunteers are utilized. According to ISCI policy and standards of correctional care nationally, volunteers are used “to supplement” monitoring. During a suicide watch, a patient should be under constant, direct, in-person, visual observation by a staff member. Instead, inmates provide this observation and officers only come by periodically to check. In other words, inmates are used in place of professional staff rather than to supplement them. To compound this, the officers’ periodic check is not conducted according to policy. Officers are instructed to check on the inmate at random intervals28 not to exceed 15 minutes. Instead, based on officer logs I reviewed, many checks are done at exactly 15 minute intervals; some checks are done at intervals longer than 15 minutes, some as long as 25 minutes. Finally, in violation of IDOC policy29 and minimally acceptable medical practice, there is no medical record documentation of clinical observation during suicide watches and close observation.
Conclusion 6. A basic program to identify, treat, and supervise inmates at risk for suicide There are serious flaws in the basic program to identify, treat, and supervise inmates at risk for suicide, including: insufficient staff training, incomplete medical record documentation, inhumane conditions of confinement, lack of adequate mental health treatment, and use of inmates in place of staff to monitor patients. These system flaws either harm suicidal patients or place them at significant ongoing risk of harm and therefore violate their constitutional right of access to health care.
7. Systems to support a constitutionally adequate mental health care delivery system In Section V.9. of this report I addressed three ancillary systems which support health care delivery (policies and procedures, inmate grievances, death reviews), and which are dysfunctional at ISCI. The deficits in these three systems extend to mental health care and thus the contents of Section V.9. are included here by reference.
A fourth support system that Dr. Ruiz found dysfunctional in the mental health arena at ISCI is quality control (or Continuous Quality Improvement, CQI). To assure that key elements of any health care operation are functioning as planned, there must be a system (or systems) in place to continuously collect key pieces of data, monitor that data, recognize deviations from acceptable levels, and make course corrections when needed. Unfortunately, at ISCI there is no integrated CQI system monitoring the effectiveness of the mental health treatment program overall. As with the first three support systems,
28 Random intervals make it more difficult for a patient contemplating suicide to plan how much time he has until the next check. 29 Directive 315.02.01.001, Page 9

Special Master’s Report – February 2, 2012

Page 32

N o t i cCe : asT h ei s 1R :e 8p o1r t-ics vo -n 0l y 1a 1r e6c 5o -m Bm Le n Wd a t i o nDt oo tch ue mC o eu r nt . tI t 8i s 2n 2o t -1a C o Fu r tileO r dd e 0r o3r /a 1d 9e /c 1i s i2o n b Py tah ge eC o 9u r t .oNf e 2i t h3e r t h e I d a h o
D e p a rt m e n t o f C o rr e c ti o n , n o r C o ri z o n , I n c ., i s r e q u ir e d t o a d o p t a n y o f t h e s u g g e s ti o n s o r o p i n i o n s s t a t e d i n t h e R e p o rt.

absence or dysfunction of the CQI system does not in and of itself mean a system of care is constitutionally inadequate. However, CQI is so important that when it is absent or dysfunctional, it is hard for a correctional health care system to provide constitutionally adequate care.
The backbone of a CQI system is data collection. Prior to our visit, Dr. Ruiz identified a number of key pieces of data she required to conduct her evaluation of mental health services (Appendix G). Most of these pieces of data are the same basic data that would be used in a mental health CQI program. ISCI staff do not collect and monitor any of these important metrics (and, as shown in Table 2 of Appendix G, staff were not equipped to generate some of these metrics, even upon our request). Appendix G is not meant to imply lack of helpfulness on the part of ICSI staff; indeed ICSI staff members were very cooperative and willing to try to accommodate our requests. Rather, it demonstrates that the ISCI mental health program (including both the IDOC psychological and the Corizon psychiatric components) does not routinely collect key data, data that is necessary for the safe and effective management of a constitutionally adequate mental health system.
CQI activities can and should be brought to bear on each of the six major domains of the mental health treatment program addressed in this report. For example, in Section VI.1., I described the failure of intake screeners to refer newly arrived patients with SMI to mental health professionals and the serious effect this has had on patient safety. A simple CQI activity, commonly conducted at other prisons, is to periodically review a random sample of intake forms to assure that nurses are filling them out completely and correctly. ISCI does not do this. If they did, they would discover the problem and be able to correct it.
In addition to collecting this kind of statistical information, an adequate CQI program also examines serious or “sentinel events,” most notably deaths, in more detail. ISCI does not do this consistently. As previously discussed in Section V.9., IDOC does not request or receive policy-mandated death reviews from Corizon (including deaths due to suicide or other mental illness). Mental health staff do conduct a psychological autopsy after mental illness-related deaths. However, based on the two such autopsies reviewed by Dr. Ruiz, these reports do not address key CQI topics such as potential errors in patient management and areas for improvement. Mental health staff also have begun having regular meetings over dinner at which time they discuss a variety of cases. However, these meetings have no structure and generate no documented record or formal outcome and action plan.
One of the two psychological autopsies Dr. Ruiz reviewed involved a patient who recently experienced a successful suicide (also described in Section VI.1). This death may have been preventable had there been appropriate referral to mental health staff upon the patient’s arrival at ISCI and adequate response times to the acute event.30 However,
30 This patient was found hanging at 19:20. He was cut down. However, there was miscommunication and the automatic external defibrillator was not applied until approximately 19:45, more than 25 minutes after his hanging.

Special Master’s Report – February 2, 2012

Page 33

Case 1:81-cv-01165-BLW Document 822-1 Filed 03/19/12 Page 10 of 23
N o ti c e : T h i s R e p o rt i s o n l y a r e c o m m e n d a ti o n t o t h e C o u rt. It i s n o t a C o u rt O r d e r o r a d e c i s i o n b y t h e C o u rt. N e it h e r t h e I d a h o D e p a rt m e n t o f C o rr e c ti o n , n o r C o ri z o n , I n c ., i s r e q u ir e d t o a d o p t a n y o f t h e s u g g e s ti o n s o r o p i n i o n s s t a t e d i n t h e R e p o rt.
in the absence of any review, there was no mechanism to indentify and remedy these possible errors. In other words, ISCI is challenged to learn from and remember the mistakes of yesterday; system errors thus have a high likelihood of remaining and, when they do, they are destined to be repeated.
Conclusion 9. Systems to support a constitutionally adequate mental health care delivery system The state of guiding documents, the inmate grievance system, death reviews, and a mental health CQI system at ISCI is poor. While not in and of themselves unconstitutional, it is important for the Court to be aware of this and its possible contribution to other unconstitutional conditions.
Marc F. Stern, MD Special Master
Appendix A: IDOC Response to Exit Brief Appendix B: Compliance Plan, Presumptive, Special Diets Appendix C: Compliance Plan, Presumptive, Medical Care Appendix D: Compliance Plan, Presumptive, Mental Health Care Appendix E: Photograph of sick call window Appendix F: Isoniazide MAR Appendix G: Mental Health Program operational data

Special Master’s Report – February 2, 2012

Page 34

Case 1:81-cv-01165-BLW DoAcupmpeenndti8x2A2-1 Filed 03/19/12 Page 11 of 23
N o ti c e : T h i s R e p o rt i s o n l y a r e c o m m e n d a ti o n t o t h e C o u rt. It i s n o t a C o u rt O r d e r o r a d e c i s i o n b y t h e C o u rt. N e it h e r t h e I d a h o D e p a rt m e n t o f C o rr e c ti o n , n o r C o ri z o n , I n c ., i s r e q u ir e d t o a d o p t a n y o f t h e s u g g e s ti o n s o r o p i n i o n s s t a t e d i n t h e R e p o rt.

Case 1:81-cv-01165-BLW Document 822-1 Filed 03/19/12 Page 12 of 23
N o ti c e : T h i s R e p o rt i s o n l y a r e c o m m e n d a ti o n t o t h e C o u rt. It i s n o t a C o u rt O r d e r o r a d e c i s i o n b y t h e C o u rt. N e it h e r t h e I d a h o D e p a rt m e n t o f C o rr e c ti o n , n o r C o ri z o n , I n c ., i s r e q u ir e d t o a d o p t a n y o f t h e s u g g e s ti o n s o r o p i n i o n s s t a t e d i n t h e R e p o rt.

Case 1:81-cv-01165-BLW Document 822-1 Filed 03/19/12 Page 13 of 23
N o ti c e : T h i s R e p o rt i s o n l y a r e c o m m e n d a ti o n t o t h e C o u rt. It i s n o t a C o u rt O r d e r o r a d e c i s i o n b y t h e C o u rt. N e it h e r t h e I d a h o D e p a rt m e n t o f C o rr e c ti o n , n o r C o ri z o n , I n c ., i s r e q u ir e d t o a d o p t a n y o f t h e s u g g e s ti o n s o r o p i n i o n s s t a t e d i n t h e R e p o rt.

Case 1:81-cv-01165-BLW Document 822-1 Filed 03/19/12 Page 14 of 23
N o ti c e : T h i s R e p o rt i s o n l y a r e c o m m e n d a ti o n t o t h e C o u rt. It i s n o t a C o u rt O r d e r o r a d e c i s i o n b y t h e C o u rt. N e it h e r t h e I d a h o D e p a rt m e n t o f C o rr e c ti o n , n o r C o ri z o n , I n c ., i s r e q u ir e d t o a d o p t a n y o f t h e s u g g e s ti o n s o r o p i n i o n s s t a t e d i n t h e R e p o rt.

Case 1:81-cv-01165-BLW Document 822-1 Filed 03/19/12 Page 15 of 23
N o ti c e : T h i s R e p o rt i s o n l y a r e c o m m e n d a ti o n t o t h e C o u rt. It i s n o t a C o u rt O r d e r o r a d e c i s i o n b y t h e C o u rt. N e it h e r t h e I d a h o D e p a rt m e n t o f C o rr e c ti o n , n o r C o ri z o n , I n c ., i s r e q u ir e d t o a d o p t a n y o f t h e s u g g e s ti o n s o r o p i n i o n s s t a t e d i n t h e R e p o rt.

Case 1:81-cv-01165-BLW Document 822-1 Filed 03/19/12 Page 16 of 23
N o ti c e : T h i s R e p o rt i s o n l y a r e c o m m e n d a ti o n t o t h e C o u rt. It i s n o t a C o u rt O r d e r o r a d e c i s i o n b y t h e C o u rt. N e it h e r t h e I d a h o D e p a rt m e n t o f C o rr e c ti o n , n o r C o ri z o n , I n c ., i s r e q u ir e d t o a d o p t a n y o f t h e s u g g e s ti o n s o r o p i n i o n s s t a t e d i n t h e R e p o rt.

Case 1:81-cv-01165-BLW Document 822-1 Filed 03/19/12 Page 17 of 23
N o ti c e : T h i s R e p o rt i s o n l y a r e c o m m e n d a ti o n t o t h e C o u rt. It i s n o t a C o u rt O r d e r o r a d e c i s i o n b y t h e C o u rt. N e it h e r t h e I d a h o D e p a rt m e n t o f C o rr e c ti o n , n o r C o ri z o n , I n c ., i s r e q u ir e d t o a d o p t a n y o f t h e s u g g e s ti o n s o r o p i n i o n s s t a t e d i n t h e R e p o rt.

Case 1:81-cv-01165-BLW Document 822-1 Filed 03/19/12 Page 18 of 23
N o ti c e : T h i s R e p o rt i s o n l y a r e c o m m e n d a ti o n t o t h e C o u rt. It i s n o t a C o u rt O r d e r o r a d e c i s i o n b y t h e C o u rt. N e it h e r t h e I d a h o D e p a rt m e n t o f C o rr e c ti o n , n o r C o ri z o n , I n c ., i s r e q u ir e d t o a d o p t a n y o f t h e s u g g e s ti o n s o r o p i n i o n s s t a t e d i n t h e R e p o rt.

Case 1:81-cv-01165-BLW Document 822-1 Filed 03/19/12 Page 19 of 23
N o ti c e : T h i s R e p o rt i s o n l y a r e c o m m e n d a ti o n t o t h e C o u rt. It i s n o t a C o u rt O r d e r o r a d e c i s i o n b y t h e C o u rt. N e it h e r t h e I d a h o D e p a rt m e n t o f C o rr e c ti o n , n o r C o ri z o n , I n c ., i s r e q u ir e d t o a d o p t a n y o f t h e s u g g e s ti o n s o r o p i n i o n s s t a t e d i n t h e R e p o rt.

Case 1:81-cv-01165-BLW Document 822-1 Filed 03/19/12 Page 20 of 23
N o ti c e : T h i s R e p o rt i s o n l y a r e c o m m e n d a ti o n t o t h e C o u rt. It i s n o t a C o u rt O r d e r o r a d e c i s i o n b y t h e C o u rt. N e it h e r t h e I d a h o D e p a rt m e n t o f C o rr e c ti o n , n o r C o ri z o n , I n c ., i s r e q u ir e d t o a d o p t a n y o f t h e s u g g e s ti o n s o r o p i n i o n s s t a t e d i n t h e R e p o rt.

Case 1:81-cv-01165-BLW Document 822-1 Filed 03/19/12 Page 21 of 23
N o ti c e : T h i s R e p o rt i s o n l y a r e c o m m e n d a ti o n t o t h e C o u rt. It i s n o t a C o u rt O r d e r o r a d e c i s i o n b y t h e C o u rt. N e it h e r t h e I d a h o D e p a rt m e n t o f C o rr e c ti o n , n o r C o ri z o n , I n c ., i s r e q u ir e d t o a d o p t a n y o f t h e s u g g e s ti o n s o r o p i n i o n s s t a t e d i n t h e R e p o rt.

Case 1:81-cv-01165-BLW Document 822-1 Filed 03/19/12 Page 22 of 23
N o ti c e : T h i s R e p o rt i s o n l y a r e c o m m e n d a ti o n t o t h e C o u rt. It i s n o t a C o u rt O r d e r o r a d e c i s i o n b y t h e C o u rt. N e it h e r t h e I d a h o D e p a rt m e n t o f C o rr e c ti o n , n o r C o ri z o n , I n c ., i s r e q u ir e d t o a d o p t a n y o f t h e s u g g e s ti o n s o r o p i n i o n s s t a t e d i n t h e R e p o rt.

Case 1:81-cv-01165-BLW Document 822-1 Filed 03/19/12 Page 23 of 23
N o ti c e : T h i s R e p o rt i s o n l y a r e c o m m e n d a ti o n t o t h e C o u rt. It i s n o t a C o u rt O r d e r o r a d e c i s i o n b y t h e C o u rt. N e it h e r t h e I d a h o D e p a rt m e n t o f C o rr e c ti o n , n o r C o ri z o n , I n c ., i s r e q u ir e d t o a d o p t a n y o f t h e s u g g e s ti o n s o r o p i n i o n s s t a t e d i n t h e R e p o rt.

Case 1:81-cv-01165-BLW Document 822-2 Filed 03/19/12 Page 1 of 24
N o ti c e : T h i s R e p o rt i s o n l y a r e c o m m e n d a ti o n t o t h e C o u rt. It i s n o t a C o u rt O r d e r o r a d e c i s i o n b y t h e C o u rt. N e it h e r t h e I d a h o D e p a rt m e n t o f C o rr e c ti o n , n o r C o ri z o n , I n c ., i s r e q u ir e d t o a d o p t a n y o f t h e s u g g e s ti o n s o r o p i n i o n s s t a t e d i n t h e R e p o rt.

Case 1:81-cv-01165-BLW Document 822-2 Filed 03/19/12 Page 2 of 24
N o ti c e : T h i s R e p o rt i s o n l y a r e c o m m e n d a ti o n t o t h e C o u rt. It i s n o t a C o u rt O r d e r o r a d e c i s i o n b y t h e C o u rt. N e it h e r t h e I d a h o D e p a rt m e n t o f C o rr e c ti o n , n o r C o ri z o n , I n c ., i s r e q u ir e d t o a d o p t a n y o f t h e s u g g e s ti o n s o r o p i n i o n s s t a t e d i n t h e R e p o rt.

Case 1:81-cv-01165-BLW Document 822-2 Filed 03/19/12 Page 3 of 24
N o ti c e : T h i s R e p o rt i s o n l y a r e c o m m e n d a ti o n t o t h e C o u rt. It i s n o t a C o u rt O r d e r o r a d e c i s i o n b y t h e C o u rt. N e it h e r t h e I d a h o D e p a rt m e n t o f C o rr e c ti o n , n o r C o ri z o n , I n c ., i s r e q u ir e d t o a d o p t a n y o f t h e s u g g e s ti o n s o r o p i n i o n s s t a t e d i n t h e R e p o rt.

Case 1:81-cv-01165-BLW ADpopceunmdiexnBt 822-2 Filed 03/19/12 Page 4 of 24
N o ti c e : T h i s R e p o rt i s o n l y a r e c o m m e n d a ti o n t o t h e C o u rt. It i s n o t a C o u rt O r d e r o r a d e c i s i o n b y t h e C o u rt. N e it h e r t h e I d a h o D e p a rt m e n t o f C o rr e c ti o n , n o r C o ri z o n , I n c ., i s r e q u ir e d t o a d o p t a n y o f t h e s u g g e s ti o n s o r o p i n i o n s s t a t e d i n t h e R e p o rt.

Case 1:81-cv-01165-BLW Document 822-2 Filed 03/19/12 Page 5 of 24
N o ti c e : T h i s R e p o rt i s o n l y a r e c o m m e n d a ti o n t o t h e C o u rt. It i s n o t a C o u rt O r d e r o r a d e c i s i o n b y t h e C o u rt. N e it h e r t h e I d a h o D e p a rt m e n t o f C o rr e c ti o n , n o r C o ri z o n , I n c ., i s r e q u ir e d t o a d o p t a n y o f t h e s u g g e s ti o n s o r o p i n i o n s s t a t e d i n t h e R e p o rt.

Case 1:81-cv-01165-BLW Document 822-2 Filed 03/19/12 Page 6 of 24
N o ti c e : T h i s R e p o rt i s o n l y a r e c o m m e n d a ti o n t o t h e C o u rt. It i s n o t a C o u rt O r d e r o r a d e c i s i o n b y t h e C o u rt. N e it h e r t h e I d a h o D e p a rt m e n t o f C o rr e c ti o n , n o r C o ri z o n , I n c ., i s r e q u ir e d t o a d o p t a n y o f t h e s u g g e s ti o n s o r o p i n i o n s s t a t e d i n t h e R e p o rt.

Case 1:81-cv-01165-BLW Document 822-2 Filed 03/19/12 Page 7 of 24
N o ti c e : T h i s R e p o rt i s o n l y a r e c o m m e n d a ti o n t o t h e C o u rt. It i s n o t a C o u rt O r d e r o r a d e c i s i o n b y t h e C o u rt. N e it h e r t h e I d a h o D e p a rt m e n t o f C o rr e c ti o n , n o r C o ri z o n , I n c ., i s r e q u ir e d t o a d o p t a n y o f t h e s u g g e s ti o n s o r o p i n i o n s s t a t e d i n t h e R e p o rt.

Case 1:81-cv-01165-BLW Document 822-2 Filed 03/19/12 Page 8 of 24
N o ti c e : T h i s R e p o rt i s o n l y a r e c o m m e n d a ti o n t o t h e C o u rt. It i s n o t a C o u rt O r d e r o r a d e c i s i o n b y t h e C o u rt. N e it h e r t h e I d a h o D e p a rt m e n t o f C o rr e c ti o n , n o r C o ri z o n , I n c ., i s r e q u ir e d t o a d o p t a n y o f t h e s u g g e s ti o n s o r o p i n i o n s s t a t e d i n t h e R e p o rt.

Case 1:81-cv-01165-BLW Document 822-2 Filed 03/19/12 Page 9 of 24
N o ti c e : T h i s R e p o rt i s o n l y a r e c o m m e n d a ti o n t o t h e C o u rt. It i s n o t a C o u rt O r d e r o r a d e c i s i o n b y t h e C o u rt. N e it h e r t h e I d a h o D e p a rt m e n t o f C o rr e c ti o n , n o r C o ri z o n , I n c ., i s r e q u ir e d t o a d o p t a n y o f t h e s u g g e s ti o n s o r o p i n i o n s s t a t e d i n t h e R e p o rt.

Case 1:81-cv-01165-BLW Document 822-2 Filed 03/19/12 Page 10 of 24
N o ti c e : T h i s R e p o rt i s o n l y a r e c o m m e n d a ti o n t o t h e C o u rt. It i s n o t a C o u rt O r d e r o r a d e c i s i o n b y t h e C o u rt. N e it h e r t h e I d a h o D e p a rt m e n t o f C o rr e c ti o n , n o r C o ri z o n , I n c ., i s r e q u ir e d t o a d o p t a n y o f t h e s u g g e s ti o n s o r o p i n i o n s s t a t e d i n t h e R e p o rt.

Case 1:81-cv-01165-BLW Document 822-2 Filed 03/19/12 Page 11 of 24
N o ti c e : T h i s R e p o rt i s o n l y a r e c o m m e n d a ti o n t o t h e C o u rt. It i s n o t a C o u rt O r d e r o r a d e c i s i o n b y t h e C o u rt. N e it h e r t h e I d a h o D e p a rt m e n t o f C o rr e c ti o n , n o r C o ri z o n , I n c ., i s r e q u ir e d t o a d o p t a n y o f t h e s u g g e s ti o n s o r o p i n i o n s s t a t e d i n t h e R e p o rt.

Case 1:81-cv-01165-BLW Document 822-2 Filed 03/19/12 Page 12 of 24
N o ti c e : T h i s R e p o rt i s o n l y a r e c o m m e n d a ti o n t o t h e C o u rt. It i s n o t a C o u rt O r d e r o r a d e c i s i o n b y t h e C o u rt. N e it h e r t h e I d a h o D e p a rt m e n t o f C o rr e c ti o n , n o r C o ri z o n , I n c ., i s r e q u ir e d t o a d o p t a n y o f t h e s u g g e s ti o n s o r o p i n i o n s s t a t e d i n t h e R e p o rt.

Case 1:81-cv-01165-BLW Document 822-2 Filed 03/19/12 Page 13 of 24
N o ti c e : T h i s R e p o rt i s o n l y a r e c o m m e n d a ti o n t o t h e C o u rt. It i s n o t a C o u rt O r d e r o r a d e c i s i o n b y t h e C o u rt. N e it h e r t h e I d a h o D e p a rt m e n t o f C o rr e c ti o n , n o r C o ri z o n , I n c ., i s r e q u ir e d t o a d o p t a n y o f t h e s u g g e s ti o n s o r o p i n i o n s s t a t e d i n t h e R e p o rt.

Case 1:81-cv-01165-BLW Document 822-2 Filed 03/19/12 Page 14 of 24
N o ti c e : T h i s R e p o rt i s o n l y a r e c o m m e n d a ti o n t o t h e C o u rt. It i s n o t a C o u rt O r d e r o r a d e c i s i o n b y t h e C o u rt. N e it h e r t h e I d a h o D e p a rt m e n t o f C o rr e c ti o n , n o r C o ri z o n , I n c ., i s r e q u ir e d t o a d o p t a n y o f t h e s u g g e s ti o n s o r o p i n i o n s s t a t e d i n t h e R e p o rt.

Case 1:81-cv-01165-BLW Document 822-2 Filed 03/19/12 Page 15 of 24
N o ti c e : T h i s R e p o rt i s o n l y a r e c o m m e n d a ti o n t o t h e C o u rt. It i s n o t a C o u rt O r d e r o r a d e c i s i o n b y t h e C o u rt. N e it h e r t h e I d a h o D e p a rt m e n t o f C o rr e c ti o n , n o r C o ri z o n , I n c ., i s r e q u ir e d t o a d o p t a n y o f t h e s u g g e s ti o n s o r o p i n i o n s s t a t e d i n t h e R e p o rt.

Case 1:81-cv-01165-BLW Document 822-2 Filed 03/19/12 Page 16 of 24
N o ti c e : T h i s R e p o rt i s o n l y a r e c o m m e n d a ti o n t o t h e C o u rt. It i s n o t a C o u rt O r d e r o r a d e c i s i o n b y t h e C o u rt. N e it h e r t h e I d a h o D e p a rt m e n t o f C o rr e c ti o n , n o r C o ri z o n , I n c ., i s r e q u ir e d t o a d o p t a n y o f t h e s u g g e s ti o n s o r o p i n i o n s s t a t e d i n t h e R e p o rt.

Case 1:81-cv-01165-BLW Document 822-2 Filed 03/19/12 Page 17 of 24
N o ti c e : T h i s R e p o rt i s o n l y a r e c o m m e n d a ti o n t o t h e C o u rt. It i s n o t a C o u rt O r d e r o r a d e c i s i o n b y t h e C o u rt. N e it h e r t h e I d a h o D e p a rt m e n t o f C o rr e c ti o n , n o r C o ri z o n , I n c ., i s r e q u ir e d t o a d o p t a n y o f t h e s u g g e s ti o n s o r o p i n i o n s s t a t e d i n t h e R e p o rt.

Case 1:81-cv-01165-BLW Document 822-2 Filed 03/19/12 Page 18 of 24
N o ti c e : T h i s R e p o rt i s o n l y a r e c o m m e n d a ti o n t o t h e C o u rt. It i s n o t a C o u rt O r d e r o r a d e c i s i o n b y t h e C o u rt. N e it h e r t h e I d a h o D e p a rt m e n t o f C o rr e c ti o n , n o r C o ri z o n , I n c ., i s r e q u ir e d t o a d o p t a n y o f t h e s u g g e s ti o n s o r o p i n i o n s s t a t e d i n t h e R e p o rt.

Case 1:81-cv-01165-BLW DocuAmpepnetn8d2ix2-C2 Filed 03/19/12 Page 19 of 24

)

Response to the Ryan Decision #3

Page 1

I. In accordance with American Correctional Association Standards 2-4276, 2-4279, and American Medical Association Standards 134,
151, 154, the Idaho Department of Corrections shall provide onsite 24-hour health and emergency care for the inmate population. See Idaho Department of Corrections Policy and Procedure Manual, Section III, page 20. (see attached)

An on-site Correctional Medical Specialist shall be present 24 hours a day, seven (7) days a week. In additi on to thi s, he/she shall be available for the Psychological Unit 1 facility 24 hours a day, seven (7) days a week for their medical coverage. (See
Correctional Medical Specialist job description, attached.)

On-call coverage by a physician shall be 24-hour and shall in-
clude a full time medical doctor or equivalent and/or his designate. The Department of Corrections shall have in its employ two (2) additional part-time medical doctors, who will also be included in an Emergency Call-Out Roster. (See attached Form R-1) This roster shall be published monthly and shall be made available to the medical staff and security chief and lieutenants for reference.

At present the medi cal staff pub1i shes a 24-Hour On-Call Roster

)

which includes off-duty Correctional Clinical Specialists. (The Physician's Assistants and Nurse Practitioners fall under the head-

ing of Correctional Clinical Specialist.) The present On-Call

Roster also includes a rotation of Correctional Medical Specialists,

(CMS's) to be notified in medical emergencies at the Institution.

(See Form R-2, attached, and CMS Job Description, attached.)

Form R-3 exempl i fies a revi sed 24-Hour Oo-Call Roster For Correctional Clinical Specialists and Correctional Medical Specialists.
(See attached) This shall be issued to all Program Managers and Shift Lieutenants.

Fonn R-4 exempl ifies a 24-Hour On-Call Roster for dental coverage. The full time dentist or his/her designate shall be a~ailable for any "dental emergency".

N o ti c e : T h i s R e p o rt i s o n l y a r e c o m m e n d a ti o n t o t h e C o u rt. It i s n o t a C o u rt O r d e r o r a d e c i s i o n b y t h e C o u rt. N e it h e r t h e I d a h o D e p a rt m e n t o f C o rr e c ti o n , n o r C o ri z o n , I n c ., i s r e q u ir e d t o a d o p t a n y o f t h e s u g g e s ti o n s o r o p i n i o n s s t a t e d i n t h e R e p o rt.

Case 1:81-cv-01165-BLW Document 822-2 Filed 03/19/12 Page 20 of 24

Response to the Ryan Decision #3

Page 2

II. In accordance with the recent decision by Federal Judge Ryan, the following proposal for installation of first aid boxes in the housing units and othel" locations in the Institution and Community Work
Centers is submitted.

Boxes to be located in:

Unit 7 Unit 8 Uni t 9 Uni t 10
Unit 11 A Block
Pendyne Hall Correctional Industries
Motor Pool
Warehouse Auto Body Shop

Gymnasi urn
Administration Building Uni t 2! Uni t 3' RDU Unit 4
Ryder's Hall MCF Control Building 25 Sl aughterhouse Dairy
CWC-Nampa and Boise

The first aid boxes shall be permanently mounted to the wall in the control office in each of the housing units. The other boxes
shall also be mounted to walls located in a supervisor's office or in an area that is readily accessible and visable. The boxes shall be locked with a padlock, and the keys shall be on a key ring kept by the officer or supervisor on duty. There shall be also a seal
affixed to the box to insure that the boxes are not pilfered. An inventory sheet shall be rna i ntai ned in each box, and inventor; es shall be conducted weekly. Boxes shall be restocked the same day
that the supplies are used accordingly.

The responsibility for conducting inventories and restocking the first aid boxes shall be part of the duties of the CMS on the graveyard shi ft.

The cost of the first aid boxes will be $29.24 each for a total of $731.00.

Attached are floor plans of the specific buildings and areas where the boxes will be mounted and available.

'-N o ti c e : T h i s R e p o rt i s o n l y a r e c o m m e n d a ti o n t o t h e C o u rt. It i s n o t a C o u rt O r d e r o r a d e c i s i o n b y t h e C o u rt. N e it h e r t h e I d a h o D e p a rt m e n t o f C o rr e c ti o n , n o r C o ri z o n , I n c ., i s r e q u ir e d t o a d o p t a n y o f t h e s u g g e s ti o n s o r o p i n i o n s s t a t e d i n t h e R e p o rt.

Case 1:81-cv-01165-BLW Document 822-2 Filed 03/19/12 Page 21 of 24

Response to the Ryan Decision #3

Page 3

III.A series of changes will be instituted in the Medical Request

(

system. This shall be done to eliminate the suggested impeded access. (See attached pol icy)

Medical Request Form boxes,are being constructed at the Correctional Industries. A specific number will be fastened toa wall or support beam in each cell house unit. The boxes shall be placed as to allow easy access of any inmate within that housing unit or ti er.

A. As described later in this report l those individuals who do not have access to movement shall be offered the opportunity
for one-on-one contact with a designated member of the medica1 sta ff da il y •

Also attached is a schematic of the Medical Request Form boxes to be used for the Medical Request system, and a floor plan of each
housing unit which depicts the placement of each box. These boxes will cost $20.88 each, with the total being $417.60 for the entire number of boxes ordered. The locks cost $8.95 each, which would
add $179.00 to the total amount. (see Capital Outlay Proposal)

N o ti c e : T h i s R e p o rt i s o n l y a r e c o m m e n d a ti o n t o t h e C o u rt. It i s n o t a C o u rt O r d e r o r a d e c i s i o n b y t h e C o u rt. N e it h e r t h e I d a h o D e p a rt m e n t o f C o rr e c ti o n , n o r C o ri z o n , I n c ., i s r e q u ir e d t o a d o p t a n y o f t h e s u g g e s ti o n s o r o p i n i o n s s t a t e d i n t h e R e p o rt.

Case 1:81-cv-01165-BLW Document 822-2 Filed 03/19/12 Page 22 of 24

Response to Ryan Decision #3

Page 4

IV. It is the responsibility of the Medical Services Manager or his designee to supply the Infirmary and the Medical Services Program with a procedure manual for health care regimens.
The following is a standardized format of care instructio~ which will be made available for our staff to review and follow concerning in-house infirmary care. Also attached is a copy of the Protocols Manual available for medical staff review concerning specific complaints an inmate might have or present clinically .

.~'

N o ti c e : T h i s R e p o rt i s o n l y a r e c o m m e n d a ti o n t o t h e C o u rt. It i s n o t a C o u rt O r d e r o r a d e c i s i o n b y t h e C o u rt. N e it h e r t h e I d a h o D e p a rt m e n t o f C o rr e c ti o n , n o r C o ri z o n , I n c ., i s r e q u ir e d t o a d o p t a n y o f t h e s u g g e s ti o n s o r o p i n i o n s s t a t e d i n t h e R e p o rt.

Case 1:81-cv-01165-BLW Document 822-2 Filed 03/19/12 Page 23 of 24

Response to Ryan Decision #3

Page 5

v. Listed on the attached pages of Policy and Procedure are the
Security procedures for patients being transferred to a community hospital. Included in this Policy and Procedure are the security procedures to be used while inmates are under the care of the
communi ty i nsti tutions.

N o ti c e : T h i s R e p o rt i s o n l y a r e c o m m e n d a ti o n t o t h e C o u rt. It i s n o t a C o u rt O r d e r o r a d e c i s i o n b y t h e C o u rt. N e it h e r t h e I d a h o D e p a rt m e n t o f C o rr e c ti o n , n o r C o ri z o n , I n c ., i s r e q u ir e d t o a d o p t a n y o f t h e s u g g e s ti o n s o r o p i n i o n s s t a t e d i n t h e R e p o rt.

Case 1:81-cv-01165-BLW Document 822-2 Filed 03/19/12 Page 24 of 24

Response to Ryan Decision #3

Page 6

YI. The following is the staffing pattern that presently exists for the Idaho Department of Corrections main-site infinnary. (See the attached staffing flow chart and seven-day staffing pattern.)
A. Physicians
1. We have medical doctor coverage a total of 16 hours per \~eek. A contract physician is on-site Monday morning for four (4) hours and Thursday morning for four (4) hours. One of these physi cl ans is ass i gned the responsibil ity of medical director every two (2) years. The physicianns four (4) hour coverage consists of:
a. Inpa ti ent (i nfi rmary) care and eval uati on b. Medical Records review of all medical charts with
new entries c. Pharmacy list and order review d. Outpatient consultations e. Coordinate with the Medical Services Manager old and
new business f. Revi ew of surgi cal procedures ordered by the contract
special consultant physicians g. Assist ·in surgical procedures as t~equested by the Cor-
rectional Clinical Specialists on-site or the consultant physicians in the community
2. Included in the 16 hours a week is psychiatric coverage of four (4i hours on !'1onday and four (4) hours on Thursday; four hours of service provided by each of the two contract psychiatrists. This is discussed further in the psychiatric care program with Order #5.
B. Dentists
1. Dental coverage is presently four (4) days a week. The dentist implements and conducts all forms of the dental health program.
a. Presently the dent·ist has a part-time dental assistant working with him. (See Job Description) He/she is presently under contract services and is not a fulltime state emp·' oyee.
b. Twoodays a \-Ieek there is an on-site hygienist for ora"/ hygiene programs. (See Job Description) Again, he/she is not a fun-time employee but follows our code guide1i nes.
C. Physici an Extenders
1. The main portion of the present medical coverage is by the physician extenders. These members of the staff are graduates of accredited Physicianns Assistant or Nurse Practitioner
N o ti c e : T h i s R e p o rt i s o n l y a r e c o m m e n d a ti o n t o t h e C o u rt. It i s n o t a C o u rt O r d e r o r a d e c i s i o n b y t h e C o u rt. N e it h e r t h e I d a h o D e p a rt m e n t o f C o rr e c ti o n , n o r C o ri z o n , I n c ., i s r e q u ir e d t o a d o p t a n y o f t h e s u g g e s ti o n s o r o p i n i o n s s t a t e d i n t h e R e p o rt.

I

Case 1:81-cv-01165-BLW Document 822-3 Filed 03/19/12 Page 1 of 23

Response to Ryan Decision #3

Page 7

programs, certified by the Idaho Board of Medicine and the Idaho Board of Nursing to practice under the guideline set up by these organizations. These staff members have passed a national certification examination and are obligated to be recertified every six (6) years. To maintain this certification, a minimum of 100 credit hours in continuing medical education every two (2) years is required.
D. Support Staff
1. tl\edical records in the infirmary are kept by the full-time secretary/records manager and a part-time clerk. At present, the part-time records cl erk is working aimost full-time to try to maintain the records.
2. The remaining members of the staff are the ~1ed;cal Services Manager, two (2) Correctional Medical Supervisors, one (1) Registered Medical Technologist, and seven (7) Correctional ~1edical Specialists. Following are the employees' descriptions of their personal job duties as vJell a-s the State Personnel Coded Job Descriptions.

N o ti c e : T h i s R e p o rt i s o n l y a r e c o m m e n d a ti o n t o t h e C o u rt. It i s n o t a C o u rt O r d e r o r a d e c i s i o n b y t h e C o u rt. N e it h e r t h e I d a h o D e p a rt m e n t o f C o rr e c ti o n , n o r C o ri z o n , I n c ., i s r e q u ir e d t o a d o p t a n y o f t h e s u g g e s ti o n s o r o p i n i o n s s t a t e d i n t h e R e p o rt.

Case 1:81-cv-01165-BLW Document 822-3 Filed 03/19/12 Page 2 of 23

Response to Ryan Decision #3

Page 8

VII. Addition staff needed to comply with standards and the Federal Court Order are as follo\'Js.
A. One full time medical doctor or the equivalent (See attached job description)
1. In addition to this, the Department win continue to employ two contract physicians for coverage during leave and sick time that might occur with the full time medical doctor.
B. One full time dentist or the equivalent. This will increase our capabilities and expand the dental program to provide commitment examinations and followup for all inmates.
C. The Medical Service shall increase its dental assistant coverage to full time. The plan is to employ a full time person for the fundamental assistant and clerical duties. (See attached job descri pti on)
D. Although a hygienist has not been recommended, it is the feeling of the Medical Services Manager that such a position is greatly needed. The hygienist could identify and evaluate the dental needs of inmates that would normally require the time of a denti st. It is the bel i ef of the Manager and the Admi ni strati on that all new commitments need a full dental examination. With the addition of a hygienist to the dental program, these necessary examinations could be provided.
E. The Deparbnent of Corrections shall have a full time pharmacist or the equivalent. Th-is will greatly improve our credibility with the Idaho Board of Pharmacy. In additi on, accou.ntabil i ty wi th the use of a computer system is bei ng proposed;- not to mention the savings that we will realize by the practice of stocking our own medications. Note: stock medication$ will not be stored on the mainsite ground within the fen~es.
1. A secure pharmacy will have to be constructed in an area designated in the Infirmary Building. (See description in Order #4)
F. The Deparbnent of Corrections is going to hire qn additional 1.5 Medical Records Clerk. This will greatly speed up the addition of documents to the medical charts.
G. There will be a full time therapeutic dietician added to the medical staff for improvement in meeting the special dietary needs of concerned inmates. (See Dietary Order #1) This individual wi 11 be assigned to the Infi rmary and wi 11 work under the auspices of the medical doctor and the Medical Services t·1anager.
N o ti c e : T h i s R e p o rt i s o n l y a r e c o m m e n d a ti o n t o t h e C o u rt. It i s n o t a C o u rt O r d e r o r a d e c i s i o n b y t h e C o u rt. N e it h e r t h e I d a h o D e p a rt m e n t o f C o rr e c ti o n , n o r C o ri z o n , I n c ., i s r e q u ir e d t o a d o p t a n y o f t h e s u g g e s ti o n s o r o p i n i o n s s t a t e d i n t h e R e p o rt.

Case 1:81-cv-01165-BLW Document 822-3 Filed 03/19/12 Page 3 of 23

Response to Ryan Decision #3

Page 9

H. There will be an additional three (3) Correctional Medical Speccialists added to the mainsite staff to fulfil the needed 24 hour coverage recommendation. Additionally) there will 5.2 Medical Special ists hired to give the Unit 1) Idaho Security Medical Facility and the Minimum Custody Facility 24-hour coverage. This will result in a minimum of one and possibly two medical staff members on duty for the evening and graveyard shifts.
VIII. The following list is additional monies by position that the Depart~ ment of Corrections has requested to fulfil the order for more onsite licensed staff and 24-hour coverage. This is proposed as a medical package.
A. Med; cal Doctor ••.....•.••• ~ ••.•..•••..•••. $ 62.).600.00
B. Dentist ................................... . 62.,600.00
C. PhD Psychologist ...•••.••••••••.•.•..••••• 39,500.00 D. Social Worker •••..••••.•.•..•••....••••••• 28).600.00 E. Three Psychologists @ $29.900 each •.•.•••• 89 •. 700.00 F. Correctional Medical Specialists @ $19~300 19).300.00 G. Pharmaci st ........................................... "" .............. . 30).000.00 H. Dental Assistant ...••••....••....••••••••• 18.300.00
I. Dietician .................................................... . 26,.200.00
J. One Records C1 erk @ $10.,.171. ............. . 1.0.171.00 To ta 1............................................................. $ 359.,929.00

All of the above requested salaries are comparable to the surroundi ng area except one. and that is the proposed sal ary for a medical
doctor. I believe this salary is somewhat low and should be approximately $70,000.00.

Additionally~ Operating Expenses of $46,100.00 have been requested to cOver Travel~ Training, Wearing Apparel~ Office Supplies, Dental Suppl ies~. and Repairs and Maintenance. Not requested but greatly needed is an allocation for Capital Outlay. This would include equipment and furnishings for a medical doctorls office~ additional filing cabinets for a filing system which is already very full.~ and added
equipment to enable the laboratory to become more self-sufficient. An estimated figure would be $50~000. This would breakdown as follows:

1. Out-of-State Travel

Additional $ 7).000.00

2. In-State Travel 3. Printing

..II

2,.000.00 500.00

4. Subsef; pt1 ons

II

100.00

5. titiployee Training 6. Med1cal txpenses Needed

.II

1,100.00 250~.000. 00

(aut not included in reguest)
1. Professional Servi ces

.

8. Housekeeping

II

9. Medi ca 1 Supplies

II

.1 O. Offi ce Suppl i es

II

ll. Repai rs & t~aintenance Equiprnt. II

4).500.00 1.).000.00 1).000. 00 2).000.00 2,.000.00

$ 46,200.00

N o t i c e : T h i s R e p o r t i s o n l y a r e c o m m e n d a t i o n t o t h e C o u r t . I t i s n o t a C o u r t O r d e r o r a d e c i s i o n b y = t h e =C o=u r t -. = N e i t=h e r t h e I d a h o

D e p a rt m e n t o f C o rr e c ti o n , n o r C o ri z o n , I n c ., i s r e q u ir e d t o a d o p t a n y o f t h e s u g g e s ti o n s o r o p i n i o n s s t a t e d i n t h e R e p o rt.

I
•

Case 1:81-cv-01165-BLW Document 822-3 Filed 03/19/12 Page 4 of 23

Response to Ryan Decision #3

Page 10

The preceding total of $46.200.00 excludes the needed $250.000.00 for Major Medical costs. The hospital section continually ends up in the red in this Major Medical category. The specifics of this category is unforseen medical emergencies and necessary surgeries which are very costly.
Following is a breakdown of needed Capital Outlay:

1. SMAC Blood Analyzer ....••......•••.•....••.•••..• $ 15,000.00.

2. AMES Flurostat for Dilantin levels, Theo 1evel s, and Phenobarbital 1evel s................ . 5,000.00

3. Glucometer to analyze blood glucose ••••.••••••••. 1,000.00

4. First Aid boxes for emergencies in units •••••..•. 750.00

5. fYledical Request boxes .......................... .. (locks for boxes)

417.60 179.00

6. Office furnishings for M.D.~s office including: 'cabinets (nurses). exam table. desk, chairs,
office medical equipment. head lamp. instruments. 20.000.00

7. Office furnishings for dietician................. 2,000.00

8. Medical Equipment to properly supply the medical staff for examinations .......................... . 2.500.00

9. Needed furnishings for physical examination ro om i n Un i t 4" ................................ '" ........ 0 ..... II' ... 2,000.00

10. Needed furnishings for Med Room in Satellite
Fac i 1i ty ......... "...................................... II ...................... 0

2,000.00

11. Added medical fil i n9 system...................... 1.500.00 $52. 346. O(J

N o ti c e : T h i s R e p o rt i s o n l y a r e c o m m e n d a ti o n t o t h e C o u rt. It i s n o t a C o u rt O r d e r o r a d e c i s i o n b y t h e C o u rt. N e it h e r t h e I d a h o D e p a rt m e n t o f C o rr e c ti o n , n o r C o ri z o n , I n c ., i s r e q u ir e d t o a d o p t a n y o f t h e s u g g e s ti o n s o r o p i n i o n s s t a t e d i n t h e R e p o rt.

:I \: \ Case 1:81-cv-01165-BLW I I

D"o,! cument 822-3'I F'ileJ d 03,I/"1'il9, /!12
":"1' ,

Page

5';,of

"
23

I

::It\!'!>,I:"11

Response to Ryan Deci si on #3'

il',;'il,

Page 11

I'!' , I

IX. The atta~hed information is submitted as assigned regarding'Goals

#3 and #5 of the mission answering Order #3!of Judge Ryar)'s decision.

The hourly requirements listed are mandat~d:by the appropriate li-

censure boards for' each position and' by: ,the Department of Corr~ctions

training policies_: ji

i, l;i,~' l·j·iiI

.!
i;,

,;:

,

, " '! jl "

,

I

I;

J

\

i

.

The ratio, of career-oriented training and Departmental trail')ing is

7~%/25% respectively,: as suggestedlby ~he Me,~ical Ser,vices Manager.

Training for Continuing Medical Education wa$'bu~getep as being; held

, i locally as much as possible, t~ere~y:k~~pin~"traye1 at a minimum. ,

! :

,Training

I
Schedules

1
from

the

Dep~rt~:ent

:

j 1'1, . ,!.

!., I'

.

O'fijCor;-rectiqns

till,
Traini,ng

Aca-

demy are attached. They exempllfy New, Employee and Current Staff i

Medical Training Regimens that we will follow to 'keep: our ellJployees

up-to-date on Emergency Treatment.,: Following that'isour, own sched- .i

ule of In~ervice Training.

'

' i'
! I,

,i
II,! :
'!

"

i'

,

N o ti c e : T h i s R e p o rt i s o n l y a r e c o m m e n d a ti o n t o t h e C o u rt. It i s n o t a C o u rt O r d e r o r a d e c i s i o n b y t h e C o u rt. N e it h e r t h e I d a h o D e p a rt m e n t o f C o rr e c ti o n , n o r C o ri z o n , I n c ., i s r e q u ir e d t o a d o p t a n y o f t h e s u g g e s ti o n s o r o p i n i o n s s t a t e d i n t h e R e p o rt.

".( ---

I
CaseR1e:s8p1o-ncsve-0t1o16R5y-aBnLWDeciDsoi conum#e3nt 822-3 Filed 03/19/12 Page 6 o!' f 2:3, Page 12
X. It will be the responsibility of the Medical Services Manager to implement hiring medical staff to fill the needed positions. This can be accomplished by an immediate temporary hire basis, as soon as the budgetary allowances are made available, and a directive from the present Administration is presented. If enough personnel cannot be found, to fulfill this program, an advertising circumstance occurs, and the routine recruitment plan will have to be.followed.
Recruitment of the required additional staff for the Medical Services will be as follows:
1. Request and review appl ications of ,any individual s on the hiring register maintained by the Personnel Department
2. Requi sition of announcements for the Perso'nnel Commission on applicable positions
3. Formulate and run public service announcement$ on radio and television
4. Contact nursing schools on availabl~ ne~ job positions in Idaho
5. Announce and advertise in 'at least two local and international medical journals
6. Write and run advertisements in local and out-af-town newspapers
7. Notify the Idaho Board of Medicineiand the Idaho Board of Nursing announcing new positions available

XI. The medical staff, ~edical Services Manager~ and contract physicians

for the Department of Corrections are pr~sently working on a plan to

use the Family Practice Residency Progr~~ tflrqughthe University of

Washington Medical School for M.D. coverag~ at ~he Institution.

There is a total of 18 medical doctors rQ~6ttri9'throU~h·this residency

program. At present, Dr. John Mohr is fqn!1uhtinga coverage program

that' woul d enabl e the on-siteinfi rmary 't9 MVfJ th~'~quiv~l ent of a
full-time physician. With the help of our two (4) p~rt-time contract

physicians, I believe fulltime coverage is within our grasp.

,

-e" i :

.

Note: T~ese resi~ents a:e 1icensed. M.D, 'jsanq ~re active in a th:ee-
year Famlly PractlceResldency~ ThlS r€$ults in a turn.-over of S10
(6) new M.D. I s to the program each year~ " The other 12 physicians in" volved will have one or two y~?rs of exp.~ri.~Dg~,.~i,th ~~Lfl iente1e! so that we would have to orient only six indivlauals 'ln one year s time.

Additionally, arrangements are being made to employ a Dr. Guarino, who is presently on the staff at the Veterans Hospital. We would use him on a part-time (20 hours a week) basis, if only a part-time coverage
situation is achieved through the Resident Program above.

N o t i c e : T h i s R e p o r t i s o n l y a r e c o m m e n d a t i o n t o t h e C o u r t . I t i s n o t a C o u r tI O r "d e r o r a d e c i s i o n b y t h e C o u r t . N e i t h e r t h e I d a h o
D e p a rt m e n t o f C o rr e c ti o n , n o r C o ri z o n , I n c ., i s r e q u ir e d t o a d o p t a n y o f t h e s u g g e s ti o n s o r o p i n i o n s s t a t e d i n t h e R e p o rt.

CaseR1e:8sp1o-cnvse-01to16R5y-BanLWDecDisoicounm#e3nt 822-3 Filed 03/19/12 Page 7 of 23 . Page 13

Utilization of the additional proposed support staff (CMS) will be as foll ows:

1. One additional CMS' (Correctional Medical Special ist) will be
assigned to the yard during the a.m. shift. This will result in
an increased coverage of the units, allowing the medical staff to spend more time with each inmate's medical complaint •• (more contact time per inmate). The CMS who is assigned Units 7, 8, and 9
will do daily review and one-on-one contact with those individuals in a restricted custody classification. The other CMS will cover Units 10, II, and A Block for their medical needs.

2. Ideally, one of the present CMS positions can be upgraded to Unit

Charge Nurse during the day shift and provide the Unit 1 facility

with licensed coverage. Presently, we have a eMS who is an LPN

and has a great deal of experience in the mental health field. I

plan to offer her the proposed position and add a CMS position to

that unit on the day shift. This added position will provide im-

proved medical coverage and upgrade the number of medical contacts

in Units 2~ 3, and 4 on the Mental Health Facility compound. This

would also correct our deficiencies in physical examination time

we now experience. Occasionally the medical staff has some diffi-

••

culty in IIkeeping Upll with the physical exams. There are instanc~s i

when a new commitment is overlooked in the medical screening pro-

cess, and he/she is transferred to the yard or satellite facility

without proper review.

.

3. The swing shift will also have CMS coverage in the Mental Health
Facility. Presently there is no Assessment and ReceiVing Center medical staff in Unit 1 (mental Health), Unit 2, U~;t 3, or Unit 4 in the p.m. hours. With Our geriatric and chrO,oic care patients and new commitments, the added CMS coverage is well warranted.

4. Another CMS will be assigned to a swing ~hift position with his

days off during the week. This will provide a double coverage

situation during Sa-turday and Sunday <lnct ~arly afternQon and even-

ing hours when sports, visiting, and all Qtn~r. ~xtr~curriculQr

activities are at a peak.

-.

5. Two positions will be staffed on graveyard shift,;Th~se individ..
uals will have staggered days off. The staffing pattern will be arranged so as to give double coverage on Friday, ~aturday, and Sunday night. This will Rrpvide the required cQv~rage for those evenings when the greatest number of assdul ts· of"'lnciClents occur.

6. The eighth and last CMS position will be assigned the duties of IIrelief eMSIl to cover annual leave, sick leave and comp time off.

The remainder of the requested staff positions will be part of the on-site infirmary support team. These will be as follows:

N o ti c e : T h i s R e p o rt i s o n l y a r e c o m m e n d a ti o n t o t h e C o u rt. It i s n o t a C o u rt O r d e r o r a d e c i s i o n b y t h e C o u rt. N e it h e r t h e I d a h o D e p a rt m e n t o f C o rr e c ti o n , n o r C o ri z o n , I n c ., i s r e q u ir e d t o a d o p t a n y o f t h e s u g g e s ti o n s o r o p i n i o n s s t a t e d i n t h e R e p o rt.

'~

Case! R1e:s8Ip1o-ncsve-0t1o16R5y-aBnLWDecDisoioc,i nu. m#e3nt 822-3

Filed 03/19/12

Page

8

oiIiif

23Page
~

14

. '

a. Full time or equivalent M~D. b. Full time or equivalent dentist c. Full time dental assistant d. Full time records cl erk e. Full time pharmaci st

See the attached graph.

,i ~
..
.. "
N o ti c e : T h i s R e p o rt i s o n l y a r e c o m m e n d a ti o n t o t h e C o u rt. It i s n o t a C o u rt O r d e r o r a d e c i s i o n b y t h e C o u rt. N e it h e r t h e I d a h o D e p a rt m e n t o f C o rr e c ti o n , n o r C o ri z o n , I n c ., i s r e q u ir e d t o a d o p t a n y o f t h e s u g g e s ti o n s o r o p i n i o n s s t a t e d i n t h e R e p o rt.
f • ~ .: .. i·

Case R1:e8s1p-ocnvs-e01t1o65R-yBaLnWDeDciosciounme#3nt 822-3 Filed 03/19/12 Page 9 of 23 Page 15

XU. Orientation of new commitment inmates is of great importanc~.
I This can be accomplished rather easily by assigning to the
medical staff members performing the physical examinations the responsibility for that orientation. Listed below are the areas
that will be di scussed between the medical staff and the new commitment contact.

1. Medical Request system (sick call)
2. Services provided a. M.D.
b. Correctional Clinical Specialists (P.A. &F.N.P.)
c. Denti st d. Optometrist e. Psychologists

;
I
Addendums, changes, or Medical Service adjustments in procedure can

be! published on the daily call-out sheet, the Warden's inmate news-

letter, and through officers' briefings when.applicable.

,

XIII. One of the biggest problems/obstacles confronting the Medical

Services and the inmates regarding unimpeded access is the escort-

ing process. On any given day, due to circumstances beyond the

control of both secur; ty and medical staffs, ; nmates have to' be re-

scheduled because of a shortage of escort; ng personnel.: Custody

levels are such that many of our patients requirea.certain amount

of protection or control during any movement on the yard. When a

shortage of security personnel arises, that e~cortEld movement suf-

fers for these particular inmates who are ~Chp~~lEld o~ the Medical

Services call-out.

.

As shown on a listing of desirable staff presente~ to the Governor

and Legislature, additional yard escort officer~ hav~ b~en request-

ed. (See attached) When this request is fu1filled, then one of

the problems of impeded access will be ~OlvQd. This will reduce

greatly the number of re-schedules by the Medical Service for sick-
call, increase the patient load, and increa,se the number of inmate

medical contacts.

. ". '

N o ti c e : T h i s R e p o rt i s o n l y a r e c o m m e n d a ti o n t o t h e C o u rt. It i s n o t a C o u rt O r d e r o r a d e c i s i o n b y t h e C o u rt. N e it h e r t h e I d a h o D e p a rt m e n t o f C o rr e c ti o n , n o r C o ri z o n , I n c ., i s r e q u ir e d t o a d o p t a n y o f t h e s u g g e s ti o n s o r o p i n i o n s s t a t e d i n t h e R e p o rt.

CasReya1n:81D-eccvi-s0i1o1n65O-rBdLeWr #4Document 822-3 Filed 03/19/12 Page 10 of 2Pa3ge 1
In accordance with American Correctional Association Standards 2-4301. 2-4300. 2-4275. 2-4279 and American Medical Association Standards 146 •. 147. 134) 154) and 151) the Idaho Department of Corrections shall make requested changes and adjustmentsi n -its Medical Program. (See attached standards)
Note: Also attached are the proposed Policy and Procedures the Department of Corrections medical staff shall adhere to. Keep in mind that these policies are not finalized) and proper revisions in committee along with operational addendums will be added or deleted. After all revisions are made. the final draft is to be typed by Norma Clemens of Word Processing to comply with Department of Corrections format.
The order to provide a full time) or equivalent) medical doctor is being followed. (See M.D. proposal in Order #3) In addition to this) we are requesting the following:
1. Full time dentist 2. Full time dental assistant 3. One Records clerk (additional) 4. Full time registered pharmacist 5. One Correctional Medical Specialist 6. Full time registered dietician 7. Additional security escort staff
Items 1-6 are covered in Order #3.
Item 7 is covered in security staff policy of desired and needed additional staff.

)

_ '.tatS_

N o ti c e : T h i s R e p o rt i s o n l y a r e c o m m e n d a ti o n t o t h e C o u rt. It i s n o t a C o u rt O r d e r o r a d e c i s i o n b y t h e C o u rt. N e it h e r t h e I d a h o D e p a rt m e n t o f C o rr e c ti o n , n o r C o ri z o n , I n c ., i s r e q u ir e d t o a d o p t a n y o f t h e s u g g e s ti o n s o r o p i n i o n s s t a t e d i n t h e R e p o rt.

ZJ!ZiI&Wi

G.

Case 1:81-cv-01165-BLW Document 822-3 Filed 03/19/12 Page 11 of 23

Ryan Decision Order #4

Page 2'

Budgetary needs are di scussed in Response to Order #3. The package of additional costs is as follows:

Medical personnel salaries ••••.•••• $ 577,000.00

(Not included, but ne~ded)

Hygienist......................... . 19,200.00

Operati ng Expenses ••• .'•••••.••.•••• 46,100.00

(Not included, but needed as a

mi nimum amount)

.!..... Capi ta1 Outl ay ••••••••,•. 0 •• 00 • 000.. 50,000.00

Total •• 00.0 •••••• "

0 • 0 $ ••••• 692,300.00

The Business Office and Administration 'have proposed a total of $577,000.00, whi ch is a 1esseramount.,!' , That amount waul d not supply the staff with equi pment or offices to' function. : If the medical staff is to better utilize its physical plant and increase its coverage ability, the above reccommended allocation is greatly needed.
Staffing and organization again is discussed in Order #3. (See the attached organizational chart)

N o ti c e : T h i s R e p o rt i s o n l y a r e c o m m e n d a ti o n t o t h e C o u rt. It i s n o t a C o u rt O r d e r o r a d e c i s i o n b y t h e C o u rt. N e it h e r t h e I d a h o D e p a rt m e n t o f C o rr e c ti o n , n o r C o ri z o n , I n c ., i s r e q u ir e d t o a d o p t a n y o f t h e s u g g e s ti o n s o r o p i n i o n s s t a t e d i n t h e R e p o rt.

Case 1:81-cv-01165-BLW Document 822-3 Filed 03/19/12 Page 12 of 23

Ryan Decision Order #4

Page 3

Development of training is of utmost importance for the new employees and for current staff, including those in security and admini stration. Attached is a submitted exampl eof a proposed trai ning schedule to be instituted by the Department of Corrections Training Academy. (see Order #3)
Also attached is a schedule of in-service programs which will be conducted at the Infirmary fon the medical staff members for improvement of pati ent care and emergency care. (See Order #3)

N o ti c e : T h i s R e p o rt i s o n l y a r e c o m m e n d a ti o n t o t h e C o u rt. It i s n o t a C o u rt O r d e r o r a d e c i s i o n b y t h e C o u rt. N e it h e r t h e I d a h o D e p a rt m e n t o f C o rr e c ti o n , n o r C o ri z o n , I n c ., i s r e q u ir e d t o a d o p t a n y o f t h e s u g g e s ti o n s o r o p i n i o n s s t a t e d i n t h e R e p o rt.

Case 1:81-cv-01165-BLW Document 822-3 Filed 03/19/12 Page 13 of 23

Ryan Decision Order #4

Page 4

Some changes in the Infirmary physical plant are recommended and

wi 11 soon be started. These recommendations wi 11 requi re some modifi-

cations and construction to the building and will decrease impeded

access while improving medical services.

,
As mentioned in Order #3~ w~ are requesting a full time pharmacist.

This means a serviceable pharmacy unit will have to be constructed.

This will eliminate the time lag presently experienced by the patients

in receiving medications. At present there is a one-day waiting period

for medications from the time they are recommended and ordered until the

patient picks them up. This is true of most medication orders,except-

ing those of an emergency nature. In emergencies, the patient is issued

one day's medication while those, prescribed are being ordered and picked

up. A functioning pharmacy with !,stocks on hand will el iminate this.

probl em.

.

There will be two dispensing windows available.

1. Daily, controlled abusable medications will be dispensed from the window adjoining the waiting room, and weekly
medications will also be distributed from this window.

2. Other recommended prescriptions will be picked up by the patient immediately following his examination during sick call and the daily call-out at the north dispensing window
adjoining the hall. (See attached Floor Plan #1)

N o ti c e : T h i s R e p o rt i s o n l y a r e c o m m e n d a ti o n t o t h e C o u rt. It i s n o t a C o u rt O r d e r o r a d e c i s i o n b y t h e C o u rt. N e it h e r t h e I d a h o D e p a rt m e n t o f C o rr e c ti o n , n o r C o ri z o n , I n c ., i s r e q u ir e d t o a d o p t a n y o f t h e s u g g e s ti o n s o r o p i n i o n s s t a t e d i n t h e R e p o rt.

Case \1', :8i 1-cv-01165-BLW Document 822-3 Filed 03/19/12 Page 14 of 23

•

Ryan Decision Order #4

Page 5

Construction in the inmate waiting room will be necessary. A

special security "cage" waiting area will be built. This is to allow

an increased number of special custody patients to be escorted to the

Infirmary for medical evaluation. It will require fewer security per-

sonnel to guard several Administrative Segregation inmates in this area

while they are awaiting examinations or testing than the present one

officer per inmate method that is presently used.

Note: The area specified is readily visable from the officer's desk.
Also~ there will be a second security officer to provide additional control of inmate movement and behavior during regular sick call hours.
(day shift) Extra security staff are being assigned to the Infirmary during the day shift to increase safety for the special custody inmates, and to increase access and movement to receive medical attention. (See attached floor plan)

N o ti c e : T h i s R e p o rt i s o n l y a r e c o m m e n d a ti o n t o t h e C o u rt. It i s n o t a C o u rt O r d e r o r a d e c i s i o n b y t h e C o u rt. N e it h e r t h e I d a h o D e p a rt m e n t o f C o rr e c ti o n , n o r C o ri z o n , I n c ., i s r e q u ir e d t o a d o p t a n y o f t h e s u g g e s ti o n s o r o p i n i o n s s t a t e d i n t h e R e p o rt.

Case 1:81-cv-01165-BLW Document 822-3 Filed 03/19/12 Page 15 of 23

Ryan Decision Order #4

Page 6,

Modification of a wall in the inpatient ward is recommended by the Medical Services Manager. Presently there is a patient wardroom
which has no immediate bathroom facility. If there is a need to . mi cturate or defi cate by a pa ti ent or pa ti ents in thi s room, medi cal and/or custodial supervision is required. To eliminate this custodi a·1 prob1 em and improve the accessability for the inmate, a door vJi 11 be made in one wall adjoining the bathroom and shower.

See the attached documents:

1. Request for patient room construction

2. Floor pl an

3. Cost breakdown of all construction in this section

4. Work request for construction

! "
';';

~ ':

!

; !

•

N o ti c e : T h i s R e p o rt i s o n l y a r e c o m m e n d a ti o n t o t h e C o u rt. It i s n o t a C o u rt O r d e r o r a d e c i s i o n b y t h e C o u rt. N e it h e r t h e I d a h o D e p a rt m e n t o f C o rr e c ti o n , n o r C o ri z o n , I n c ., i s r e q u ir e d t o a d o p t a n y o f t h e s u g g e s ti o n s o r o p i n i o n s s t a t e d i n t h e R e p o rt.

(.

Case 1:81-cv-01165-BLW Document 822-3 Filed 03/19/12 Page 16 of 23

Ryan Decision Order #4

Page 7

Accomodations for our additional professional staff will have to be created in the Infirmary Building.
1. An office and examination room will have to be made available for one medical doctor. This can be accomplished by minor shifting of supplies and room modification. As previously mentioned in the resPQnse, the pharmacy supply room will be moved to the newly tJuilt pharmacy and dispensing room, leaving this area available to become a physician's office. The medical supply room next to this office will be changed to an examination room.
2. The medical supply and dental supply will' be combined into a central supply room in an area which is now a janitor's area with storage for cleaning supplies. The present dental supply room when it is vacated, can be converted into an office for the dietician. (See Order #1)
3. With funding available, the Medical Services Manager will have a vacant room converted into a whirlpool bath area for our physical therapy and orthopedic patients.

N o ti c e : T h i s R e p o rt i s o n l y a r e c o m m e n d a ti o n t o t h e C o u rt. It i s n o t a C o u rt O r d e r o r a d e c i s i o n b y t h e C o u rt. N e it h e r t h e I d a h o D e p a rt m e n t o f C o rr e c ti o n , n o r C o ri z o n , I n c ., i s r e q u ir e d t o a d o p t a n y o f t h e s u g g e s ti o n s o r o p i n i o n s s t a t e d i n t h e R e p o rt.

........ ..j. Case 1:81-cv-01165-BLW Document 822-3 Filed 03/19/12 Page 17 of 23

Ryan Decision Order #4

Page 8

Medical records at the Idaho State Correctional Institution are

unique compared to record keeping systems in the community. They con-

tain not only out-patient care records ~uch as those kept in a private

physician's office, but also contain the in-house Infirmary care entries

and medical care documentation.

I

As the medical chart is opened, one finds on the left entries by

the Social and Psychological staff members. This ,is kept separate from

the medical side of the chart. The right side of ,the file is separated

in categories as follows:

I

I

,i .

1. Identification sheet from with a brief 1.0. and social history

and a picture of the i nma te taken by the 1. 0 • office

'

2. Listings (white copies) of all Medical Request Forms the medical

staff has received from the patient ,

:

3. Physician's Orders-contained in this isection are medication pr'e-

scri ptions, orders for treatment, recommendations for fol10w-u'p

consultations. X-ray, and lab test requests, and special needs

orders for the inmate. Also in'this ~rder section are the

requests for memorandums covering special 'diets, clothing, or

bedding required by the patient.

4. Outpatient Treatment Record-all medical contact entries are made

here. Most patients are seen on an outpatient basis by the M.D.,

P.A., or the F.N.P. When there is a medical conta~t,' the entry

follows the S.O.A.P. format as follows:

S. Subject's complaint or prese~tation

O. Objective finding by examination

A. Assessment or impression of the problem, combining

the findings of presentation, history and exam

P. Plan of action to be started to t~Ke care of or

remedy the medical probl em

" .

5. Consultation-Entries of specialist's examinations. These include orthopedic, dermatologic, neurologic. uro1Qgic,'or any other special interest examination given by eith~r contract or communitybased physicians who are not in a general pract1~e category.

6. Lab and X-ray-Thi s category i ncl udes all forms of 1aboratory, ra-

diological or electro studies, CBC's, 'ZSR's,UA's~ ~8 channel

screens. computerized axial tomographies, electromyographics, all

X-ray studies, etc, etc, etc.

.... .

7. Prior Medical Records-All p~st record§tr~t have been requested,

including medical contacts and hospitaliiations"~ ' .. ,

.

8. History and Physical Examination-This includes the physical exam. Medical Questionnaire, and Patientls Questionnaire.

The medical charts are confidential and are kept in the Medical Records section of the Infi rmary under lock and key. A copy of a medical file is made available to the patient upon receipt of a Medical Release when he/she is discharged or paroled, or when a Medical Release Form
N o ti c e : T h i s R e p o rt i s o n l y a r e c o m m e n d a ti o n t o t h e C o u rt. It i s n o t a C o u rt O r d e r o r a d e c i s i o n b y t h e C o u rt. N e it h e r t h e I d a h o
D e p a rt m e n t o f C o rr e c ti o n , n o r C o ri z o n , I n c ., i s r e q u ir e d t o a d o p t a n y o f t h e s u g g e s ti o n s o r o p i n i o n s s t a t e d i n t h e R e p o rt.

Case 1:81-cv-01165-BLW Document 822-3 Filed 03/19/12 Page 18 of 23 i; "

Ryan Deci.sion Order #4

:

i
i \

.

!

i:; ,

. . ~.

signed by the patient is received from his/her attorney. These medical

..
: L:

files are not made available to security or other institutional staff

unless the legality of such is established.

Attached is the audit procedure for the, medical records and an :;

exampl e' of a medical record.

I

it

N o ti c e : T h i s R e p o rt i s o n l y a r e c o m m e n d a ti o n t o t h e C o u rt. It i s n o t a C o u rt O r d e r o r a d e c i s i o n b y t h e C o u rt. N e it h e r t h e I d a h o D e p a rt m e n t o f C o rr e c ti o n , n o r C o ri z o n , I n c ., i s r e q u ir e d t o a d o p t a n y o f t h e s u g g e s ti o n s o r o p i n i o n s s t a t e d i n t h e R e p o rt.

Case 1:81-cv-01165-BLW DocuAmpepnetn8d2ix2-D3 Filed 03/19/12 Page 19 of 23
N o ti c e : T h i s R e p o rt i s o n l y a r e c o m m e n d a ti o n t o t h e C o u rt. It i s n o t a C o u rt O r d e r o r a d e c i s i o n b y t h e C o u rt. N e it h e r t h e I d a h o D e p a rt m e n t o f C o rr e c ti o n , n o r C o ri z o n , I n c ., i s r e q u ir e d t o a d o p t a n y o f t h e s u g g e s ti o n s o r o p i n i o n s s t a t e d i n t h e R e p o rt.

Case 1:81-cv-01165-BLW Document 822-3 Filed 03/19/12 Page 20 of 23
N o ti c e : T h i s R e p o rt i s o n l y a r e c o m m e n d a ti o n t o t h e C o u rt. It i s n o t a C o u rt O r d e r o r a d e c i s i o n b y t h e C o u rt. N e it h e r t h e I d a h o D e p a rt m e n t o f C o rr e c ti o n , n o r C o ri z o n , I n c ., i s r e q u ir e d t o a d o p t a n y o f t h e s u g g e s ti o n s o r o p i n i o n s s t a t e d i n t h e R e p o rt.

Case 1:81-cv-01165-BLWAppDeoncduixmEent 822-3 Filed 03/19/12 Page 21 of 23
N o ti c e : T h i s R e p o rt i s o n l y a r e c o m m e n d a ti o n t o t h e C o u rt. It i s n o t a C o u rt O r d e r o r a d e c i s i o n b y t h e C o u rt. N e it h e r t h e I d a h o D e p a rt m e n t o f C o rr e c ti o n , n o r C o ri z o n , I n c ., i s r e q u ir e d t o a d o p t a n y o f t h e s u g g e s ti o n s o r o p i n i o n s s t a t e d i n t h e R e p o rt.

Case 1:81-cv-01165-BLWAppDenodcuixmFent 822-3 Filed 03/19/12 Page 22 of 23
N o ti c e : T h i s R e p o rt i s o n l y a r e c o m m e n d a ti o n t o t h e C o u rt. It i s n o t a C o u rt O r d e r o r a d e c i s i o n b y t h e C o u rt. N e it h e r t h e I d a h o D e p a rt m e n t o f C o rr e c ti o n , n o r C o ri z o n , I n c ., i s r e q u ir e d t o a d o p t a n y o f t h e s u g g e s ti o n s o r o p i n i o n s s t a t e d i n t h e R e p o rt.

Case 1:81-cv-01165-BLWAppDeoncduimx eGnt 822-3 Filed 03/19/12 Page 23 of 23
Mental Health Program Operational Data
Table 1: Mental health operational data that is not routinely collected but was ultimately assembled and available to us
-average number of inmates on psychotropic medications -average number of inmates in group therapy -average number of hours of group therapy per patient housed in Unit 16 per week -average length of time psychiatrist spends per patient encounter -average length of time psychiatric physician assistant spends per patient encounter -average number of inmates seen for suicidal ideation or placed on suicide watch per month -list of deaths secondary to self-injury or impulsivity in last 2 years -average number of inmates in Administrative Segregation who screen positive for mental illness -list of patients receiving psychotropic medications on an involuntary basis in the previous two years -analysis of inmate grievances related to mental health care, e.g. according to nature of complaints, type of service, identity of provider, etc.
Table 2: Mental health operational data that is not routinely collected and was not available to us
-average number of inmates screening positive for mental health issues at intake -average number of patients who have submitted sick call slips -list of inmates placed on suicide watch within 72 hours of admission to ISCI -list of inmates placed on suicide watch in the previous month -list of patients transferred out to a higher level of psychiatric care than available at ISCI -average length of stay in such higher level psychiatric care bed -list of inmates requiring urgent care due to self-injurious behavior or impulsivity1
1 Although this information was not provided, two separate interviews with staff indicated that approximately five inmates had been transferred out during 2011 due to self-injurious behavior.
N o ti c e : T h i s R e p o rt i s o n l y a r e c o m m e n d a ti o n t o t h e C o u rt. It i s n o t a C o u rt O r d e r o r a d e c i s i o n b y t h e C o u rt. N e it h e r t h e I d a h o D e p a rt m e n t o f C o rr e c ti o n , n o r C o ri z o n , I n c ., i s r e q u ir e d t o a d o p t a n y o f t h e s u g g e s ti o n s o r o p i n i o n s s t a t e d i n t h e R e p o rt.

Case 1:81-cv-01165-BLW Document 822-4 Filed 03/19/12 Page 1 of 2

Case 1:81-cv-01165-BLW Document 822-4 Filed 03/19/12 Page 2 of 2

 
 Case: 10-35413, 04/17/2012, ID: 8142817, DktEntry: 26-1, Page 1 of 19

FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

WALTER D. B ALLA,



Plaintiff-Appellee,

No. 10-35413

v. STATE OF I DAHO; I DAHO S TATE

 D.C. No. 1:81-cv-01165-BLW

BOARD OF C ORRECTION,

OPINION

 Defendants-Appellants.

Appeal from the United States District Court for the District of Idaho
B. Lynn Winmill, Chief District Judge, Presiding
Argued and Submitted April 13, 2011—Seattle, Washington
Filed April 17, 2012
Before: Andrew J. Kleinfeld, Barry G. Silverman, and Kim McLane Wardlaw,* Circuit Judges.
Opinion by Judge Kleinfeld

*The original panel consisted of Judge Beezer, Judge Kleinfeld, and Judge Silverman. Judge Wardlaw was drawn to replace Judge Beezer, who is since deceased. Judge Wardlaw has read the briefs, reviewed the record, and listened to tape of the oral argument.
4217

Case: 10-35413, 04/17/2012, ID: 8142817, DktEntry: 26-1, Page 2 of 19

4220

BALLA v. S TATE OF I DAHO COUNSEL

Mark A. Kubinski, Deputy Attorney General, Boise, Idaho, for the appellants.

Jason E. Prince, Stoel Rives LLP, Boise, Idaho, for the appellee.

OPINION
KLEINFELD, Senior Circuit Judge:
We address an attorneys’ fees award in a class action under the Prisoner Litigation Reform Act.
Facts
This is a class action, more than a quarter century old, by Idaho state prisoners at the Idaho State Correctional Institution (ISCI). The district court initially “was not successful in obtaining attorney representation ”1 for the prisoners, so they litigated pro se. They went to trial and won their case. The court found, in 1984, that because of deliberate indifference, without any connection to a legitimate penological purpose, the inmates were subjected to needless pain and suffering, on account of inadequate medical and psychiatric care. 2 That, plus overcrowding, and inadequate attention to housing and security, contributed to stabbings, assaults, gang rape, and sexual slavery. 3 Close custody (the classification for especially dangerous or vulnerable prisoners) was so badly managed that “[v]irtually every young man assigned to that
1Balla v. Idaho State Bd. of Corr. , 595 F. Supp. 1558, 1561 (D. Idaho 1984) (“Balla I”).
2Id. at 1568. 3Id. at 1570.

Case: 10-35413, 04/17/2012, ID: 8142817, DktEntry: 26-1, Page 3 of 19

BALLA v. S TATE OF I DAHO

4221

custody level was brutally raped. ”4 The court issued an injunction to remedy the constitutional violations. 5

Subsequently the court held hearings on compliance. 6 The prisoners were still pro se. 7 In 1987, the district court ruled
that overcrowding had worsened, to the point where it amounted to “the unnecessary and wanton infliction of pain. ”8
The court now made the injunction more precise and specific to each housing unit of the prison. 9 The court specifically lim-
ited double-celling—that is, two inmates in one cell—for
some classifications, and also limited the number of prisoners housed in some units. 10 The court expressed particular con-
cern about housing “close custody inmates, ” who “are often
volatile, violent and predatory,” with others upon whom these prisoners preyed. 11

The injunction remained in effect in 2008 and 2009, when the facts giving rise to this case occurred. The injunction prohibited, among other things: (1) putting “close custody” prisoners two in a cell instead of one in a cell, or housing more than 78 inmates in Unit 9; (2) housing more than 108 inmates in Units 10 or 11; and (3) housing more than 144 inmates in Unit 13. 12 The State was further enjoined from using “any other vehicle, scheme or mechanism designed to undermine the spirit and letter ” of the injunction. 13 No question has been raised in this case regarding the continuing validity of the injunction.

4Id. at 1579. 5Id. at 1583. 6Balla v. Bd. of Corr. , 656 F. Supp. 1108 (D. Idaho 1987) ( “Balla II”). 7Id. at 1109. 8Id. at 1115. 9Id. at 1119-20. 10Id. 11Id. at 1117. 12Id. at 1119-20. 13Id. at 1119.

Case: 10-35413, 04/17/2012, ID: 8142817, DktEntry: 26-1, Page 4 of 19

4222

BALLA v. S TATE OF I DAHO

The State of Idaho moved in 2007 to terminate the twentyyear-old injunction. The district court noted that it had previously appointed the Portland law firm, Stoel Rives LLP, to represent the prisoner class, “and the law firm worked on the litigation for almost two years without being paid for its work.” The firm subsequently was awarded a portion of the fees it had earned, and withdrew as counsel. Because of the State’s motion, the court determined that counsel was again necessary and gave notice that “the Court will attempt to locate counsel for Plaintiffs. ”

In April 2007, the State withdrew its motion to terminate the injunction. Evidently the injunction was still required to rectify constitutional violations, despite the injunction’s decades-long duration. The district court concluded that it “must appoint counsel to represent the interests of the class members because the inmates cannot proceed pro se. ” After a lack of success finding anyone else, and considering Stoel Rives’s experience and competence at representing the inmates, the court reappointed the firm. Stoel Rives submitted several interim bills. After considering objections to particular charges, the court ordered payment of amounts it calculated to be due. Those interim awards have not been appealed.

This appeal arises out of a crisis at the end of 2008 and the beginning of 2009. Idaho had been housing 650 of its prisoners in private prisons in Texas and Oklahoma. Idaho decided to terminate contracts with the private prison operators in those states, both out of a desire to save money and because of concerns about staff shortages at the private prisons. In October 2008, the State terminated the Texas contract and notified the Texas prison operator that it would remove the prisoners by January 5. But Idaho did not then have facilities in which to house the Texas prisoners. By late November, with the return date less than two months away, the Department of Correction had decided that it would convert a warehouse on the prison grounds, formerly used as an upholstery shop, into a new housing unit, to be called “Unit 24. ” The

Case: 10-35413, 04/17/2012, ID: 8142817, DktEntry: 26-1, Page 5 of 19

BALLA v. S TATE OF I DAHO

4223

plan was to have a big open area housing all the prisoners in bunk beds. Inmates would use toilet facilities in two trailers outside the building.

Stoel Rives learned of the upholstery warehouse plan from the newspapers. On December 11, the firm wrote the deputy attorney general handling the case that the plan would appear to violate the prohibition in the injunction against doublecelling and against housing inmates on “nondesigned cell areas,” that is, areas not originally intended to be used as cells. Counsel asked the State for an explanation in hopes of avoiding litigation. The State responded that it would make the project manager available for a meeting, though “due to the holidays, the time for such a meeting is somewhat limited,” to December 22, 23, 28 or 29. A December 22 meeting left a number of issues unresolved. In a January 2 email, the State advised Stoel Rives that 200 inmates would live in the converted warehouse, construction was progressing but incomplete, and that the two planned outbuildings for bathroom facilities were not yet ready.

The State arranged to bring the prisoners back from Texas before the modifications to the warehouse and the toilet facilities could be completed. Before the Texas prisoners arrived, it moved 200 prisoners from other units of the Idaho prison into the warehouse, since it planned to house some of the Texas prisoners in preexisting units. The conversion project was behind schedule, but the State did not reschedule the return of the Texas prisoners. Only one of the two planned outdoor bathroom trailers was on-site, and it was not functioning. Because the bathroom outbuildings were not yet ready, the 200 inmates already moved into the warehouse would have to share 4 toilets, 3 urinals, and 4 sinks already built into the warehouse, and would have to be transported to other units for showers. The inmates who were moved into the warehouse were notified only about 45 minutes in advance that they would be moving. Correctional officers confiscated valuable electronic items for storage elsewhere. There was a

Case: 10-35413, 04/17/2012, ID: 8142817, DktEntry: 26-1, Page 6 of 19

4224

BALLA v. S TATE OF I DAHO

shortage of plastic totes in which the prisoners were to store their personal effects. The bunk beds in the warehouse were lower quality than those in the other units. The district court found that many prisoners “were upset about their new living conditions.”

The State’s plan failed immediately, even before the prisoners returning from Texas arrived. On January 2, after the lights were turned down for the night and within a few hours of being moved to the warehouse, the 200 inmates rioted. The prison lost control. The riot “tore the place apart. ” Only two guards were in the warehouse unit. They retreated to a plexiglass-shielded control room, a protective structure in the partially converted upholstery shop. The inmates were unable to break through the plexiglass shield to get at the guards. But, “[u]ndaunted, inmates climbed onto the roof of the room and began to stomp a hole through the plywood. ” Fortunately, before the inmates succeeded, the two guards broke a window with a shovel and escaped from the rioting prisoners. The inmates then broke through into the control room, set a small fire, and rushed through the exterior doors and out of the building.

The State now had an already overcrowded prison and a destroyed warehouse it had intended to use to accommodate the 300 returning Texas prisoners. They were still not back. Despite the now unusable converted warehouse facility, the state went ahead with flying 300 inmates back from Texas, there being no better alternative. The Texas facility had arranged to cease operating when the Idaho prisoners left, and the local jails in Idaho could not hold the incoming prisoners from Texas. When Stoel Rives had met with State officials and the district judge, the director of the Department of Correction said they would do “everything possible ” to end the double-celling within 60 days. The director did not give an assurance of a date when the State would bring itself into compliance with the existing injunction, just an aspiration.

Case: 10-35413, 04/17/2012, ID: 8142817, DktEntry: 26-1, Page 7 of 19

BALLA v. S TATE OF I DAHO

4225

Because the upholstery shop had not been a subject of the injunction, the housing conditions there did not violate its express terms, though the conditions might have violated the “spirit and letter ” catch-all clause. But because the riot had made it unusable, and the State had brought back the Texas inmates anyway, it violated the letter of the injunction by double-celling inmates in the preexisting units. The State acknowledged that it had violated the population limits in letters to both Stoel Rives and the Court on January 5, 2009, though it noted this was because the upholstery warehouse had been destroyed. Stoel Rives responded with letters and telephone calls to try to work out a plan to bring the State into compliance. The State responded that it intended to end prohibited double-celling by March 1, but that plans for the warehouse had not been finalized. When Stoel Rives complained of the lack of a firm commitment to any date and a lack of any explanation of why roughly two months was necessary, the State responded that in its view that amount of time was “reasonable” and “realistic” considering “the realities of prison management.”

Stoel Rives moved, on January 16, for an order to show cause why the defendants should not be held in contempt, and for an order requiring the State to quit violating the doublecelling prohibition in the injunction by February 4, to pay $5,000 per day for each day of violation of the injunction, and to remove by March 1 one of the two beds and one of the two lockers from each cell where double-celling was prohibited. The State responded on January 30, a week before the hearing set for the motion, that as of the day before, “all 151 beds ” violating the injunction “have been vacated. ” Evidently, what was “realistic” considering “the realities of prison management” changed when the state received the contempt motion. Thus by the time the contempt motion was heard on February 18, the State had complied.

The district court held two days of hearings, and, the violation of the injunction having been rectified, declined to hold

Case: 10-35413, 04/17/2012, ID: 8142817, DktEntry: 26-1, Page 8 of 19

4226

BALLA v. S TATE OF I DAHO

the defendants in contempt. The court noted that to the extent the motion sought deadlines for compliance with the doublecelling limitations, it was moot, because the State had brought itself into compliance. The court found that the defendants’ preparation for the influx of 300 inmates from Texas was flawed, stating that it was “difficult to understand how Defendants believed they were going to retrofit a warehouse with the necessary facilities to contain a large group of prisoners in a little over four weeks. ” But the three-and-a-half week period during which the double-celling injunction provision was violated would have been considerably shorter, had the inmates not rioted. The riot created a “true exigency ” in which “no good choices were open ” to the State, other than the double-celling. Therefore, despite the “obvious missteps” in preparation of Unit 24, the court did not find that the State “intended to exceed the population caps before the riot occurred.” The court concluded that the State’s inability to comply with the double-celling provisions on account of the riot, combined with innocent intent, was a defense to contempt. The court noted that, had the State “remained noncommittal about setting a firm deadline, ” instead of quickly bringing itself into compliance after the contempt motion was filed, the motion for contempt “would have had much more force.” The court expressed a concern that, since the State had brought itself into compliance, sanctions might be punitive rather than remedial in nature, importing the criminal rather than the civil standard. The court accordingly denied the motion to hold defendants in contempt and declined to impose sanctions for the temporary violation of the injunction.

Subsequently, Stoel Rives moved for an award of $77,608.20 in attorneys’ fees, $2,249.20 in costs and expenses, plus $269.10 in postage and office supplies for the class representative. The motion was not just for the imbroglio arising out of the return of the Texas prisoners, but rather for a year and a half of monitoring, from December 11, 2007 through June 22, 2009. The State did not dispute that monitoring fees would be awardable, but disputed amounts and

Case: 10-35413, 04/17/2012, ID: 8142817, DktEntry: 26-1, Page 9 of 19

BALLA v. S TATE OF I DAHO

4227

whether some of the work was necessary, and objected that awarding anything for the contempt motion would be erroneous, because plaintiffs had not prevailed on that motion.

The district court carefully analyzed the issues and the amounts claimed, and granted in part and denied in part. The court noted that it was undisputed that plaintiffs were the prevailing party in all three Balla cases, and reasoned that under the Prisoner Litigation Reform Act and our decision in Webb v. Ada County ,14 “attorneys’ fees can be awarded for postjudgment work in enforcing and monitoring the court’s prior judgments,” without proof of a new constitutional violation. Addressing defendants’ argument that counsel should not be compensated for any work on the contempt motion, the court found that even though it had denied the motion, plaintiffs’ counsel “played a key role in monitoring and working with the IDOC to resolve the overcrowding issue. ” The court also explained that it had appointed Stoel Rives “for the specific purpose of monitoring ” the injunctive relief, and that the firm’s services were “inextricably intertwined” with monitoring compliance with the injunction on which plaintiffs had prevailed. “[T]he legal services were directly and reasonably incurred in monitoring the Balla injunctions. ” The court awarded a slightly reduced amount: $76,185.60 in attorney’s fees, $1,249.20 in costs and $46.94 in postage and office supply costs for the class representative.

The State appeals the award of attorneys’ fees and costs in connection with the prisoners’ contempt motion.

Analysis

Periodic fee awards for monitoring compliance with a final judgment are appealable if the award disposes of the attorneys’ fee issue for the work performed during the time period

14Webb v. Ada County , 285 F.3d 829 (9th Cir. 2002).

Case: 10-35413, 04/17/2012, ID: 8142817, DktEntry: 26-1, Page 10 of 19

4228

BALLA v. S TATE OF I DAHO

covered by the award. 15 We therefore have jurisdiction under 28 U.S.C. § 1291.

[1] Defendants argue that because the prisoners lost on their motion to hold defendants in contempt of court, the district court erred in awarding attorneys’ fees. We review attorneys’ fee awards for abuse of discretion 16 and matters of law de novo.17 The central legal question is whether, where a party previously prevailed and won a judgment, fees of a courtappointed monitor are barred for efforts leading to a motion that was denied. We conclude that the answer is maybe, in the appropriate exercise of discretion by the district court. We reject defendants’ suggestion that fee awards are necessarily barred, and we conclude that the district judge acted within his discretion in awarding fees in this case.

Here are the parameters of this case. First, the prisoners were and are a prevailing party in the lawsuit. They went to trial and won a judgment. Second, their subsequently appointed counsel filed a motion to hold the defendants in contempt for violating the injunction the prisoners had won, and, because the State would not commit itself to obeying the injunction by any set date, it was reasonable to file it. Third, their filing of the motion was what the Supreme Court has called in another context18 a “catalyst” spurring the defendants to conform quickly to the injunction. Fourth, the prisoners’ motion was denied. And fifth, a major reason why the motion was denied is that before it was heard, the defendants brought themselves into conformity with the injunction.

15See Madrid v. Gomez , 190 F.3d 990, 994 n.4 (9th Cir. 1999); Gates v. Rowland, 39 F.3d 1439, 1450 (9th Cir. 1994).
16Richard S. v. Dep’t of Dev. Servs. , 317 F.3d 1080, 1085 (9th Cir. 2003).
17Webb v. Ada County , 285 F.3d 829, 834 (9th Cir. 2002). 18Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Human Servs. , 532 U.S. 598, 601 (2001).

Case: 10-35413, 04/17/2012, ID: 8142817, DktEntry: 26-1, Page 11 of 19

BALLA v. S TATE OF I DAHO

4229

Defendants argue that Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Servic,e1s9 and the Seventh Circuit’s analysis in Alliance To End Repression v. City of Chicago ,20 categorically prohibit an attorneys’ fee award for filing and losing a contempt motion. Defendants do not quarrel with the proposition that the motion was a catalyst speeding their conduct to conform to the injunction, but they read Buckhannon to mean that being a catalyst alone does not suffice for an award of attorneys’ fees. That is too broad a reading of Buckhannon.

A. Monitoring fees after Buckhannon

[2] We have already decided in Prison Legal News v. Sch-
warzenegger that monitoring fees not resulting in additional relief are allowable after Buckhannon.21 Two out of three of our sister circuits to have ruled on the matter have agreed. 22
The Seventh Circuit concluded otherwise, in Alliance, holding
that if monitoring efforts do not produce a judgment or order, then under Buckhannon such legal work is not compensable. 23

19Id.
20356 F.3d 767 (7th Cir. 2004).
21Prison Legal News v. Schwarzenegger , 608 F.3d 446, 452 (9th Cir. 2010) ( “We therefore hold that PLN may recover attorneys’ fees under § 1988 for monitoring the state officials’ compliance with the parties’ settlement agreement.”).
22Cody v. Hillard , 304 F.3d 767, 773 (8th Cir. 2002) ( “[A prior courtordered consent decree] was clearly a ‘judicially sanctioned change’ in the parties’ relationship that conferred prevailing party status on the class under Buckhannon.”); Johnson v. City of Tulsa, 489 F.3d 1089, 1108 (10th Cir. 2007) (“The Decree itself was such a change [resulting in a judicially sanctioned change in the parties’ legal relationship], and attorney fees incurred for reasonable efforts to enforce that change—that is, protect the fruits of the Decree—are compensable. ”).
23Alliance To End Repression v. City of Chicago , 356 F.3d 767, 771 (7th Cir. 2004) ( “Monitoring may reduce the incidence of violations of a decree, but if it does not produce a judgment or order, then under the rule of Buckhannon it is not compensable. ”).

Case: 10-35413, 04/17/2012, ID: 8142817, DktEntry: 26-1, Page 12 of 19

4230

BALLA v. S TATE OF I DAHO

Alliance emphasized that the fees in that case were incurred by lawyers with no duty to monitor the court-ordered relief, 24 and that the huge amount of time they put into the case, far from being a catalyst bringing about conformity with the decree, was work “down the drain. ”25 For these reasons, we might agree with the Seventh Circuit on the result in that case, and it might limit Alliance were they faced with our case. The Seventh Circuit rule is phrased categorically—no fees without additional judicially ordered relief—so it is worth explaining why we reject such a categorical rule.

The compelling reason why a categorical rule as cited in Alliance is mistaken is that Buckhannon did not overrule Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air.26 Delaware Valley involved a different statute, the Clean Air Act, which allows fees “whenever the court determines such award is appropriate. ”27 But the Court did not uphold fees for post-judgment work because of the greater liberality of the statute. Instead, it applied the same standard as that for civil rights cases under the “prevailing party” provision of 42 U.S.C. § 1988(b).28 That makes Delaware Valley applicable to the “prevailing party” issue in this case. The Court noted that several circuits had held that “postjudgment monitoring of a consent decree is a compensable activity for which counsel is entitled to a reasonable fee, ”29 and concluded that participa-

24Id. at 772 ( “Neither the original nor the modified decree imposes on these lawyers any duty of operating the compliance machinery. ”).
25Id. at 770. 26478 U.S. 546 (1986). 27Sec. 304(d) of the Clean Air Act, 42 U.S.C. § 7604(d). 28Delaware Valley , 478 U.S. at 560 ( “Given the common purpose of both § 304(d) and § 1988 to promote citizen enforcement of important federal policies, we find no reason not to interpret both provisions governing attorney’s fees in the same manner. ”). 29Id. at 559.

Case: 10-35413, 04/17/2012, ID: 8142817, DktEntry: 26-1, Page 13 of 19

BALLA v. S TATE OF I DAHO

4231

tion in the postjudgment proceedings at issue was compensable.30

Buckhannon did not cite or purport in any way to overrule Delaware Valley, and the cases are easily reconciled. In Buckhannon, the Supreme Court held that “prevailing party ” fees could not be awarded to a party “that has failed to secure a judgment on the merits or a court-ordered consent decree, ” even though its efforts had “achieved the desired result because the lawsuit brought about a voluntary change in the defendant’s conduct. ”31 The Court concluded that, to be a “prevailing party ” for purposes of § 1988(b), a party must secure some material alteration in the legal relationship between the parties, and that being a “catalyst” for change does not suffice. 32

[3] Before Buckhannon came down, we had held in Keith v. Volpe that under Delaware Valley attorneys’ fees for postjudgment monitoring of a consent decree were awardable in civil rights cases, even in the absence of a contempt finding or other subsequent judicial relief. 33 In Prison Legal News we addressed whether Keith was still good law, and reconciled Delaware Valley and Buckhannon. We held that “prevailing party” status has been obtained and remains in effect when a party has obtained an enforceable settlement agreement or consent decree. 34 We rejected the Seventh Circuit’s view in Alliance that only monitoring that produces a judgment or

30Id. at 560.
31Buckhannon, 532 U.S. at 600.
32Id. at 605.
33Keith v. Volpe , 833 F.2d 850, 857 (9th Cir. 1987) ( “We hold that a finding of contempt or obstruction of implementation is not a prerequisite to an award of attorney fees for reasonable post-judgment monitoring of a consent decree. ”).
34Prison Legal News, 608 F.3d at 451 (affirming Keith’s holding that “a plaintiff who obtains a legally enforceable settlement agreement qualifies as a ‘prevailing party’ ”).

Case: 10-35413, 04/17/2012, ID: 8142817, DktEntry: 26-1, Page 14 of 19

4232

BALLA v. S TATE OF I DAHO

order is enforceable. 35 We reasoned that Keith v. Volpe was
not overruled by Buckhannon, because Buckhannon “did not mention, much less overrule, ” Delaware Valley .36

[4] Our precedents compel the conclusion that Stoel Rives’s compliance monitoring was compensable. In Johnson v. City of Tulsa , the Tenth Circuit similarly rejected Alliance, because Alliance had erroneously treated Buckhannon as though it had overruled Delaware Valley .37 Buckhannon speaks to the case where there never has been judicially ordered relief. Delaware Valley speaks to the case where there has been judicial relief, though the monitoring work is subsequent to the judicial order and produces no new order. This distinction makes practical sense for two reasons. First, injunctions do not always work effectively, without lawyers to see that the enjoined parties do what they were told to do. Second, in most cases, no orders are needed after the first, because just as night watchmen deter burglary, monitors deter violations of injunctions.

B. Compensation for a motion that was denied

The novel twist in this case is that the district court awarded what might be characterized as fees for losing. The motion for an order to show cause why the defendants should not be held in contempt was denied, because the defendants had brought themselves into conformity with the injunction between the time the motion was filed and the time it was heard, and because the State did not intentionally violate the Balla injunction. There are two aspects requiring our consideration. First, did denial of the contempt motion require denial of fees as a matter of law? And second, was the award of fees an abuse of discretion? We conclude that the answer to both questions is “No.”

35Id. 36Id. at 452. 37Johnson v. City of Tulsa , 489 F.3d 1089, 1108 (10th Cir. 2007).

Case: 10-35413, 04/17/2012, ID: 8142817, DktEntry: 26-1, Page 15 of 19

BALLA v. S TATE OF I DAHO

4233

[5] The Prisoner Litigation Reform Act controls the attorneys’ fees award in this case. 38 In actions by prisoners, it is not enough that fees are authorized under the Civil Rights Attorney’s Fees Award Act of 1976.39 Under the Prisoner Litigation Reform Act, fees “shall not be awarded, except to the extent that ” the fee was directly and reasonably incurred in proving a violation of the plaintiff ’s rights, and either the amount is proportionate to the relief ordered, or alternatively, the fee is “directly and reasonably incurred in enforcing the relief.”40 The statute provides in relevant part:

In any action brought by a prisoner who is confined to any jail, prison, or other correctional facility, in which attorney’s fees are authorized under section 1988 of this title, such fees shall not be awarded except to the extent that—

(A) the fee was directly and reasonably incurred in proving an actual violation of the plaintiff ’s rights protected by a statute pursuant to which a fee may be awarded under section 1988 of this title; and

38See 42 U.S.C. § 1997e. 3942 U.S.C. § 1988(b) provides:
In any action or proceeding to enforce a provision of sections 1981, 1981a, 1982, 1983, 1985, and 1986 of this title, title IX of Public Law 92-318, the Religious Freedom Restoration Act of 1993, the Religious Land Use and Institutionalized Persons Act of 2000, title VI of the Civil Rights Act of 1964, or section 13981 of this title, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs . . . . 4042 U.S.C. § 1997e(d)(1).

Case: 10-35413, 04/17/2012, ID: 8142817, DktEntry: 26-1, Page 16 of 19

4234

BALLA v. S TATE OF I DAHO

(B)(i) the amount of the fee is proportionately related to the court ordered relief for the violation; or

(ii) the fee was directly and reasonably incurred in enforcing the relief ordered for the violation .41

This statutory language allows for an argument that no fees
can be awarded for any work that does not “prov[e] an actual
violation,” because subsection (A) is a condition for both
(B)(i) and (B)(ii). We considered and rejected that argument in Webb v. Ada County .42 We held in Webb that that reading
had to be mistaken because if it were correct, it “would render the language of subsection (B)(ii) superfluous. ”43 That lan-
guage creates an exception to the exclusion of attorneys’ fees
where “the fee was directly and reasonably incurred in enforcing the relief ordered for the violation. ”44 The Webb court
continued:

If a postjudgment fee request could only be granted if the attorney’s services were directly linked to a discrete constitutional violation, fees incurred “in enforcing the relief ” that the court had ordered because of demonstrated previous constitutional violations, could not be awarded. 45

By expressly providing for fee awards for “enforcing” relief ordered, Webb held, Congress can only have meant that lawyers’ enforcement work after the order providing relief be compensable, even though that monitoring does not result in a second judgment or order. That construction of § 1997e(d)(1) makes more sense of the reconciliation of Dela-

41Id. (emphasis added). 42285 F.3d 829 (9th Cir. 2002). 43Id. at 834. 4442 U.S.C. § 1997e(d)(1)(B)(ii). 45Webb, 285 F.3d at 834.

Case: 10-35413, 04/17/2012, ID: 8142817, DktEntry: 26-1, Page 17 of 19

BALLA v. S TATE OF I DAHO

4235

ware Valley and Buckhannon than an alternative reading, because, with well-behaved defendants, “enforcing relief ” is achieved by monitoring alone, and there are no subsequent judgments or orders. Under Webb, the Prisoner Litigation Reform Act’s “prov[e] an actual violation” requirement is satisfied when the prisoners have previously won an injunction.

[6] That is not to say that once an injunction has been obtained, attorneys’ fees are unrestricted. The statutory scheme should be read, under Delaware Valley, Buckhannon, Prisoners Legal News , and Webb, to mean that if prisoners file an action but do not win an order or judgment establishing that they have proved a violation of their rights, no fees may be awarded. Once they have proved a violation, as by an injunction, the subsection (A) requirement has been satisfied. Then fees may be awarded proportionally to the relief granted, under subsection (B)(i). Or alternatively, for monitoring, the limitation of subsection (B)(ii) applies: the fee is allowable only if and to the extent that it is “directly and reasonably incurred in enforcing the relief ordered” in the injunction. That reading conforms both to the statutory text and to the cases. The requirement that the court exercise discretion means it must assure that the case is not being milked by a monitor after the injunction has been obtained, for fees that are unreasonable in amount, for work not reasonably performed to enforce the relief, or for work not directly related to enforcing the relief.

[7] The prisoners in this case had long ago won their injunction, so subsection (A) was satisfied, and they did not have to win further judicial relief to get paid for their lawyers’ work. But the prisoners not only did not win anything else, they lost, on their contempt motion. Can a fee be “directly and reasonably incurred in enforcing the relief ” when the work was on a motion that was denied? Here, we conclude it can. The answer might surprise one inexperienced in litigation, but such losing motions as the one at issue here are a common and effective tool for bringing about conformity to the law.

Case: 10-35413, 04/17/2012, ID: 8142817, DktEntry: 26-1, Page 18 of 19

4236

BALLA v. S TATE OF I DAHO

Such motions might be seen as the opposite of a Pyrrhic victory. Despite losing the battle over the contempt motion, the prisoners nevertheless won the war by inducing the State’s prompt return to compliance with the injunction.

[8] The district court found that even though the contempt motion was denied, Stoel Rives’s efforts, including the denied motion, “played a key role ” in resolving the overcrowding issue at the prison, and that such motions are appropriate “to ensure the injunctive relief is being complied with. ” The facts amply support the finding. Before the motion, on January 12, the best the State claimed to be able to do was use its best efforts, without any assurance of success, to conform to the injunction by the beginning of March. Stoel Rives filed the contempt motion on January 16. Thirteen days later, on January 29, more than a month earlier than its earlier anticipated date of March 1, the State was back in compliance with the injunction. This was, significantly, before the scheduled hearing on the contempt motion. The immediacy of the prison riot after the move to the warehouse shows the value of forcing the State to speed up.

The best defense against an action or motion to compel compliance with a legal obligation is compliance. Unlike the work in Alliance, a motion that brings about compliance is not work “down the drain. ” The object of the motion was to obtain compliance, not to win an order hopefully leading to compliance. The object was attained. If in a battle to take a hill, the adversary flees instead of fighting to a bloody defeat, the taking of the hill makes the battle a victory.

Probably the most common example of motions to compel compliance that are denied, but which are nevertheless successful as a practical matter, is in civil discovery. Frequently, interrogatories are not answered in 30 days as required by Fed. R. of Civ. P. 33(b)(2), and requests for production are not satisfied within 30 days as required by Rule 34. Because in matters of any complexity, the time limits are very short,

Case: 10-35413, 04/17/2012, ID: 8142817, DktEntry: 26-1, Page 19 of 19

BALLA v. S TATE OF I DAHO

4237

a lawyer typically will call a noncompliant adversary a couple of weeks after the deadline, followed by a letter a few weeks after the call. If the party still has not received its discovery or an adequate assurance, the lawyer will move for an order compelling disclosure or discovery under Rule 37(a). Rule 37(a)(5)(A) requires the court to award attorneys fees in most circumstances where “the disclosure or requested discovery is provided after the motion was filed, ” even though in such a circumstance, there would be no order compelling the party to do what it has already done. The victory sought is getting the answers or documents, not getting an order to produce them. Thus there is nothing unusual about awarding fees for losing, when the loss is caused by the effectiveness of the legal work in bringing about performance of a legal obligation.

[9] In this case, the judge had discretion to consider whether Stoel Rives’s work on the motion to compel conformity to the injunction was “directly and reasonably incurred in enforcing the relief. ” The district court acted within the bounds of its discretion in awarding fees in a reasonable amount for bringing about that conformity with the injunction. To decide whether a lawyer’s bills were “reasonably incurred,” a judge properly looks at whether what the lawyer did was reasonable when he did it, and compensates for time reasonably spent. Here, Stoel Rives’s work was what one would expect of a lawyer working for a client that could afford its efforts but that was not indifferent to the cost. The firm showed no evidence of milking the case, and the fees were “directly and reasonably incurred. ”

AFFIRMED.

Case: 10-35413, 04/17/2012, ID: 8142817, DktEntry: 26-2, Page 1 of 5

United States Court of Appeals for the Ninth Circuit

Office of the Clerk 95 Seventh Street San Francisco, CA 94103

Information Regarding Judgment and Post-Judgment Proceedings (December 2009)

Judgment • This Court has filed and entered the attached judgment in your case. Fed. R. App. P. 36. Please note the filed date on the attached decision because all of the dates described below run from that date, not from the date you receive this notice.

Mandate (Fed. R. App. P. 41; 9th Cir. R. 41-1 & -2) • The mandate will issue 7 days after the expiration of the time for filing a petition for rehearing or 7 days from the denial of a petition for rehearing, unless the Court directs otherwise. To file a motion to stay the mandate, file it electronically via the appellate ECF system or, if you are a pro se litigant or an attorney with an exemption from using appellate ECF, file one original motion on paper.

Petition for Panel Rehearing (Fed. R. App. P. 40; 9th Cir. R. 40-1) Petition for Rehearing En Banc (Fed. R. App. P. 35; 9th Cir. R. 35-1 to -3)

(1) A. •
•

Purpose (Panel Rehearing): A party should seek panel rehearing only if one or more of the following grounds exist: ► A material point of fact or law was overlooked in the decision; ► A change in the law occurred after the case was submitted which
appears to have been overlooked by the panel; or ► An apparent conflict with another decision of the Court was not
addressed in the opinion. Do not file a petition for panel rehearing merely to reargue the case.

B. Purpose (Rehearing En Banc) • A party should seek en banc rehearing only if one or more of the following
grounds exist:

Post Judgment Form - Rev. 12/2009

1

Case: 10-35413, 04/17/2012, ID: 8142817, DktEntry: 26-2, Page 2 of 5
► Consideration by the full Court is necessary to secure or maintain uniformity of the Court’s decisions; or
► The proceeding involves a question of exceptional importance; or ► The opinion directly conflicts with an existing opinion by another
court of appeals or the Supreme Court and substantially affects a rule of national application in which there is an overriding need for national uniformity.
(2) Deadlines for Filing: • A petition for rehearing may be filed within 14 days after entry of judgment. Fed. R. App. P. 40(a)(1). • If the United States or an agency or officer thereof is a party in a civil case, the time for filing a petition for rehearing is 45 days after entry of judgment. Fed. R. App. P. 40(a)(1). • If the mandate has issued, the petition for rehearing should be accompanied by a motion to recall the mandate. • See Advisory Note to 9th Cir. R. 40-1 (petitions must be received on the due date). • An order to publish a previously unpublished memorandum disposition extends the time to file a petition for rehearing to 14 days after the date of the order of publication or, in all civil cases in which the United States or an agency or officer thereof is a party, 45 days after the date of the order of publication. 9th Cir. R. 40-2.
(3) Statement of Counsel • A petition should contain an introduction stating that, in counsel’s judgment, one or more of the situations described in the “purpose” section above exist. The points to be raised must be stated clearly.
(4) Form & Number of Copies (9th Cir. R. 40-1; Fed. R. App. P. 32(c)(2)) • The petition shall not exceed 15 pages unless it complies with the alternative length limitations of 4,200 words or 390 lines of text. • The petition must be accompanied by a copy of the panel’s decision being challenged. • An answer, when ordered by the Court, shall comply with the same length limitations as the petition. • If a pro se litigant elects to file a form brief pursuant to Circuit Rule 28-1, a petition for panel rehearing or for rehearing en banc need not comply with Fed. R. App. P. 32.

Post Judgment Form - Rev. 12/2009

2

Case: 10-35413, 04/17/2012, ID: 8142817, DktEntry: 26-2, Page 3 of 5
• The petition or answer must be accompanied by a Certificate of Compliance found at Form 11, available on our website at under Forms.
• You may file a petition electronically via the appellate ECF system. No paper copies are required unless the Court orders otherwise. If you are a pro se litigant or an attorney exempted from using the appellate ECF system, file one original petition on paper. No additional paper copies are required unless the Court orders otherwise.
Bill of Costs (Fed. R. App. P. 39, 9th Cir. R. 39-1) • The Bill of Costs must be filed within 14 days after entry of judgment. • See Form 10 for additional information, available on our website at under Forms.
Attorneys Fees • Ninth Circuit Rule 39-1 describes the content and due dates for attorneys fees applications. • All relevant forms are available on our website at under Forms or by telephoning (415) 355-7806.
Petition for a Writ of Certiorari • Please refer to the Rules of the United States Supreme Court at
Counsel Listing in Published Opinions • Please check counsel listing on the attached decision. • If there are any errors in a published opinion, please send a letter in writing within 10 days to: ► West Publishing Company; 610 Opperman Drive; PO Box 64526; St. Paul, MN 55164-0526 (Attn: Kathy Blesener, Senior Editor); ► and electronically file a copy of the letter via the appellate ECF system by using “File Correspondence to Court,” or if you are an attorney exempted from using the appellate ECF system, mail the Court one copy of the letter.

Post Judgment Form - Rev. 12/2009

3

Case: 10-35413, 04/17/2012, ID: 8142817, DktEntry: 26-2, Page 4 of 5 Form 10. Bill of Costs ................................................................................................................................(Rev. 12-1-09)

United States Court of Appeals for the Ninth Circuit

BILL OF COSTS

Note:

If you wish to file a bill of costs, it MUST be submitted on this form and filed, with the clerk, with proof of service, within 14 days of the date of entry of judgment, and in accordance with 9th Circuit Rule 39-1. A late bill of costs must be accompanied by a motion showing good cause. Please refer to FRAP 39, 28 U.S.C. § 1920, and 9th Circuit Rule 39-1 when preparing your bill of costs.

v.

9th Cir. No.

The Clerk is requested to tax the following costs against:

Cost Taxable under FRAP 39, 28 U.S.C. § 1920, 9th Cir. R. 39-1
Excerpt of Record Opening Brief Answering Brief

REQUESTED Each Column Must Be Completed

ALLOWED To Be Completed by the Clerk

No. of Pages per Cost per

Docs.

Doc.

Page*

TOTAL COST

$

$

$

$

$

$

No. of Pages per Cost per

Docs.

Doc.

Page*

TOTAL COST

$

$

$

$

$

$

Reply Brief

$

$

$

$

Other**

$

$

$

$

TOTAL: $

TOTAL: $

* Costs per page may not exceed .10 or actual cost, whichever is less. 9th Circuit Rule 39-1.
** Other: Any other requests must be accompanied by a statement explaining why the item(s) should be taxed pursuant to 9th Circuit Rule 39-1. Additional items without such supporting statements will not be considered.

Attorneys' fees cannot be requested on this form.

Continue to next page.

Case: 10-35413, 04/17/2012, ID: 8142817, DktEntry: 26-2, Page 5 of 5 Form 10. Bill of Costs - Continued

I,

, swear under penalty of perjury that the services for which costs are taxed

were actually and necessarily performed, and that the requested costs were actually expended as listed.

Signature ("s/" plus attorney's name if submitted electronically) Date
Name of Counsel:

Attorney for:

(To Be Completed by the Clerk) Date

Costs are taxed in the amount of $ Clerk of Court By:

, Deputy Clerk

 
 Case 1:81-cv-01165-BLW Document 842 Filed 05/15/12 Page 1 of 32

1. Walter Sinclair, ISB #2243 E-mail: jwsinclair@Stoel.com Jason E. Prince, ISB # 7227 E-mail: jeprince@Stoel.com Allison M. Blackman, ISB #8686 E-mail: amblackman@Stoel.com STOEL RIVES LLP 101 S. Capitol Blvd, Ste 1900 Boise, ID 83702 Telephone: (208) 389-9000 Fax: (208) 389-9040
Attorneys for Plaintiffs

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF IDAHO

WALTER D. BALLA, et aI.,
Plaintiffs,
v.
IDAHO STATE BOARD OF CORRECTION, et aI.,

Case No. CV 81-1165-S-BLW
STIPULATED MOTION TO MODIFY INJUNCTIVE RELIEF

Defendants.

This Stipulated Motion to Modify Injunctive Relief (this "Stipulation") is entered into this 15th day of May 2012 by and between Plaintiffs and Defendants (collectively, the "Parties") in the lawsuit captioned as Walter Balla, et al. v. Idaho State Board o/Correction, et al., Case No.1 :81-cv-1165-BLW, United States District Court for the District of Idaho.
RECITALS
WHEREAS the Balla case was filed on May 15, 1981 as a class action challenge to prison conditions at the Idaho State Correctional Institution ("ISCI"), thereby commencing Case No.1 :81-cv-1165-BLW, United States District Court for the District ofIdaho;
WHEREAS on November 1, 1984, in Balla I, the Court ordered prison officials to do the following: (1) adopt a special dietary program for medically infirm inmates; (2) provide adequate clothing for inmates in protective custody; (3) create 24-hour emergency medical care for inmates and hire a full-time physician; (4) provide a properly staffed medical delivery system;
STIPULATED MOTION TO MODIFY INJUNCTIVE RELIEF - 1
71530786.80063811-00001

Case 1:81-cv-01165-BLW Document 842 Filed 05/15/12 Page 2 of 32
(5) establish a psychiatric care program; (6) provide adequate security staff for double-celled units; (7) report to the Court on Defendants' progress; (8) establish an inmate classification system to protect younger inmates; and (9) implement a disciplinary procedure ensuring due process protection (Balla v. Idaho St. Bd. a/Carr. (Balla 1),595 F. Supp. 1558, 1583 (D. Idaho 1984));
WHEREAS on July 11, 1985, the Court approved the compliance plans Defendants submitted in response to the Balla I Order ("Balla I Compliance Plans") consisting of the following: (1) dietary program; (2) a plan for adequate clothing for protective custody inmates; (3) a medical delivery system plan; (4) a program for psychiatric treatment; (5) implementation of security staffing for double-celled units; (6) a plan to reduce predatory attacks in protective custody units; (7) a classification procedure to protect younger inmates; and (8) a disciplinary offense procedure in compliance with due process standards (Dkt. No. 150);
WHEREAS, on May 28, 2009, the Court issued a Memorandum and Decision and Order, determining that Balla I and the Balla I Compliance Plans adopted in 1985 remained enforceable through contempt proceedings (Dkt. No. 768);
WHEREAS, on January 6,2011 the Court issued another Order finding that the appointment of a special master was appropriate to address the remedial phase of the Balla I Compliance Plans (Dkt. No. 793);
WHEREAS, on July 20, 2011, the Court appointed Dr. Marc F. Stem as special master and ordered Dr. Stem, inter alia, to "investigate and attempt to reconstruct the injunctive relief issued by the Court in Balla I, pertaining to the delivery of medical care-including special medical diets-and mental health care at the Idaho State Correctional Institution (lSCI)." The Court also instructed Dr. Stem to draft a report in which he was to assess to the extent he was able (a) the terms of the compliance plans that were adopted by the Court to remedy the constitutional violation in the areas of special diets, medical and mental health, (b) whether changes in circumstances had rendered the plans ineffective or unworkable as a practical matter, and, if still applicable, (c) whether Defendants were presently in compliance. (Dkt. No. 806);
WHEREAS, on February 2, 2012, Dr. Stem filed his Special Master's Report (Dkt. No. 822), and the Parties subsequently agreed to engage in mediation to address the following Balla I Orders only: (a) adopt a special dietary program for medically infirm inmates (Order No.1), (b) create 24-hour emergency medical care for inmates and hire a full-time physician (Order No.3), (c) provide a properly staffed medical delivery system (Order No.4), and (d) establish a psychiatric care program (Order No.5);
WHEREAS, Defendants strongly dispute the conclusions contained in the Stem Report (Dkt. No. 822), deny many of the facts contained therein and deny the legal conclusions stating that Defendants were deliberately indifferent to the constitutional rights of the Plaintiff class, which objections and denials are set forth in Defendants' "Response and Objections to Special Master's Report" (Dkt. No. 826), filed on March 30, 2012;
STIPULATED MOTION TO MODIFY INJUNCTIVE RELIEF - 2
71530786.80063811-00001

Case 1:81-cv-01165-BLW Document 842 Filed 05/15/12 Page 3 of 32
WHEREAS, Plaintiffs strongly agree with the conclusions contained in the Stem Report (Dkt. No. 822), agree with the facts contained therein and agree with the legal conclusions stating that Defendants were deliberately indifferent to the constitutional rights of the Plaintiff class, which position is set forth in Plaintiffs' "Response to Special Master's Report" (Dkt. No. 827), filed on March 30, 2012;
.WHEREAS, following mediation, the Parties entered into a Memorandum of Understanding (the "MOU") on April 6, 2012, which memorialized the Parties' desire to enter into a definitive document that set forth in greater detail the Parties' points of agreement; and
WHEREAS, seeking to resolve the outstanding class-wide injunction issues related to Orders 1,3,4, and 5 of the Balla I Order, the parties wish to execute the definitive document contemplated in the MOU and to thereby stipulate to modifying the Balla I Compliance Plans pursuant to 18 U.S.C. § 3626(b)(4).
NOW THEREFORE, in consideration of the recitals, covenants, and agreements contained herein, and for other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the Parties agree as follows:
STIPULATION
1. Recitals. The Parties hereby acknowledge that all of the Recitals stated above are true and accurate and by this reference are incorporated into and made a part of the body of this Stipulation.
2. Representations. The Parties have negotiated in good faith this Stipulation that expresses in greater detail the points of agreement set forth in the MOU.
3. Acknowledgements and Consents. The Parties each hereby acknowledge, confirm, and agree that this Stipulation addresses specific issues raised by Plaintiffs in this action relating to alleged constitutional violations with respect to medical and mental health care at ISCI and the resolution of these issues. The Parties stipulate that the terms of this Stipulation extend no further than necessary to satisfy the requirements of 18 U.S.C. § 3626(a)(1). This Stipulation shall remain in effect in accordance with the provisions set forth below.
4. Modified Compliance Plans.
4.1 Implementation. Defendants shall implement modified compliance plans (the "Modified Compliance Plans") to address certain medical and mental health concerns identified by Plaintiffs. The Modified Compliance Plans shall be broken into two categories:
a. Addendum A. (1) Addendum A modifications are those that Defendants represent they have already implemented or are ready to be implemented at ISCI, the preliminary specifics of which are set forth in Appendix A to this Stipulation.
STIPULATED MOTION TO MODIFY INJUNCTIVE RELIEF - 3
71530786.80063811-00001

Case 1:81-cv-01165-BLW Document 842 Filed 05/15/12 Page 4 of 32
(2) Defendants agree to provide further detail on the specifics of Addendum A to this Stipulation, including but not limited to further details concerning applicable IDOC policies and procedures, increases in ISCI staffing, processes developed for the Nurse Monitor Manager, Clinical Supervisor and IDOC staff to monitor the provisions of this Stipulation, and format of reports to be provided to Plaintiffs' Counsel and the Balla Class Representatives at the MM's described in Section 5. Defendants will provide an initial draft of Addendum A to Plaintiffs at the first MM.
(3) If Plaintiffs object to the level of detail provided in the proposed Addendum A, they may resort to the dispute resolution procedures set forth in Section 7.
(4) The Parties shall execute Addendum A no later than six (6) months after the Parties' execution of this Stipulation. Once executed by all Parties, Addendum A will supersede and replace Appendix A in its entirety, and Addendum A shall be filed with the Court and incorporated into the Court's order granting this Stipulation.
b. Addendum B. (1) Addendum B modifications are those that Defendants have not yet implemented at ISCI, the preliminary specifics of which are set forth in Appendix B to this Stipulation. (2) Following the execution of this Stipulation, the Parties shall continue to negotiate in good faith the specifics of Addendum B and, if necessary, may resort to the dispute resolution procedures set forth in Section 7. Defendants will provide a draft of Addendum B to Plaintiffs no later than the third MM. (3) The Parties shall execute and Defendants shall fully implement the modifications set forth in Addendum B no later than six (6) months after the Parties' execution of this Stipulation. Once executed by all Parties, Addendum B will supersede and replace Appendix B in its entirety, and Addendum B shall be filed with the Court and expressly incorporated into the Court's order granting this Stipulation.
c. Upon implementation ofthe Modified Compliance Plans, the Modified Compliance Plans shall be subject to a 2-year period of compliance monitoring by Plaintiffs (the "2-Year Compliance Monitoring Period").
d. During the 2-Year Compliance Monitoring Period, Defendants shall provide Plaintiffs' Counsel with copies of all policies, procedures, and programs adopted or modified with respect to the topics contained in this Stipulation or the Modified Compliance Plans, within thirty (30) days of such adoption or modification. To the extent certain documents provided under this Section include confidential work product ofIDOC's contracted
STIPULATED MOTION TO MODIFY INJUNCTIVE RELIEF - 4
71530786.8 0063811-00001

Case 1:81-cv-01165-BLW Document 842 Filed 05/15/12 Page 5 of 32
medical provider, the Balla Class Representatives and their counsel will execute a mutually agreeable confidentiality stipulation. Any documents falling under the confidentiality stipulation will be produced after the Court enters a Stipulated Protective Order in this matter.
4.2 Temporary Emergency Suspension.
a. Nothing in this Stipulation prevents Defendants from temporarily suspending compliance with the Modified Compliance Plans or Sections 5,6, and/or 8 as may be necessary or appropriate during any emergency (a "Temporary Emergency Suspension"). Defendants shall advise Plaintiffs' counsel of any Temporary Emergency Suspension in writing within two (2) business days of the Temporary Emergency Suspension, describing what portiones) were suspended and the reasons therefor. Defendants shall also advise Plaintiffs' counsel in writing of the termination of any Temporary Emergency Suspension under this Section within two (2) business days of the termination.
b. An emergency requiring a Temporary Emergency Suspension of compliance with the Modified Compliance Plans or Sections 5, 6 or 8 could include, and in any event shall be substantially similar to, the following: 1. Lockdown Events - Events which result in a totallockdown of the facility, with inmates not being permitted to leave their cells. Lockdown Events can include, but are not limited to: Hazardous materials incidents; escapes and/or attempted escapes; riots; natural disasters; discovery of major contraband such as drugs, firearms or other weapons; bomb threats; assaults and/or batteries affecting inmates and/or staff; severe utility outage or other facility issue that compromises inmate and/or staff security; fire, arson or attempted arson at the facility; disturbances or other individual or group actions that threaten the orderly and secure operation of the facility; and/or other incidents· involving inmates or occurring on facility property that causes death or life-threatening injuries to inmates and/or staff. 11. Secure Status Events - Events which result in restricted inmate movement, with inmates permitted to leave their cells but generally not their housing units, except for escorts to food service and/or medical appointments. Secure Status Events can include, but are not limited to: the above-identified Lockdown Events, plus physical plant or utility problems; significant weather that inhibits visibility from guard towers, i.e. fog and/or heavy snow; rape and/or sexual assault; sexual assault allegations; and/or successful or attempted suicide.
c. In the event Plaintiffs utilize the Dispute Resolution Procedure set forth in Section 7 with regard to a Temporary Emergency Suspension under this
STIPULATED MOTION TO MODIFY INJUNCTIVE RELIEF - 5
71530786.80063811-00001

Case 1:81-cv-01165-BLW Document 842 Filed 05/15/12 Page 6 of 32

Section, the Parties agree to waive compliance with the notification and meet-and-confer process set forth in Sections 7(a), (b), (c) and (d), such that the Parties proceed directly to the dispute resolution procedures set forth under Section 7(e) and, if necessary, Section 7(f). d. In the event any Temporary Emergency Suspension under this Section lasts longer than five (5) days, each day of the Temporary Emergency Suspension in excess of five (5) days shall be added to the end of the 2Year Compliance Monitoring Period.

5. Monitoring Meetings ("MM's"). Following the Parties' execution ofthis Stipulation, the Parties shall engage in MM's as follows:

5.1 Party Members Present at MM's. The following individuals shall be entitled to

attend the MM's:

a. Plaintiffs' Counsel;

b. Balla Class Representatives at ISCI;

c. Defendants' Counsel;

d. IDOC Nursing Manager Monitor;

e. IDOC Director of Education, Treatment and Re-Entry;

f. IDOC Chief Psychologist;

g. IDOC Health Services Director;

h. Other Necessary IDOC Representatives; and

i.

Representative(s) of the contract medical provider.

5.2 Monitoring Report Review. The topics addressed during each MM shall include, without limitation, the following:
a. Review of a monitoring report prepared by Defendants and approved by Plaintiffs that concerns Defendants' compliance with the Modified Compliance Plans;
b. Review of statistical data prepared by Defendants related to Defendants' compliance with the Modified Compliance Plans; and
c. Periodic review of Defendants' internal audits of the provision of special diets, medical care, and mental health care at ISCI, including without limitation: (1) ISCI Bi-Annual Audits performed by Defendants, with the March 2012 audit to be presented at the first MM; and (2) Review of any follow-up audits.
d. Specific areas of concern which may be submitted by Plaintiffs or Defendants.

5.3 Formal Meeting Minutes. Formal meeting minutes shall be promptly prepared by Defendants after each MM and reviewed and approved by Plaintiffs.

5.4. MM Timeline. During the first six (6) months following the execution of this Stipulation, MM's shall occur monthly. Subsequently, the Parties shall reassess the appropriate

STIPULATED MOTION TO MODIFY INJUNCTIVE RELIEF - 6
71530786.80063811-00001

Case 1:81-cv-01165-BLW Document 842 Filed 05/15/12 Page 7 of 32
frequency ofMM's and negotiate in good faith to reach an agreement concerning the frequency ofMM's thereafter.
6. National Commission on Correctional Health Care ("NCCHC") Compliance Audit.
6.1 Purpose. NCCHC shall conduct a final compliance audit (the "Compliance Audit"), payment for which shall be arranged by Defendants, to determine Defendants' compliance with the Modified Compliance Plans.
6.2 Selection ofNCCHC Auditors. The Parties shall negotiate in good faith in an effort to agree on the NCCHC auditors who perform the Compliance Audit, based on a roster provided by NCCHC. If the Parties are unable to reach agreement within thirty (30) days of the Parties' commencement of negotiations, NCCHC shall make the selection.
6.3 Further Refinement of Compliance Audit Details. a. Prior to the Compliance Audit, the Parties shall negotiate in good faith the specific details of how the Compliance Audit shall be conducted. b. The Parties' counsel shall work with NCCHC to develop audit tools that shall be used to determine whether Defendants have (a) attained compliance with NCCHC's standards, and (b) attained compliance with the Modified Compliance Plans; provided, however, that any compliance percentage threshold utilized shall be no lower than ninety percent (90%). c. The Compliance Audit shall include, without limitation, inmate focus groups to provide feedback to the auditors on Defendants' compliance with the Modified Compliance Plans. The inmates selected to participate in the focus groups shall be selected in a manner mutually acceptable to the Parties pursuant to good faith negotiations. Individuals present for NCCHC focus group interviews with the auditors shall only include the individuals interviewed, auditors, and correctional officers. d. As part of the Compliance Audit, the Balla Class Representatives at ISCI shall be provided an opportunity to meet with the NCCHC auditors.
6.4 Audit Schedule. The Compliance Audit shall occur two (2) months prior to the close of the 2-Year Compliance Monitoring Period.
6.5 Cure Period. If the Compliance Audit reveals any areas of non-compliance with the Modified Compliance Plans, Defendants shall have a 60-day period to remedy any such noncompliance, and then NCCHC shall promptly conduct a follow-up audit to assess whether Defendants have successfully cured the non-compliance.
6.6 Failure to Cure Non-Compliance. If Defendants fail to cure any area of noncompliance identified by NCCHC during the Compliance Audit, the injunctive relief set forth in Balla I Orders 1,3,4 or 5 related to that area of non-compliance shall remain in full force and effect and Plaintiffs shall have the right to seek from the Court any and all available legal remedies to address the situation.
STIPULATED MOTION TO MODIFY INJUNCTIVE RELIEF - 7
71530786.80063811-00001

Case 1:81-cv-01165-BLW Document 842 Filed 05/15/12 Page 8 of 32

6.7 Termination of Balla I Orders 1,3,4, and 5. Upon NCCHC's provision to the Parties and the Court, under penalty of perjury, ofwrittert certification that Defendants attained the NCCHC compliance percentage thresholds developed pursuant to Section 6.3(b) with respect to (a) the NCCHC standards, and (b) the Modified Compliance Plans (see Section 6.3(b)), the Parties shall promptly submit to the Court a stipulation that terminates the injunctive relief set forth in Orders 1, 3, 4, and 5 of Balla I, the Balla I legal claims related thereto, and the provisions of this Stipulation. Nothing in this Section shall preclude any individual class member from bringing a new individual action, or a putative class action, related to special diets, medical care, or mental health care.

7. Dispute Resolution & Enforcement of Compliance Plans.

7.1 Dispute Resolution & Enforcement Process.

a. If(i) Plaintiffs object to aspects of Defendants' proposed Addendum A or

B (see Sections 4.1 (a) and (b)), (ii) Plaintiffs believe Defendants are not in

compliance with this Stipulation or the Modified Compliance Plans, (iii)

the Modified Compliance Plans are not operating as the Parties intended,

(iv) Plaintiffs object to any aspect of the proposed Compliance Audit (see

Section 6.3), or (v) the agreed upon allowances for the Balla Class

Representatives' communication with class members are not operating as

intended (see Section 8), Plaintiffs' counsel shall provide Defendants'

counsel written notice of such non-compliance.

b. Upon receipt of such written notice, Defendants' counsel shall have five

(5) business days to respond in writing.

c. If Plaintiffs remain dissatisfied with Defendants' written response,

Plaintiffs' counsel shall provide a second written notice to Defendants'

counsel.

d. The Parties, through their counsel, shall meet and confer within five (5)

business days (or on some other mutually agreed upon date) of Plaintiffs'

second written notice if the issue remains unresolved.

e. If the Parties' counsel remain unable to resolve their dispute, the Parties'

counsel shall meet with the ADR coordinator for the District ofIdaho

within three (3) business days of counsels' meet-and-confer session.

f.

If the Parties' dispute remains unresolved upon conclusion of the ADR

coordinator's involvement, either Party's counsel may submit the dispute

to Judge Carter, who shall have the full authority of a federal judge to

enforce the terms of the Stipulation and the Modified Compliance Plans,

or otherwise determine the outcome of any dispute arising under Section

7.1(a).

g. In the event Judge Carter becomes incapacitated and is unable to perform

his duties under this Stipulation, the authority to resolve disputes and

enforce the terms ofthis Stipulation and the Modified Compliance Plans

shall return to the current presiding judge in the Balla case.

h. Throughout the dispute resolution process set forth above, the Parties'

communications, whether in writing, electronic, verbal or other form, shall

be subject to F.R.E. 408.

STIPULATED MOTION TO MODIFY INJUNCTIVE RELIEF - 8
7I530786.8 00638 I I-0000 I

Case 1:81-cv-01165-BLW Document 842 Filed 05/15/12 Page 9 of 32

1.

The Parties agree that Judge Carter's role, as a federal judge capable of

resolving disputes and enforcing the terms of this Stipulation and the

Modified Compliance Plans as to Balla IOrders 1,3,4 and 5, shall not

prevent him from acting as a mediator in any other aspect of the Balla

case.

8. Balla Class Representatives' Communication with Class Members. The Parties agree to negotiate in good faith to ensure the Balla Class Representatives at all times have adequate channels of communication with other members of the inmate class, such that the Balla Class Representatives can actively participate in monitoring Defendants' compliance with the
Modified Compliance Plans. These channels of communication shall include:

8.1 Gym Pass. Each of the Balla Class Representatives will be provided with an anytime gym pass. The anytime gym pass shall allow Balla Class Representatives to have gym access to all inmates in Units 7, 9, 10, 11, 13, 14, and 24; General Population inmates in Unit 15; non-acute inmates in Unit 16; and inmates in the Medical Annex.
a. As of the date of this Stipulation, recreation is open from 0800 hours until 2100 hours Monday thru Friday. On Saturday and Sunday, recreation is opened upon completion of the breakfast feeding and remains open until 2100 hours.
b. The opening times identified above may be delayed in the event of a Lockdown or Secure Status Event. A delay in opening of the gym does not constitute a Temporary Emergency Suspension under Section 4.2.
c. The Balla Class Representatives will be provided access to the gym during these timeframes for the purpose of meeting with class members concerning the medical and mental health care issues addressed in the Modified Compliance Plans (or any drafts thereof).
d. Nothing in this Section prevents the Balla Class Representatives from permitted gym activities while they are accessing the gym areas pursuant to this Section.

8.2 Access to Specified Units. The Balla Class Representatives shall be provided access to inmates in the following units according to the following schedule:

a. Medical Long Term Care - First Monday of every month from 08001000;
Medical Annex - First Tuesday of every month from 0800-1000;

Unit 15 (RDU Inmates) - First Wednesday of every month:
Odd Days - Upper Level from 900-1100 I Lower Level from 1400-1600; Even Days - Lower Level from 900-1100 I Upper Level from 1400-1600

b. Only one Balla Class Representative at a time will be allowed to enter a living area to meet with inmates.

STIPULATED MOTION TO MODIFY INJUNCTIVE RELIEF - 9
71530786.8 0063811-00001

Case 1:81-cv-01165-BLW Document 842 Filed 05/15/12 Page 10 of 32
c. Inmates in each of the above identified Units shall be given prior notification of the Balla Class Representatives' scheduled access.
d. The Balla Class Representatives shall be provided access to the above units during these timeframes for the sole purpose of meeting with class members concerning the medical and mental health care issues addressed in the Modified Compliance Plans (or any drafts thereof).
e. Within five (5) business days of the Court's entry of an order granting this Stipulation, the schedule set forth in Section 8.2(a), along with a mutually agreeable explanation of the schedule's purpose and its relation to this Stipulation, shall be posted on the dayroom bulletin boards in each housing unit at ISCI, and shall also be made available for check-out from each ISCI housing unit control center and the ISCI Resource Center
8.3 Meeting with Nurse Monitor. On or about the 10th of every month, the Balla Class Representatives shall have the opportunity to meet with IDOC's Nurse Manager Monitor and a Deputy Warden or Warden from ISCI. This meeting shall be scheduled for one hour. This meeting shall be in addition to the Monitoring Meetings referenced in Section 5.
8.4 Temporary Emergency Suspension Provision. In the event of a Temporary Emergency Suspension, the access times listed herein shall be rescheduled at the earliest opportunity by an ISCI Deputy Warden or Warden.
8.5 Grievance Process. This Section only details processes for the Balla Class Representatives to communicate with class members for the purpose of monitoring compliance with the Modified Compliance Plans. Nothing herein substitutes or otherwise replaces the Grievance Process set forth in IDOC Standard Operating Procedure 316.02.01.001. Inmates still must utilize the procedures set forth in IDOC Standard Operating Procedure 316.02.01.001 in order to notify the facility of any concerns and to exhaust their administrative remedies.
8.6 Appointment of Class Representatives. Prior to the first MM, the Parties shall negotiate in good faith a stipulation regarding the appointment of additional Balla Class Representatives, such that there are no fewer than five (5) Balla Class Representatives at ISCI during the MM's and 2-Year Compliance Monitoring Period.
9. Plaintiffs' Right to Seek Medical Expertise. Plaintiffs reserve the right to petition the Court for federal funds to obtain a medical expert to provide Plaintiffs an independent review of the sufficiency of any aspect of the Modified Compliance Plans.
10. Individual Claims. Nothing in the Stipulation shall preclude any individual Plaintiff class member from bringing his own individual claim related to his own special diet, medical care, or mental health care.
STIPULATED MOTION TO MODIFY INJUNCTIVE RELIEF - 10
7I530786.8 00638 I I-0000 I

Case 1:81-cv-01165-BLW Document 842 Filed 05/15/12 Page 11 of 32
11. Miscellaneous.
11.1 Amendment. This Stipulation may be amended or modified only explicitly in a writing signed by the Parties to this Stipulation.
11.2 Successors and Assigns. This Stipulation shall be binding upon the Parties and their successors and assigns.
11.3 Merger and Integration. This Stipulation, the Appendices attached hereto, and the to-be-adopted Addenda (i.e., the Modified Compliance Plans) constitute the entire agreement between the Parties with respect to the subject matter of this Stipulation, and supersede all prior negotiations, agreements, and understandings with respect thereto.
11.4 Documents Referenced in Recitals. Defendants shall make available to Plaintiffs all documents referenced in the above Recitals through check-out from each ISCI housing unit control center, along with the ISCI Resource Center.
11.5 Documents Referenced in Modified Compliance Plans. Defendants shall make available for Plaintiffs' counsel all documents referenced in the Modified Compliance Plans (including any drafts thereof) upon Plaintiffs' request. Ifnecessary, the Parties shall enter into a stipulated protective order regarding the confidentiality of documents.
11.6 Section References. All references herein to a specific "Section" or "Sections" are to the applicable Section or Sections of this Stipulation.
11.7 Governing Law. This Stipulation shall be governed by and construed in accordance with the laws of the State of Idaho, excluding its conflict of laws rules.
11.8 Severability. If any provision or application of this Stipulation is held unlawful or unenforceable in any respect, such illegality or unenforceability shall not affect other provisions or application which can be given effect and this Stipulation shall be construed as if the unlawful or unenforceable provision or application had never been contained in this Stipulation or prescribed by this Stipulation.
11.9 Interpretations; Headings. No provision of this Stipulation shall be interpreted or construed against any Party because that Party or its legal representative drafted that provision. Each of the Parties hereto shall be deemed to have drafted this Stipulation. The rule of law that provides that ambiguities, inconsistencies and the like shall be construed against the author of a document or contract shall not apply to this Stipulation.
11.10 Authorization. This Stipulation has been duly and validly authorized by all necessary action on the part of all Parties hereto.
Each of Plaintiffs and Defendants have caused a duly authorized representative to execute this Stipulation as of May 15,2012.
STIPULATED MOTION TO MODIFY INJUNCTIVE RELIEF - 11
71530786.8 0063811-00001

Case 1:81-cv-01165-BLW Document 842 Filed 05/15/12 Page 12 of 32 RESPECTFULLY SUBMITTED this 15th day of May, 2012.

PLAINTIFFS
Balla Class Representative
~1Z.dt~

~t..""z/2 Lance Wood Balla Class Representative

DEFENDANTS

o Department of Correction PLAINTIFFS' COUNSEL

DEFENDANTS'COUNSEL

Allison M. Blackman Attorneys for Plaintiffs

Colleen Zahn Attorneys for Defendant

STIPULATED MOTION TO MODIFY INJUNCTIVE RELIEF - 12
71530786.80063811-00001

Case 1:81-cv-01165-BLW Document 842 Filed 05/15/12 Page 13 of 32

CERTIFICATE OF SERVICE

I hereby certify that on May 15,2012, I served a copy of the foregoing STIPULATED MOTION TO MODIFY INJUNCTIVE RELIEF on CM/ECF Registered Participants as reflected on the Notice of Electronic Filing as follows:

Paul R. Panther ppanther@ag.idaho.gov

Mark A. Kubinski mkubinsk@idoc.idaho.gov

William Michael Loomis wloomis@idoc.idaho.gov

Michael S. Gilmore Deputy Attorney General mike.gilmore@ag.idaho.gov
Colleen D. Zahn czahn@idoc.idaho.gov
Marc Stem marcstern@live.com

n~~--- ~on E. Prince

_J

Allison M. Blackman

STIPULATED MOTION TO MODIFY INJUNCTIVE RELIEF - 13
71530786.80063811-00001

APPENDIX A (ITEMS COMPLETED AND IMPLEMENTED) Walter Balla, et. al. v. Idaho State Board o/Correction, et. al.
Case No. 1:81-cv-1165-BLW

Case 1:81-cv-01165-BLW Document 842 Filed 05/15/12 Page 14 of 32

Plaintiffs' Concern
Address gaps in diet-related grievances (confirm that all grievances go through the Food Service Supervisor)

Page Number from Stern Report Page 7

IDOC Action
1. IDOC Food Service Manager will be the level one reviewer of medical diet-related grievances

2. rDOC Health Services Director to conduct appellate review of medical diet-related grievances

3. rDOC ongoing compliance plan and reporting 4. rDOC creation of mechanisms to address isolated
events
• rDOC Food Services Manager to review all medical diet related grievances monthly to identify any issues and provide details concerning those grievances during the monthly Monitoring Meetings (MM)·
• rDOC kitchen staff will follow up on those
instances where the diet ordered was not provided in a timely manner, identify corrective action steps, and report back to the Health Services Director

I
APPENDIX A TO DEFINITIVE AGREEMENT - 1

5. rDOC Nurse Manager Monitor to provide ongoing QA and validate reporting
• rDOC Nurse Manager Monitor will participate in
the MM meetings, follow up on any medical dietrelated grievances that have not been resolved, and report back to the IDOC Health Services Director concerning the grievance resolution
• rDOC Nursing Manager Monitor to track medical

Case 1:81-cv-01165-BLW Document 842 Filed 05/15/12 Page 15 of 32

Address delays in ordering or communication to the kitchen of Page 7 special diets upon arrival of new patients and new orders to ISCI
APPENDIX A TO DEFINITIVE AGREEMENT - 2

diet-related grievances and trend on a weekly basis

the amount of time from physician order to

offender receiving new diet

• IDOC Nursing Manager Monitor to provide a

weekly summary report to IDOC Health Services

Director using newly developed monitoring tool

l. IDOC ongoing compliance plan and reporting

,

2. IDOC creation of mechanisms to address isolated

events

I

• ISCI food services staff will communicate to the
IDOC Food Services Manager and Corizon staff all

delays in ordering medically ordered special diets,

or communication issues concerning medically

ordered special diets

i

• The Food Services Manager and Corizon staff will

work to identify and resolve systematic issues ,
concerning such diets, and report resolution to the

IDOC Health Services Director

3. IDOC Nurse Manager Monitor to provide ongoing QA

and validate reporting concerning medically prescribed

special diets

• IDOC Nurse Manager Monitor will participate in

I

the MM meetings, and follow up on any delay

issues concerning medically ordered diets that have

not been resolved

4. Corizon staff to address oversight and ensure medically prescribed special diets communicated to ISCI kitchen staff in a timely manner
• Timely implementation of a medically prescribed
special diet is considered to be: (a) implementation within the same day prescribed for individuals who are unable to intake sufficient calories and nutrients in the absence of the prescribed diet; and (b) within

Case 1:81-cv-01165-BLW Document 842 Filed 05/15/12 Page 16 of 32

Address delays/ lack of response (time delays/ referrals) to HSRs Page 8

Address poor quality of nursing care when delivered; also look to issues at ROU

Page 8

APPENDIX A TO DEFINITIVE AGREEMENT - 3

2-3 days for individuals who are able to intake calories and nutrients between the time of prescription and time of implementation l. lOOC added two positions in 2011: (1) a monitor/nurse manager for lOOC; and (2) an ombudsman for Corizon, both of which participate in responding to medically-related grievances and concerns, and in auditing response time to HSR's
2. lOOC monitoring process to ensure response, timeliness, and quality
• lOOC Nurse Manager Monitor audits 10% ofthe
HSR's weekly to ensure offenders were seen in a timely manner
• Monitor will review, trend, and analyze findings
specific to instances of delay or non-responsiveness to HSRs, follow up on systematic issues with Corizon, identify and address anomalies with Corizon, and report back to the lOOC Health Services Director l. Corizon currently employs RN oversight of LPN use of protocols during sick call
2. lOOC Nurse Manager Monitor examines process to ensure response, timeliness, and quality
• lOOC Monitor reviews 10% of randomly selected
responses to HSR's to identify and address processes or activities that are non-effective or cause delays, follow up on systematic issues in process and clinical appropriateness, identify and address anomalies, and report back to the lOOC Health Services Director.
3. This will be a core item for RN supervisor review
• Corizon RN supervisor will randomly pull 10% of
HSR's and review for responsiveness, timeliness,

Case 1:81-cv-01165-BLW Document 842 Filed 05/15/12 Page 17 of 32

Address concerns related to staff competency and that certain systems for selecting and training qualified stafTI detect and respond to incompetent staff

Page 19

Address lack of confidentiality during care at sick call/pill call Pages 8, 10

Address the poor quality of medical care when it is delivered-Increase the availability of RN' s to respond during Emergency Responses

Page 11

Address/confirm the continuity of care upon return from hospital, ER, or pharmacy visits [Off-site care]
----
APPENDIX A TO DEFINITIVE AGREEMENT - 4

Page 13

and clinical appropriateness. 1. IDOC/Corizon to provide training, training content,
training calendar, recruitment materials, selection process and orientation
2. Corizon conducts annual performance evaluations for clinical staff
3. Corizon staff evaluates clinical staff competency
4. Corizon's Regional Medical Director conducts:
• Quarterly peer review on midIeve1providers • Yearly peer review on physicians
1. IDOC added one LPN to pharmacy staff in July 2011
2. All sick call assessments are conducted in a private room
3. Offenders are required to stay behind a red line during medication dispensing in order to protect patient confidentiality
1. Corizon RN available as resource during emergency responses
2. Compliance plan to review quality and the continuity of care in emergency responses
• Corizon RN conducts a monthly audit of
Emergency Responses
• IDOC Nurse Manager Monitor reviews Emergency
Response Log weekly 1. Corizon's infirmary nurse assesses all offsite returns
and notifies the provider as necessary
2. IOOC Nursing Manager Monitor uses the lOOC Continuity of Care Audit checklist to conduct weekly

Case 1:81-cv-01165-BLW Document 842 Filed 05/15/12 Page 18 of 32

Address the issue of emergency response equipment not being kept in order or not being carefully tracked! confirm that emergency cart being used in the way described

Page 13

Address outpatient medical care to ensure adequate follow-up related to outpatient care

Pages 14, 15

Address the elimination of the Life Transitions Programreinstate or create a similar program to deliver care to patients who cannot fend for themselves such as providing food and water, cleaning soiled linen, and treating pain
Long Term Care

Page 16 Page 16

APPENDIX A TO DEFINITIVE AGREEMENT - 5

review off-site referrals and emergency ER runs 1. IDOC has purchased ~quipment
• Emergency response cart • Pneumatic paramedic gurney
2. Emergency response equipment that meets Basic Cardiac Life Support (BCLS) guidelines is available for emergency responders
3. Implement preventative maintenance and equipment check- provide as monitoring! reporting
• Corizon staff conducts daily checks and documents
findings on all emergency and life saving equipment.
• IOOC reviews Emergency Response Log weekly
4. IOOC Nursing Manager Monitor randomly checks the daily inspection documentation.
1. Corizon staff schedule follow-up clinic appointments for outpatient care
2. An off-site scheduler tracks follow-up provider visits to ensure they are completed
1. IOOC will provide documentation to confirm existence of program as a measure of good faith but do not consider it an element of the Balla compliance plans related to medical care
1. Protocol maintenance- quality compliance review
• The IOOC Nursing Manager Monitor makes rounds
on long-term care patients to obtain visual/documentary evidence that they are clean, fed and medications dispensed as ordered
2. IOOC added two additional CNA positions to the longterm care unit in July 2011
3. Corizon's Regional Medical Director makes rounds

Case 1:81-cv-01165-BLW Document 842 Filed 05/15/12 Page 19 of 32

Address poor documentation of medication delivery or administration
APPENDIX A TO DEFINITIVE AGREEMENT - 6

Page 17

- - - - - - - - - -...- -..~-
weekly in the long-term care unit to ensure clinical standards are met.
4. IDOC Nurse Manager Monitor audits 100% of all MARs on a weekly basis
• The Monitor randomly selects one day during the
week and reviews all MARs from that day to ensure all medications dispensed
• If a medication is not given, the Monitor
communicates with Corizon to obtain documentation about why the dose was missed and how the error was corrected
• The Monitor also speaks with individual offenders
who submit concerns/grievances related to not receiving medications 1. RN supervision review by Corizon
• Corizon conducts monthly and random Medication
Administration Record (MAR) audits
• Corizon conducts monthly and random audits of
"Keep on Person" (KOP) medications to ensure timely distribution
2. IDOC Nurse Manager Monitor reviews for compliance and oversight
• IDOC Nurse Manager Monitor conducts weekly
audits of all MARs for one randomly selected day
• The Monitor randomly selects one day during the
week and reviews all MARs from that day to ensure all medications dispensed
• If a medication is not given, the Monitor
communicates with Corizon to obtain documentation about why the dose was missed and , how the error was corrected
• The Monitor also speaks with individual offenders
who submit concerns/grievances related to not receiving medications

Case 1:81-cv-01165-BLW Document 842 Filed 05/15/12 Page 20 of 32

Segregation! Welfare Check Concerns

Page 18

Assure access to Offender Medical Records/ Mental Health Records

Pages 20, 21,34

I
APPENDIX A TO DEFINITIVE AGREEMENT - 7

3. Corizon added staff for maintenance of medical records I

• Corizon added a full-time medical record technician in
2011 to insure filing is was current and all charts are

maintained appropriately

I

1. IOOC added one full-time LPN to Unit 8 (segregation I

unit)

2. Corizon staff conduct a monthly review of the

I

Segregation Log using IOOC Segregation Checklist

• Staff reviews the completeness of the ledger and

that no contraindication exist for them being

I

confined

• RN supervisor reviews records to ensure welfare
checks are performed as required by policy and

National Commission on Correctional Health Care

(NCCHC) standards

• RN performing review discusses findings with

I I

primary segregation LPN and nursing leadership as

necessary

!

3. IOOC Nurse Manager Monitor to review ongoing compliance
• IOOC Monitor conducts a weekly review of the
entire segregation log

1. ISCI allows offenders to access their medical records, but does not permit offenders to retain copies of their medical records

2. IOOC allows offenders to request review of their own medical records through a concern form to request access to medical records
• Depending on how many offenders request access,
how long offenders spend reviewing their record and the amount of patient education required as a result of medical record review, IOOC maypeed to
-

Case 1:81-cv-01165-BLW Document 842 Filed 05/15/12 Page 21 of 32

Address issues surrounding review of Complaints from IDOC Grievance System-complaints not timely reviewed by Corizon's Regional Manager as required per policy

Pages 21

Address concerns related to death review

Pages 22, 34

I
APPENDIX A TO DEFINITIVE AGREEMENT - 8

examine adding staff to handle reviews.
3. IDOC Nurse Manager Monitor will monthly review two randomly selected days' worth ofHSR's, and review those HSR's requesting medical record access to insure that HSR access is granted according to practice
l. Corizon Ombudsman to review medical-related concerns and grievances and provide response to offender
2. IDOC Nursing Manager Monitor to review Corizon's responses and actions
• Monitor will review all medical concerns and grievances to determine the number of days from when medical receives the concern form to when it is placed into the intra mail (distribution) system, will identify any systematic issues with untimely responses and address those issues with Corizon
3. IDOC agrees that all offender concern forms related to competency of health care staff will be forwarded to the IDOC Health Services Director for review
4. IDOC Nurse Manager Monitor and Corizon Ombudsman will track and trend concerns and grievances to insure responses are within the parameters contained in the IDOC SOPs. Trend data will be utilized in the CQI program to identify opportunities to improve existing service lines/key processes/address personnel behavior and competency
1. Mortality reviews
• The coroner conducts an independent autopsy in
mortality cases
• IDOC conducts a serious incident review (SIR) for
mortality cases

Case 1:81-cv-01165-BLW Document 842 Filed 05/15/12 Page 22 of 32

Address requirement for a systematic program for screening and evaluating offenders to identify those in need of mental healthmake sure that new offenders are being adequately screenedperhaps related to increased psychiatric staff

Page 23

Address requirement for a treatment program that involves more Page 24 than segregation and close supervision of mentally ill offenders
a. Follow-up to ensure that adequate psychological intake assessments are occurring/ follow through with treatment plans
b. rncrease the use of group therapy
c. Address mental health care issues of adequate care during acute mental health illness
d. Address the misuse of segregation for mental health problems

-APPENDIX A TO DEFINITIVE AGREEMENT - 9

• IOOC's Health Services Director conducts an
internal review of mortality cases i
• Corizon conducts an internal peer to peer review I
process for mortality cases

l. Ongoing monitoring and compliance by IOOC Mental

Health Clinical Supervisor

• Each month the Mental Health Clinical Supervisor

randomly selects 10% of the total intake screening

, ,

forms completed and reviews them for compliance

with rooc procedure and for appropriate clinical

decision-making

l. In response to subpart a:

• rooc has a screening/assessment/treatment plan
protocol in place

0 IOOC policy mandates timelines for when

screening, assessment and treatment plans

are completed

0 On a monthly basis, the IOOC Mental

Health Clinical Supervisor will randomly

select 10% of screenings and treatment

plans to review for compliance with IOOC

procedure and for appropriate clinical

judgment.

• rooc will provide compliance regarding
assessment and treatment plan report as part of

ongoing monitoring and compliance by rooc

clinical supervisor

0 Each month the Mental Health Clinical

Supervisor will randomly select 10% of the

total intake screening forms and treatment

plans completed that month and review for

compliance with IOOC procedure and for

appropriate clinical decision-making.

2. In response to subpart b:
• General population group therapy hours increased

Case 1:81-cv-01165-BLW Document 842 Filed 05/15/12 Page 23 of 32

Increase employment of sufficient number of trained mental health professionals

Page 28

I
APPENDIX A TO DEFINITIVE AGREEMENT-1O

to 20 hours per week
• The number of group hours actually provided can be verified through available OMP databank that provides class, offender participation and classroom hours each month
I
3. In response to subpart c:
• Currently all mentally ill offenders housed at ISCI have access to more intensive mental health care through the Behavioral Health Unit (BHU )
4. In response to subpart d:
• Under IDOC policy, a clinician reviews the Disciplinary Offense Report (DOR) for any offender with a mental health level of care higher than Correctional Mental Health Level of Care (CMHS) 2, in order to determine whether the DOR was mental health related
• The clinician will move the offender to BHU rather
than segregation if required due to offender's mental health status
• If the DOR is related to the offender's mental
health status, the clinician will recommend sanctions which take into consideration the offender's mental health status
• Clinical supervisor will review all mental health
related DOR's for the month to make sure clinicians are exercising appropriate clinical judgment 1. IDOC to provide list of current mental health positions and respective responsibilities related to mental health services at ISCI
2. The IDOC Nurse Manager Monitor will ensure no reduction from mental health staffing levels in existence as of April 6, 2012

Case 1:81-cv-01165-BLW Document 842 Filed 05/15/12 Page 24 of 32

Address administration of psychotropic medication only with appropriate supervision and periodic evaluation

Page 30

Address requirement of creating a basic program to identify, treat, and supervise offenders at risk for suicide
a. Assure the safe use of Companion Offenders during suicide watch
b. Assure adequate suicide prevention training for staff

Page 31

-
APPENDIX A TO DEFINITIVE AGREEMENT - 11

l. Appropriateness of mental health medication currently monitored through psychiatric visits every 90 days
• On a monthly basis Corizon will randomly select
10% of medical records for offenders currently
under the care of the psychiatrist and review to
ensure compliance

2. Clinicians review periodically for patient concerns
• Clinicians meet with offenders on a regular basis
according to the offender's mental health level of
care
• Offenders can request to see clinician at any time
through HSR
• Clinicians review and triage HSR's on a daily basis
and set appointments with offenders based on
availability and urgency of request/need

3. Clinical supervisor QA

• The clinical supervisor is available daily to consult
with clinicians on cases

• The clinical supervisor reviews mental health
documents for quality

0 The clinical supervisor will randomly

sample 10% of psychiatric 90 day review

and treatment plans for timeliness of follow-

up

4. In response to subpart a:

• Selection, training, and monitoring currently in
place

0 All offender companions are selected,

trained, and monitored according to the

!

Correctional Mental Health Services System

!

(CMHSS) Manual and rDOC Policy

• Clinical supervisor to monitor for compliance
0 Will review roster of training completed by

offender companions

Case 1:81-cv-01165-BLW Document 842 Filed 05/15/12 Page 25 of 32

0 Mental health clinical supervisor has final say in selection of offender companions
5. In response to subpart b:
• IDOC will provide training materials and training
calendar
• Clinical supervisor to monitor for compliance
0 On an annual basis, the clinical supervisor will review the staff log of attendance at suicide trainings and the content of the suicide risk management presentation
0 rDOC will provide staff with suicide training on a biannual basis
APPENDIX A TO DEFINITIVE AGREEMENT -12

APPENDIXB (ITEMS TO BE IMPLEMENTED) Walter Balla, et. ale V. Idaho State Board o/Correction, et. ale
Case No. 1:81-cv-1165-BLW

Case 1:81-cv-01165-BLW Document 842 Filed 05/15/12 Page 26 of 32

Plaintiffs' Concern Address delays/ lack of response (time delays/ referrals) to HSRs

Page Number from Stern Report Page 8

IDOC Action
1. IOOC proposes enhanced RN clinical supervisor hours to provide oversight of the medical clinics
• Increased RN clinical supervisor hours would
provide RN clinical supervision 7 days a week to monitor, educate, manage, direct and develop clinical areas

2. Corizon to conduct continuous quality improvement (CQI) review ofHSR's, in the form of monthly review of 10% of randomly selected HSR's

Address poor quality of nursing care when delivered; also look to issues at ROU

Page 8

APPENDIX B TO DEFINITIVE AGREEMENT - 1

."). IOOC Nurse Manager Monitor will review

Corizon CQI findings concerning timeliness of

response to HSR's, identify any systematic issues

and notify and work with Corizon to address and

resolve any such issues

1. IOOC proposes an enhanced RN Supervisor to

provide oversight for ROU

• Increased RN clinical supervisor hours would
provide clinical supervision 7 days a week to

monitor, educate, manage, direct and develop

clinical areas

• Increased RN hours to complete competency

i I

assessment of clinical staff. Increased RN

hours will then result in development of

I

training plan based on assessment outcomes.

Case 1:81-cv-01165-BLW Document 842 Filed 05/15/12 Page 27 of 32

Address concerns related to staff competency and that certain systems for selecting and training qualified staff/ detect and respond to incompetent staff

Page 19

Address lack of confidentiality during care at sick call/pill call

I i
I Pages 8, 10

APPENDIX B TO DEFINITIVE AGREEMENT - 2

2. Corizon clinical staff will participate in competency assessment demonstration on an annual basis
3. RN supervisor will conduct a weekly audit of 10% , of the sick call visits performed by LPN to ensure , nursing protocols are used and appropriate provider referrals are made
l. rooc ongoing assessment of recruitment,
orientation and training
• rooc Nurse Manager Monitor will ensure
policy and training expectations are met, including timely filling of critical positions
2. Monitoring process to ensure response, timeliness, and quality
• rooc Nurse Manager Monitor to review
Corizon's progress on completing competency assessments of clinical staff and creating a development plan based on assessment outcomes
3. Corizon clinical staff will participate in competency assessment demonstration on an annual basis
4. Corizon will develop a mentor program to provide on-going training
5. rooc Nurse Manager Monitor will identify and
address any gaps in the process, follow up on
identified issues, and report findings to the rooc
Health Services Director
l. moc proposes construction and/or modification
of medical building to expand pharmacy and

Case 1:81-cv-01165-BLW Document 842 Filed 05/15/12 Page 28 of 32

Address the poor quality of medical care when it is delivered-Increase the availability of RN' s to respond during Emergency Responses

Page 11

~~~s/confirm the continuity of care upon return from APPENDIX B TO DEFINITIVE AGREEMENT - 3

Page l3

create additional pill call windows to reduce crowding during dispensing of medications

2. lDOC proposes adding a portable trailer to assist with medication dispensing during construction of additional pharmacy windows
i
3. lDOC considering adjustments to medication dispensing schedules to relieve overcrowding

4. lDOC proposes adding additional staffing to

handle additional pill call windows

1. IDOC proposes an enhanced RN Supervisor to

provide oversight

• Increased RN clinical supervisor hours would provide RN clinical supervision 7 days a week

to monitor, educate, manage, direct and

develop clinical areas

• Increase RN hours to complete competency

assessment of clinical staff and create develop

plan for staff that require further training

• Corizon clinical staff will participate in

competency assessment demonstration on an

annual basis

,

2. Compliance plan to review quality and the continuity of care in emergency responses
• IDOC proposes that Corizon Regional Medical Director will review 100% of Emergency Responses to ensure that adequate medical care is delivered

3. lDOC proposes Corizon Regional Medical Director to review all sentinel events and mortality reviews
1. IDOC will develop a protocol to review

Case 1:81-cv-01165-BLW Document 842 Filed 05/15/12 Page 29 of 32

hospital, ER, or pharmacy visits [Off-site care]

Address outpatient medical care to ensure adequate follow-up related to outpatient care

Pages 14, 15

Long Term Care APPENDIX B TO DEFINITIVE AGREEMENT - 4

Page 16
I
I

compliance with off-site recommendations for treatment plan and care
2. IDOC will review the medication formulary with Corizon
3. Corizon Regional Medical Director to review 10% of provider charts every week to ensure that clinical standards are being met
4. Corizon Regional Medical Director to review 10% of patient charts and medical orders for patients returning from hospital to ensure appropriate follow-up is being provided
5. IDOC will work with Corizon to implement a review system for IDOC to verify that Corizon is performing oversight function
1. IDOC Nurse Manager Monitor will review Corizon CQI (continuous quality improvement) findings concerning:
• Corizon RN on a monthly basis will randomly
select 10% of charts for patients seen in clinic by providers to review and ensure that orders are completed:
0 In-House referrals ordered 0 Medications ordered 0 Tests ordered 0 Offsite Consults ordered 0 Procedures ordered
1. Enhanced Medical Director QA review
• IDOC Nursing Manager Monitor on a monthly
basis will review randomly selected charts for 50% of patients in the long-term care unit. The monitoring will be done using IDOC

Case 1:81-cv-01165-BLW Document 842 Filed 05/15/12 Page 30 of 32

Pharmacy/Medication Dispensing: Address the failure to ensure Page 17 seamless provision of medication as ordered

Address poor documentation of medication delivery or administration
APPENDIX B TO DEFINITIVE AGREEMENT - 5

I Page 17

Extended Care Audit form while rounding on offender patients
• As part ofCQl, Corizon's Regional Medical
Director on a monthly basis will review 10% of randomly selected files to ensure appropriate clinical care, timeliness, and treatment planning occurring l. Proposal to implement electronic dispensing protocol
• lDOC is awaiting a proposal from Corizon for
expense associated with implementing an electronic system for dispensing medications, recording medications dispensed, and maintaining pharmacy inventory
2. Look to create alternative sites for specialty patients, i.e. Diabetics
• lDOC proposes construction and/or
modification of medical building to expand pharmacy and create additional pill call windows to reduce crowding during dispensing of medications
• lDOC proposes adding a portable trailer to
assist with medication dispensing during construction of additional pharmacy windows
3. lDOC considering adjustments to medication dispensing schedules to relieve overcrowding
4. lDOC proposes adding additional staffing to handle additional pill call windows
l. Proposal to implement electronic dispensing protocol
• lDOC is awaiting a proposal from Corizon for
expense associated with implementing an

Case 1:81-cv-01165-BLW Document 842 Filed 05/15/12 Page 31 of 32

Segregation! Welfare Check Concerns

Page 18

Address issues surrounding review of Complaints from IDOC Grievance System-complaints not timely reviewed by Corizon's Regional Manager as required per policy

Page 21

Address concerns related to death review

Pages 22, 34

Address requirement for a systematic program for screening and evaluating offenders to identify those in need of mental healthmake sure that new offenders are being adequately screenedperhaps related to increased psychiatric staff

Page 23

I !

electronic system for dispensing and recording medications dispensed 1. IDOC proposes increasing LPN hours to provide weekend coverage in Unit 8
2. IDOC also proposes Corizon conduct weekly reviews of segregated offenders
• Corizon will review segregation log using IDOC Segregation Audit checklist 1. IDOC will modify its written Standard Operating Procedure (SOP) to reflect IDOC is the appellate authority for medically-related grievances
2. IDOC will also provide for review of medicallyrelated grievances by the IDOC Nursing Manager Monitor
1. rDOC proposes retaining a contract physician to conduct independent review of mortalities and sentinel events
2. rDOC proposes increasing hours for Corizon' s Regional Medical Director to provide enhanced death reviews and review of sentinel events
1. rDOC is enhancing the mental health intake screening form
• The form is being rewritten to include
sufficient room so that in the event an offender is immediately referred for suicide risk followup, the follow-up clinician has room to document the disposition of that particular case on the intake form, rather than in a case note
• The revised form will also include additional
room so the screener can write additional notes in clinical SOAP format and document clinical observations

APPENDIX B TO DEFINITIVE AGREEMENT - 6

Case 1:81-cv-01165-BLW Document 842 Filed 05/15/12 Page 32 of 32

Address requirement for a treatment program that involves more Page 24 than segregation and close supervision of mentally ill offenders

a. Follow-up to ensure that adequate psychological intake assessments are occurring/ follow through with treatment plans

b. Increase the use of group therapy

c. Address mental health care issues of adequate care during acute mental health illness

d. Address the misuse of segregation for mental health problems Increase employment of sufficient number of trained mental health professionals

Page 28

2. IDOC in process of scheduling additional clinical staff to be available during large intake days
• Additional clinicians are being scheduled to
work on Tuesday and Thursday nights when intake occurs, so they are available to help complete the screening form and complete any suicide risk assessments that may be needed as a result of answers provided on the intake form
• Clinicians are then also available to assist with
decisions about disposition and placement 1. In response to subpart b:
• IDOC proposes adding additional clinician
hours to provide additional hours of group therapy
2. In response to subpart d:
• IDOC proposes developing a Disciplinary
Offense Report (DOR) Documentation Log 0 The log will facilitate internal
communication between providers 0 The log will also provide additional metric
points for CQI program
l. IDOC will explore adding additional psychiatric services through tele-psych

APPENDIX B TO DEFINITIVE AGREEMENT - 7

 
 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

WALTER D. BALLA, et al., Plaintiffs,
v. IDAHO STATE BOARD OF CORRECTION, et al.,
Defendants.

Case No. CV81-1165-S-BLW
MEMORANDUM DECISION AND ORDER

Pending before the Court in the above-entitled matter is Plaintiffs’ Petition for the Award of Interim Attorneys Fees and Costs (Dkt. 857). Having fully reviewed the record, the Court finds that the facts and legal arguments are adequately presented in the briefs and record. Accordingly, in the interest of avoiding further delay, and because the Court conclusively finds that the decisional process would not be significantly aided by oral argument, this matter shall be decided on the record before this Court without oral argument.
FACTUAL BACKGROUND The detailed history of the Balla cases was set forth in the Court’s May 28, 2009 Memorandum Decision and Order, (Dkt. 768), and is incorporated by reference into this Order. Plaintiffs now seek reimbursement in the amount of $184,634.39 for attorneys
ORDER - 1

fees and costs incurred in the monitoring and enforcing the Balla injunctive relief for the period of June 23, 2009 through July 2, 2012. The amount sought includes costs for a class representative. This Court has previously awarded Plaintiffs their attorneys’ fees and costs on four separate occasions: December 9, 2005 (Dkt. 600), December 18, 2007 (Dkt. 724), October 21, 2008 (Dkt. 733) and March 30, 2010 (Dkt. 775).
Defendants do not object to Plaintiffs’ petition in its entirety, but instead limit their objections to (1) the hourly rate requested for paralegal Brandi Boas, (2) certain activities billed by Ms. Boas that Defendants’ characterize as “clerical,” and (3) certain activities billed by attorney Jason Prince that Defendants argue are not related to any of the Balla injunctions. (Dkt. 861 at 3.)
The Court having reviewed the record in detail finds that certain attorneys fees and costs should be awarded, as well as out-of-pocket costs for Mr. Searcy.
ANALYSIS A. ATTORNEY FEES
It is undisputed that Plaintiffs were the prevailing parties in Balla I, II and III. It is further undisputed that Plaintiffs are entitled to an award of attorney fees for their reasonable monitoring activities pursuant to the fee-shifting provisions of 42 U.S.C. § 1988 and the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(d). Therefore, the Court will begin by considering the applicable hourly rate requested by Plaintiffs.
1. Attorneys’ Hourly Rate The PLRA governs prisoners’ legal actions “with respect to prison conditions.”
ORDER - 2

See 42 U.S.C. § 1997e(a). Limitations on attorneys’ fees are set forth in § 1997e(d). Among other limitations, § 1997e(d)(3) provides that “[n]o award of attorney’s fees in an action [brought by prisoners in which attorney’s fees are authorized under 42 U.S.C. § 1988] shall be based on an hourly rate greater than 150 percent of the hourly rate established under section 3006A of Title 18, United States Code for the payment of courtappointed counsel.” 42 U.S.C. § 1997e(d)(3). Accordingly, the Court has authority to award attorneys’ fees up to 150 percent of the hourly rate for counsel established in the Criminal Justice Act, 18 U.S.C. § 30006A.
Based on the above formula, Plaintiffs claim they are entitled to $177.00 per hour for attorneys’ fees incurred between June 23, 2009 and December 31, 2009, and $213.00 per hour for attorneys’s fees incurred between January 1, 2010 and July 2, 2012. (Dkt. 875-1 at 8.) Defendants do not challenge Plaintiffs’ requested rates as to attorneys. The Court finds the above PLRA rates to be reasonable in this instance as to the attorneys that generally bill at a higher market rate. As for the attorneys in this matter that generally bill at a market rate below the PLRA rates, the Court finds their market rate to be reasonable.
2. Paralegal Fees/Hourly Rate Plaintiffs have requested an attorneys’ fee award that includes paralegal rates of $150.00 for 2010, $155.00 for 2011 and $165.00 for 2012. (Dkt. 875-1 at 9.) Plaintiffs argue that the PLRA’s plain language does not require any reduction of paralegal billable rates in prison litigation, provided that the paralegal rates do not exceed the PLRA’s cap for attorneys. (Id.) Defendants argue that the paralegal rates are excessive and are
ORDER - 3

contrary to the hourly rate previously established by this Court and the Ninth Circuit in this case. (Dkt. 861 at 4.) The Court agrees with Defendants for the reasons discussed below.
Although the PLRA does not directly address paralegal fees, the Ninth Circuit has held that “attorney fees” includes separately billed paralegal fees at the market rate. Perez v. Cate, 632 F.3d 553 (9th Cir. 2011). However, paralegal fees are subject to the same hourly cap under the PLRA as attorney fees. Id. In other words, the PLRA permits an award of paralegal fees based on rates, up to, but not exceeding, the rate cap for attorney fees, so long as those rates are reasonable.
While Section 1997e(d)(3) provides no guidance on the method by which a court should determine a reasonable hourly rate for paralegal services, this Court has provided in the past that the “market rate,” as well as “the type of litigation and the nature of the duties performed by the paralegal” are paramount factors. (Dkt. 775 at 7.) As to the market rate, Plaintiffs argue that the requested paralegal rates fall within the range of reasonable rates charged by paralegals providing litigation services in the Treasure Valley. (Dkt. 857-1 at 10.) To support this argument, Plaintiffs present declarations of two attorneys from regional/national law firms that state that Stoel Rives’ litigation rates are in line with those of similarly situated law firms in the Treasure Valley. (Id.) However, Plaintiff’s argument and declarations miss the mark in that they fail to state what a reasonable rate is generally in the Treasure Valley for this type of case.
Plaintiffs cite three cases from the Northern District of California for the
ORDER - 4

proposition that the “PLRA empowers a district court to award attorneys’ fees based on a reasonable market for paralegals - without regard for the type of litigation services involved.” (Dkt. 862 at 3.) See also Plata v. Schwartzenegger, 2009 WL 2997412 (N.D. Cal. Sept. 16, 2009); Lira v. Cate, 2010 WL 727979 (N.D. Cal. Feb. 26, 2010); and Perez v. Cate, 2009 WL 2849593 (N.D. Cal. Sept. 1, 2009). While these decisions are not binding on this Court, a close review of these cases reveals that Plaintiffs have misinterpreted these cases and that the nature of the work as to a particular geographical area is vital in determining the reasonableness of the rate.
For instance, in Plata, the plaintiffs requested that their paralegals be compensated at the same maximum hourly rate as their attorneys under the PLRA - $169.50. Plata v. Schwartzenegger, 2009 WL 2997412, at *2. The defendants argued that the paralegals were not entitled to the rate and that §1997e(d)(3)’s reference to “the hourly rate established under § 3006A of Title 18 for the payment of court appointed counsel” required the court to look to the rates set for paralegal services under the district’s Criminal Justice Act Panel Attorney Manual, which were much less. Id. at *1. The court agreed with the plaintiffs and held that while the plain language of the PLRA does not require a reduction in paralegal rates, the statute’s cap on attorney fees applies equally to paralegal rates. Id. at *2. The court then explained the following:
Of course, simply because the PLRA sets a maximum rate does not mean that Plaintiff’s are entitled to recover attorney fees’ at that rate, and Plaintiffs do not dispute that they bear the burden of demonstrating that their requested fee award, including the claimed hourly rates is reasonable. In this case, the Court finds Plaintiffs’ requested hourly rate of $169.50 to be reasonable based on the nature
ORDER - 5

of the work performed by the paralegals and their experience , [citation omitted], as well as the uncontested evidence that $169.50 falls below the prevailing market hourly rate for paralegals in the San Francisco Bay area, [citation omitted]. Id. (Emphasis added.) Thus, while the PLRA does not prohibit paralegals from receiving the same maximum rate as attorneys, the rate received must be reasonable considering the prevailing market rate for such type of work in the area. This Court determined in its March 30, 2010 Order, (Dkt. 775), that “[b]ased on the Court’s experience with the market rate for paralegals working on this type of case in the Treasure Valley and the description of the duties performed in this case by the case assistants, the hourly rate approved for case assistant or paralegal services will be set at $65.00 per hour.” (Id.) As Plaintiffs have not demonstrated that a rate between $150-165 per hour is now reasonable for duties performed in this type of case in the Treasure Valley, the Court leaves the rate for paralegals at $65.00 per hour. The Court also finds the rate of $65.00 per hour to be reasonable for summer associates. 3. Clerical Tasks Defendants argue that 32.3 hours of Plaintiffs’ requested paralegal fees are clerical work and thus noncompensable. (Dkt. 861 at 6.) Plaintiffs contend that 19.2 of those hours are actually substantive legal work and should be awarded at the full paralegal hourly rate. (Dkt. 862 at 5-6.) As for the remaining 13.1 hours, Plaintiffs concede that “the work billed for those hours was not substantively legal in nature”, but that those hours should be awarded at a reduced rate. (Id. at 6-7.) The Court determines that 19.2 of the contested hours is indeed compensable.
ORDER - 6

The U.S. Supreme Court has held that paralegal fees can be compensable as part of
an award of attorneys’ fees pursuant to 42 U.S.C. § 1988. Missouri v. Jenkins, 491 U.S.
274 (1989). However, the Supreme Court provided the following regarding clerical
work:
Of course, purely clerical or secretarial tasks should not be billed at a paralegal rate, regardless of who performs them. What the court in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717 (CA5 1974), said in regard to the work of attorneys is applicable by analogy to paralegals: “It is appropriate to distinguish between legal work, in the strict sense, and investigation, clerical work, compilation of facts and statistics and other work which can often be accomplished by non-lawyers but which a lawyer may do because he has no other help available. Such non-legal work may command a lesser rate. Its dollar value is not enhanced just because a lawyer does it.”
Id. at 288 n. 10. Thus, clerical and secretarial work are generally not compensable even
if performed by attorneys or paralegals. See also Davis v. City and County of San
Francisco, 976 F.2d 1536, 1543 (9th Cir. 1992) vacated in part on other grounds at 984
F.2d 345 (9th Cir. 1993); and Robinson v. Plourde, 717 F. Supp.2d 1092, 1099-1100 (D.
Hawaii 2010) (clerical or ministerial costs are part of an attorney’s overhead and are
reflected in the charged hourly rate).
Nonetheless, “clerical or secretarial work [can be] compensable if it is customary
to bill such work separately.” Trustees of Const. Industry and Laborers Health and
Welfare Trust v. Redland Ins. Co., 460 F.3d 1253, 1257 (9th Cir. 2006). “The key . . . is
the billing custom in the ‘relevant market.’” Id. Thus, clerical work is compensable if a
party can demonstrate that billing clerical or secretarial work separately is the custom in
the relevant area, as opposed to such costs being incorporated in attorneys’ or paralegals’
ORDER - 7

hourly rates. The rationale being that attorneys should recover only those costs that are not already built into their hourly fees. Id.
The Court has examined in detail the paralegal fees requested by Plaintiffs as well as the fees claimed by Defendants to be clerical. The Court is satisfied that 19.2 hours of the challenged 32.3 hours is compensable at the hourly paralegal rate. As set forth by Plaintiffs, 17.2 hours involved the “piecing together of the original Balla compliance plans from documents provided by Defendants in response to Plaintiffs’ document production requests” through “analytical review of each document.” (Dkt. 862 at 5.) Such work was substantively legal, as was the 2.0 hours involved in identifying appropriate special master candidates for this case.
As to the remaining 13.1 hours that Defendants have identified as clerical, and to which Plaintiffs concede is not substantively legal in nature, the Court finds that these hours are not compensable. While Plaintiffs argue that these tasks should be compensable at a lesser rate pursuant to Missouri v. Jenkins, supra, and Californians for Disability Rights v. California Dept. of Trans., 2010 WL 8746910, at * (N.D. Cal. 2010), Plaintiffs have not met their burden of demonstrating that it is customary to bill such “clerical” work separately in the Treasure Valley, rather than to incorporate such work into attorneys’ and/or paralegals’ hourly rates. See Trustees of Const. Industry and Laborers Health and Welfare Trust v. Redland Ins. Co., 460 F.3d at 1256-57.
4. Billings Related To Potential Retaliation Against Class Representatives Defendants object to 20.7 hours of work billed by Mr. Prince, alleging that (1) the
ORDER - 8

work related to claims of retaliation against the Class Representatives, not the monitoring of the injunctive relief; (2) the time entries were vague and lacked specificity in identifying the claim or claimant; and (3) the work billed was not performed for this case, but instead related to Class Representative Searcy’s independent, pro se retaliation claim. (Dkt. 861 at 6-7.) The Court agrees with Plaintiffs that the work billed concerning the protection of the Class Representatives was “directly and reasonably incurred in enforcing the relief ordered.”
As set forth above, the PLRA controls the attorneys’ fees award in this case. See 42 U.S.C. § 1997e. And under the PLRA, fees “shall not be awarded, except to the extent that” the fee was directly and reasonably incurred in proving a violation of the plaintiff’s rights, and either the amount is proportionate to the relief ordered, or alternatively, the fee is “directly and reasonably incurred in enforcing the relief. 42 U.S.C. § 1997e(d)(1). The statute provides in relevant part:
In any action brought by a prisoner who is confined to any jail, prison, or other correctional facility, in which attorney’s fees are authorized under section 1988 of this title, such fees shall not be awarded except to the extent that (A) the fee was directly and reasonably incurred in proving an actual violation of the plaintiff’s rights protected by a statute pursuant to which a fee may be awarded under section 1988 of this title; and (B)(i) the amount of the fee is proportionately related to the court ordered relief for the violation; or (ii) the fee was directly and reasonably incurred in enforcing the relief order for the violation.
ORDER - 9

Id. The PLRA’s “prov[e] an actual violation” requirement is satisfied when the
prisoners have previously won an injunction. See Balla v. Idaho, 677 F.3d 910, 919 (9th Cir. 2012); and Webb v. Ada County, 285 F.3d 829 (9th Cir. 2002). In other words, once prisoners have proved a violation, as by an injunction, the subsection (A) requirement has been satisfied. Then fees may be awarded proportionally to the relief granted, under subsection (B)(i). Id. Or alternatively, for monitoring, the limitation of subsection B(ii) applies: the fee is allowable only if and to the extent that it is “directly and reasonably incurred in enforcing the relief ordered” in the injunction. Id.
In this case, the prisoners won their injunction long ago, so subsection (A) is satisfied. The question then is whether Mr. Prince’s billed work regarding potential retaliation against the Class Representatives was directly and reasonably incurred in enforcing the injunctive relief. As Plaintiffs explain in their brief, the Class Representatives play a key role in monitoring the injunctive relief. When they are subject to retaliatory action related to their participation in the Balla case, this directly impedes their ability to assist counsel in monitoring the injunctive relief. Plaintiffs’ counsel must be able to assist in the protection of Class Representatives in order to ensure the injunctive relief is being complied with. Thus, the Court finds that Mr. Prince’s retaliation work was “directly and reasonably incurred in enforcing the relief ordered.”
The Court is not convinced that the billing entries are “vague,” given that Defendants have in their possession requests for production of documents which provide
ORDER - 10

the scope and nature of Mr. Prince’s work regarding Defendants’ alleged retaliatory

tactics. Furthermore, while Mr. Searcy may have an independent retaliation lawsuit

pending from his service in the Balla case, this fact alone does not effect the

appropriateness of Plaintiffs’ counsel in investigating claims of retaliation against Balla

Class Representatives.

5. Attorneys’ Fee Award

Based on the foregoing, the Court will award the following Attorneys’ Fees:

2009

Name:

Hours:

Rate:

Value:

1. J. Walter Sinclair/Partner 2. Jason Prince/Associate

3.2

$177

$ 566.40

60.3

$177

$10,673.10

Total Hours/Fees: 63.5

$11,239.50

2010

Name:

Hours:

1. J.Walter Sinclair/Partner

3.4

2. Jason Prince/Associate

94.6

3. Sara Berry/Associate

15.6

4. Allison/Blackman/Summer Associate 31.8

5. Brandi Boas/Paralegal

43.8

Total Hours/Fees: 189.2

Rate:
$213 $213 $200 $65 $65

Value:
$ 724.20 $20,149.80 $ 3, 120.00 $ 2,067.00 $ 2,847.00
$28,908.00

ORDER - 11

2011

Name:

Hours:

Rate:

1. J. Walter Sinclair/Partner 2. Jason Prince/Associate 3. Allison Blackman/Associate 4. Brandi Boas/Paralegal

7.5

$213

160

$213

18.1

$200

17.6

$65

Total Hours/Fees: 203.2

2012

Name:

Hours:

Rate:

1. J. Walter Sinclair/Partner 2. Jason Prince/Associate 3. W. Christopher Pooser/Associate 4. Allison Blackman/Associate 5. Brandi Boas/Paralegal

3.0 160.1
12.1 274.5
1.7

$213 $213 $213 $200 $65

Total Hours/Fees: 451.4

Total 2009-2012 Attorneys’ Fees

Value:
$ 1,597.50 $34,080.00 $ 3,620.00 $ 1,144.00
$40,441.50
Value:
$ 639.00 $34,101.30 $ 2,577.30 $54,900.00 $ 110.50
$92,328.10
$172,917.10

B. COSTS Federal Rule of Civil Procedure 54(d)(1) provides that “costs other than attorneys’
fees shall be allowed as of course to the prevailing party unless the court otherwise directs.” Rule 54(d) creates a presumption for awarding costs to prevailing parties; the losing party must show why costs should not be awarded. Save Our Valley v. Sound Transit, 335 F.3d 932, 944-45 (9th Cir. 2003); Stanley v. Univ. of Southern California, 178 F.3d 1069, 1079 (9th Cir. 1999).
ORDER - 12

Plaintiffs seek $1,994.29 for costs associated with monitoring and enforcing the Balla injunctive relief from June 23, 2009 through July 2, 2012. Defendants have not objected. The Court has reviewed the costs incurred during the relevant time period and has determined that they are reasonable in light of the complexity of the litigation, the duration of the appointment and the Court’s prior ruling concerning photocopying costs. (Dkt. 775 at 9-12).
Based on the foregoing, Plaintiffs’ requests for costs will be awarded in the amount of $1,994.29. Plaintiffs’ counsel is also directed to reimburse Mr. Barry Searcy for his out-of-pocket costs from the costs award.
ORDER Being fully advised in the premises, the Court hereby orders that Plaintiffs’ Petition for the Award of Interim Attorneys’ Fees and Costs (Dkt. 857) is GRANTED IN PART AND DENIED IN PART consistent with this Order. Plaintiffs shall be awarded $172,917.10 in fees and $1,994.29 in costs. The fees and costs shall be paid within thirty (30) days of the date of this Order. IT IS FURTHER ORDERED that in the future, if Plaintiffs’ counsel intend to submit a request for attorneys’ fees, they shall first meet and confer with Defendants’ counsel, at intervals no greater than on a semi-annual basis, to present bills for fees and costs before filing a motion for such fees with the Court. If agreement cannot be reached // //
ORDER - 13

by counsel, Plaintiffs’ counsel may then file a motion for attorneys’ fees with the Court.
DATED: February 8, 2013 Honorable B. Lynn Winmill Chief U. S. District Judge
ORDER - 14

 
 Case 1:81-cv-01165-BLW Document 983 Filed 08/11/15 Page 1 of 19

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF IDAHO

WALTER D. BALLA, et al., Plaintiffs,
v.
IDAHO STATE BOARD OF CORRECTION, et al.,

Case No. CV-81-1165-S-BLW
ORDER GRANTING IN PART MOTION FOR SANCTIONS [956]

Defendants.

Before the Court is Plaintiffs’ Motion for Sanctions or, in the Alternative, Contempt (Dkt. 956). At issue is whether Defendant, the Idaho State Board of Correction, should be sanctioned for destroying or altering documents or otherwise presenting misleading information to the Court’s appointed special master Dr. Marc Stern when he visited the Idaho State Correctional Institution (“ISCI”) in September 2011 and January 2012. The parties briefed the issues and an evidentiary hearing was held on July 22 and 23, 2015.
I. Factual Findings Having considered the evidence presented to the Court, the Court finds the following
facts have been established by clear and convincing evidence: A. Appointment of Dr. Marc Stern as Special Master
1. This case was initially filed in 1981.
Order Granting in Part Motion for Sanctions - 1

Case 1:81-cv-01165-BLW Document 983 Filed 08/11/15 Page 2 of 19
2. On November 1, 1984, in Balla v. Idaho State Bd. of Corr., 595 F. Supp. 1558, 1583 (D. Idaho 1984) (“Balla I”), Judge Ryan ordered Defendant to do the following: (1) adopt a special dietary program for medically infirm inmates; (2) provide adequate clothing for inmates in protective custody; (3) create 24-hour emergency medical care for inmates and hire a full-time physician; (4) provide a properly staffed medical delivery system; (5) establish a psychiatric care program; (6) provide adequate security staff for double-celled units; (7) report to the Court on Defendant’s progress; (8) establish an inmate classification system to protect younger inmates; and (9) implement a disciplinary procedure ensuring due process protection.
3. On July 11, 1985, Judge Ryan approved certain compliance plans that Defendant submitted in response to the Balla I order.
4. On January 6, 2011, Judge Winmill issued an order stating his intent to appoint a special master in order to move the then-30-year-old case forward toward closure.
5. On June 1, 2011, Judge Winmill gave notice of his intent to appoint Dr. Marc Stern as special master.
6. On July 20, 2011, Judge Winmill appointed Dr. Stern as a special master to evaluate the medical and mental health care delivery system at ISCI and determine whether ISCI was in compliance with the 1985 Balla I compliance plans (if the plans were still workable) and whether ISCI inmates were being deprived of their Eighth Amendment rights through deliberate indifference to their medical needs.
7. The July 20, 2011 order stated: “[C]ounsel and the parties shall work with Dr. Stern to allow him reasonable access to all necessary materials, individuals, and facilities that will assist him in completing his duties.”
8. On September 7, 8, and 9, 2011, Dr. Stern visited ISCI. He spoke to ISCI administrators, other staff, and inmates.
Order Granting in Part Motion for Sanctions - 2

Case 1:81-cv-01165-BLW Document 983 Filed 08/11/15 Page 3 of 19
9. On September 30, 2011, Dr. Stern asked the Court to appoint psychiatrist Dr. Amanda Ruiz as a deputy special master to assist him in evaluating ISCI’s mental health care delivery. Judge Winmill duly appointed Dr. Ruiz on October 17, 2011.
10. On January 2, 3, and 4, 2012, Dr. Stern visited ISCI again, this time with Dr. Ruiz. They spoke to ISCI administrators, other staff, and inmates.
11. On March 19, 2012, Dr. Stern filed his report (Dkt. 822). He stated in the executive summary of the report: “I found serious problems with the delivery of medical and mental health care. Many of these problems either have resulted or risk resulting in serious harm to inmates at ISCI. In multiple ways, these conditions violate the right of inmates at ISCI to be protected from cruel and unusual punishment. Since many of these problems are frequent, pervasive, long standing, and authorities are or should have been aware of them, it is my opinion that authorities are deliberately indifferent to the serious health care needs of their charges.”
12. Following the issuance of Dr. Stern’s report, the parties engaged in settlement negotiations. Using Dr. Stern’s report as a guideline, the parties eventually reached an agreement whereby Defendant agreed to implement certain Modified Compliance Plans and to be subject to a two-year monitoring period during which the parties would meet every month to discuss the progress of the implementation and to address healthcarerelated areas of concern raised by either party. See Stipulated Motion to Modify Injunctive Relief (Dkt. 842). The original monitoring period is set to end in June 2016. B. ISCI’s “Preparations” for Dr. Stern’s Visits 1. Dry Cells
13. There are two cells each in Unit 15 and Unit 16 (also known as the Behavioral Health Unit, or BHU) at ISCI that are known as “holding cells” or “dry cells.”
14. “Dry” cells are different from regular “wet” cells in that dry cells have no bed, no sink, and no toilet. There is a grate in the concrete floor where inmates can relieve themselves.
Order Granting in Part Motion for Sanctions - 3

Case 1:81-cv-01165-BLW Document 983 Filed 08/11/15 Page 4 of 19
15. Inmates with mental health problems were held in the dry cells when they acted out against ISCI staff or other inmates or were a danger to themselves, for example, when they were having a psychotic episode or were on suicide watch.
16. Prior to Dr. Stern’s visit, dry cells were used frequently. Former ISCI staff whose offices were located close to the dry cells testified that the dry cells were used daily. Current ISCI employees admitted that the dry cells were used at least weekly.
17. Sometimes inmates were placed in the dry cell for short periods of time, ranging from a few minutes to a few hours.
18. Other times, however, inmates were placed in the dry cell for days. 19. Inmate Munk’s housing record shows that he was in a dry cell between May 5 and 7
(three days), June 29 and July 2 (four days), July 26 and 30 (five days), October 21 and 24 (four days) and November 17 and 21 (five days) in 2011. 20. Inmate Brady’s housing record shows that he was in a dry cell from June 30 to July 2 (three days) in 2011. 21. Inmate Wilson’s housing record shows that he was in a dry cell from July 1 to 5 (five days) and July 28 to 30 (three days) in 2011. 22. Inmate Garner’s housing record shows that he was in a dry cell between August 16 and 24 (nine days) and October 6 and 25 (twenty days) in 2011. 23. Inmate Hassan’s housing record shows that he was in a dry cell from August 30 to September 6 (seven days) in 2011. 24. Inmate Ehrlick’s housing record shows that he was in a dry cell from September 2 to September 4 (three days) in 2011. 25. Inmate Evans’s housing record shows that he was in a dry cell between September 17 and 19 (three days) in 2011. 26. Inmate DeHart’s housing record shows that he was in a dry cell from October 18 to 21 (four days) in 2011.
Order Granting in Part Motion for Sanctions - 4

Case 1:81-cv-01165-BLW Document 983 Filed 08/11/15 Page 5 of 19
27. Inmate Robinson’s housing record shows that he was in a dry cell between October 24 and 27 (four days) in 2011.
28. Inmate Hoskins’s housing record shows that he was in a dry cell between November 13 and 15 (three days) and November 17 and 26 (ten days) in 2011.
29. Inmate Bright’s housing record shows that he was in a dry cell between November 30 and December 3 (four days) and between December 14 and 16 (three days) in 2011.
30. Inmate Hays’s housing record shows that he was in a dry cell between December 24 and 26 (three days) in 2011.
31. An inmate was once placed in a dry cell for 30 days. 32. Although, as one clinician put it, it is always possible to give some kind of clinical
justification for multi-day stays, the reality was that the dry cells were sometimes used for punishment rather than therapeutic purposes. For instance, inmate Hochstetler’s treatment plan provided that, if he acted out, he would be placed in a dry cell for a preordained 3 days instead of being regularly monitored and being transferred to a regular cell if his behavior changed during those 3 days. In a departure from the normal practice, he was not provided a suicide watch companion to check on him while he was in the dry cell. 33. During the summer before Dr. Stern’s visit, after ISCI was on notice that a special master would be visiting, ISCI clinicians were instructed to change the way that they used the dry cells, either by stopping their use altogether or by stopping their use for periods of longer than 24 hours. 34. Based on the records provided to the Court, up to the time of Dr. Stern’s first set of visits, multiple dry cells were used almost daily. However, none of the dry cells were used during Dr. Stern’s first set of visits on September 7, 8, and 9, 2011. 35. The dry cells were operational again after Dr. Stern’s first set of visits and before Dr. Stern’s second set of visits.
Order Granting in Part Motion for Sanctions - 5

Case 1:81-cv-01165-BLW Document 983 Filed 08/11/15 Page 6 of 19
36. During Dr. Stern’s second visit, this time with Dr. Ruiz, on January 2, 3, and 4, 2012, none of the dry cells were used on January 2 and 3.
37. Two of the dry cells were used on January 4. However, without information on what time of day inmates were placed in the dry cells, and given the pattern of frequent use before Dr. Stern’s and Dr. Ruiz’s visit, it appears that the dry cells were used on January 4 only after Dr. Stern and Dr. Ruiz left.
38. Dr. Ruiz saw the dry cells during her visit to ISCI in January 2012 and commented that the dry cells were “barbaric.”
39. During her visit, she asked Shell Wamble-Fisher, then ISCI’s clinical supervisor, for information about inmates who had been placed in the dry cells while on suicide watch or close observation between October 2011 and December 2011.
40. Ms. Wamble-Fisher provided Dr. Ruiz with an outline showing that, of 137 inmates who were on suicide watch or close observation during that time period, 45 were put in a dry cell. Of those, 16 stayed in the dry cell for over 24 hours. The longest stay she listed was inmate Sanford’s stay in a dry cell between November 16 and December 2, 2011 (16 days).
41. Ms. Wamble-Fisher’s outline misstated that inmate Garner was in a dry cell between October 6 and 16, 2011. His housing record shows that he was actually in dry cells between October 6 and 25, 2011 (19 days).
42. Dr. Stern’s report identified a number of problems with mental health care at ISCI, including misusing segregation as a de facto punishment for behavior caused by mental illness and misusing segregation in dry cells as a method of providing mental health care to inmates having acute self-harm episodes.
43. The “most distressing” problem Dr. Stern identified with ISCI’s way of handling patients at risk of self-harm was having patients with serious mental illnesses spend “far too much time in dry cells. In a three month period, eight individuals spent five or more days in a dry cell (six of these stays lasted 10 days or more, the longest of which was 16 days).
Order Granting in Part Motion for Sanctions - 6

Case 1:81-cv-01165-BLW Document 983 Filed 08/11/15 Page 7 of 19
According to Dr. Ruiz, the use of these dry cells on a long-term basis can only be described as degrading and inhumane.” 44. ISCI’s response to Dr. Stern’s findings, attached as Appendix A of Dr. Stern’s report (Dkts. 822-1, 822-2), stated that, “effective January 9, 2012, prior to putting an inmate in a dry cell, security staff would contact the Idaho Department of Correction (“IDOC”) clinical supervisor or chief psychologist for an initial mental health assessment and then conduct a telephonic follow-up every two hours until the inmate was moved to a less restrictive environment. The dry cells would only be used “in extreme situations for a short duration.”
2. Suicide Watch Companion Training Logs 45. Brian Fariss was the psychiatric treatment coordinator at ISCI between September 2009
and October 2011. In that role, his responsibilities included serving as the liaison between the BHU and ISCI’s medical service provider, chairing the multidisciplinary treatment team that reviewed the offender case plans and medical files, and supervising the suicide watch prevention program, which included training some inmates to be suicide watch companions. 46. From October 2011 until approximately October 2012, Mr. Fariss was a correctional program manager at ISCI. His responsibilities included supervising all case management and drug and alcohol rehabilitation functions. 47. Before Dr. Stern’s visit, Shell Wamble-Fisher asked Mr. Fariss to create a log to show which inmates had been trained as suicide watch companions and when they had been trained. 48. Mr. Fariss told Ms. Wamble-Fisher that creating a log would be “disingenuous” because it would make it appear to the special master as if he had been keeping track of the training contemporaneously when he had not been doing so. 49. Ms. Wamble-Fisher instructed him to create the log anyway.
Order Granting in Part Motion for Sanctions - 7

Case 1:81-cv-01165-BLW Document 983 Filed 08/11/15 Page 8 of 19
50. Mr. Fariss created the log. He estimated the dates of the training by counting 30 days back from the date of each suicide watch companion’s first timesheet.
51. In April or May 2011, Mr. Fariss told Ms. Wamble-Fisher that he was preparing documents so that he could speak with the special master.
52. Ms. Wamble-Fisher told Mr. Fariss that the special master would not be speaking with him and that his information was not required for the special master.
53. Dr. Stern’s report found that the suicide watch companion program had three serious flaws: (1) the companions were not adequately screened, with many of the companions themselves having serious mental illnesses which could put the inmates they worked with at risk; (2) rather than supplementing monitoring by ISCI staff, the companions were being used as substitutes for professional staff; and (3) there was no medical record documentation of the companions’ clinical observations of other inmates during suicide watches and close observation.
54. The report did not comment directly on whether or how the companions were trained. 3. “Auditing” Inmate Medical Records
55. Prior to Dr. Stern’s visits, Shell Wamble-Fisher did non-routine audits of inmate medical records to get them “ready” for the special master’s visit.
56. Regarding medical records, Dr. Stern’s report stated in relevant part: “A well organized and complete medical record is a necessary element of a constitutionally adequate health care delivery system. In my opinion, medical records are currently well organized and complete, and all loose papers have been filed. However, this state of affairs is a recent development. According to staff, until May 2011, most medical records did not have clearly marked sections, were disorganized, and were missing many essential documents, such as lab and x-ray reports, which were in loose stacks waiting to be filed. If this is true, the medical record at that time would likely not have been able to support constitutionally adequate care.”
Order Granting in Part Motion for Sanctions - 8

Case 1:81-cv-01165-BLW Document 983 Filed 08/11/15 Page 9 of 19
57. ISCI’s response to Dr. Stern’s findings, attached as Appendix A of Dr. Stern’s report, stated the following regarding medical records: “Staff is currently in place to ensure that filing is maintained” and “Since June 2011 staff has been in place and will continue to be maintained.”
58. Regarding mental health records specifically, Dr. Stern found that ISCI did not maintain complete and accurate records of care provided during acute suicidal events and of treatment plans and group therapy treatment. 4. Level of Staffing
59. Prior to Dr. Stern’s visit, Shell Wamble-Fisher began meeting with inmates in the general compound for 10-15 minutes each so that she could create the impression in their medical records that inmates had recently met with a clinician when normally there were only two clinicians responsible for the yard, which made it very difficult for all of the inmates who needed mental health services to be seen regularly.
60. Regarding the number of trained mental health professionals per capita at ISCI, Dr. Stern found that there was an insufficient number of psychiatric and non-psychiatric mental health staff at ISCI, although the report cautioned that he could not state with a great level of certainty that the deficiencies in non-psychiatric mental health services that he observed were the result of insufficient staffing. 5. Movement of Certain Inmates Out of the BHU
61. Some inmates were moved out of the BHU prior to Dr. Stern’s visit. 62. Some former ISCI employees testified that the inmates who were moved out of the BHU
were the ones who complained the most or had more serious mental health problems. 63. However, in some instances, the housing records of the inmates identified by these
witnesses did not reflect those moves. In other instances, other legitimate reasons existed for moving them out.
Order Granting in Part Motion for Sanctions - 9

Case 1:81-cv-01165-BLW Document 983 Filed 08/11/15 Page 10 of 19
C. Other Instances of Documents Being Altered 1. Gender Identity Disorder
64. In 2007, IDOC was a defendant in a federal lawsuit brought by two inmates with gender identity disorder who had castrated themselves. Dr. Richard Craig, IDOC’s chief psychologist, participated in a Ninth Circuit mediation of that case in San Francisco that year.
65. In October or November 2007, Shell Wamble-Fisher instructed the clinicians at ISCI to not diagnose inmates with gender identity disorder and to remove references to gender identity disorder and references to inmates using feminine pronouns (e.g., “she,” “her”) from inmates’ medical files so that ISCI would not have to pay for gender identity disorder treatment.
66. In subsequent conversations, Ms. Wamble-Fisher mentioned that the instructions were “per Dr. Craig.”
67. Following those instructions, Armida Molina-Medina, then a clinician at ISCI, deleted a reference to gender identity disorder from an electronic record in inmate Jerry A. Romero’s file. (Romero is now also known as Mona Lisa Romero.) Ms. Molina-Medina also removed the hard copy of that record from the inmate’s file and put it in the shred bin, replacing it with a new version without references to gender identity disorder. When she re-signed the new version, she dated her signature with the current date, but she did not change the original date of the mental health assessment, which remained the date on which she had first seen the inmate.
68. Ms. Molina-Medina also changed a document in another inmate’s file by deleting references to the inmate as “she” or “her.”
69. From then on, if an inmate told her something about gender identity, such as a desire to start hormonal therapy treatment, she omitted such information from her notes.
Order Granting in Part Motion for Sanctions - 10

Case 1:81-cv-01165-BLW Document 983 Filed 08/11/15 Page 11 of 19
2. Primary Logs 70. A primary log is a document written by the on-call clinician recording his or her
observations of inmates that he or she saw that day. 71. The primary log does not go into inmates’ medical files. However, the primary log is an
important tool that clinicians use on a daily basis to stay abreast of inmates’ mental health condition from day to day. 72. At the end of each day, the clinician on duty emails his or her primary log to the other clinicians and also saves a copy of the primary log on the U drive, a shared drive. 73. All of the clinicians and clinical supervisors had access to the U drive, including Shell Wamble-Fisher. 74. On March 14, 2012, clinician Diana Canfield wrote a primary log in which she noted that Vicki Hansen, a clinician at the Idaho Maximum Security Institution (“IMSI”), had seen an inmate who was moved to IMSI. She sent out the primary log to the other clinicians via email and saved it in the shared drive. 75. The following day, Ms. Canfield and another clinician Jessie Bogley discovered that someone had changed the version in the shared drive so that the primary log stated that Ms. Canfield, rather than Ms. Hansen, had seen the inmate at IMSI. 76. Shell Wamble-Fisher sometimes “condensed” clinicians’ primary logs by removing information that she thought should not be in the primary log. When doing so, she did not check the inmate’s medical records to ensure that the deleted information was captured in some other way.
3. SOAP Notes 77. Clinicians write a Subjective, Objective, Assessment, and Plan (“SOAP”) note each time
they have clinical contact with an inmate. Like primary logs, SOAP notes were sent to other clinicians by email at the end of each day and electronic versions of SOAP notes were also saved in the U drive.
Order Granting in Part Motion for Sanctions - 11

Case 1:81-cv-01165-BLW Document 983 Filed 08/11/15 Page 12 of 19
78. Unlike primary logs, the clinicians also printed out paper copies of SOAP notes and put the paper copies in the bin for filing in the inmate’s medical file.
79. Someone with access to the U drive deleted clinician Diana Canfield’s SOAP notes for July 1, 2012 from the U drive.
80. Someone at ISCI also deliberately removed Ms. Canfield’s SOAP notes from inmates’ medical files, including one instance in which a month’s worth of Ms. Canfield’s SOAP notes, but not other clinicians’ SOAP notes, were removed from inmate Bright’s file.
81. During the Idaho Bureau of Occupational Licenses’s (IBOL’s) investigation of Ms. Canfield, IBOL investigator Cindy Stephenson requested from ISCI all of the SOAP notes for certain inmates during April 2012. Shell Wamble-Fisher pulled the files for ISCI. When Ms. Stephenson reviewed the documents, she found no documents signed by Ms. Canfield.
82. As part of the investigation, clinician Jessie Bogley conducted random checks on inmates’ files and she also found that Ms. Canfield’s documents were missing from the files, but not other clinicians’ files. 4. Suicide Risk Assessments
83. On March 22, 2012, clinician Diana Canfield personally evaluated a new inmate who had just been transferred to ISCI from another facility and decided that he should be put under close supervision, but not on suicide watch. She filled out a Suicide Risk Assessment (SRA) form to that effect.
84. After Ms. Canfield left work that day, her supervisor Shell Wamble-Fisher did not physically see the inmate. However, she overrode Ms. Canfield’s decision after consulting with Dr. Craig and the inmate’s treating psychologist from his former facility, and she put the inmate on suicide watch.
85. Ms. Wamble-Fisher filled out another Suicide Risk Assessment that identified Ms. Canfield as the one who had observed and spoken to the inmate, but also described Ms. Wamble-Fisher’s subsequent consultations and decision.
Order Granting in Part Motion for Sanctions - 12

Case 1:81-cv-01165-BLW Document 983 Filed 08/11/15 Page 13 of 19
86. As the clinical supervisor, Ms. Wamble-Fisher had the authority to override Ms. Canfield’s decisions. D. Complaints and Investigations 1. Dr. Stern
87. Although Dr. Stern testified that he felt he had unfettered access to ISCI during his visits, he also had the impression that Shell Wamble-Fisher generally was not being forthright in her eagerness to present a positive image of ISCI.
88. Dr. Stern shared his concern with Warden Smith at the end of his second visit in January 2012. 2. Clinicians’ Complaint
89. In March 2012, five clinicians supervised by Shell Wamble-Fisher met with then-Warden Johanna Smith and then-Deputy Warden Kevin Yordy to discuss their concerns about Shell Wamble-Fisher.
90. One of the complaints was that Ms. Wamble-Fisher changed Ms. Canfield’s primary log. 91. Another was that, “When the special masters [sic] was here clinical staff was told to do
multiple things differently, such as not use the back holding cells to make it look like we don’t routinely use them.”
3. Cindy Stephenson 92. In August 2012, Dr. Craig made a complaint about clinician Diana Canfield to IBOL for
allegedly documenting that she had seen two inmates in July 2012 when she had not actually seen them. 93. In investigating the complaint, IBOL investigator Cindy Stephenson interviewed 17 different individuals and requested documents from ISCI. 94. Based on her interviews and her review of the documents she received, she concluded that Ms. Canfield had not violated any ethical rules. Elaine Sullivan, a counselor who did professional reviews for IBOL, concurred with Ms. Stephenson that no ethical violation
Order Granting in Part Motion for Sanctions - 13

Case 1:81-cv-01165-BLW Document 983 Filed 08/11/15 Page 14 of 19
had occurred. The Board itself also agreed, adopting Ms. Stephenson’s report and taking no disciplinary action against Ms. Canfield. 95. Ms. Stephenson’s report stated her conclusion that someone had altered, removed, or tampered with Ms. Canfield’s notes, documents, and information on multiple occasions. 96. Ms. Stephenson’s report also stated her conclusion, that, “From everything I have been told, it would appear there is an issue of some type with the supervisor, Ms. WambleFisher.” In reaching that conclusion, Ms. Stephenson considered that Ms. Wamble-Fisher had access to all computer records and all hard copy files and had reviewed medical files in advance of the special master’s visit. Ms. Wamble-Fisher was also the one who pulled four inmate files that Ms. Stephenson had requested from ISCI, from which Ms. Canfield’s notes were missing. 97. Although Ms. Stephenson did not have the power to open an investigation into Ms. Wamble-Fisher, she wanted to bring the potential issues with Ms. Wamble-Fisher to her supervisors’ attention. II. Legal Standard
A. The Court’s Inherent Authority to Sanction A federal district court has inherent authority to sanction parties when they act “in bad faith, vexatiously, wantonly, or for oppressive reasons.” Primus Auto. Fin. Servs., Inc. v. Batarse, 115 F.3d 644, 648 (9th Cir. 1997); see also Chambers v. NASCO, Inc., 501 U.S. 32, 46 (1991). Bad faith includes “delaying or disrupting the litigation or hampering enforcement of a court order.” Id. It also includes actions constituting a fraud upon the court. Chambers, 501 U.S. at 44. To prove fraud upon the court, Plaintiffs must demonstrate by clear and convincing evidence not that they suffered prejudice, but that Defendant harmed the integrity of the judicial process. As the Ninth Circuit has noted, “[m]ost fraud on the court cases involve a scheme by one party to hide a key fact from the court and the opposing party.” United States v. Estate of Stonehill, 660 F.3d 415, 444 (9th Cir. 2011). The movant generally “must show more than perjury or
Order Granting in Part Motion for Sanctions - 14

Case 1:81-cv-01165-BLW Document 983 Filed 08/11/15 Page 15 of 19
nondisclosure of evidence, unless that perjury or nondisclosure was so fundamental that it undermined the workings of the adversary process itself.” Id. at 445.
In line with the fraud on the court cases, other cases have held that sanctions for bad faith conduct are appropriate “when a party acts for an improper purpose,” even if the act involves reckless rather than willful misstatements of law and fact or, in some cases, even if the act consists of making a truthful statement or a non-frivolous argument or objection. Fink v. Gomez, 239 F.3d 989, 992 (9th Cir. 2001) (citing In re Itel Sec. Litig., 791 F.2d 672, 675 (9th Cir. 1986)).
B. Spoliation of Evidence “Spoliation of evidence is ‘the destruction or significant alteration of evidence, or the failure to properly preserve property for another’s use as evidence in pending or reasonably foreseeable litigation.’” Lifetouch Nat’l Sch. Studios, Inc. v. Moss-Williams, Case No. C1005297 RMW (HRL), 2013 U.S. Dist. LEXIS 148360, at *7 (N.D. Cal. Oct. 15, 2013) (quoting Zubulake v. UBS Warburg LLD, 220 F.R.D. 212, 216 (S.D.N.Y. 2003)). “A federal trial court has the inherent discretionary power to make appropriate evidentiary rulings in response to the destruction or spoliation of relevant evidence.” Glover v. BIC Corp., 6 F.3d 1318, 1329 (9th Cir. 1993). Most courts use the three-part test set forth in Zubulake v. UBS Warburg LLD, 220 F.R.D. 212, 216 (S.D.N.Y. 2003): “A party seeking sanctions for spoliation of evidence must prove the following elements: (1) the party having control over the evidence had an obligation to preserve it when it was destroyed or altered; (2) the destruction or loss was accompanied by a culpable state of mind; and (3) the evidence that was destroyed or altered was relevant to the claims or defenses of the party that sought the discovery of the spoliated evidence[.]” Montoya v. Orange Cty. Sheriff’s Dep’t, Case No. 11-cv-1922, 2013 U.S. Dist. LEXIS 180682, at *19-20 (C.D. Cal. Oct. 15, 2013) (internal quotation marks omitted). If a party is found to have spoliated evidence, the court then determines whether and which sanctions are appropriate. Courts choose “the least onerous sanction corresponding to the
Order Granting in Part Motion for Sanctions - 15

Case 1:81-cv-01165-BLW Document 983 Filed 08/11/15 Page 16 of 19
willfulness of the destructive act and the prejudice suffered by the victim.” Apple Inc. v. Samsung Electronics Co., 888 F. Supp. 2d 976, 992 (N.D. Cal. 2012). “Ultimately, the choice of appropriate spoliation sanctions must be determined on a case-by-case basis, and should be commensurate to the spoliating party’s motive or degree of fault in destroying the evidence” and the degree of prejudice suffered by the movant. Id. at 992-93. Prejudice can be hard to measure in the spoliation context, given that the documents that would show prejudice most clearly are, by definition, destroyed. However, once spoliation is shown, prejudice can be presumed, shifting the burden to the spoliator to show that the destruction of evidence did not prejudice the movant. Id. at 993.
III. Analysis Based on the factual findings above, the Court finds that Defendant acted with improper
purpose to keep the Court’s special master from appreciating the true extent to which the dry cells were used and the true extent to which ISCI failed to keep adequate records related to mental health care. Specifically, taking into account the consistency and credibility of the witnesses and the totality of the evidence, the Court is troubled by the degree to which ISCI attempted to put forward its “best face” as opposed to sincerely trying to improve its delivery of mental health care over the long term. To some degree, a desire to put the prison’s “best face” forward when an outsider comes to scrutinize the facility can lead to some improvements, which is better than an obstinate refusal to change. This is, after all, one of the reasons why Plaintiffs seek continued court involvement in ISCI’s provision of medical and mental health care.
However, ISCI’s pattern of allowing its employees to manipulate inmate medical files before, during, and after the special master’s visit for inappropriate purposes crosses the line. As one witness stated, “audits and investigations . . . are actually how you grow.” By keeping the dry cells empty during the days of Dr. Stern’s and Dr. Ruiz’s visits; discouraging Mr. Fariss, who ran the suicide watch companion program, from speaking with the special master; creating a “log” that would have misled the special master into thinking that training for suicide watch companions was tracked contemporaneously; and re-organizing and supplementing documents
Order Granting in Part Motion for Sanctions - 16

Case 1:81-cv-01165-BLW Document 983 Filed 08/11/15 Page 17 of 19
during an anticipatory “audit” of inmates’ medical files, ISCI attempted to paper over and mislead the special master about the inadequacies of its mental health care system rather than risk a bad finding by the special master, which might have led to a court order to improve their system in a formal and long-standing way. 1 For instance, a conversation with Mr. Fariss could have led the special master to investigate the use of inmates of suicide watch companions further and come to a firmer conclusion regarding the lack of sufficient mental health staffing.
That said, the Court is cognizant, as are Plaintiffs, that ISCI has made progress since the special master’s visits in 2011 and 2012. Under the terms of the parties’ Stipulated Motion and Modified Compliance Plans, which were the product of intense settlement negotiations after the special master’s report was issued, the parties are now approximately halfway through a twoyear monitoring period that began on June 6, 2014. The parties have been meeting monthly to address healthcare-related problems at the prison as they arise and have been making progress toward the resolution of this case. The Court is also aware that, despite ISCI’s attempt to make itself look better to the special master, the special master nevertheless saw through some of it and critiqued, for instance, ISCI’s use of the dry cells to contain inmates with serious mental illnesses and ISCI’s poor documentation of its mental health care delivery.
Ultimately, although Dr. Stern saw past the façade in some areas and the parties have made progress on providing better medical and mental health services for the inmates, the Court and its representatives expect and need forthright, honest, and transparent information in order to make just decisions. The breadth and depth of a problem cannot be obfuscated if it is to be properly remedied. Attempts to mislead the Court strike at the heart of the judicial process and
1 Plaintiffs also raised the movement of certain problematic inmates out of the BHU and “alteration” of Ms. Canfield’s SRA as evidence of IDOC’s cover-up. The Court finds no fault with IDOC as to these two incidents in the context of this motion, as there was not sufficient evidence that the inmates moved out of the BHU were moved out for nefarious reasons as opposed to other, legitimate security reasons. As for the SRA, while Ms. Wamble-Fisher’s decision to fill out an SRA form and order an inmate be placed on suicide watch without seeing the inmate may or may not have been the best practice from the perspective of providing mental health care or from the perspective of the clinicians’ ethical code, Ms. WambleFisher’s new SRA was not misleading as it was clear from the document that she did not see the inmate and was relying on Ms. Canfield’s observations in addition to her own consultation with the inmate’s psychologist and Dr. Craig.
Order Granting in Part Motion for Sanctions - 17

Case 1:81-cv-01165-BLW Document 983 Filed 08/11/15 Page 18 of 19
cannot be ignored even if the parties have made progress since then. Thus, the Court finds it appropriate to issue sanctions.
IV. Remedies In their Motion, Plaintiffs seek a number of different types of sanctions. After careful
consideration of the degree of willfulness involved in ISCI’s conduct and the level of harm to Plaintiffs and to the judicial process, the Court finds that the “least onerous sanction[s] corresponding to the willfulness of the destructive act and the prejudice suffered by the victim,” Apple, 888 F. Supp. 2d at 992, are the following limited sanctions:
(1) The two-year compliance monitoring period set forth in the Stipulated Motion and Modified Compliance Plans shall restart as of September 1, 2015, to conclude on September 1, 2017.
(2) Sections 6.1 through 6.7 of the Stipulated Motion currently provide for the automatic termination of the Modified Compliance Plans and Orders 1, 3, 4, and 5 of Balla I, as well as the dismissal of the Balla I legal claims, upon Defendant demonstrating to the satisfaction of an auditor from the National Commission on Correctional Health Care (NCCHC) that Defendant is in compliance with certain standards. These sections of the Stipulated Motion shall remain in place, except for one change to Section 6.7: After the NCCHC certifies to the Court that Defendant is in compliance, Defendant shall file a motion to terminate the Modified Compliance Plans and of Orders 1, 3, 4, and 5 of the Balla I order and dismiss the Balla I legal claims. Defendant shall have the burden to prove that “there are no ongoing constitutional violations, that the relief ordered exceeds what is necessary to correct an ongoing constitutional violation, or both.” Graves v. Arpaio, 623 F.3d 1043, 1048 (9th Cir. 2010). Plaintiffs shall have an opportunity to present evidence to the contrary if they wish. Termination of the Modified Compliance Plans and of Orders 1, 3, 4, and 5 of the Balla I order and dismissal of the Balla I legal claims shall occur only with the Court’s approval.
Order Granting in Part Motion for Sanctions - 18

Case 1:81-cv-01165-BLW Document 983 Filed 08/11/15 Page 19 of 19
(3) Defendant shall pay reasonable attorney’s fees and costs incurred by Plaintiffs in bringing this Motion for Sanctions.2 DATED: August 11, 2015.
__________________________________________ DAVID O. CARTER United States District Judge for the Central District of California Sitting by Special Designation
2 Plaintiffs also requested that the Court appoint a medical expert to provide Plaintiffs an independent review of IDOC’s compliance with the Modified Compliance Plans and that the Court reopen negotiations on Addendum B of the Stipulated Motion to address issues pertaining to medical records and oversight of IDOC compliance with the Modified Compliance Plans. The Court finds these sanctions unnecessary as the NCCHC auditor will do an independent review of IDOC’s compliance at the end of the monitoring period anyway and Plaintiffs will have an opportunity to raise any concerns about continuing Eighth Amendment violations at the end of the monitoring period.
Order Granting in Part Motion for Sanctions - 19

 
 Case 1:81-cv-01165-BLW Document 1003 Filed 11/20/15 Page 1 of 23

1

2

UNITED STATES DISTRICT COURT

3

FOR THE DISTRICT OF IDAHO

4
5 WALTER D. BALLA, et al.,

6

Plaintiffs,

7

v.

8 IDAHO STATE BOARD OF 9 CORRECTION, et al.

Case No. CV-81-1165-S-BLW ORDER GRANTING PLAINTIFFS’ MOTION FOR ATTORNEY’S FEES AND COSTS [994, 1000]

10

Defendants.

11

12

13

Before the Court is Plaintiffs’ Motion for Attorney’s Fees and Costs (“Motion”) and

Supplement to Motion for Attorney’s Fees and Costs (“Supplemental Motion”) (Dkts. 994,
14

1000). Having reviewed the moving papers and considered the parties’ arguments, the Court
15

16 GRANTS Plaintiffs’ Motion.

I. Relevant Factual and Procedural Background
17

The Court recently detailed the history of this litigation in a recent opinion. See Order
18

Granting in Part Plaintiffs’ Motion for Sanctions (“Sanctions Order”), August 11, 2015 (Dkt.
19

20 983) at 1–16. For purposes of resolving the instant motions, the Court recounts on the following

facts.
21

The Court appointed law firm Stoel Rives to represent Plaintiffs pro bono beginning in
22

23 January 2004. Order, January 6, 2004 (Dkt. 459) at 4–6. On July 20, 2011, the Court appointed

Dr. Marc Stern as a special master to evaluate the medical and mental health care delivery
24

system at the Idaho State Correctional Institution (“ISCI”) (Dkt. 806). In March of the
25

following year, Dr. Stern filed a report in which he concluded there were “serious problems
26

27 with the delivery of medical and mental health care” within IDOC and that “these conditions

violate the right of inmates at ISCI to be protected from cruel and unusual punishment.” Special
28

-1-

Case 1:81-cv-01165-BLW Document 1003 Filed 11/20/15 Page 2 of 23

1 Master’s Report (Dkt. 822) at 3. Following the issuance of Dr. Stern’s report, Defendant agreed

2 to implement certain Modified Compliance Plans and to be subject to a two-year monitoring

3 period. See generally Stipulated Motion to Modify Injunctive Relief (Dkt. 842).

4

On February 19, 2015, W. Christopher Pooser (“Mr. Pooser”) and Elijah M. Watkins

5 (“Mr. Watkins”), two attorneys with Stoel Rives, learned of allegations raised against the Idaho

6 Department of Correction (“IDOC”) in a state lawsuit filed by Diana Canfield (“Ms.

7 Canfield”). Declaration of W. Christopher Pooser (“Pooser Decl.”) (Dkt. 994-2) ¶ 10. Ms.

8 Canfield specifically alleged that IDOC employees at ISCI had altered, falsified, and destroyed

9 medical records and other patient information. Id.

10

After learning of these allegations, Pooser, Watkins, and attorney Andrea W. Reynolds

11 (“Ms. Reynolds”) along with Stoel Rives paralegals Jacqueline D. Franolich (“Ms. Franolich”)

12 and Darin S. Frost (“Mr. Frost”), began an investigation – they attended parts of the state court

13 proceeding, reviewed the relevant trial documents, and conducted interviews of individuals

14 with knowledge of the allegations. Id. ¶ 11. Plaintiffs’ counsel then informed opposing counsel 15 and Special Master Susie Headlee1 of their investigation, and given the serious nature of the

16 alleged misconduct, the parties agreed to engage in an expedited period of discovery. Id. ¶ 12.

17

Plaintiffs filed a Motion for Sanctions or, in the Alternative, Contempt (“Motion for

18 Sanctions”) on June 22, 2015 (Dkt. 956). The Court held a two-day evidentiary hearing on July

19 22 and July 23 (Dkts. 974, 975). On August 11, 2015, the Court issued its Sanctions Order,

20 concluding that “Defendant acted with improper purpose to keep the Court’s special master

21 from appreciating the true extent to which the dry cells were used and the true extent to which

22 ISCI failed to keep adequate records related to mental health care.” Sanctions Order at 16. The

23 Court wrote that “[b]y keeping the dry cells empty during the days of Dr. Stern’s and Dr.

24 Ruiz’s visits; discouraging Mr. Fariss, who ran the suicide watch companion program, from

25 speaking with the special master; creating a ‘log’ that would have misled the special master into

26 thinking that training for suicide watch companions was tracked contemporaneously; and

27 re-organizing and supplementing documents during an anticipatory ‘audit’ of inmates medical

28 1 Ms. Headlee was appointed as special master on March 25, 2015. See Dkt. 947.

-2-

Case 1:81-cv-01165-BLW Document 1003 Filed 11/20/15 Page 3 of 23

1 files, ISCI attempted to paper over and mislead the special master about the inadequacies of its

2 mental health care system rather than risk a bad finding by the special master . . . .” Id. at 16–

3 17.

4

As a remedy for these violations, the Court restarted the two-year compliance

5 monitoring period for the Modified Compliance Plans, placed the burden on Defendant to prove

6 compliance with these plans, and ordered Defendant to pay reasonable attorney’s fees and costs

7 incurred by Plaintiffs in bringing the Motion for Sanctions. Id. at 18–19. The Court relied on its

8 inherent authority in imposing these sanctions. Id. at 14.

9

Pursuant to the Sanctions Order, Plaintiffs brought the instant Motion on September 15,

10 2015. Defendant filed its Opposition on October 1, 2015 (Dkt. 997). Plaintiffs replied and filed

11 their Supplemental Motion on October 15, 2015 (Dkts. 999, 1000). IDOC filed its Opposition

12 to the Supplemental Motion on November 9, 2015 (Dkt. 1002).

13

II. Legal Standard

14

A. Applicability of the PLRA

15

As an initial matter, the parties dispute what legal framework applies to the calculation of

16 attorney billing rates. Plaintiffs seek an award of attorney’s fees based on their standard billing

17 rates. Mot. at 5. Because the Court relied on its inherent authority in sanctioning Defendant,

18 Plaintiffs argue their attorney’s fees request should not be capped by the Prison Reform

19 Litigation Act (“PLRA”). Id. (citing Ball v. Leblanc, No. 13-00368-BAJ-SCR, 2015 WL

20 4454779, at *3–4 (M.D. La. July 17, 2015)) (finding PLRA “inapplicable” when court awards

21 attorney’s fees as part of its inherent power to sanction). Defendant contends the PLRA rate cap

22 does in fact apply to Plaintiffs’ request.

23

In Webb v. Ada County, the Ninth Circuit considered whether the PLRA rate cap applied

24 to attorney’s fees stemming from plaintiff’s post-judgment motions for contempt and discovery

25 sanctions. 285 F.3d 829, 837 (9th Cir. 2002). The discovery sanctions in Webb were “ordered

26 against Ada County for refusing to turn over documents related to the jail’s staffing levels.” Id.

27 The Ninth Circuit concluded that because Webb’s motions “were directly related to his

28 underlying § 1983 cause of action,” the PLRA rate cap applied. Id. The Webb court explained:

-3-

Case 1:81-cv-01165-BLW Document 1003 Filed 11/20/15 Page 4 of 23

1

[I]t is unlikely that Congress intended that only part of the attorney’s fees awarded in a prisoner lawsuit be subject to the PLRA rate cap. Congress’

2

desire to reduce the costs of these lawsuits would not be furthered by

awarding attorney’s fees piecemeal; Webb's interpretation of the PLRA’s

3

scope would increase litigation over which fees should be paid at which

4

rate. The district court did not abuse its discretion by applying the PLRA rates to fees related to motions for contempt and discovery sanctions.

5 Id.

6

A district court in this Circuit later relied on Webb in analyzing the exact argument

7 Plaintiffs make here. The plaintiff in Norwood argued “Webb is distinguishable” because

8 defendant’s conduct warranted sanctions under the court’s inherent power. Norwood v. Vance,

9 No. 2:03-cv-2554-GEB-GGH-P, 2008 WL 686901, at *1 (E.D. Cal. Mar. 12, 2008). But the

10 district court found this argument “unconvincing” because “his motion for sanctions is ‘directly

11 related to [the] underlying § 1983 cause of action.’” Id. Thus, the Norwood court awarded

12 attorney’s fees at the PLRA hourly rate. Id.

13

The Court agrees with this analysis. The Ninth Circuit’s Webb decision made clear the

14 PLRA rate cap applies to post-judgment discovery and contempt motions because they are

15 related to the underlying § 1983 claim. Here, Defendant’s sanctionable conduct was directly

16 related to Plaintiffs’ ongoing attempts to achieve compliance with the Modified Compliance

17 Plans. Further, Plaintiffs’ reliance on Bell is unpersuasive, as the Louisiana district court was not

18 bound by the Ninth Circuit’s holding in Webb.2

19

Accordingly, the Court finds the PLRA rate cap applies here.

20

B. Attorney’s Fees Under § 1988

21

Under 42 U.S.C. § 1988, the Court may, in its discretion, grant a reasonable attorney’s

22 fee as part of the costs to the prevailing party. 42 U.S.C. § 1988(b). The lodestar formula should

23 be used to determine a reasonable figure for an award of attorney’s fees. A lodestar figure is

24 calculated by “multiplying the hours spent on a case by a reasonable hourly rate of

25 compensation for each attorney involved.” Pennsylvania v. Del. Valley Citizens’ Council for

26

27

2 In their Reply, Plaintiffs cite to three additional decisions that did not apply the PLRA rate cap to attorney’s fees awarded as sanctions. Reply at 3 (citing Scott v. Clarke, No. 3-12-CV-00036, 2014 WL 1463755, at *1 (W.D. Va. Apr. 15, 2014); Davis

v. Rouse, No. WDQ-08-CV-3106, 2012 WL 3059569, at *3 (D. Md. July 25, 2012); and Edwin G. v. Washington, No. 9728 1177, 2001 WL 196760, at *2 (C.D. Ill. Jan. 26, 2001)). However, these decisions, like Bell, come from district courts

outside of the Ninth Circuit.

-4-

Case 1:81-cv-01165-BLW Document 1003 Filed 11/20/15 Page 5 of 23

1 Clean Air, 478 U.S. 546, 563 (1986). “A ‘strong presumption’ exists that the lodestar figure

2 represents a ‘reasonable’ fee, and upward adjustments of the lodestar are proper only in ‘rare’

3 and ‘exceptional’ cases.” Jordan v. Multnomah County, 815 F2d 1258, 1262 (9th Cir. 1987)

4 (quoting Delaware Valley, 478 U.S. at 565).

5

A plaintiff is considered a prevailing party if it succeeds on any significant issue in

6 litigation that gives some benefit that plaintiff sought in bringing the suit. Hensley v. Eckerhart,

7 461 U.S. 424, 433 (1983). To satisfy this requirement, the suit must have produced a material

8 alteration of the legal relationship between the parties. Buckhannon Bd. & Care Home, Inc. v.

9 W. Virginia Dep’t of Health & Human Res., 532 U.S. 598, 604 (2001). This alteration may be

10 the result of an enforceable judgment or comparable relief through a consent decree. Farrar v.

11 Hobby, 506 U.S. 103, 111 (1992).

12

Once the Court determines attorney’s fees are warranted in a given case, the Court must

13 then assess whether the amount of fees requested is reasonable. “In setting a reasonable

14 attorney’s fee, the district court should make specific findings as to the rate and hours it has

15 determined to be reasonable.” Gracie v. Gracie, 217 F.3d 1060, 1070 (9th Cir. 2000) (quoting

16 Frank Music Corp. v. Metro-Goldwyn Mayer Inc., 886 F.2d 1545, 1557 (9th Cir. 1989)). The

17 first step the district court must take is to “determine the presumptive lodestar figure by

18 multiplying the number of hours reasonably expended on the litigation by the reasonable hourly

19 rate.” Gracie, 217 F.3d at 1070 (internal quotation marks and citation omitted). Next, the district

20 court should, where appropriate, “adjust the ‘presumptively reasonable’ lodestar figure based

21 upon the factors listed in Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 69-70 (9th Cir. 1975),

22 that ha[ve] not been subsumed in lodestar calculation.” Id. (internal citation and quotation marks

23 omitted).

24

C. Limits Under the PLRA

25

The PLRA applies to all civil rights actions by prisoners. The PLRA limits the

26 availability of attorney’s fees under § 1988 “[i]n any action brought by a prisoner who is

27 confined to any jail, prison, or other correctional facility.” 42 U.S.C. § 1997e(d)(1). Under the

28

-5-

Case 1:81-cv-01165-BLW Document 1003 Filed 11/20/15 Page 6 of 23

1 PLRA, attorney’s fees can be awarded for post-judgment work in enforcing and monitoring the

2 court’s prior judgments. Webb, 285 F.3d at 835.

3

Under 42 U.S.C. § 1997e(d)(1), the Court may award fees to prisoners only to the extent

4 that (1) the fees were “directly incurred in proving an actual violation of the plaintiff’s rights,”

5 § 1997e(d)(1)(A); and (2) the fees are either “proportionately related to the court ordered relief

6 for the violation” or “directly and reasonably incurred in enforcing the relief ordered for the

7 violation,” § 1997e(d)(1)(B). See Jimenez v. Franklin, 680 F.3d 1096, 1099 (9th Cir. 2012).

8

III. Discussion

9

A. Attorney’s Fees Under the PLRA

10

The Court will first consider whether the requirements for seeking attorney’s fees under

11 the PLRA are met and discuss the appropriate hourly rates for attorneys and paralegals.

12

1. Prevailing Party

13

Plaintiffs are clearly the prevailing party for purposes of attorney’s fees. The Court

14 awarded sanctions and ordered IDOC to pay reasonable attorney’s fees and costs incurred by

15 Plaintiffs in bringing their Motion for Sanctions.

16

2. Reasonable Rate

17

As determined above, the PLRA rate applies to the present matter. Plaintiffs request an

18 upward adjustment from the maximum PLRA rate. Before determining whether an enhancement

19 is warranted in this case, the Court must first clarify the current maximum PLRA rate for

20 attorneys and paralegals.

21

Perhaps relying on prior court orders in this matter, Plaintiffs state “[t]he maximum

22 hourly rate under the PLRA is $213 per hour for attorneys and $64 per hour for paralegals . . . .”

23 Mot. at 9. This statement is inaccurate. As explained below, the current maximum rate under the

24 PLRA is $190.50 per hour for both attorneys and paralegals.

25

a. Attorney Rate

26

Under § 1997(e)(d)(3), “[n]o award of attorney’s fees in an action [brought by prisoners

27 in which attorney’s fees are authorized under 42 U.S.C. § 1988] shall be based on an hourly rate

28 greater than 150 percent of the hourly rate established under section 3006A of Title 18 of

-6-

Case 1:81-cv-01165-BLW Document 1003 Filed 11/20/15 Page 7 of 23

1 payment of court-appointed counsel.” Thus, the hourly rate for attorney’s fees subject to the 2 PLRA cannot exceed 150% of the hourly rate for court-appointed counsel authorized by the 3 Criminal Justice Act (“CJA”). Congress sets the baseline hourly rate under the CJA on an annual 4 basis. As of January 1, 2015, the rate for court-appointed counsel is $127 per hour. Guide to 5 Judiciary Policy § 230.16;3 see also White v. Bell, No. 3:10-00863, 2015 WL 5123906, at *2

6 (M.D. Tenn. Aug. 31, 2015). Thus, the maximum hourly rate for attorney’s fees under the

7 PLRA is currently is 150% of this amount, or $190.50 per hour.4

8

b. Paralegal Rate

9

The maximum PLRA billing rate is the same for paralegals as it is for attorneys. The

10 Ninth Circuit made this clear in 2011 in holding that “paralegal fees are subject to the same cap

11 under the PLRA as attorney’s fees . . . .” Perez v. Cate, 632 F.3d 553, 554 (9th Cir. 2011). Put 12 differently, the Ninth Circuit determined paralegals could seek the same maximum rate as 13 attorneys under the PLRA, which was $169.50 per hour in 2011. Id. at 557. Noting this 14 approach “could result in cost-savings,” the Perez court determined it was justified so long as

15 the paralegal fees were “consistent with market rates and practices.” Id. at 556; see also

16 Rodriguez v. County of Los Angeles, 96 F. Supp. 3d 1012, 1017 (C.D. Cal. 2014) (“The

17 maximum rate established by the PLRA is the same for paralegals and other non-attorneys

18 billers as it is for attorneys.”).

19

In a February 2013 order in this litigation, the prior Court acknowledged the Ninth

20 Circuit’s decision in Perez: “[T]he plain language of the PLRA does not require a reduction in 21 paralegal rates” – rather, “the statute’s cap on attorney’s fees applies equally to paralegal rates.” 22 Order Granting in Part and Denying in Part Motion for Attorney’s fees, February 8, 2013 (Dkt. 23 867) at 5. But in considering Plaintiffs’ request for $150–$165 per hour for paralegal work, the 24 prior Court concluded Plaintiffs had not demonstrated the rate was reasonable “for duties

25

26

27

3 The CJA rates are also publicly available at http://www.id.uscourts.gov/district/cja/Panel_Information.cfm (“The hourly CJA panel attorney compensation rate is $127 for in-court and out-of-court time. This hourly rate applies to work performed

on or after January 1, 2015.”). 28 4 Plaintiffs calculate the maximum hourly rate under the PLRA to be $213 per hour, Mot. at 9, but this calculation does not

appear to be based on the CJA rate as of January 1, 2015.

-7-

Case 1:81-cv-01165-BLW Document 1003 Filed 11/20/15 Page 8 of 23

1 performed in this type of case in the Treasure Valley.” Id. at 6. Therefore, the prior Court

2 maintained the rate of $65 per hour for paralegals and summer associates.

3

As noted earlier, Plaintiffs mistakenly state the PLRA cap for paralegals is $64 per hour –

4 instead of $190.50 – and request enhancements from that amount to Ms. Franolich and Mr.

5 Frost’s standard rates, which are $165 per hour and $210 per hour respectively. Mot. at 8, 13.

6 But as just explained, the proper inquiry is actually whether Plaintiffs’ proposed hourly rates for

7 the two paralegals are “consistent with market rates and practices.” Following the Ninth

8 Circuit’s guidance in Perez, the Court will evaluate the reasonableness of the requested rates.

9

Plaintiffs present both general evidence of the market rates for paralegals in the region

10 and specific evidence related to the qualifications of Ms. Franolich and Mr. Frost. With respect

11 to market rates in Boise, Plaintiffs provide an affidavit from J. Walter Sinclair, a partner in the

12 Boise office of Holland & Hart LLP. Mr. Sinclair notes that his firm “charges between $180 and

13 $205 for the litigation services of paralegals in the Boise office, depending on various factors

14 includ[ing] the nature of the litigation and the experience of the paralegal.” Declaration of J.

15 Walter Sinclair (“Sinclair Decl.”) (Dkt. 994-13) ¶ 10. He adds the rates charged by Mr. Frost

16 and Ms. Franolich “are typical for complex litigation in the Boise market for . . . paralegals

17 practicing with a regional law firm like Stoel Rives and are commensurate with their skill and

18 experience.” Further, the Stoel Rives paralegals have significant experience. Mr. Frost has been

19 a paralegal for twenty-seven years, including the last eleven years at Stoel Rives. Declaration of

20 Darin Frost (“Frost Decl.”) (Dkt. 994-12) ¶¶ 2–3. Ms. Franolich became a paralegal in 1996, has

21 nine years of experience in the field, and joined Stoel Rives in 2014. Declaration of Jacqueline

22 Franolich (“Franolich Decl.”) (Dkt. 994-11) ¶ 3.

23

Defendant does not contest Plaintiffs’ mistaken PLRA rate cap of $64 per hour for

24 paralegals and argues the Court should not award a higher amount. Opp’n at 6. Ms. Zahn,

25 Defendant’s counsel, notes she worked with paralegals during her ten years in private practice.

26 Declaration of Colleen D. Zahn (“Zahn Decl.”) (Dkt. 997-1) ¶ 9. Ms. Zahn states that

27 “paralegals supplemented and assisted attorneys by performing certain case-related tasks” so

28 “attorney[s] could devote more time to other legal tasks and keep costs down for the client.” Id.

-8-

Case 1:81-cv-01165-BLW Document 1003 Filed 11/20/15 Page 9 of 23

1 She adds that since moving to the Attorney General’s Office, she has “become much more self-

2 sufficient when litigating cases” because she does “not have access to the same number of

3 paralegal hours as I did in private practice.” Id.

4

Based on the evidence presented by the parties, the Court concludes the hourly rates for

5 paralegals should not be limited to $64 per hour. Plaintiffs have presented specific and credible

6 evidence that paralegals working on complex litigation matters in Boise are generally

7 compensated at a higher rate. See Gonzales v. City of Maywood, 729 F.3d 1196, 1206–07 (9th

8 Cir. 2013) (holding that paralegal hourly rates must be consistent with “the prevailing market

9 rate in the relevant community”). Further, the thirty-six years of combined experience between

10 Mr. Frost and Ms. Franolich also justifies a departure from the Court’s prior limitation on the

11 rates of less experienced paralegals and summer associates. IDOC has not presented strong

12 counter evidence.

13

Further, awarding paralegals their standard hourly rates makes a great deal of “‘economic

14 sense’ and could result in cost-savings.” Perez, 632 F.3d 553, 556 (9th Cir. 2011) (citing

15 Missouri v. Jenkins, 491 U.S. 274, 288 (1989)). The Supreme Court has explained the rationale

16 behind this: “[b]y encouraging the use of lower cost paralegals rather than attorneys wherever

17 possible, permitting market-rate billing of paralegal hours ‘encourages cost-effective delivery of

18 legal services and, by reducing the spiraling costs of civil rights litigation, furthers the policies

19 underlying civil rights statutes.’” Missouri, 491 U.S. at 288 (citing Cameo Convalescent Center,

20 Inc. v. Senn, 738 F.2d 836, 846 (7th Cir. 1984)). In this case, the Court notes that a single 21 paralegal (Ms. Franolich) alone billed 39.5% of the total hours requested.5 By relying so heavily

22 on Ms. Franolich for critical fact investigation and development, rather than billing the higher

23 attorney rates for these tasks, Plaintiffs acted in a reasonable and economical fashion.

24

As the Ninth Circuit established in Perez, paralegals can be compensated at the same

25 maximum hourly rate as attorneys under the PLRA so long as the rate requested is reasonable

26 considering the prevailing market rate for the work performed. Having determined that

27 plaintiffs’ request is reasonable and consistent with the prevailing market rate, the Court

28 5 Plaintiffs request 532.1 hours for Ms. Franolich’s work out of a total of 1,348 hours.

-9-

Case 1:81-cv-01165-BLW Document 1003 Filed 11/20/15 Page 10 of 23

1 concludes the hourly rates for paralegals should not be limited to the $64 per hour rate 2 previously imposed in this litigation.6 In this case, Mr. Frost requested his standard hourly rate

3 of $210 per hour, and Ms. Franolich requested her standard hourly rate of $165 per hour. The

4 Court finds that the current maximum rate under the PLRA – $190.50 per hour – is appropriate

5 for Mr. Frost. The Court also finds Ms. Franolich’s standard rate of $165 per hour to be

6 reasonable for her hours.

7

3. Reasonable Hours

8

Plaintiffs submit billing records (including time spent on filing the original Motion and

9 Reply as described in the Supplemental Motion) as follows: 252.70 hours for Mr. Pooser,

10 362.60 hours for Mr. Watkins, 134.7 hours for Ms. Reynolds, 19.7 hours for Anna E. Courtney

11 (“Ms. Courtney), an associate at Stoel Rives who worked on the Supplemental Motion, 532.1

12 hours for Ms. Franolich, and 46.2 hours for Mr. Frost (Dkts. 994-4, 1000-3). The total fee

13 amount for attorney time using the PLRA-capped rate ($190.50 per hour) is thus $146,094.45.

14 The total fee amount for Mr. Frost using the PLRA-capped rate ($190.50 per hour) is $8,801.10.

15 The total fee amount for Ms. Franolich using her standard rate of $165 per hour is $87,796.50.

16

B. Specific Objections

17

IDOC makes 119 specific objections7 to Plaintiffs’ claims for fees and costs. See Zahn

18 Decl. Ex. A. IDOC argues that “[a] portion of the requested fees should be reduced to eliminate

19 charges for duplicated work, administrative and clerical tasks, internal correspondence, and

20 vague time entries.” Opp’n at 2. IDOC often lists several reasons for each of its objections. The

21 Court addresses the objections in groups.

22

1. Duplicative Time Entries; Objections Nos. 1, 18, 20, 22, 27, 32,

23

34, 45, 46, 49, 50–52, 55, 58, 60, 63, 65, 68, 83, 93, 95, 99

24

IDOC first argues that Plaintiff’s billed time includes unnecessary duplication.

25 Specifically, IDOC challenges fees incurred when more than one of Plaintiffs’ attorneys and/or

26 6 As the Ninth Circuit recognized in Gonzalez, courts are not constrained to billing rates used in “previous cases.” Gonzalez,

27

729 F.3d at 1207. 7 IDOC’s specific objections to Plaintiff’s attorney fee requests are provided in Exhibit A to Ms. Zahn’s Declaration (Dkt.

997-2) Ex A. The document is entitled “Plaintiffs’ fees that should be disallowed.” For clarity, the Court has labeled IDOC’s 28 specific objections from 1 to 119.

-10-

Case 1:81-cv-01165-BLW Document 1003 Filed 11/20/15 Page 11 of 23

1 paralegals attended meetings with Defendant and the Special Master, prepared for depositions,

2 attended depositions, and analyzed exhibits. See, e.g., Zahn Decl. Zahn Decl. Ex. A Objections

3 1, 18, 27, 46. A court may reduce fees if it finds them to be duplicative or excessive. Chalmers

4 v. City of Los Angeles, 796 F.2d 1205, 1210 (9th Cir. 1986). In this case, however, it seems clear

5 the fees incurred were reasonable. Given the complexity of the investigation and the compressed

6 timeline, the Court finds it appropriate for attorneys and paralegals to review the same

7 documents, and for two attorneys to be present during important meetings with opposing

8 counsel and the Special Master. See Kim v. Fujikawa, 871 F.2d 1427, 1435 n.9 (“Here, the

9 participation of more than one attorney constituted a reasonable necessity, given the complexity

10 of the legal issues and the breadth of the factual evidence involved in this case.”). Further,

11 multiple time entries for deposition preparation is not convincing evidence of duplicative or

12 excessive fees. Rather, it is reasonable that Plaintiffs’ counsel prepared for a deposition in late

13 April and then again undertook additional preparation in late May. See, e.g., Zahn Decl. Ex. A

14 Objection 46. The Court therefore declines to reduce the requested fees on this basis.

15

2. Not Related to Furthering Sanctions Motions; Objections Nos. 2,

16

4, 29, 30, 39, 84, 98, 110

17

Next, IDOC objects to several tasks it views as unrelated to Plaintiffs’ Motion for

18 Sanctions. For instance, IDOC objects to Plaintiffs’ tracking of the Canfield matter and

19 reviewing the deposition schedule. See Zahn Decl. Ex. A Objection 29, 39. These tasks,

20 however, were an important part of Plaintiffs’ research and preparation for the sanctions motion.

21

The Court does agree with Defendant regarding Objection No. 4 (research regarding

22 Corizon and St. Alphonsus), Objection No. 84 (review of Dr. Arnold’s appointment), and

23 Objection No. 98 (correspond with opposing counsel regarding Dr. Arnold). Because these time

24 entries were unrelated to the Motion for Sanctions, the Court disallows those time entries.

25 Accordingly, Ms. Franolich’s time is reduced by 1.3 hours and Mr. Watkins’s time reduced by

26 .5 hours.

27

28

-11-

Case 1:81-cv-01165-BLW Document 1003 Filed 11/20/15 Page 12 of 23

1

3. Internal Administrative Conference with Entire Litigation

2

Group Are Duplicative and Unnecessary; Objections Nos. 3, 5–9,

3

12, 14, 15, 19, 21, 23, 24, 28, 31, 33, 36, 37, 39, 41, 47, 48, 54, 56, 59,

4

61, 62, 64, 66, 67, 69, 71, 72, 74, 75, 77, 79, 81, 85, 87, 89, 91, 92, 94,

5

96, 98, 102, 105, 109, 111, 113, 114, 116-118

6

IDOC challenges Plaintiffs’ time entries for various meetings between Plaintiffs’

7 attorneys and counsel. The Court finds these entries are reasonable, considering that staff

8 meetings are necessary to coordinate efforts and provide updates on the status of the case. See

9 Pooser Decl. ¶ 15 (“But intra-office conferences were a necessary part of coordinating a case of

10 this kind and to prevent duplication, particularly given the fast and diligent pace required to

11 complete discovery, file for judicial relief, and prepare for the evidentiary hearing.”). The time

12 entries reflect that Plaintiffs’ attorneys and paralegals corresponded with each other to discuss

13 legal briefs, review deposition schedules, and discuss strategy for the hearing. See, e.g., Decl.

14 Zahn Decl. Ex. A Objections 36, 39, 89. These meetings are a normal part of legal practice.

15 Therefore, the Court declines to reduce the requested fees on this basis.

16

4. Clerical Tasks; Objections Nos. 10, 11, 13, 16, 17, 25–27, 29, 34,

17

35, 38, 40, 42–44, 49, 50-53, 57, 70, 73, 76, 77, 78, 80, 82, 83, 88, 90,

18

95, 97, 99–101, 103,104, 106–108, 110, 119

19

IDOC objects to a series of tasks it views as clerical in nature. The Supreme Court has

20 stated that “[i]t has frequently been recognized in the lower courts that paralegals are capable of

21 carrying out many tasks, under the supervision of an attorney, that might otherwise be

22 performed by a lawyer and billed at a higher rate. Such work might include, for example, factual

23 investigation, including locating and interviewing witnesses; assistance with depositions,

24 interrogatories, and document production; compilation of statistical and financial data; checking

25 legal citations; and drafting correspondence.” Missouri, 491 U.S. at 288 n.10.

26

It is entirely appropriate for paralegals to complete these types of tasks. As Plaintiffs

27 explain, “the time entries that Defendants argue are clerical are not tasks such as calendaring or

28 filing, but gathering and reviewing evidence, preparing documents, and assisting in

-12-

Case 1:81-cv-01165-BLW Document 1003 Filed 11/20/15 Page 13 of 23

1 depositions.” Reply at 9; see, e.g., Zahn Decl. Ex. A Objections 27, 34, 70, 95. The Court

2 therefore declines to reduce fees for these tasks. Further, the Court rejects IDOC’s classification

3 of drafting a subpoena and revision of briefs as clerical tasks. See Zahn Decl. Ex. A Objections

4 50, 77.

5

The Court does reduce Plaintiffs’ request for purely scheduling matters. Zahn Decl. Ex. A

6 Objection 3, 13, 34. This amounts to a reduction of .7 hours for Ms. Franolich.

7

Additionally, IDOC objects to “clerical tasks concerning electronic evidence presentation

8 software unnecessary where no electronic evidence presentation was done at hearing.” After

9 reviewing these objections, the Court declines to award fees for Plaintiffs’ use of trial director,

10 an organizational management tool. Accordingly, Ms. Franolich’s hours are reduced by 5.1 11 hours.8 The Court also reduces Mr. Frost’s time by 1.7 hours. See Objection 104.

12

5. Vague; Objections Nos. 38, 40, 42, 43, 52, 53, 57, 70, 73, 77, 78,

13

80, 83, 88, 90, 93, 95, 97, 100, 101, 103, 104, 106, 107, 108, 110, 119

14

IDOC objects to several of Plaintiffs’ time entries on vagueness grounds. The Court

15 finds that these objections are unwarranted. For instance, Defendant objects to time entries such

16 as “prepare for the deposition of Brian Farris” and “prepare exhibits for the hearing in this

17 matter.” Id. Objections 53, 80. These entries are sufficiently detailed. Therefore, the Court

18 declines to reduce the fees on this ground.

19

6. Timekeeper Error Objections Nos. 112, 115

20

IDOC objects to two time entries on the grounds of timekeeper error. Specifically, on

21 August 18, 2015, Mr. Watkins spent .7 hours on a phone conference with his client, but the

22 entry was billed for 1.2 hours; and on September 4, 2015, Ms. Reynolds completed 5.6 hours of

23 work but Plaintiffs billed for 7 hours. Given these timekeeper errors, Mr. Watkins’ time is

24 reduced by .5 hours and Ms. Reynold’s time is reduced by 1.4 hours.

25

7. Block Billing Objections Nos. 83, 101

26

Finally, IDOC objects to Plaintiffs’ block billing for two entries: Mr. Frosts’ July 2, 2015

27 time entry of 7.2 hours for “document control” and witness outline preparation, and Ms.

28 8 The hours are reduced specifically for the portions allocated for trial director and live testimony streaming preparation on July 1, 6, 16, 18, 20, and 21, 2015. See Objections 82, 86, 97, 100, 103, 104, 106.

-13-

Case 1:81-cv-01165-BLW Document 1003 Filed 11/20/15 Page 14 of 23

1 Franolich’s July 19, 2015 time entry of 4.7 hours related to the preparation of exhibits and

2 preparation of witness outlines. The “fee applicant bears the burden of documenting the

3 appropriate hours expended in the litigation and must submit evidence in support of those hours

4 worked.” Welch v. Metro. Life Ins. Co., 480 F.3d 942, 948 (9th Cir. 2007). Block billing “makes

5 it more difficult to determine how much time was spent on particular activities.” Id.; see also

6 Role Models Am., Inc. v. Brownlee, 353 F.3d 962, 971 (D.C. Cir. 2004) (reducing requested

7 hours that were block billed because “many time records lump together multiple tasks, making it

8 impossible to evaluable their reasonableness”). Here, Plaintiffs have not specifically delineated

9 how many hours were dedicated to each of the specific tasks. Therefore, the Court finds that a

10 20% reduction for these hours is reasonable. See Welch, 480 F.3d at 948 (relying on California

11 State Bar’s Committee on Mandatory Fee Arbitration Report and finding reduction of block

12 billing by 20% to be reasonable); see also Huhmann v. FedEx Corp., No. 13-cv-00787-

13 BAS(NLS), 2015 WL 6127198, at *8 (Oct. 16, 2015) (same). As such, Mr. Frost’s time is

14 reduced by 1.44 hours and Ms. Franolich’s time is reduced by .94 hours.

15

8. Conclusion Regarding Reasonable Fees

16

After reviewing Plaintiffs’ timekeeping records, the Court is satisfied that the hours billed

17 are reasonable and appropriate in this case. The Court declines to reduce the hours beyond the

18 small reduction for the timekeeper hour, clerical tasks, and block billing as discussed above.

19

C. Costs

20

Plaintiffs also request $21,838.20 in costs associated with the case. Mot. at 1. IDOC asks

21 the Court to reduce this total by $7,993.81. Opp’n at 13.

22

Federal Rule of Civil Procedure 54(d) “generally provides for an award of costs to the

23 prevailing party. A Rule 54(d)(1) award includes taxable costs, and a Rule 54(d)(2) award of

24 attorney’s fees may include ‘nontaxable expenses.’” Gomez v. Reinke, No. CV91-299-S-LMB,

25 2008 WL 3200794, at *16 (D. Idaho 2008). “By its terms, the rule creates a presumption in

26 favor of awarding costs to a prevailing party, but vests in the district court discretion to refuse to

27 award costs.” Ass'n of Mexican-Am. Educators v. State of California, 231 F.3d 572, 591 (9th

28 Cir. 2000). The Court must give its reasons for denying costs. Id.

-14-

Case 1:81-cv-01165-BLW Document 1003 Filed 11/20/15 Page 15 of 23

1

Under District of Idaho Local Rule 54.1, a party can seek to recover: (1) clerk’s fees and

2 service fees; (2) trial transcripts; (3) deposition costs; (4) witness fees, mileage and subsistence;

3 (5) copies of papers and exhibits; (6) maps, charts, models, photographs, summaries,

4 computations, and statistical summaries; (7) interpreter and translator fees; (8) other items “with

5 prior Court approval[;]” and (9) certificate of counsel.

6

The primary dispute is over the $6,788.75 Plaintiffs request for copies. As stated in a

7 2010 order, “[t]he Court agrees with Defendants that the photocopies in the normal course of

8 representation should be absorbed in the hourly rate being charged by the attorney.” Order

9 Granting in Part and Denying in Part Motion for Attorney’s fees, March 30, 2010 (Dkt. 775) at

10 9. District of Idaho Local Rule 54.1(c)(5) provides: “The cost of an exhibit necessarily attached

11 to a document (or made part of a deposition transcript) required to be filed and served is

12 taxable.” The rule further states that the “cost of reproducing copies of motions, pleadings,

13 notices and other routine case papers is not taxable.”

14

Plaintiffs made copies between May 18 and June 16 and July 10 and July 15, 2015 in

15 preparation for depositions; they made copies between June 17 and June 30 for exhibits related

16 to their Motion for Sanctions; and they made copies between July 17 and July 22, 2015 for

17 hearing exhibits. Second Pooser Decl. ¶ 5. Given the Court’s prior direction in this area, the 18 Court declines to award costs for the copies9 made between May 18 and June 16 ($770.16) and

19 July 10 and July 15, 2015 ($1,324.56), as they were not made in connection with any court

20 filings. See Mot. Attach. 5; Ex. C, Part 1. Therefore, the requested amount is reduced by

21 $2,094.72. Plaintiffs have not specified what copies were made prior to May 18 and after July 22 22;10 therefore, the Court reduces costs for those copies, which totals $568.44. Id. The Court

23 cannot determine to what extent the photocopies made between June 17 and June 30, 2015

24 ($1,229.64) and July 17 and July 22, 2015 ($2,326.92) were necessary for court filings or

25 presentation to the Court as part of the evidentiary hearing. Id. Accordingly, the Court will

26

27 9 The Court only declines to award costs labeled “Document Reproduction,” not the “Special Copy” entries, which
28 correspond with copies of official court documents. 10 For instance, Plaintiffs request $19.20 for copies made on May 7, 2015, and $32.88 for copies made on August 26, 2015.

-15-

Case 1:81-cv-01165-BLW Document 1003 Filed 11/20/15 Page 16 of 23

1 decrease the costs requested by 50%, or $1,778.28. Thus, in total, the costs for photocopies are

2 reduced by $4,441.44.

3

IDOC objects to a few other costs incurred by Plaintiffs. The Court finds that Westlaw

4 research costs, postage costs, the witness and services fees, and the inmate phone calling fund

5 are appropriate. However, the Court declines to award costs for airline ticket change fees ($25)

6 and lunch expenses during the hearing ($64). Therefore, the costs are further reduced by $89.

7

In total, Plaintiffs’ requested award for costs is reduced by $4,530.44. Thus, Plaintiffs

8 will be awarded $17,307.76 for costs.

9

D. Presumptive Lodestar

10

After factoring in the reductions, the attorney and billing time (including the

11 supplemental attorney fees) is as follows: 236.50 hours for Mr. Pooser, 361.60 hours for Mr.

12 Watkins, 133.30 hours for Ms. Reynolds, 19.7 hours for Ms. Courtney, 43.06 hours for Mr.

13 Frost, and 524.76 hours for Ms. Franolich. Using the PLRA-capped attorney rates and the

14 paralegal rates discussed above, and adding $17,307.76 for costs, the presumptive lodestar

15 calculation totals $255,180.64.

16

E. Whether a Lodestar Enhancement is Appropriate

17

Plaintiffs’ counsel requests a multiplier from the PLRA rates. A fee applicant bears the

18 burden of proving that a fee enhancement is necessary, and must produce “specific evidence”

19 supporting the award. Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 553 (2010).

20

Defendants argue the “PLRA does not expressly permit an upward enhancement from its

21 statutory rate . . . .” Opp’n at 7. However, other courts have allowed enhancements from the

22 PLRA rate. See Kelly v. Wengler, 7 F. Supp. 3d 1069, 1083 (D. Idaho 2014) (granting a 2.0

23 multiplier and 1.3 multiplier for attorney’s fees) (“To read the statute as setting an absolute

24 maximum arguably eliminates the well-established enhancement framework in § 1988 litigation,

25 a drastic step.”); see also Ginest v. Bd. of Cty. Comm’rs of Carbon Cty., 423 F. Supp. 2d 1237,

26 1241 (D. Wyo. 2006) (finding a 25% fee multiplier for attorney’s fees in a PLRA case); Skinner

27 v. Uphoff, 324 F. Supp. 2d 1278, 1287 (D. Wyo. 2004).

28

-16-

Case 1:81-cv-01165-BLW Document 1003 Filed 11/20/15 Page 17 of 23

1

In the appropriate case, “the district court may adjust the ‘presumptively reasonable’

2 lodestar figure based upon the factors listed in Kerr v. Screen Extras Guild, Inc . . . .” Cairns v.

3 Franklin Mint Co., 292 F.3d 1139, 1158 (9th Cir. 2002) (quoting Intel Corp. v. Terabyte Int’l,

4 Inc., 6 F.3d 614, 622 (9th Cir. 1993)). The Kerr factors are: 1) the time and labor required; 2)

5 the novelty and difficulty of the questions involved; 3) the skill requisite to perform the legal

6 service properly; 4) the preclusion of other employment by the attorney due to acceptance of the

7 case; 5) the customary fee; 6) whether the fee is fixed or contingent; 7) time limitations imposed

8 by the client or the circumstances; 8) the amount involved and the results obtained; 9) the

9 experience, reputation, and ability of the attorneys; 10) the undesirability of the case; 11) the

10 nature and length of the professional relationship with the client; and (12) awards in similar

11 cases. Kerr, 526 F.2d at 70. “The court need not consider all . . . factors, but only those called

12 into question by the case at hand and necessary to support the reasonableness of the fee award.”

13 Cairns, 292 F.3d at 1158 (citing Kessler v. Assocs. Fin. Servs. Co. of Hawaii, 639 F.2d 498, 500

14 n.1 (9th Cir. 1981)).

15

In adjusting an award, however, the district court must focus on the Kerr factors “that are

16 not already subsumed in the initial lodestar calculation.” Morales v. City of San Rafael, 96 F.3d

17 359, 363-64 (9th Cir. 1996) opinion amended on denial of reh’g, 108 F.3d 981 (9th Cir. 1997).

18 Factors one through four and six are considered subsumed in the lodestar calculation. Id. at 364

19 n.9. Those Kerr factors determined not subsumed in the lodestar calculation therefore include:

20 “(5) the customary fee . . . (7) time limitations imposed by the client or the circumstances, (8)

21 the amount involved and the results obtained, (9) the experience, reputation, and ability of the

22 attorneys, (10) the “undesirability” of the case, (11) the nature and length of the professional

23 relationship with the client, and (12) awards in similar cases.” Id.; Kerr, 526 F.2d at 70; see

24 Graves v. Arpaio, 633 F. Supp. 2d 834, 842 (D. Ariz. 2009) aff’d, 623 F.3d 1043 (9th Cir.

25 2010).

26

In most cases, the lodestar amount generally may not be enhanced on the basis of an

27 attorney’s performance. Perdue, 559 U.S at 543 However, the Supreme Court has held that in

28 certain “‘rare’ and ‘exceptional’” circumstances, “superior attorney performance is not

-17-

Case 1:81-cv-01165-BLW Document 1003 Filed 11/20/15 Page 18 of 23

1 adequately taken into account in the lodestar calculation” and therefore an enhancement

2 justified.

3

Plaintiffs’ counsel argue that an enhancement is appropriate for three core reasons: (1)

4 the PLRA’s fee cap undervalues Plaintiffs’ counsel significantly; (2) Plaintiffs achieved

5 extraordinary results; (3) it is difficult for prisoner plaintiffs to find qualified counsel to take

6 cases for which only declaratory or injunctive relief might be available because of the law

7 compensation. See Mot. at 9–12.

8

Defendant responds that no upward enhancement from the PLRA rate cap is warranted.

9 IDOC advances three specific arguments: (1) Plaintiffs’ counsel true market value in civil rights

10 cases is appropriately measured by the PLRA rate; (2) Plaintiffs’ counsel has not experienced an

11 extraordinary outlay of expenses that would justify an upward departure; and (3) there has not 12 been an exceptional delay in payment of fees to Stoel Rives.11 Opp’n at 7–10.

13

1. Undervaluing Counsel and Excellent Results

14

The Court considers the arguments for a multiplier based on undervaluing counsel and on

15 excellent results together. The Supreme Court has addressed the extent to which extraordinary

16 results may justify a fee enhancement. See Perdue, U.S. at 554. The Perdue Court treated the

17 “quality of an attorney’s performance” and “the results obtained” as one factor, determining that

18 “superior results are relevant only to the extent it can be shown that they are the result of

19 superior attorney performance.” Id. Circumstances in which attorney performance can justify

20 enhancement are “‘rare’ and ‘exceptional,’ and require specific evidence that the lodestar fee

21 would not have been ‘adequate to attract competent counsel.’” Id. (quoting Blum, 465 U.S. at

22 897). The only such “rare and exceptional” circumstance detailed by the Perdue Court that is

23 relevant here is where “the method used in determining the hourly rate employed in the lodestar

24 calculation does not adequately measure the attorney’s true market value, as demonstrated in

25 part during the litigation.” Id. at 554–55. If the district court does find an enhancement

26

27 11 IDOC argues the Supreme Court’s decision in Perdue limited the enhancement of fees to three particular situations. Opp’n at 7. However, a close reading of Perdue reveals the three situations IDOC references are simply factors in the Court’s
28 analysis of “superior attorney performance.” Perdue, 559 U.S. at 543–44. The Supreme Court’s decision did not constrain enhancement to only these three circumstances.

-18-

Case 1:81-cv-01165-BLW Document 1003 Filed 11/20/15 Page 19 of 23

1 appropriate, it “should adjust the attorney’s hourly rate in accordance with specific proof linking

2 the attorney’s ability to a prevailing market rate.” Id. at 555.

3

Here, the performance of Plaintiffs’ counsel was exceptional. Plaintiffs’ counsel learned

4 of the IDOC’s misconduct in mid-February 2015 and quickly mobilized to investigate the

5 serious allegations. Plaintiffs conducted numerous depositions in a short time period, submitted

6 its Motion for Sanctions in June, prepared for the two-day evidentiary hearing, and ultimately

7 presented a compelling case to the Court. Through this process, Plaintiffs uncovered substantial

8 evidence that IDOC altered, destroyed, and fabricated medical evidence. As the Court wrote in

9 its Sanctions Order, “[a]ttempts to mislead the Court strike at the heart of the judicial process

10 and cannot be ignored even if the parties have made progress since then.” Sanctions Order at

11 17–18. The Court again acknowledges that IDOC has made significant progress since the special

12 master’s visits in 2011 and 2012. At the same time, the Court recognizes that in bringing the

13 Motion for Sanctions, Plaintiffs counsel’s excellent performance yielded excellent results for

14 their clients. See Mot. at 11; Mot. Ex. D at 1 (concerning use of dry cells); see also Second

15 Declaration of W. Christopher Pooser (“Second Pooser Decl.”) ¶ 7.

16

The Court finds that counsels’ lodestar hours do not fully reflect their success because the

17 quality of the work that produced these results is underrepresented in the hourly fee. Plaintiffs

18 have provided specific evidence to this effect. For instance, Plaintiffs submitted a declaration

19 from Howard Belodoff, a civil rights litigator in Idaho with considerable experience. Declaration

20 of Howard A. Belodoff (“Belodoff Decl.”) (Dkt. 994-14). Mr. Belodoff currently charges $425

21 per hour for his federal civil rights litigation practice, which involves representation of prison

22 and jail inmates and civil rights cases class actions seeking injunctive, declaratory, and monetary

23 relief. Belodoff Decl. ¶¶ 1, 7, 14. According to Mr. Belodoff, the hourly rates sought by

24 Plaintiffs’ attorneys “are similar to what other attorneys with similar reputation and experience

25 charge in Boise in similar types of cases, and are reasonable for prosecuting an action dealing

26 with prisoner civil rights.” Id. at 11. Indeed, he states that “[c]ounsel’s experience could support

27 an even higher hourly rate.” Id.

28

-19-

Case 1:81-cv-01165-BLW Document 1003 Filed 11/20/15 Page 20 of 23

1

Further, Plaintiffs provided “specific proof linking the attorney’s ability to a prevailing

2 market rate.” Perdue, U.S. at 554. An affidavit from J. Walter Sinclair, a partner with Holland

3 & Hart, speaks generally to the legal market in Boise. Mr. Sinclair’s normal hourly rate is

4 approximately $435 per hour, and his firm charges between $195 per hour and $495 per hour for

5 the litigation services of attorneys in the Boise office. Sinclair Decl. ¶¶ 4, 10. He adds that

6 Holland & Hart charges between $180 per hour and $205 per hour for the litigation services of

7 paralegals based in Boise. Id. ¶ 10. Further, the PLRA rate “is well below the market rate for

8 work involved in a “complex and difficult case” like this. Id. ¶¶ 5, 12.

9

IDOC’s arguments to the contrary are unpersuasive. Defendant’s main argument is while

10 Plaintiffs’ counsel are capable attorneys, their experience with federal civil rights cases is

11 limited. See Opp’n at 8–9. The Court notes that Stoel Rives began representing Plaintiffs pro

12 bono in January 2004. Further, IDOC’s argument does not diminish the extraordinary results

13 Plaintiffs’ counsel achieved in this case. IDOC further contends that Plaintiffs should only be

14 awarded “what the market will bear for this type of case.” Id. at 9. But IDOC has not supported

15 this statement with any evidence of what the market bears for complex federal civil rights cases.

16 Plaintiffs, on the other hand, have produced evidence through Mr. Belodoff’s Declaration that

17 the fees requested by Plaintiffs are commensurate with the rates of attorneys who handle

18 complex federal civil rights cases in Idaho. Thus, based on the present record, Plaintiffs have

19 provided “specific proof linking the attorney’s ability to a prevailing market rate.” Perdue, 559

20 U.S. at 543.

21

The Court therefore finds a multiplier appropriate to reasonably compensate counsel for

22 their extraordinary performance in this matter.12 Plaintiffs have submitted evidence suggesting

23 that Mr. Pooser’s billing rate is $375 per hour, Mr. Watkins’ billing rate is $265 per hour, and

24 that Ms. Reynold’s billing rate is $240 per hour. See United Steelworkers of America v. Phelps

25 Dodge Corp., 896 F.2d 403, 407 (9th Cir. 1990) (“Affidavits of the plaintiff’s attorney and other

26 attorneys regarding prevailing fees in the community, and rate determinations in other cases,

27 12 The Court notes that enhancements are being awarded for Mr. Pooser, Mr. Watkins, and Ms. Reynolds. Based on the existing case law, the Court declines to grant an enhancement for paralegals; therefore, Mr. Frost’s remains at $190.50 per
28 hour and Ms. Franolich at her normal billing rate of $165 per hour. The Court also declines to grant an enhancement for Ms. Courtney, as it appears her involvement in this matter is limited to working on the present fees Motion.

-20-

Case 1:81-cv-01165-BLW Document 1003 Filed 11/20/15 Page 21 of 23

1 particularly those setting a rate for the plaintiff's attorney, are satisfactory evidence of the

2 prevailing market rate.”). The Court accordingly grants a 1.97 multiplier for Mr. Pooser’s hours, 3 a 1.39 multiplier for Mr. Watkin’s hours, and a 1.26 multiplier for Ms. Reynold’s hours.13 The

4 Court grants Plaintiffs the fees incurred in briefing the present Motion, Reply, and Supplemental

5 Motion. See Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 981 (9th Cir. 2008).

6

2. Risks and Incentives to Obtain Competent Counsel

7

Plaintiffs also argue a multiplier is appropriate in light of the risk in taking contingent

8 civil rights cases and the need to give other counsel incentives to take similar cases. A district

9 court may enhance a fee award when “payment for attorney’s services is contingent upon

10 success and the attorney bears the risk of nonpayment in case of failure.” Bernardi v. Yeutter,

11 951 F.2d 971, 975 (9th Cir. 1991) (internal citation and quotation marks omitted). This type of

12 enhancement is appropriate if “two prerequisites” are met: “First, . . . without an adjustment for

13 risk the prevailing party would have faced substantial difficulties in finding counsel in the local

14 or other relevant market,” and, “[s]econd, any enhancement for contingency must reflect the

15 difference in market treatment of contingent fee cases as a class, rather than . . . the riskiness of

16 any particular cases.” Id. (quoting Fadhl v. City and County of San Francisco, 859 F.2d 649,

17 650 (9th Cir. 1988)) (internal citations and quotation marks omitted).

18

The Court finds Plaintiffs are deserving of an enhancement under this theory. Plaintiffs’

19 counsel submits declarations making clear that prisoners who seek counsel for injunctive relief

20 lawsuits face significant difficulty in finding such counsel. See Gomez v. Gates, 804 F. Supp. 69,

21 78 (C.D. Cal. 1992). Mr. Belodoff’s Declaration speaks directly to this issue:

22

From my experience in representing prison and jail inmates throughout my

23

career, including against the Idaho Department of Corrections, I know that

prisoner cases are time-consuming and difficult, the hourly rates are limited

24

by the PLRA, the financial ability of the defendants to mount a defense and

25

litigate the case is far greater than the plaintiffs, and there is a lack of funds to cover the costs of diligent and effective representation, discovery and

26

experts witnesses. I know of no private attorneys in Boise who in my

27

opinion would have been willing to pursue a class action prisoner case over

28 13 These multipliers differ slightly from Plaintiffs’ requested multipliers given Plaintiff’s mistaken maximum rate under the PLRA ($213 per hour).

-21-

Case 1:81-cv-01165-BLW Document 1003 Filed 11/20/15 Page 22 of 23

1

an extended period of time because they are undesirable and a financial hardship . . . . Most Idaho attorneys and law firms are simply unwilling to

2

undertake a contingency fee case because of the commitment of time and

outlay of expenses that is necessary to represent a class of prisoners in a

3

case seeking only injunctive and declaratory relief.

4 Belodoff Decl. ¶¶ 14–15. Similarly, Mr. Sinclair expressed he would “strongly advise” against

5 his firm undertaking such a case. Sinclair Decl. ¶ 13. The Court credits these statements,

6 particularly because IDOC offers no direct response.

7

Instead, IDOC asserts that no enhancement is warranted because Plaintiffs’ counsel has

8 previously received fee awards in this case, and because there has not been an exceptional delay

9 in payment of fees to Stoel Rives. Opp’n at 9–10; see also Response Ex. 3 Affidavit of Cindy

10 McMackin (detailing IDOC’s past payments to Stoel Rives). Neither argument is relevant, as

11 Plaintiffs have not moved for an enhancement on these theories. Further, the fact that Plaintiffs’

12 counsel previously received awards in the course of this lengthy litigation does not bear on the

13 issue of whether fee awards are appropriate here.

14

Accordingly, the Court finds that the multiplier amounts set out in the previous section

15 are sufficient to serve the interests articulated here. This analysis thus serves as an alternate

16 sufficient basis for the same fee enhancement granted above.

17

F. Final Calculation

18

Using a rate of $375 per hour for Mr. Pooser, $265 per hour for Mr. Watkins, $240 per

19 hour for Ms. Reynolds, $190.50 for Ms. Courtney, $190.50 for Mr. Frost, and $165 per hour for

20 Ms. Franolich, and including the $17,307.76 for costs, the total award amount for attorney’s fees

21 and costs is $332,352.44.

22

G. Disposition

23

After considering the totality of the record and the arguments by counsel, the Court

24 awards Plaintiffs’ counsel $332,352.44 in fees and costs. The Court finds this award is 25 reasonable and appropriate based on its analysis. Plaintiffs’ Motions (Dkts. 994, 1000) are
26

27

28

-22-

Case 1:81-cv-01165-BLW Document 1003 Filed 11/20/15 Page 23 of 23

1

GRANTED.

2
DATED: November 20, 2015.
3

4

5

__________________________________________

DAVID O. CARTER

6

United States District Judge

7

for the Central District of California Sitting by Special Designation

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

-23-

 
 Case 1:81-cv-01165-BLW Document 1022 Filed 04/04/16 Page 1 of 2

W. Christopher Pooser, ISB # 5525 E-mail: wcpooser@stoel.com Elijah M. Watkins, ISB # 8977 E-mail: emwatkins@stoel.com STOEL RIVES LLP 101 S. Capitol Blvd, Ste 1900 Boise, ID 83702 Telephone: (208) 389-9000 Fax: (208) 389-9040 Attorneys for Plaintiffs

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF IDAHO

WALTER D. BALLA, et al.,
Plaintiffs, v. IDAHO STATE BOARD OF CORRECTION, et al.,
Defendants.

Case No. CV 81-1165-S-BLW
ORDER GRANTING JOINT STIPULATION FOR PLAINTIFFS’ REQUESTED INTERIM ATTORNEYS’ FEES AND COSTS

Currently before the Court is the Parties’ Joint Stipulation for Plaintiffs’ Requested Interim Attorneys’ Fees and Costs. Having reviewed the Joint Stipulation and good cause appearing therefore;
IT IS HEREBY ORDERED that Plaintiffs be awarded $49,279.93 in costs and fees, plus $98.26 in costs to be reimbursed to certain class representatives directly, including $38.26 to Inmate David Johnson, $20.00 to Inmate Kent Ellis, and $40.00 to Inmate Pete Veenstra. All costs and fees are to be paid no later than 30 days from the date of this Order.
///END OF TEXT////

Submitted by:
ORDER GRANTING JOINT STIPULATION FOR PLAINTIFFS’ REQUESTED INTERIM ATTORNEYS’ FEES AND COSTS - 1
79046375.1 0063811-00001

Case 1:81-cv-01165-BLW Document 1022 Filed 04/04/16 Page 2 of 2

Elijah M. Watkins Stoel Rives LLP 101 S. Capitol Blvd., Suite 1900 Boise, Idaho 83702 Attorneys for Plaintiffs
Dated: April 4, 2016

_____________________________________ David O. Carter, U.S. District Judge

JOINT STIPULATION RE PLAINTIFFS’ REQUEST FOR INTERIM ATTORNEYS’ FEES AND COSTS (DKT. 898) - 2
79046375.1 0063811-00001

 
 Case 1:81-cv-01165-BLW Document 1202 Filed 09/28/17 Page 1 of 69

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

WALTER D. BALLA, et al., Plaintiffs,
vs. IDAHO STATE BOARD OF CORRECTIONS, et al.,
Defendants.

Case No. 1:81-cv-01165-BLW
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR CONTEMPT [Dkt. 1090]

Plaintiffs in this matter are a class of prisoners who assert that existing injunctions remain necessary to ensure that the medical and mental health care delivery system at the Idaho State Correctional Institution (“ISCI”) functions in compliance with Eighth Amendment standards. Defendants are Idaho Department of Correction (“IDOC”) officials who allege that they and their contract medical provider, Corizon, Inc., have brought the system up to Eighth Amendment standards, although not in the exact manner ordered by the Court.
Now pending before the Court is Plaintiffs’ Motion for Order to Show Cause Why Defendants Should Not Be Held in Contempt (Dkt. 1090) for Defendants’ failure to follow the governing Court Orders (Dkts. 842, 849, 850, 930). Plaintiffs and the IDOC Defendants have filed extensive briefing on the issues (Dkts. 1090, 1132, 1161, 1171,
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR CONTEMPT [Dkt. 1090] - 1

Case 1:81-cv-01165-BLW Document 1202 Filed 09/28/17 Page 2 of 69
1175). On July 27 and 28, 2017, the Court held an evidentiary hearing where it heard witnesses and received exhibits (Dkts. 1191, 1188). Based on the entirety of the record, the Court GRANTS in part and DENIES in part the Motion for Contempt.
PLAINTIFFS’ REQUEST TO HOLD DEFENDANTS IN CONTEMPT I. Standard of Law
To find Defendants in contempt, the Court must determine (1) that Defendants violated the court order, (2) beyond substantial compliance, (3) not based on a good faith and reasonable interpretation of the order, (4) by clear and convincing evidence. In re Dual-Deck Video Cassette Recorder Antitrust Litig., 10 F.3d 693, 695 (9th Cir. 1993). Civil contempt “consists of a party’s disobedience to a specific and definite court order by failure to take all reasonable steps within the party’s power to comply.” Id.
The contempt “need not be willful,” and there is no “good faith exception” to the requirement of obedience to a court order. In re Crystal Palace Gambling Hall, 817 F.2d 1361, 1365 (9th Cir. 1987). “Good faith” is relevant to the contempt issue only to the extent that contempt can be avoided if the party based its action or inaction on “a good faith and reasonable interpretation of the [court’s order].’” Vertex Distrib., Inc. v. Falcon Foam Plastics, Inc., 689 F.2d 885, 889 (9th Cir. 1982) (quoting Rinehart v. Brewer, 483 F. Supp. 165, 171 (S.D. Iowa 1980) (alteration in original)).1 This defense applies to a

1

When the Court speaks of good faith in this Order, it is using the term in a broader sense, as a

prerequisite to the application of equitable principles, not to the standard of law governing contempt. As

explained herein below, the IDOC officials did not read or interpret the Order at all, and, therefore, cannot

argue that they interpreted the Order in good faith.

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR CONTEMPT [Dkt. 1090] - 2

Case 1:81-cv-01165-BLW Document 1202 Filed 09/28/17 Page 3 of 69
party who reasonably interpreted the court order and acted upon it, not to a party who ignored it.
“Substantial compliance” with the court order is a defense to civil contempt. General Signal Corp. v. Donallco, Inc., 787 F.2d 1376, 1379 (9th Cir. 1986). A party can show substantial compliance even if it had “a few technical violations.” Id. The key is whether, despite technical or inadvertent violations, the party “took all reasonable steps” to comply. Id. II. Factual Findings
Having considered the evidence presented with the parties’ briefing2 and in the evidentiary hearing, the Court finds that Plaintiffs have established by clear and convincing evidence that Defendants were in contempt of the Court’s June 2014 Order between June 6, 2014 and July 2016. However, Plaintiffs have not established that Defendants were in contempt after July 2016, or that Defendants are currently in contempt.
A. The Injunctive Relief Orders 1. In 1981, ISCI inmates filed the Balla class action lawsuit pro se, asserting various
constitutional violations in the conditions of their confinement at IDOC’s ISCI facility.

2

Because a full-blown evidentiary hearing is not a requirement for a finding of contempt, the Court

in a few instances cites to documents attached to the parties’ briefing to which there was no objection. See

United States v. Ayres, 166 F.3d 991, 995–96 (9th Cir. 1999); Peterson v. Highland Music, Inc., 140 F.3d

1313, 1324 (9th Cir.), cert. denied, 525 U.S. 983 (1998).

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR CONTEMPT [Dkt. 1090] - 3

Case 1:81-cv-01165-BLW Document 1202 Filed 09/28/17 Page 4 of 69
2. The Court held an evidentiary hearing on the allegations. On November 1, 1984, the Court entered an injunctive relief order that—thirty-six years later—remains partly at issue in Plaintiffs’ Motion for Contempt: Order 1, Adopt a special dietary program for medically infirm inmates; Order 3, Create 24-hour emergency medical care for inmates and hire a full-time physician; Order 4, Provide a properly-staffed medical delivery system; and Order 5, Establish a psychiatric care program. See Balla v. Idaho State Board of Correction, 595 F. Supp. 1558, 1583 (D. Idaho 1984) (“Balla I”).
3. IDOC submitted compliance plans in response to the Balla I Order, which the Court approved on July 11, 1985. The original compliance plans and the Court’s copies of those plans cannot be located.
4. In 2011, the Court considered a status report submitted by Plaintiffs detailing allegations of ongoing constitutional violations at ISCI. Dkt. 793 (addressing Dkt. 784).
5. On July 20, 2011, the Court appointed a medical special master, Dr. Marc Stern, to investigate the status of the medical and mental health delivery system at ISCI. Dkt. 806.
6. On October 17, 2011, the Court appointed psychiatrist Dr. Amanda Ruiz as deputy special master to assist Dr. Stern in evaluating ISCI’s mental health delivery system. Dkt. 808.
7. In a report filed on February 3, 2012 (“Stern Report”), Dr. Stern found serious deficiencies in the delivery of medical and mental health care. Dkt. 811. Dr. Stern
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR CONTEMPT [Dkt. 1090] - 4

Case 1:81-cv-01165-BLW Document 1202 Filed 09/28/17 Page 5 of 69
opined that some of the conditions violated the prisoners’ right to be protected from cruel and unusual punishment. The parties disputed the opinions contained in the Stern Report. See Dkt. 842. 8. Corizon, Inc., is the contract medical provider in charge of providing medical and mental health care to the prisoners at ISCI. Exhibit 1045 at 198. The IDOC hires its own chief psychologist. Id. B. The Parties’ Negotiations to Create a Modified Compliance Plan to
Address the Stern Report 9. After the Stern Report was issued, Plaintiffs decided not to go to trial because of
timing issues; the inmates estimated if they went to trial, it could be up to eighteen months before a substantive ruling was issued. See July 27-28, 2017 Evidentiary Hearing Transcript (“Tr.”) (Dkt. 1191) at 595:9–12, 596:1–20, 597:109. The inmates opted for mediation because they desperately needed something they could enforce and thought a quicker substantive resolution would result from mediation. Tr. at 598:13–16. 10. The undersigned Judge presided over the mediation. The parties crafted the Modified Compliance Plans (collectively, “MCP”) in and after the mediation sessions. 11. Attached to the Stipulated Motion were Appendices A and B, the negotiated working papers intended to begin addressing the problems identified by Dr. Stern. Tr. at 604:31–4.
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR CONTEMPT [Dkt. 1090] - 5

Case 1:81-cv-01165-BLW Document 1202 Filed 09/28/17 Page 6 of 69
12. Appendices A and B contain three columns of information: (1) Plaintiffs’ concerns, based on the Stern Report; (2) the corresponding page numbers of the Stern Report; and (3) IDOC’s proposed actions. Tr. at 605:20–25, 606, 607:1–13. In other words, Appendices A and B amounted to a preliminary compliance plan to put the decades-old injunctions into effect.
13. In the Stipulated Motion, the parties agreed that changes to Appendices A and B would be negotiated and finalized as Addenda A and B, to replace Appendices A and B, within six months (i.e. by December 2012).
14. On June 11, 2012, the Court granted the Stipulated Motion, and ordered it binding on the parties. Dkt. 849.
15. The Appendices and the Addenda include specific requirements that the IDOC (1) audit the workings of the medical and mental health system, and (2) put into effect certain changes to improve the workings of the medical and mental health care delivery system. C. Preliminary Monitoring Stage between June 11, 2012 and June 6, 2014
16. In accordance with the Stipulated Motion, the parties began the preliminary stage of monitoring ISCI’s medical and mental health delivery system in June 2012.
17. In 2012, IDOC “ground level” medical personnel who had not been involved in drafting the Modified Compliance Plan (“MCP”) and Appendices A and B had to determine how to implement them. Tr. at 129.
18. Rona Siegert, who has been the IDOC Health Services Director since 2008, had a key role in the implementation determination. Id. at 12:19–22.
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR CONTEMPT [Dkt. 1090] - 6

Case 1:81-cv-01165-BLW Document 1202 Filed 09/28/17 Page 7 of 69
19. As part of her regular duties with the IDOC, Siegert’s primary job is to oversee the contract between the IDOC and Corizon with respect to delivery of medical services. Id. at 12:25, 13:1–3. Siegert and her staff accomplish this oversight by performing system-wide audits. Id. at 13:5–8.
20. Siegert first became aware of the MCP and Appendices A and B in 2012, and she understood that they were court orders. Id. at 14:18–24. Siegert and the other IDOC personnel charged with implementing the MCP understood that they had to audit everything in the Appendices, and they reviewed the audit tools they already had in place and tried to use any of those that were applicable to the Appendices. Id. at 16:22–25, 17:1–2. In addition, Jim Cardona of IDOC created some Ballaspecific audit tools. Id. at 62:16–24.
21. To the extent there was not already an IDOC audit tool that would collect the data needed for Appendices A and B, Siegert worked with Corizon to ensure that it collected the necessary data. IDOC did not repeat Corizon’s data collection, but relied on and reported the data gathered by Corizon. Id. at 62:7–15, 681:11–18.
22. From 2012 to 2014, IDOC had Cardona collect data and had one nurse monitor conduct independent audits, in addition to having Corizon conduct their own audits. Id. at 678:1–25, 679:8–14. Siegert’s team used National Commission on Correctional Health Care (“NCCHC”) standards as the basis for their auditing. Id. at 681:1–10.
23. Between the data collected by Cardona and the data reported by Corizon, Siegert believed IDOC was auditing everything it needed to audit under the MCP. Id. at
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR CONTEMPT [Dkt. 1090] - 7

Case 1:81-cv-01165-BLW Document 1202 Filed 09/28/17 Page 8 of 69
66:24–25, 67:1–3. Nobody told Siegert she was not doing everything she needed to do. Id. at 67:4–6. 24. The IDOC team collected the data from the IDOC and Corizon audits and compiled it into a Health Services Report Card (“Report Card”) that tracked the auditing system. Beginning in July 2012 and pursuant to the MCP, the reporting and reviewing of the auditing occurred when the class representatives, IDOC personnel, counsel for the parties, the nurse monitors, and Corizon personnel met together in monthly Monitoring Meetings. The Report Card functioned as a progress report to Plaintiffs at each monthly Monitoring Meeting. Tr. at 66:14–18. 25. During the Monitoring Meetings, the IDOC presented the auditing results and Plaintiffs had an opportunity to, and often did, question the content of the data the IDOC reported. The IDOC provided explanations. Tr. at 68:13–25. 26. The IDOC usually used the first hour of each Monitoring Meeting to present its report. The next hour was devoted to Plaintiffs questioning the data presented and bringing forward their concerns, including specific inmate medical issues and nonmedical issues that occurred in housing units, such as plumbing and water issues, that were not specific to the Appendices. Id. at 69:6–18. The IDOC typically investigated Plaintiffs’ issues and reported some items back to Plaintiffs, but did not report back on issues that would have involved disclosing inmates’ personal health information. Id. at 54:41–5, 69:19–25, 70:1–7. 27. During the preliminary monitoring period that began in June 2012, Plaintiffs and IDOC representatives also held two other types of meetings related to the Balla
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR CONTEMPT [Dkt. 1090] - 8

Case 1:81-cv-01165-BLW Document 1202 Filed 09/28/17 Page 9 of 69
audits. Nurse managers would attend monthly nurse manager meetings with Plaintiffs, and nurse monitors would hold weekly meetings with Plaintiffs. These weekly meetings—which were not required by the MCP—were eventually discontinued. Id. at 70–72, 73:1. 28. During this preliminary period, when Appendices A and B governed, these many meetings provided Plaintiff with opportunities to monitor and question what Defendants were auditing, implementing, and reporting. Class representatives were often told, however, that information was not available to them because of security and/or privacy concerns. D. Monitoring Requirements and Dispute Resolution Process 29. The MCP provided that Monitoring Meeting topics were to include, in part: “(a) Review of a monitoring report prepared by Defendants and approved by Plaintiffs that concerns Defendants’ compliance with the Modified Compliance Plans; (b) Review of statistical data prepared by Defendants related to Defendants’ compliance with the Modified Compliance Plans; (c) Periodic review of Defendants’ internal audits of the provision of special diets, medical care, and mental health care at ISCI” and “(d) Specific areas of concern which may be submitted by Plaintiffs or Defendants.” Dkt. 842 § 5.2. 30. The MCP also required Plaintiffs to provide written notice to Defendants’ counsel any time “Plaintiffs believe[d] Defendants [we]re not in compliance with th[e] Stipulation or the Modified Compliance Plans” or if the MCP was not “operating as the Parties intended.” Id. § 7.1(a). Class representatives relied on the
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR CONTEMPT [Dkt. 1090] - 9

Case 1:81-cv-01165-BLW Document 1202 Filed 09/28/17 Page 10 of 69
information about compliance that Defendants provided to them, because inmates cannot collect their own data. 31. The MCP further provided that (1) Defendants’ counsel had five days to respond to a written notice of non-compliance; (2) Plaintiffs were to send a second written notice if dissatisfied with the response; (3) the parties were to meet and confer within five days of the second notice; (4) if no resolution was reached, the parties were to meet with the ADR coordinator; and (5) if the issue was still unresolved, the parties could submit the dispute to this Court. Id. § 7.1. E. The Parties’ Course of Dealing Prior to June 6, 2014 32. Beginning in June 2012, the parties operated under the MCP and Appendices A and B while they negotiated the finishing touches to Addenda A and B. 33. However, the parties did not finalize the Addenda in six months, as required. Instead, the process took two years. 34. During the Monitoring Meetings, the parties held discussions about items that should have been, but were not, recorded on the Report Card. The parties approved the Report Cards—absent inclusion of these items—after the meetings. Tr. at 67:16–25. 35. Plaintiffs knew that the MCP required the IDOC to achieve at least 90% compliance with the MCP and NCCHC standards. Dkt. 1090-1 at 14. 36. Plaintiffs noticed that between 2012 and 2015, IDOC rarely reported compliance lower than 90%. It reported 100% compliance in virtually every category. Id.
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR CONTEMPT [Dkt. 1090] - 10

Case 1:81-cv-01165-BLW Document 1202 Filed 09/28/17 Page 11 of 69

37. Plaintiffs asked questions about the reported numbers, because those numbers did not seem to match the number of inmate complaints the class representatives fielded, and because consistently perfect scores seemed impossible. Plaintiffs also thought it was statistically impossible to be at 100% compliance all the time. Tr. at 654–55.
38. Neither party used the required dispute resolution process to ask that the auditing or monitoring be performed differently or that the Report Card format be changed to more closely track the MCP.
39. Addenda A (Exhibit 1001) and B (Exhibit 1002) were incorporated into a Court Order on June 6, 2014. Dkt. 930.3 The parties argued over the date the official monitoring period should begin, and the Court adopted Plaintiffs’ position that the official two-year monitoring period start date was June 6, 2014 (rather than October 2013, as Defendants contended) with an end date of June 6, 2016.4 Dkt. 928 (Order resolving dispute). F. The Parties’ Course of Dealing After June 6, 2014
40. June 6, 2014, should have been the date that all parties involved in monitoring began to implement audits, Reports Cards, and modes of monitoring that complied with the 2014 Addenda A and B, rather than the 2012 Appendices A and B. However, that did not occur. Plaintiffs and Defendants did work together to

3

The 2014 Order specified that the MCP was expressly incorporated into the Court’s June 11,

2012 Order, pursuant to the Stipulated Motion to Modify Injunctive Relief. Dkt. 930.

4

The monitoring period was subsequently extended to end in September 2017 as a sanction for

some of the IDOC’s employees’ bad acts. Dkt. 983.

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR CONTEMPT [Dkt. 1090] - 11

Case 1:81-cv-01165-BLW Document 1202 Filed 09/28/17 Page 12 of 69

implement certain provision-of-care line items in Addenda A and B (for example, new pill call windows, discussed below). Tr. at 615:5-14. 41. Shockingly, after the final MCP with Addenda A and B was adopted as a court order on June 6, 2014, Health Services Administrator Siegert and IDOC personnel did not even read the new set of documents or re-evaluate the audit tools they had been using. Tr. at 19:16–25, 20:1–20. 42. The Court was shocked to learn that “ground-level” IDOC and Corizon personnel knew nothing about the MCP requirements. Corizon’s ISCI site medical director had not been asked to read the Addenda, nor did he receive any formal training on them. Id. at 237–39. Consequently, the physician’s assistants and nurse practitioners that the site medical director supervised received no instruction or training about the MCP requirements. Id. Similarly, witnesses who worked as IDOC correctional officers and mental health employees testified that they received absolutely no instruction or training on the requirements. Id. at 267–268, 358–359. 43. Only after being questioned by this Court did the IDOC confirm, through Siegert’s testimony, that rather than changing to a new monitoring system when the Court Order of June 2014 was issued, Defendants continued monitoring as they had since 2012.5

5

Neither party presented evidence showing whether, between 2012 and June 2014, the parties were

monitoring exactly as required by Appendices A and B, and that information is not necessary to the

Court’s ruling here. Both parties testified (Plaintiffs through class representative Barry Searcy and

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR CONTEMPT [Dkt. 1090] - 12

Case 1:81-cv-01165-BLW Document 1202 Filed 09/28/17 Page 13 of 69
44. The record does not make clear why the parties did not significantly change their mode of auditing and monitoring after June 6, 2014.
45. Nothing prevented IDOC personnel from reading the 2014 Order or from trying to implement Addenda A and B.
46. The record is clear that both parties to varying degrees ignored the specifics of the 2014 Order as it relates to auditing and mode of monitoring. Both parties in good faith continued in their joint efforts to implement the substance of Dr. Stern’s recommendations, as embodied in the 2012 Order, and to improve the provision of health care as to some of the line-item improvements required by the 2014 Order and Addenda A and B.
47. At several times during the monitoring period, Plaintiffs questioned whether Corizon was monitoring itself and asked where Corizon’s numbers were coming from. At the Monitoring Meetings, IDOC officials would respond, “Corizon is providing this.” Tr. at 655:16–25, 656:1–22. Therefore, Plaintiffs were on notice that, at least in some categories, IDOC was reporting numbers given to it by Corizon.
48. There is no record that Plaintiffs made any official requests to Siegert or other IDOC personnel asking them to change the audit tools they had been using once the 2014 Order was issued.
Defendants through Siegert) that, after Dr. Stern completed his report on the status of the medical and mental health care system, both parties began monitoring, conferring, and reporting to one another in some manner acceptable to both parties. This is confirmed by the absence of any information in the record showing that one party asked the other party to audit or monitor differently. ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR CONTEMPT [Dkt. 1090] - 13

Case 1:81-cv-01165-BLW Document 1202 Filed 09/28/17 Page 14 of 69
49. To Siegert’s knowledge, and as shown by the record, Plaintiffs never requested copies of IDOC’s or Corizon’s raw data, and Siegert knows of no reason IDOC would not have been able to provide it. Id. at 73:4–9.
50. Neither party noticed or expressed concern that, after June 2014, the Report Card did not match the requirements of Addenda A and B.
51. The record reflects that, in and after June 2014, Defendants did not say how they were auditing, and Plaintiffs did not make a formal inquiry. Id. at 17:17–25, 18:1–6. Both Plaintiffs and Defendants actively participated in the type of auditing and reporting that Defendants selected, and there were no formal requests for changes to the auditing or reporting or requests for court intervention.
52. Plaintiffs cited to the 2014 Addenda several times as part of their monitoring, in order to call Defendants’ attention to certain line-item provision-of-care improvements that needed to be addressed. Id. at 622–23. Therefore, Defendants were on notice that Plaintiffs generally expected Defendants to be following the 2014 Addenda.
53. For example, the MCP required the IDOC to build a pill call station with four pill call windows. Class representative Barry Searcy recalls reminding the IDOC that the MCP required not just the physical windows, but that the windows be staffed with four persons. Id. at 611–12. This issue was raised and resolved in the Monitoring Meetings. At the conclusion of the process, Searcy “thanked IDOC and Corizon for getting all four windows staffed every day.” Id. at 653:4–19.
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR CONTEMPT [Dkt. 1090] - 14

Case 1:81-cv-01165-BLW Document 1202 Filed 09/28/17 Page 15 of 69

54. The few required substantive improvements that Plaintiffs raised with Defendants were handled as line items and resolved through the MCP dispute resolution process. Between June 2014 and September 2015, though Plaintiffs raised substantive issues regarding the 2014 Addenda, Defendants’ 2012 mode of monitoring was never questioned or rejected in wholesale fashion.
55. Because they were in good faith working through problems in the mediation process specified in the MCP, in 2014 and 2015 the parties did not reach the stage of filing a contempt motion regarding compliance. In Searcy’s words: “We were actually still trying to get this thing to work. We were trying to bring these things, bring them to their attention, get responses back. That’s what we agreed was our understanding of what we agreed is that we would bring problems to them, and they would work to get them resolved.” Id. at 615:5–14.
56. Both parties continued the 2012 mode of monitoring, with a few references to the 2014 line-item provision-of-care requirements, for approximately 63% of the official monitoring period, until Defendants informally self-reported in September 2015 and formally reported in October 2015 that they had deviated from the 2014 Order in their method of monitoring. G. IDOC’s Realization of its Deviations and Reporting to Plaintiffs
57. Ashley Dowell became Deputy Chief of Prisons in March 2015 and was charged with overseeing and executing Balla in May or June of 2015.6 She became aware

6

Ashley Dowell became Chief of Prisons for the IDOC in March 2017. Tr. at 264. She was a

Deputy Chief in 2014, but in a different division that was not associated with Balla. Id. at 266.

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR CONTEMPT [Dkt. 1090] - 15

Case 1:81-cv-01165-BLW Document 1202 Filed 09/28/17 Page 16 of 69
of potential problems with Balla compliance when she had discussions with mental health staff at ISCI during which staff member Laura Watson indicated that she had not seen Addenda A and B before. Id. at 267–268. In addition, Brian Lewis, the clinician who had taken over the mental health monitoring of the Balla case, pulled Dowell aside and said he had some concerns that monitoring was not occurring as required by Addenda A and B. Id. at 267–269. At that point, Dowell called counsel and informed them that there may be a problem. Id. at 268. 58. Unlike the IDOC officials previously in charge of Balla, Dowell took swift and effective action to identify and rectify the areas of noncompliance. 59. In July 2015, Dowell began a series of meetings with IDOC and Corizon officials to discuss the fact that the IDOC had not been complying with the exact terms of the MCP. Attendees included Dowell, Warden Yordy, Mark Kubinski (attorney), Colleen Zahn (attorney), Dr. Craig,7 Brian Lewis, Aaron Hofer, Connie Smock (director of nursing), Connie Lowder, Jeannie Hunter, Jessyca Tyler-Leekley, Megan Austin (nurse monitor), Joni Lemons (nurse monitor), and Zarah Martin (nurse monitor). Id. at 76:12–25, 77:1–6, 269, 457–59, 270:13–24. 60. Over the course of about thirty-five hours of meetings, Dowell’s team did a wordby-word, line-by-line review of Addenda A and B to determine where they were in and out of compliance with the MCP. Prior to that time, Plaintiffs never called attention to the fact that there was information missing from the Report Card, or

7

No other identifying information was provided by the parties.

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR CONTEMPT [Dkt. 1090] - 16

Case 1:81-cv-01165-BLW Document 1202 Filed 09/28/17 Page 17 of 69
asked why the information was missing. Id. at 78:3–19, 305; see generally Exhibit 1001. 61. Keith Yordy has been warden of ISCI since January 2014. He became aware of the deviations from the MCP when he was told by Dowell, and he participated in the process to identify the deviations and come up with an action plan to address them. Tr. at 457–59. 62. As a result of the review, IDOC staff identified: (a) proposed fixes that involved amending the MCP to make the process match what was actually happening on the ground; (b) changes that were required because items described in the Addenda could not be accomplished as written; (c) instances where current IDOC policy conflicted with MCP provisions, with a proposal that IDOC policy govern; (d) instances where IDOC proposed to Plaintiffs that IDOC be permitted to perform things slightly differently; (e) audits that IDOC wanted Siegert, rather than other staff, to perform to relieve the burden on other staff; and (f) requests to allow audits to occur on a different day. Id. at 77–81, 460. 63. Some of the reasons for the deviations were justified, and others were not. 64. The result of the IDOC team meetings was a chart called the “Deviation Matrix.” The most recent Deviation Matrix contains Plaintiffs’ responses to Defendants’ disclosures and proposed solutions, as well as Defendants’ replies. Id. at 305–308; See generally Exhibit 1075. 65. Defendants specifically outlined the justifiable reasons for their deviations in the Deviation Matrix. See Exhibit 1003. For example, as to Addendum A, p. 10, Item
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR CONTEMPT [Dkt. 1090] - 17

Case 1:81-cv-01165-BLW Document 1202 Filed 09/28/17 Page 18 of 69
8, Action 2, Defendants proposed “amending the current Stipulation to permit the Health Services Director to conduct the audit, and to permit the audit to occur for records from two weeks prior because it would be impossible to measure compliance with the 14 day follow-up period.” Id. at 10. Another example is Addendum A, p. 11, Item 10, Action 1, where Defendants proposed “amending the current Stipulation to provide for rescheduling no-show offenders who had a valid reason for no-showing, as opposed to those who decide they do not want to attend their scheduled appointment. Automatically rescheduling all no-show offenders, would prevent other offenders from being seeing and run the risk of repeat no-shows, thus depriving other offenders of medical appointments.” Id. at 14-15. 66. Dowell directed IDOC counsel to provide the information about the deviations to Plaintiffs’ counsel. Tr. at 310. 67. On October 9, 2015, IDOC attorney Colleen Zahn sent Plaintiffs’ attorneys a letter providing the Deviation Matrix and indicating that internal audits had revealed that the IDOC was not in compliance with 101 of the MCP’s monitoring, auditing, and reporting requirements. IDOC made four broad admissions of serious, even egregious, failures to comply with the MCP requirements: (1) it had not complied with Addenda A and B since they were approved; (2) it relied on Corizon’s audit numbers rather than its own; (3) it had failed to report or had misreported statistics at the monthly Monitoring Meetings; and (4) it had not updated Plaintiffs when it
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR CONTEMPT [Dkt. 1090] - 18

Case 1:81-cv-01165-BLW Document 1202 Filed 09/28/17 Page 19 of 69
changed its policies, but it was following formal policy rather than the requirements of Addenda A and B. See generally Exhibit 1; Tr. at 274–275, 460. 68. After the IDOC held team meetings and created and implemented new auditing procedures, Dowell believed the IDOC was doing everything it needed to do to comply with the MCP. Tr. at 302. H. IDOC’s Implementation of the Revised Auditing Procedures 69. After the new audit tools were developed, the IDOC held about thirty-five hours of meetings discussing the audit tools, and spent about ten hours tracking compliance regarding the new audits. As the meetings on the line-by-line review and work on the audit tools concluded, Dowell set up the Incident Command System (“ICS”) to track progress on Balla on a weekly basis. Id. at 311–12. 70. The ICS meetings have consisted of giving management’s perspective on updates, going over action items that arose in the monthly Monitoring Meetings and nurse monitoring meetings, discussing concerns, and receiving reports from various section chiefs: one report goes over action items, one talks about facility operations, and one addresses administrative issues. The team holds a round table and addresses questions and concerns from team members at that time. Legal counsel for IDOC also attends. Id. at 312–13. 71. The new audit tools were provided to Plaintiffs’ counsel. Id. at 317. The IDOC requested that Plaintiffs agree to amend the MCP as described in paragraph 61 above.
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR CONTEMPT [Dkt. 1090] - 19

Case 1:81-cv-01165-BLW Document 1202 Filed 09/28/17 Page 20 of 69
72. While waiting for Plaintiffs’ response to the requests for changes, the IDOC moved forward with correcting the failures noted above. Id. at 318.
73. Some of the fixes identified in the deviation meetings were easy and immediate; others required creation of Balla-specific tools and took longer to implement. Id. at 78–80. For example, the Medication Administration Records (“MARs”) audit took a while to correct: there were multiple discussions regarding how to conduct the audit, and the nurse monitors eventually figured out how to accomplish the audit by enlisting other resources to assist them, rather than hiring an additional auditor. Exhibit 1082 at 1-3; Tr. at 273–74, 314–19.
74. Defendants changed the content of the Report Card provided to Plaintiffs at the monthly Monitoring Meetings to reflect only those items required by Addenda A and B. Tr. at 81–83. They realized the Report Card contained a lot of information not required by the Addenda, and decided to omit the excess. Id.
75. IDOC staff implemented most of the new Balla-specific audit tools in February and March of 2016.8 Id. at 317–21. At that time, they had not received a response from Plaintiffs to the October 2015 letter and Deviation Matrix.
76. In April 2016, after much research and consultation with the class representatives, Plaintiffs’ counsel formally responded to the October 9, 2015 letter and the Deviation Matrix. See generally Exhibit 2005; Tr. at 316.

8

As discussed more fully below, the biannual staff suicide training requirement was not completed

until July 2016.

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR CONTEMPT [Dkt. 1090] - 20

Case 1:81-cv-01165-BLW Document 1202 Filed 09/28/17 Page 21 of 69
77. The first audits reported to Plaintiffs in the revised Report Card format occurred in April 2016 (each Report Card addresses the previous month’s audits). Tr. at 320– 21. At that time, Plaintiffs objected that the Report Card was not compliant, and Dowell advised them to put their complaints in writing. Id. at 322.
78. Plaintiffs followed up with a letter from Plaintiffs’ counsel to IDOC counsel about the new Report Card format on February 15, 2017, almost a year after the new Report Card format was disclosed to them. Id. at 322, 325; Exhibit 2006.
79. After the fixes were fully implemented in 2016 (to the extent IDOC chose to implement fixes, whether the parties agreed or not), staff regularly performed about forty Balla audits to comply with Addenda A and B. Tr. at 83:12–21. I. Evidence Showing Plaintiffs’ Course of Dealing from June 2014 to September 2015
80. Plaintiffs raised line-item provision-of-care improvement issues from the 2014 Addenda with Defendants from time to time (for example, fully staffing the pill call windows). These issues were discussed and resolved between the parties via the preliminary stages of the MCP dispute resolution process without having to resort to Court intervention, as the MCP was designed to work. Those issues that were not raised in the dispute resolution process were recognized and rectified by Dowell’s team’s efforts between September 2015 and July 2016 (for example, biannual suicide training).
81. There is no evidence showing that any particular IDOC official or employee actually was aware of the noncompliance issues until a mental health clinician
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR CONTEMPT [Dkt. 1090] - 21

Case 1:81-cv-01165-BLW Document 1202 Filed 09/28/17 Page 22 of 69
noticed it in late 2015, prompting Dowell and other IDOC officials to undertake their review of the MCP as described above. For example, Warden Yordy believed the IDOC was compliant based on Shane Evans’s reports and based on what was going on in the Monitoring Meetings. Id. at 529–30. 82. It is clear that the class representatives had continuing questions about the accuracy of Defendants’ auditing and informally verbalized their concerns to Defendants, but there is no evidence that Plaintiffs gave Defendants formal written notice of noncompliance or that Plaintiffs gave Defendants formal written notice that the MCP was not operating as intended under the mandatory provision in MCP § 7.1(a) —a requirement of the agreement to address unresolved issues—at any time prior to the IDOC’s September 2015 self-disclosure. However, Plaintiffs’ inaction was, in part, due to Defendants’ representations that they were auditing properly. 83. There is no evidence that either party made any formal efforts to change the course of the parties’ monitoring between the 2012 Order to the 2014 Order. For example, no party made an effort to change the Report Card, the major reporting and monitoring tool, to comply with the 2014 standards after the 2014 Order was issued. Id. at 683:13–19. In fact, in 2015, when Defendants changed it to more closely track Addenda A and B, Plaintiffs opposed the changes, and no agreement has been reached on a new format. Id. at 320-21. 84. There is no evidence that either party formally raised the issue that the mode of monitoring had not changed to comply with the 2014 Order with the Mediation
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR CONTEMPT [Dkt. 1090] - 22

Case 1:81-cv-01165-BLW Document 1202 Filed 09/28/17 Page 23 of 69
Special Master, who had been available to mediate disputes since the inception of the MCP (formerly as the Court’s ADR coordinator). J. Stipulated NCCHC Audit 85. The MCP provides for a compliance audit of the medical and mental health delivery system to determine whether Defendants have met the conditions of the injunctions. Dkt. 842 at 7. The parties stipulated that the NCCHC—in particular, NCCHC Resources Inc. (“NRI”), a subsidiary of NCCHC—would conduct the audit (“NCCHC audit”). The parties also stipulated to particular auditors. Exhibits 2001–04; Tr. at 213–16. 86. As part of an accelerated case management plan that replaced the mediation special master with a court facilitator, the Court moved up the parties’ stipulated audit from July 2017 to May 2017. This was an effort to determine the progress of the medical and mental health delivery system changes, because it had been five years since the MCP was adopted. Dkts. 1004, 1009. 87. After the Court was provided with a copy of the Deviation Matrix, pursuant to the new set of case management procedures, and in light of the impending end of the extended monitoring period, the Court and court facilitator encouraged the parties to create a workable monitoring plan going forward, to have the medical and mental health system evaluated by NCCHC earlier rather than later, and to wrap the allegations of past wrongdoing into the termination proceedings if feasible. 88. The NCCHC audit occurred in May 2017, with a report issued in June 2017 that reviewed the time period from May 2016 to May 2017. The audit concluded that
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR CONTEMPT [Dkt. 1090] - 23

Case 1:81-cv-01165-BLW Document 1202 Filed 09/28/17 Page 24 of 69
“the prison has a well-run health care and mental health care system.” Exhibit 2000 at 3. 89. Dr. Brent Gibson is the chief health officer of NCCHC and also works for its subsidiary, NRI. He was with the audit team that audited ISCI in May of 2017, but was not an auditor. Tr. at 213–18. 90. The audit tools were created by NRI with the help of counsel. Id. at 213–18. 91. The NCCHC audit lasted about five days. NRI auditors reviewed the time period from May 2016 to May 2017, and they were permitted to look back farther if needed. Auditors met with a randomly-selected group of inmates, Balla class representatives, and counsel. The audit did not cover 2014, 2015, or the first four months of 2016. Id. at 222. 92. In preparation for the audit, Warden Yordy gave directions to staff to cooperate with the NRI auditors, provide full access, answer questions, and provide any information requested. Id. at 525. 93. Siegert and her staff participated in the NRI audit, met with auditors, answered their questions, and provided them with all of the information requested. Id. at 130. 94. The auditors indicated that they had received all the information needed to complete the audit. Id. at 218–21.
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR CONTEMPT [Dkt. 1090] - 24

Case 1:81-cv-01165-BLW Document 1202 Filed 09/28/17 Page 25 of 69

K. Plaintiffs’ Complaints and Defendants’ Responses about the IDOC Mode of Monitoring
95. Plaintiffs allege, but have not shown, that the IDOC and Corizon did not audit at all for clinical competency. The record showed that clinical competency of the medical staff was, in fact, reviewed in biannual contract audits, even if those competency reviews were not being done in Balla-specific audits.9 Id. at 84:20– 25, 85:1–9. Balla-specific audits for clinical competency began in the spring of 2016 when all new audit procedures were implemented. Id. at 317–21.
96. Plaintiffs allege that the audit for medication distribution consists only of recording whether a conversation occurred. Id. at 108:21–25. But Siegert explained that the audit includes Nurse Manager Zarah Martin meeting with patients to review the problem and attempt to resolve the problem, and that most problems are resolved at the meeting. Id. at 109:1–22.
97. Plaintiffs allege that not every inmate who experiences a medication distribution issue is interviewed. It is entirely possible that not every single medication complaint is caught in an audit; however, there is no evidence in the record of a systemic issue with medication distribution.
98. Plaintiffs also allege that the “concern and grievance review” audit consists only of reviewing timeliness of concern and grievance responses. Id. at 109:23–25,

9

The Court uses the term “competency” in a general manner here, meaning that staff were audited

to determine whether they knew how to provide competent care. The NCCHC standards did not permit a

doctor with a license limited to prison health care to practice in a prison, and, yet, at some points in time

before his full-use license was reinstated, Dr. Agler worked at ISCI. Obviously, this would not have met

the higher “competency” standards of NCCHC, but it would have met the lower competency standards of

the Idaho State Board of Medicine. See discussion on Dr. Agler, infra, at ¶ 110, et seq.

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR CONTEMPT [Dkt. 1090] - 25

Case 1:81-cv-01165-BLW Document 1202 Filed 09/28/17 Page 26 of 69
110:1–4. However, Siegert clarified that the concern and grievance review audit consists of the following: (1) Siegert retrieves all the concern forms that have been submitted to the medical unit in a month, which is usually between 350 and 400 forms; (2) she reviews each for a timely response; (3) she reads the complaint and the response, to ensure that the response was appropriate, polite, professional and that it addressed the issue raised by the inmate; (4) when she finds a problem with the response, she makes copies of them; and (5) she addresses the problematic responses with Aaron Hofer and Connie Smock. Id. at 110–11. 99. The Court finds Siegert credible as to her explanations of the monitoring, based on her personal knowledge in supervising and conducting the audits and her demeanor at the hearing. 100. Plaintiffs have pointed to no evidence of ongoing systemic issues with the medical or mental health system that amount to violations of the Eighth Amendment’s Cruel and Unusual Punishments Clause. Id. at 641–45. 101. During the NCCHC audit, Plaintiffs gave the NRI auditors a list of fifty-three names of inmates who were meant to serve as examples of systemic issues regarding health care. Id. at 644. “NRI’s physician monitor completed medical records reviews on all fifty-three and found no outstanding critical health, mental health, or dental issues.” Exhibit 2000 at 86. As to the “Patient Chart Review” conducted by the NRI physician auditor, NRI was “unable to substantiate any medically significant denial or delay in care.” Id. at 87.
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR CONTEMPT [Dkt. 1090] - 26

Case 1:81-cv-01165-BLW Document 1202 Filed 09/28/17 Page 27 of 69
L. IDOC’s Compliance from May 2016 to Present 102. As of May 2016, Defendants were deemed by NCCHC to be operating the medical
and mental health system at ISCI in compliance with the MCP and Addenda A and B, as measured by the audit tools prepared by counsel and NRI. See generally Exhibit 2000. 103. As of July 2016, Defendants had completed the biannual staff suicide training, the last of the requirements to bring them into compliance with the MCP and Addenda A and B. 104. By the time Plaintiffs filed their motion for contempt in March 2017, Defendants were making every effort to comply with the 2014 Order, as the May 2017 NCCHC audit demonstrated. III. Conclusions of Law A. Past Contempt While Plaintiffs’ contention that Defendants were doing nothing is inaccurate, because Defendants continued to audit and improve the ISCI medical and mental health delivery system using the tools developed for compliance with Appendices A and B, the Court concludes that Defendants violated the 2014 Court Order beyond substantial compliance as demonstrated in the Deviation Matrix between June 11, 2014 and July 2016. Defendants have not shown that the violations were based on a good faith and reasonable interpretation of the Order, because Defendants did not even read the Order. By not reading the Order, Defendants did not take all reasonable steps within their power to comply; in fact, they failed to take the first necessary step toward compliance.
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR CONTEMPT [Dkt. 1090] - 27

Case 1:81-cv-01165-BLW Document 1202 Filed 09/28/17 Page 28 of 69
Defendants have no viable defense to the request that they be held in contempt for their past failure to follow the 2014 Order. Defendants’ evidence was aimed at showing not that Plaintiffs filed their motion too late, but that Plaintiffs complained—not at all at first, and then too late—that Defendants did not change their system of auditing and monitoring from the 2012 preliminary system to the 2014 final system of monitoring. The evidence tends to show that once Plaintiffs and Defendants engaged in a course of auditing and monitoring the ISCI medical and mental health delivery system in 2012 pursuant to the Order adopting the 2012 Stipulation to Modify Injunction with Appendices A and B, they both continued to monitor in that manner. Further, neither party changed or demanded that the other party change procedures in order to monitor in accordance with the 2014 final Addenda A and B. This is not to say that Plaintiffs did not raise line-item provision-of-care issues from the 2014 Addenda with Defendants; it is to say that they focused on the substance of line-item issues in the 2014 Addenda, and not on the form of the auditing set forth in those documents.
Thus, Plaintiffs appear to have failed to use the MCP’s dispute resolution process to formally raise their questions about Defendants’ auditing. However, this is of little relevance to the Court’s determination of past contempt, because Defendants nevertheless had an independent duty to read and implement the Court Order. They did not, and were therefore in contempt of this Court between June 11, 2014 and July 2016.
B. Present Contempt Substantial compliance requires that a party make every reasonable effort and taken all reasonable steps to comply with a court order. To their credit, it was
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR CONTEMPT [Dkt. 1090] - 28

Case 1:81-cv-01165-BLW Document 1202 Filed 09/28/17 Page 29 of 69
Defendants—and specifically, Dowell—who eventually noticed and raised the issue of the deviant monitoring. As soon as Dowell’s team realized it was out of compliance, it worked swiftly and hard to remedy all deficiencies. The Court concludes that some of the requirements of Addenda A and B were impossible to comply with, some were impracticable, and some called for Plaintiffs’ good faith re-negotiation.10 Plaintiffs appear to not be amenable to some of IDOC’s requested changes to the Addenda A and B requirements (such as its request to change the Report Card to more accurately reflect the requirements of Addenda A and B). Nevertheless, it appears that IDOC has now achieved substantial compliance with the MCP, and thus with the Court’s Order.
Since June 2016, the IDOC has continued to implement the MCP in good faith, monitoring its internal workings to a degree not seen before in the history of this case. For example, when Warden Yordy discovered a training supervisor had falsified training records, causing the IDOC to be out of Balla compliance, Yordy immediately took steps to discipline that employee, notify Plaintiffs, and re-set the training schedule deadline. By July 2016, all ISCI employees had undergone biannual suicide training, bringing the IDOC into substantial compliance with the MCP. The IDOC regularly performs about forty Balla-related audits to remain in compliance. Based on the evidence before the Court, the Court concludes that Defendants were not in contempt as of July 2016, nor are they today.

10

See paras. 63–64.

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR CONTEMPT [Dkt. 1090] - 29

Case 1:81-cv-01165-BLW Document 1202 Filed 09/28/17 Page 30 of 69
PLAINTIFFS’ REQUEST FOR DAMAGES I. Standard of Law
In the federal courts, monetary recovery for civil contempt may be either remedial or coercive. United States v. United Mine Workers of America, 330 U.S. 258, 303–04 (1947). A remedial compensatory award for past instances of contempt is to remedy injuries resulting from the contumacious behavior. Id.
An award of compensatory damages must be based on the complainant’s actual losses sustained from the past contumacious acts or omissions. Id. at 304. The party requesting damages bears the burden of bringing forward evidence to show it suffered actual loss, and that the loss was caused by contumacious acts or omissions. Gen. Signal Corp. v. Donallco, Inc., 787 F.2d 1376, 1380 (9th Cir. 1986).
On the other hand, a coercive remedy, as its name implies, compels future compliance. Id. A coercive remedy can be in the form of an order to do or refrain from doing something, or in the form of sanction payable to the Court, not the other party. Gen. Signal Corp. v. Donallco, Inc., 787 F.2d 1376, 1380 (9th Cir. 1986) (citing Winner Corp. v. H.A. Caesar & Co., 511 F.2d 1010, 1015 (6th Cir. 1975) (purpose of limiting prevailing party to actual losses in civil contempt actions would be defeated by allowing prevailing party to collect coercive civil contempt fine)).
Importantly, the Prison Litigation Reform Act (“PLRA”) prohibits the Court from ordering an extension of the monitoring period as a coercive remedy absent a showing of continuing Eighth Amendment violations. Hallett v. Morgan, 296 F.3d 732, 742–44 (9th Cir. 2002); 18 U.S.C. § 3626.
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR CONTEMPT [Dkt. 1090] - 30

Case 1:81-cv-01165-BLW Document 1202 Filed 09/28/17 Page 31 of 69
II. Factual Findings Relevant to Damages Issue After considering the evidence before it, the Court finds that there is insufficient
evidence that the deviations in the mode or substance of auditing and monitoring or failure to implement line-item provision-of-care improvements prior to March 2016 caused Plaintiffs any actual damage. The Court also finds that the mental health and medical delivery system is currently, and was during the relevant time period, operating in accordance with NCCHC standards.
i. Offender #1511 a) Auditing Related to Dr. David Agler
110. Plaintiffs attempted to show that IDOC’s failure to audit according to Addenda A and B caused Corizon to employ a doctor with a restricted license, which in turn caused Offender #15 injury.
111. Addendum A requires that Corizon review healthcare professional personnel records for verification of current licensure. Exhibit 1001 at 8. Addendum A also refers to NCCHC Standard P-C-01 under the training/recruitment/selection process/orientation requirement, which requires that no medical professional be permitted to work in the prison with a restricted license that limits practice to

11

The parties have stipulated that the inmates referred to in these proceedings should be identified

by number rather than name. The key to this numbering system is found in Exhibit 1 to the Sealed

Stipulated Motion to Redact Inmates’ Names from Hearing Transcripts. Dkt. 1199-1. However, the

“Offender Key” stipulated to by the parties identifies only fourteen inmates and does not include this

particular inmate. Therefore, the Court refers to this inmate as Offender #15. The parties are familiar

enough with the record in this case to discern the identity of Offender #15.

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR CONTEMPT [Dkt. 1090] - 31

Case 1:81-cv-01165-BLW Document 1202 Filed 09/28/17 Page 32 of 69
correctional institutions. The 2012 Appendix A did not contain this particular point. See Dkt. 842 at 17. 112. As of September 23, 2010, Dr. Agler was restricted for five years to practicing medicine in a men’s only prison where another healthcare provider or administrator was employed, or to practicing in the community where he was closely supervised by another doctor. Tr. at 245–48. The restriction was the result of a stipulation and order of the Idaho State Board of Medicine, which suggested that Agler may have used his position as a physician to engage in improper sexual contact or conduct with female patients. Exhibit 1016 at 1-2. Agler denied the allegations, but entered into the stipulation voluntarily. Id.; Tr. at 256. 113. Offender #15 entered ISCI and the long-term care unit on July 16, 2015, with pressure sores associated with his paraplegic condition. Exhibit 8. He was given regular wound care at ISCI and was told to wear Prevalon boots to protect his heels from contacting his mattress. Tr. at 195. 114. On August 18, 2015, Dr. Migliori noted that Offender #15 had developed a draining blister on his right foot. By August 25, 2015, Offender #15 had developed a two-by-two centimeter break down his left heel. Exhibit 8 at 17. 115. On September 5, 2015, Licensed Practical Nurse Cynthia Marria noted that Offender #15 refused to wear his Prevalon boot heel protectors. Id. at 21. 116. Offender #15 received continual care for his heels in the medical unit. Id. at 21-27.
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR CONTEMPT [Dkt. 1090] - 32

Case 1:81-cv-01165-BLW Document 1202 Filed 09/28/17 Page 33 of 69
117. On September 22, 2015, Dr. Migliori debrided Offender #15’s heels; the left heel wound was closed, but the right was open and was therefore covered after cleansing, debriding, and application of an antibiotic. Id.at 27.
118. By September 25, 2015, Offender #15 had developed a “dollar-sized” blister on his left heel. Id. at 30.
119. On October 16, 2015, both heel wounds were debrided. Id. at 34. 120. On October 27, 2015, Dr. Migliori diagnosed Offender #15 with osteomyelitis and
put him on Levofloxacin and ordered continuing judicious heel debridement. Id. at 38-39. 121. On October 29, 2015, Dr. Travis Kemp told Dr. Migliori by telephone that the probable best course of action would be bilateral amputations because of the osteomyelitis and the limited mobility caused by the weight of his legs. Id. at 40. 122. On November 17, 2015, Dr. Migliori checked Offender #15’s heels and found that both were infected and swollen despite Bactrim/Levofloxacin. Id. at 46. 123. On November 24, 2015, Offender #15 saw Dr. Kemp, who recommended bilateral through-the-knee amputations. Offender #15 agreed to proceed with the recommendations. Id. at 49.
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR CONTEMPT [Dkt. 1090] - 33

Case 1:81-cv-01165-BLW Document 1202 Filed 09/28/17 Page 34 of 69
124. Dr. Agler took over Offender #15’s treatment on December 1, 2015.12 Tr. at 201:10–25. On that date, Dr. Agler noted in the record that surgery was scheduled and ordered that pain medication and antibiotics be continued. Exhibit 8 at 52.
125. On December 8, 2015, Dr. Agler noted that Offender #15’s leg spasms would be resolved when the surgery was completed, but Dr. Agler nevertheless increased the dosage of Bactofin because that medication had apparently been helpful for the spasms before. Id. at 57.
126. On December 15, 2015, Dr. Agler noted that the office was working to get an appointment for the surgery with a new orthopedic surgeon versus scheduling the surgery with Dr. Kemp, as previously advised. Dr. Agler urged, “Surgery needed ASAP.” Id. at 54.
127. Offender #15 complained at the evidentiary hearing that Dr. Agler never looked at Offender #15’s wounds, nor did he debride them. Plaintiff discussed this with Dr. Agler, and Dr. Agler told Plaintiff that he was scheduled for the amputation and there was nothing Dr. Agler could do. Tr. at 202. Offender #15 described the wounds as black and very foul-smelling, like “roadkill.” Id. at 202–03.

12

It is unclear when Dr. Agler first began working at ISCI. The Court takes judicial notice of

another case on its docket which tends to show that Dr. Agler was working at ICC, a different facility that

was a private prison not subject to the Balla injunction, in August 2011 (see Case No. 1:12-cv-00036-

BLW, Gisel v. Agler). Plaintiffs attempted to show that employing Dr. Agler at either facility was

contrary to the contract terms between IDOC and Corizon, but the ICC information is irrelevant to the

ISCI MCP.

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR CONTEMPT [Dkt. 1090] - 34

Case 1:81-cv-01165-BLW Document 1202 Filed 09/28/17 Page 35 of 69

128. Dr. Agler knew that osteomyelitis is a bone infection that can spread. Id. at 240.
Dr. Agler did not debride Offender #15’s heels because, in Dr. Agler’s opinion, it
was not medically indicated. Id. at 241.
129. Dr. Agler made his decision based on the following:
[O]steomyelitis is an infection of the bone itself. And debriding a wound is cutting away skin tissue that is infected. If you are looking to debride bone itself, you’d have to do that in a surgical setting, so I wasn’t able to do that. The fact was, as I recall, he was on prophylactic antibiotics at the time, so he was being treated. Debriding it not only was not indicated, but actually may have made things significantly worse, might have caused continued skin infections, worsening skin infections, bleeding and so forth. So I was trying to do no harm.
Id. at 261–62.
130. As of December 23, 2015, twenty-two days after Dr. Agler took over care of
Offender #15, the five-year restriction on Dr. Agler’s license expired, and he
returned to the status of physician with a full-use medical license. Id. at 260.
131. While Offender #15 was waiting for his amputation surgery, nurses bathed and
cleaned him regularly. They also changed his dressings and kept his heel
“bandaged, wrapped very well.” Id. at 209.
132. Offender #15’s legs were amputated on January 4, 2016. Id. at 194–95.
133. In November 2016, a federal court jury found Dr. Agler deliberately indifferent to
the medical needs of Offender #4,13 one of his prisoner patients at a different

13

Plaintiffs’ counsel represented in his questioning that the prisoner had been treated at ISCI. That

misrepresentation was corrected on cross-examination. Tr. at 253–55.

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR CONTEMPT [Dkt. 1090] - 35

Case 1:81-cv-01165-BLW Document 1202 Filed 09/28/17 Page 36 of 69
facility. At that time, Dowell and the IDOC revoked Dr. Agler’s security clearance so that he could no longer work at any of the prisons. Id. at 253–54. 134. Had Defendants been auditing as they should have under Addendum A, rather than Appendix A, they could have prevented Dr. Agler from treating Offender #15 at ISCI while Dr. Agler’s license was restricted, between December 1, 2015, and December 23, 2015. However, there is nothing in the record indicating that Dr. Agler treated Offender #15 inappropriately; rather, the treatment appears reasonably appropriate given that the amputation had already been ordered. 135. The Idaho State Board of Medicine standards and the NCCHC standards are directly at odds with each other regarding doctors practicing with restricted licenses. Because the allegations against Dr. Agler consisted of improper sexual conduct with female patients, the Board authorized Dr. Agler to continue to practice in only certain settings, one being an all-male prison. Contrarily, the NCCHC standards do not permit someone who has a license that is restricted to practicing in a prison setting to work at a prison. However, NCCHC’s Dr. Gibson, an expert on prison health care standards, did not know, and there is no evidence in the record of, the theory behind that standard. Tr. at 230. Here, there is no connection between the reason for Dr. Agler’s restriction and Plaintiffs’ alleged damages. 136. There is no evidence showing that IDOC’s manner of monitoring related to Dr. Agler’s status of working with a restricted license at ISCI prior to December 23, 2015, caused Offender #15, or any other ISCI patient, harm or injury.
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR CONTEMPT [Dkt. 1090] - 36

Case 1:81-cv-01165-BLW Document 1202 Filed 09/28/17 Page 37 of 69
b) Auditing Related to Nurse Joni Lemons 137. Plaintiffs also attempted to show that Nurse Monitor Joni Lemons audited in an
improper manner, or not at all, during certain times when Offender #15 had bed sores. The audits showed that Offender #15 did not complain of anything during the audits. Tr. at 169; see generally Exhibits 5, 6, 7. Offender #15 testified that the only reason he did not make complaints that were recorded on Lemons’s written audits was that he did not know what Lemons’s purpose was in performing the audits and thought she knew what was going on with his legs through her review of the medical charts. Tr. at 200–01. 138. Offender #15’s testimony regarding Lemons’s allegedly deficient auditing was not credible, because each week he signed off on Lemons’s audits stating that he had received adequate hygiene, medication, and food and had no other concerns. 139. Offender #15’s contention that medical staff refused to help him put on the Prevalon boots is also not credible. The medical records show that Offender #15 refused to wear the boots. Offender #15’s contention is not supported by any corroborating evidence, such as offender concern forms, Health Services Requests (HSRs), or grievances complaining of lack of help. The record also reflects that Offender #15 liked to do things “his way,” such as popping wheelies in his wheelchair, getting into beds other than his own, and refusing help for some transfers between beds. Id. at 88–89. 140. Lemons credibly testified that outside of the context of the audits she recalled Offender #15 verbally complaining that his sores were getting worse, but that the
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR CONTEMPT [Dkt. 1090] - 37

Case 1:81-cv-01165-BLW Document 1202 Filed 09/28/17 Page 38 of 69
complaints occurred only after he was cleared for amputation. Lemons testified only to what she knew and remembered; she was quick to admit when she did not remember something or did not do something.
ii. Offender #3 141. Plaintiffs vaguely allege that in January 2017, IDOC’s failure to monitor
according to Addenda A and B caused Offender #3 to suffer frostbite and amputation of some of his fingers. Dkt. 1090-1 at 21. 142. Offender #3 is an inmate with dementia who frequently wandered away from his assigned cell or bunk. Tr. at 621–22. 143. At a Monitoring Meeting prior to November 19, 2015, class representatives suggested that Offender #3 should be placed in different housing. Offender #3, who was housed in Unit 9, had been wandering into other inmates’ cells. Class representatives were concerned that he was going to be assaulted if he wandered into the wrong inmate’s cell, because Unit 9 is a little “rough and tumble.” Tr. at 622. 144. Offender #3 was moved from Unit 9 to Unit 14, another dorm setting, where he was found in other people’s beds, which again caused class representatives a concern. Id. at 621–22. At the November 19, 2015 Monitoring Meeting, Dowell reported that Offender #3 had been moved to the medical annex. Id.; Exhibit 1024 at 8. There is no evidence that inmates complained that the medical annex was improper housing for Offender #3.
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR CONTEMPT [Dkt. 1090] - 38

Case 1:81-cv-01165-BLW Document 1202 Filed 09/28/17 Page 39 of 69
145. Although some IDOC officials, including Dowell, Yordy, and the IDOC Move Coordinator, knew of Offender #3’s wandering, Offender #3 was placed in the seventy-eight-bed medical annex, an open, dorm-style building classified as general population. Tr. at 440, 466, 468, 470–71, 621.
146. The “medical annex” inmates are not necessarily given more medical care than those in general population, though the name implies otherwise. Rather, it is a newer building that officials chose to locate near the medical building, and, hence, its name became “the medical annex.” Id. at 464; Exhibit 2016. Inmates assigned to the medical annex can come and go, but the medical infirmary and long-term care units are more secure. Tr. at 440–41. Some of the inmates in the medical annex were young and healthy, while others were geriatric, had Alzheimer’s disease, or had a variety of other conditions, including cerebral palsy and HIV/AIDS. Id. at 421–22, 441–42.
147. Sergeant Payton, who worked in the medical annex, attempted to mark Offender #3’s uniform with stripes so he could be easily identified when he wandered, but that was deemed an unauthorized act, and officials forbade him from doing so. Id. at 512–13. Warden Yordy said not everyone knew what the stripes signified, and Yordy was concerned about signaling that an inmate was different from others. Id. at 513. IDOC officials did not propose any alternative solution to keep Offender #3 safe.
148. An option for Offender #3 would have been the long-term care unit, located downstairs in Medical Building 20, but it has only fifteen or sixteen beds, and it is
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR CONTEMPT [Dkt. 1090] - 39

Case 1:81-cv-01165-BLW Document 1202 Filed 09/28/17 Page 40 of 69

“pretty full” most of the time. Id. at 464. It takes a physician’s order to be assigned to the long-term care unit. Id. at 523–24. The Court notes that another option might have been housing Offender #3 in the twenty-nine-bed medical unit (the infirmary). Id. at 528. 149. In January 2017, Offender #3 wandered away from his housing unit and was outdoors in sub-zero weather for about an hour and a half. No one in his housing unit recognized that he was missing. It is unclear whether officers who walked the yard every hour missed seeing him, they saw him but did not suspect anything wrong, or they did not actually walk the yard every hour.14 Id. at 466–72. 150. On January 6 or 8, Offender #3 was admitted to the infirmary for frostbite, and some of his fingers were amputated. He was given a prescription for the pain medication Ultram. He was medically assessed regularly between January and April to treat his frostbite. Id. at 92–96. 151. Offender #3 was relocated to the long-term care unit after recovering from the incident. Id. at 471. 152. This is an unfortunate incident, but there are no connections between it and the manner in which the IDOC monitored the Balla injunctions. There are no medical or mental health records in the evidentiary record before the Court showing Offender #3’s history of medical or mental health assessments by which a

14

There is also a report stating that Offender #3 reported to a nurse that he fell down some stairs at

the gym before he went outside to walk the track. Tr. at 531–32; Exhibit 2007 at 104. Offender #3 also

testified at trial that his fingers “got . . . taken away” because he “had too much laundry.” Tr. at 550.

Obviously, Offender #3 had little ability to relay what happened to him, but whether he fell inside,

outside, or both is not material; that he suffered frostbite is.

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR CONTEMPT [Dkt. 1090] - 40

Case 1:81-cv-01165-BLW Document 1202 Filed 09/28/17 Page 41 of 69
connection might have been shown, if one existed. Without more, this appears to have been a security issue that should have been aimed at IDOC security officials in an individual lawsuit, not a medical issue falling under the MCP.
iii. Offender #10 153. Plaintiffs attempt to show that IDOC’s failure to audit in accordance with
Addenda A and B caused the suicide death of Offender #10.15 Plaintiffs point to several deviations from Addenda A and B: (1) Dr. Stern recommended that inmates who have mental illnesses should not be considered for hire as suicide watch companions, and, consequently, all suicide watch companions should have emotional stability screening before being hired; (2) the clinician who evaluated and cleared Offender #10 to be a suicide watch companion had not renewed her license; and (3) a six-month evaluation of Offender #10 was not performed.
a) Use of Inmates with Mental Illnesses as Companions and Failure to Do Pre-Hiring Mental Stability Screening
154. Plaintiffs obtained Offender #10’s prison and mental health records but only submitted selected parts to show that Offender #10 had a history of multiple prior suicide attempts, had a family history of suicide and suicide attempts, was diagnosed with several mental health conditions, was on several types of psychiatric medication, had missed several dosages of her medications, and had

15

Offender #10 was a gender dysphoric inmate. Because Offender #10 identified with the female

gender, the Court refers to her with feminine pronouns.

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR CONTEMPT [Dkt. 1090] - 41

Case 1:81-cv-01165-BLW Document 1202 Filed 09/28/17 Page 42 of 69
lived in the Behavioral Health Unit during most of her imprisonment. Exhibits 1050–53, 1055–60. 155. Several witnesses testified about Offender #10’s mental stability screening, the gap in time when IDOC was not performing screenings, and the type of training clinicians received to perform the screenings, as follows. 156. Tyson Hansen, currently the Balla compliance manager and a licensed mental health provider, served as the suicide companion coordinator and the psychiatric treatment coordinator between 2014 and 2016. Tr. at 358–30, 413–14. He was not a licensed mental health provider at that time, and his position did not require it. Id. at 413–14. 157. In his former position as suicide companion coordinator, Hansen reported to the clinical supervisor (a position requiring a mental health clinician license). Id. at 666–67. 158. Hansen had never seen the MCP or Addenda A and B before September 2015, when Dowell and other IDOC officials began meeting to determine whether they were in compliance. At that time, he learned of MCP areas with which he was not compliant with respect to his job as the suicide companion coordinator. Id. at 360– 61. 159. Hansen found three deviations from the MCP related to his work area. First, inmate companions were not being assessed for emotional stability at the time of their application. See generally Exhibit 1073 (Stern Report). Beginning in February 2016, however (four months before Offender #10 was hired to be a
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR CONTEMPT [Dkt. 1090] - 42

Case 1:81-cv-01165-BLW Document 1202 Filed 09/28/17 Page 43 of 69
companion), each applicant was screened for emotional stability before being hired. There was a gap of time between September 2015 and February 2016, when IDOC knew applicants were not being screened and when it started the screening, but that is irrelevant to Offender #10, as she had not yet been hired as a companion. Tr. at 369–70. 160. Jeremy Clark, an Idaho-licensed clinical professional counselor, was the clinical supervisor of the ISCI Behavioral Health Unit from about July 2015 to June 2016. As clinical supervisor, he was responsible for training inmate companions, conducting the shadowing component of that training, and holding regular meetings with the companions. Id. at 661–67. 161. In 2016, Clark became the person responsible for collecting the Balla data on the mental health side. Each month he collects a data set, consisting of random numbers of inmates and their files, and reviews them for things such as mental health screenings, treatment plans, mental health assessments, and DOR recommendations. He also looks at suicide risk management numbers and suicide risk management training. Id. at 661–62. 162. After becoming involved in Balla, Clark provided mental health clinician training on how to do the suicide watch companion assessments, including instructions to clinicians to “[e]nsure you review the medical file, ensure you meet with the inmate, ensure you review all the stuff to determine that stability.” Id. at 668.
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR CONTEMPT [Dkt. 1090] - 43

Case 1:81-cv-01165-BLW Document 1202 Filed 09/28/17 Page 44 of 69
163. Clinician Amy Houser performed an emotional stability assessment of Offender #10 (to what extent is unknown) on June 18, 2016, as a prerequisite to Offender #10 being approved as a companion. Id. at 698; Exhibit 1049.
164. There is no evidence in the record showing whether Houser received Clark’s training before screening Offender #10.
165. There is insufficient evidence in the record whether Houser had reviewed Offender #10’s medical file before approving her to be a companion.
166. Houser wrote in her June 18, 2016, screening notes: “We discussed intricacies of being a companion, and [Offender #10] feels comfortable with the job descriptions. [She] discussed [her] current coping skills and how [s]he would manage any stressors. And [s]he denies SI [suicidal ideation], HI [homicidal ideation], and SIB [self-injurious behavior].” Tr. at 373–74.
167. Based on Houser’s screening, Hansen approved and hired Offender #10 to be a suicide watch companion in June 2016.
168. Offender #10 had a suicide watch companion shadow training on July 2, 2016, and then started work. Exhibit 1047.
169. Plaintiffs are concerned that Offender #10 had attempted suicide more than once while in IDOC custody, with the latest attempt in May 2016, just one month before her appointment as a suicide watch companion. See Exhibit 1058.
170. There is insufficient evidence in the record to show that Offender #10 committed suicide because she was a suicide watch companion. The record reflects that she tended to try to commit suicide during manic-depressive cycles. Exhibit 1055. She
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR CONTEMPT [Dkt. 1090] - 44

Case 1:81-cv-01165-BLW Document 1202 Filed 09/28/17 Page 45 of 69
assured two mental health professionals within five days of her suicide that she was stable, was non-suicidal, and was using coping mechanisms. Exhibits 1064, 1065. She recently had been harassed by other inmates due to coming out as a gender dysphoric (“GD”) inmate, but she told the mental health professionals that she planned to reach out to other GD inmates to help her work through the incident. Exhibit 1065. 171. Plaintiffs cite to the Stern Report to bolster their assertion that persons with mental health issues should not serve as companions. Tr. at 627–28. Stern wrote that “the [suicide watch] program operates without adequate screening of the participants in contrast to the current policy and principles of safe patient care. Some applicants chosen have significant mental health issues themselves.” Exhibit 1073 at 32. Plaintiffs omit the next sentence, which shows that this cautionary recommendation is intended to protect the inmates being watched, not the inmates doing the watching: “This [failure to screen companions] puts the inmates they work with at risk.” Id. 172. The is no evidence of a connection between the IDOC’s past failure to screen companions and the suicide of Offender #10, who was screened. 173. The parties have not pointed to any section in the MCP that required additional training for clinicians to perform the assessments. 174. The record also reflects that the thrust of the MCP provisions from which the IDOC deviated was not to protect the mental health of the companions, but to protect the inmates who were being watched.
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR CONTEMPT [Dkt. 1090] - 45

Case 1:81-cv-01165-BLW Document 1202 Filed 09/28/17 Page 46 of 69
b) Clinician’s License Lapse 175. As set forth above, Mental Health Clinician Amy Houser performed the mental
stability screening of Offender #10 in June 2016. 176. Houser was previously licensed in Idaho but her license lapsed for unknown
reasons, and she was therefore practicing without a current license from November or December 2016 to sometime in or after February 2017. Tr. at 332–33. Offender #10’s assessment did not take place during the time frame when Houser was unlicensed. 177. There is no evidence to show that at the time Houser evaluated Offender #10, she was not working under a valid, current license.
c) Sixth-Month Evaluation 178. The second deviation from the MCP at issue is that IDOC was not performing six-
month reviews of companions to determine whether the companions were still emotionally stable enough to do the job. Hansen started making sure this was done (consisting of a combination of a review by himself and a clinician) in August 2015, because Dr. Craig asked him to do so, rather than as a consequence of Dowell’s September 2015 meeting about MCP deviations. Id. at 369–72. 179. Offender #10 worked as a suicide watch companion without reported incident between July and November 2016. Exhibits 1047, 1061. 180. Plaintiffs have endeavored to prove that the IDOC’s failure to conduct a six-month evaluation on Offender #10 to determine whether she was still emotionally stable enough to function as a companion contributed to Offender #10’s suicide.
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR CONTEMPT [Dkt. 1090] - 46

Case 1:81-cv-01165-BLW Document 1202 Filed 09/28/17 Page 47 of 69
Offender #10 began work at the earliest in July 2016, after her training. Six months from July 2016 was January 2017. 181. On November 21, 2016, Offender #10 was involved in a suicide watch where the following incident occurred, as described in the Companion Watch Program Attendance Report: “While [Offender #10] was watching the patient, the patient scratched his leg in a way that [Offender #10] was unaware until the patient showed [Offender #10] the blood on his hand. The watch was transferred to acute watch due to the patient’s behavior. [Offender #10] asked for some time off to process what had happened. Program Supervisor Hansen and I agreed with [her].” Exhibit 1061. 182. Following that incident, Offender #10 had a mental health evaluation by Clinician Y. Ponder that was specifically aimed at determining whether Offender #10 was mentally stable enough to continue as a companion. Tr. at 389–90. Clinician Ponder evaluated Offender #10 and cleared her for continued work as a suicide companion. Id. at 408. This was at the five-month mark. 183. Offender #10 took a week off in November, then called in sick rather than appear for work, but afterwards resumed work at some point. Exhibit 1061; Tr. at 391; Dkt. 1149-9. 184. Offender #10 was further evaluated on January 25, 2017, by Psychiatrist Scott Eliason, and found to be at low risk of suicide. Exhibit 1064. This was at the sixmonth mark, but was not specifically designated a six-month suicide watch companion reassessment.
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR CONTEMPT [Dkt. 1090] - 47

Case 1:81-cv-01165-BLW Document 1202 Filed 09/28/17 Page 48 of 69
185. Offender #10 completed her last watch on January 28, 2017. Dkt. 1149-9. 186. At the behest of security staff, Offender #10 was evaluated again by Ponder on
January 29, 2017. Offender #10 “denied any current suicide ideation” and “did not report plan or intent.” Exhibit 1065. 187. Offender #10 hanged herself later that day. Exhibit 1066. 188. The record reflects that the three evaluations of Offender #10 were the functional equivalent of having had a six-month suicide watch companion reassessment. The record further reflects that the required six-month assessment was for the purpose of making sure the inmates on suicide watch were not harmed, not for the purpose of preventing harm to the suicide watch companions.16 189. Perhaps the most pertinent health care record observation of Offender #10 was from her January 2015 suicide attempt: “It should be noted that precise prediction of suicide and other self-injurious behavior is difficult, of limited reliability, and diminishes significantly over time.” Exhibit 1055. 190. IDOC mental health personnel Hansen, Houser, Ponder, and Eliason all determined that Offender #10 was fit to be a companion or was at low risk to commit suicide, both on initial assessment and in three reassessments. Tr. at 391– 92, 409–10.

16

While preventing harm to suicide watch companions is an important goal, the MCP and the Stern

Report are focused on potential harm to the inmates on suicide watch, and the contempt motion is focused

on the auditing required by the MCP and the Stern Report.

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR CONTEMPT [Dkt. 1090] - 48

Case 1:81-cv-01165-BLW Document 1202 Filed 09/28/17 Page 49 of 69
191. The record does not show a causal link between the MCP deviations and Offender #10’s suicide.
192. To the extent that Plaintiffs complain that mental health providers performed the mental health assessments badly, such claims would be more appropriately brought in individual lawsuits based on state tort or federal civil rights law. iv. Offender #9
193. Plaintiffs attempt to show that Offender #9 would not have died had IDOC conducted its auditing according to Addenda A and B, because Offender #9 was a Spanish speaker who was not provided with an interpreter for his medical visits.
194. This attempt fails, because Lemons did, in fact, conduct the HSR audits, and Offender #9’s HSRs were not among those in the “ten percent plus one” of audited records that was generated on the review list, such that Lemons could have intervened in his treatment. Tr. at 178:1–12.
195. The medical records show that Offender #9 was a fifty-eight-year-old man with no ongoing serious medical conditions. Exhibit 1011 at Bates No. IDOC003778.
196. Offender #9 completed an HSR form on March 30, 2016. Exhibit 1012 at Bates No. IDOC 022418. He was triaged and evaluated on April 5, 2016. Id.
197. The parties contested whether Offender #9 appeared for evaluation at the medical unit on March 30, 2016 and not triaged until April 5, 2016; or whether he simply wrote up and signed the HSR form on March 30, 2016 and did not actually go to the medical unit until April 5, 2016. Tr. at 139–40.
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR CONTEMPT [Dkt. 1090] - 49

Case 1:81-cv-01165-BLW Document 1202 Filed 09/28/17 Page 50 of 69
198. Several items from the record seem relevant to the date controversy. Offender #9 HSR stated he did not speak English and needed a Spanish interpreter. Exhibit 1012 at Bates No. IDOC 022418. In a Monitoring Meeting on February 25, 2016, Dowell advised that non-English speakers should write their request for an interpreter “directly on the HSR at the time of submission so they can be set up in advance.” Exhibit 1027 at 5; see also Tr. at 624–27 (testimony that officials were telling inmates to place the request for an interpreter on their HSR so that “officials can have an interpreter ready when the inmate comes in.” (emphasis added)). That statement and the fact that the HSR form bears the instruction, “Place this slip in medical box or designated area,” seem to show that the medical department receives the HSRs “ahead” of the inmate’s visit (although the medical box may be in the sick call area and “ahead of time” may mean while the inmate is waiting to be triaged). Exhibit 1012 at Bates No. IDOC 022418.
199. However, Siegert explained that “[e]ach unit is assigned a time to come to medical for sick call. So when they come, they bring their health service request with them. When they arrive, it’s stamped as triaged at that time, and they’re seen in sick call right after the triage.” Tr. at 148.
200. Supporting Siegert’s explanation is the fact that nothing in Offender #9’s chart indicated that he, in fact, presented himself at sick call on March 30. Id. at 138–40.
201. In any event, the audit did not cover Offender #9’s HSRs. Thus, Plaintiffs have not connected the auditing to any harm that might have occurred if Plaintiff requested care on March 30 but did not receive it until April 5.
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR CONTEMPT [Dkt. 1090] - 50

Case 1:81-cv-01165-BLW Document 1202 Filed 09/28/17 Page 51 of 69
202. Offender #9’s HSR, signed on March 30, 2016, shows that he was seen and triaged on April 5, 2016. Exhibit 1012 at Bates No. IDOC 022418. Offender #9 was assessed by LPN Alyssa Turpin. He complained of bruising on the side of his nose bridge, soreness under each eye, ongoing sinus problems, ear pain, and itching in his ear canal. His eyes, ears, nose, throat, neck, and lungs were assessed as normal. Id. at Bates No. 002419. It was noted that he was using or was advised to use Claritin. Id. at Bates No. 022420. Turpin checked a box stating that that “[t]he patient demonstrates an understanding of self-care, symptoms to report and when to return for follow-up care,” as well as the box for “verbal” rather than written instructions. Id. at Bates No. IDOC 022418–022420. Nothing indicated Offender #9 and the nurse could not communicate.
203. Offender #9 returned to sick call on April 8 with fever, chills, a cough, and a sore throat. Correctional Medical Specialist Cindy Hoopes scheduled him to see a provider the same day. Id. at Bates No. IDOC 002416. At this point, his temperature was 101 degrees. LPN Jan Drake told him to take Acetaminophen, increase fluids, rest, and return in the afternoon to have his vital signs taken again. Id. at Bates No. IDOC 003778.
204. Offender #9 returned in the afternoon, and his temperature was within the normal range at 98.2 degrees. He was seen by an unidentified provider. That provider and Offender #9 had a meaningful conversation about his illness. Offender #9 communicated that he had not been drinking many fluids, and his bunkmate had been ill with a cough lately. The provider concluded Offender #9’s illness was
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR CONTEMPT [Dkt. 1090] - 51

Case 1:81-cv-01165-BLW Document 1202 Filed 09/28/17 Page 52 of 69
most likely viral. Id. at Bates No. 022412. The provider specifically noted: “Discussed clinical findings and implications as well as [illegible] medication/use and SE/AE [likely, ‘side effects’ and ‘adverse effects’]. Pt verbalizes understanding and agrees with plan” and had no further questions or concerns. Id. 205. After the provider’s notes, Jan Drake entered another note: “Verbal instructions given to pt to have unit security call ER if he worsens.” Id. at Bates No. IDOC 022411. 206. Offender #9 came to sick call again the next day—Saturday, April 9—saying, “been here 3x [three times],” which again indicates Offender #9’s ability to communicate with the provider. Id. at Bates No. IDOC 022414. Offender #9 complained of a non-stop cough, difficulty breathing, and lots of phlegm. He reported he was taking or was told to take the medication Tussin. His temperature was 98.7 degrees. He was scheduled to be seen in the clinic on April 12, 2016. Id. at Bates Nos. 022411 and 022414; Exhibit 1011 at Bates No. 003778. 207. The record shows that Offender #9 did not come to his appointment on April 12. Exhibit 1011 at Bates No. 0037780. The reason is unknown. Offender #9’s unit was notified of his no-show. A report shows that an officer went to Offender #9’s cell and advised him to return to the medical unit. Id. 208. Between April 12 and April 16, 2016, Offender #9 appeared at the medical department for a urinalysis. Nurses did not indicate in the medical records that Offender #9 reported that he was in pain or suffering or sick when he came to do his urinalysis. Tr. at 124:20–25, 125:1, 134:21–25, 135:4–13.
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR CONTEMPT [Dkt. 1090] - 52

Case 1:81-cv-01165-BLW Document 1202 Filed 09/28/17 Page 53 of 69
209. On April 17, 2016, Offender #9 was found nonresponsive in his cell. He was transported to the hospital, and he died of sepsis secondary to necrotizing pneumonia on April 18, 2016. Exhibit 1011 at Bates No. 003777.
210. Siegert explained that sepsis and pneumonia are not always fatal and can be treated. Tr. at 44:18–25, 45:1. However, in this particular case, Siegert found the medical care was appropriate, and she did not identify any potentially preventable errors of omission or commission in her mortality review of Offender #9’s death. Exhibit 1011 at 003777.
211. Because Offender #9’s records were not part of the audit conducted by Lemons, Plaintiffs have not established a causal link between Defendants’ mode of auditing and Offender #9’s death. Nevertheless, Plaintiffs have shown that there is some question whether Offender #9 would have died had the providers offered him different treatment. Offender #9’s death may therefore be more appropriately the subject of an individual civil rights action, rather than a contempt motion in this case. Defendants’ failure to comply with Addenda A and B did not contribute to Offender #9’s death. v. Offender #8
212. Offender #8 was a fifty-nine-year-old inmate with diagnoses of Hepatitis C with cirrhosis and esophageal varices with banding, who died at ISCI during the MCP auditing period. Exhibit 1014 at Bates No. IDOC 000676.
213. Offender #8 submitted an HSR on December 23, 2014, at a different IDOC facility. He was diagnosed as having a hernia at the other facility. He was
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR CONTEMPT [Dkt. 1090] - 53

Case 1:81-cv-01165-BLW Document 1202 Filed 09/28/17 Page 54 of 69
transferred to ISCI on either December 23 or 24, 2014. Upon arrival at ISCI, he was medicated and his hernia was reduced. Id. 214. On the morning of December 25, 2014, Offender #8 vomited a large amount and indicated that he was feeling better. It appears likely that he was seen by Physician’s Assistant Brown at that time, but Brown’s note is undated. Id. 215. Offender #8 continued to complain of nausea and vomited a third time. The first assessment showed hyperactive bowel sounds, reduced hernia, and a low-grade fever. Reassessment showed a hypoactive hernia. The provider was contacted with this information. Offender #8 then had projectile hematemesis (vomiting of blood), and the provider was contacted again and gave orders. Id.; Tr. at 124–26. 216. The provider was contacted again when Offender #8 continued to have hematemesis. Exhibit 1014 at Bates No. IDOC 000676. He was given an IV. His ammonia level was 121. Id. 217. On December 26, 2014, about 2:15 a.m., the IV was “pulled out,” and Offender #8 declined to have the IV restarted. Id. 218. That same day, at about 6:20 a.m., Offender #8 vomited after being given Lactulose. Id. 219. The provider notes reflect that around 9:15 a.m., Offender #8 had increased confusion. After evaluation, he was sent as an emergency to the emergency room for further evaluation. He was admitted to the hospital the same day, December 26, 2014, and he died in the hospital on January 2, 2015. Id.
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR CONTEMPT [Dkt. 1090] - 54

Case 1:81-cv-01165-BLW Document 1202 Filed 09/28/17 Page 55 of 69
220. Offender #8’s cause of death is noted as “aspiration of esoph varceal bleed as a comp of liver fail from . . . .” Id. at Bates No. IDOC 000675 (showing an expandable computer form, but not including the rest of this note as submitted to the Court.)
221. Upon a review of Offender #8’s records, Siegert opined that the care he received during the twenty-four hours he was in the infirmary was inappropriate. She made Corizon aware of her concerns. Tr. at 127.
222. From Siegert’s review of the records, she believed that the issues resulting in the projectile vomiting of blood should have been caught and remedied before Offender #8’s symptoms reached that point. Id. at 49–50. Her other findings included: failure to follow up may have contributed to Offender #8’s death; lack of training and education may have contributed to Offender #8’s death; there were preexisting conditions in Offender #8’s medical file that should have been caught; diagnoses should have been made (a failure to diagnose issue was present) or treatment was delayed; and the physician’s assistant may not have had adequate training or employed the training that he did have. Id. at 50–53.
223. Neither party included the hospital records in the evidentiary record. It is unclear whether Offender #8’s death was preventable if he already was in liver failure, but it appears his symptoms of aspiration of bleeding caused by liver failure might have been lessened or prevented, as noted by Siegert.
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR CONTEMPT [Dkt. 1090] - 55

Case 1:81-cv-01165-BLW Document 1202 Filed 09/28/17 Page 56 of 69

224. Siegert opined that none of the Balla audits would have prompted an intervention into the care of the individuals for whom she performed a mortality and morbidity review. Id. at 128. Plaintiffs have submitted no evidence to the contrary.
vi. Offender #16’s17 Allegations 225. Offender #16 alleged that an unidentified inmate who had the flu was placed in a
bed next to another unidentified inmate who just had heart surgery. Tr. at 107. 226. Siegert’s investigation of the medical records revealed that the first inmate had
received a flu shot that year and did not have the flu, and there was no notation in the record that he had the flu during that time. The second inmate did not have open heart surgery, but had a heart catheterization, a minimally invasive procedure (angioplasty) that should not have rendered the inmate vulnerable in terms of his immune system. Id. at 107–08. 227. The Court finds these allegations to be unsupported and unrelated to any auditing issue. vii. Damages Related to Mortality Rates and Suicide Incidents
a) Mortality Rates 233. Plaintiffs allege that the IDOC’s violations of the MCP led to increased mortality
rates at ISCI. 234. There were fifty-four inmate deaths at ISCI between June 2012 and June 2014.
There were thirty-one inmate deaths at all other facilities during that same time

17

The Court uses “Offender #16” here for the same reason it uses “Offender #15.” See note 11,

supra.

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR CONTEMPT [Dkt. 1090] - 56

Case 1:81-cv-01165-BLW Document 1202 Filed 09/28/17 Page 57 of 69
period. The average population at ISCI during that time period was 1,600. Tr. at 31:21–25, 32:1–17. 235. Plaintiffs believe that the ISCI mortality rate was unusually high because ISCI was not the only prison that housed inmates who were at a higher risk of death. In all other Idaho male prison facilities, there are individuals who are over the age of sixty, who have abused alcohol prior to coming to prison, and who have Hepatitis C. Moreover, they add, in Idaho, all females with every type of medical condition reside at one main female prison. Id. at 137. In other words, there are sick, ill, and elderly patients at every prison, and yet more deaths happen at ISCI. 236. Plaintiffs rely on a mortality report for state prisons compiled by the United States Department of Justice (“DOJ”). Dkt. 1132-37. The Court takes judicial notice of the existence of this public record. The 2014 overall national mortality rate for state prisoners was 275 per 100,000 prisoners, and the median mortality rate was 267 per 100,000 prisoners. Idaho’s reported rate per 100,000 prisoners was 307 in 2014. 237. Plaintiffs used only the deaths at ISCI to calculate ISCI’s mortality rate at 812 per 100,000 prisoners. Dkt. 1090-1 at 19. The DOJ report shows deaths of inmates per state, rather than deaths at specific facilities. Without more investigation, it is impossible to know whether other out-of-state facilities that function as that state’s main infirmary, like ISCI, have lower mortality rates than ISCI. 238. A comparison among Idaho’s male prisons shows that more deaths do happen at ISCI, but all other male prisons send their sickest patients to the ISCI facility. Tr.
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR CONTEMPT [Dkt. 1090] - 57

Case 1:81-cv-01165-BLW Document 1202 Filed 09/28/17 Page 58 of 69
at 135. While it is true that inmates with serious medical conditions are housed at other prisons, Plaintiff has not shown to what extent they are or are not transferred to ISCI if their condition becomes life-threatening. ISCI has the best and largest infirmary and the only long-term care unit in the IDOC system. Id. at 127–28. 239. Further, Plaintiffs’ comparison of the mortality rate at male and female prisons is unsupported by any facts. There is not enough information in the record regarding the life span of females versus males, the number of females with long sentences, the age of the females in prison, the overall health of female prisoners entering prison, the types of illnesses and disease that beset females, or any other factors that might show the female population can or cannot be distinguished from the ISCI male population. This particular argument is completely unavailing. 240. There is no evidence demonstrating that IDOC’s mode of monitoring had anything to do with the ISCI mortality rate from 2014 to 2016. 241. There is no evidence that Plaintiffs used the MCP dispute resolution process to notify Defendants that Plaintiff suspected that IDOC’s mode of monitoring was linked to a high mortality rate at ISCI. 242. As of April 28, 2016, the IDOC ceased including notices of death on the Report Card because of privacy issues regarding the deceased inmates. Tr. at 647; Exhibit 1029 at 11. Plaintiffs thought this impeded their ability to monitor; however, this information was readily available to counsel under an Attorney Eyes Only (“AEO”) policy. Tr. at 330; 647.
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR CONTEMPT [Dkt. 1090] - 58

Case 1:81-cv-01165-BLW Document 1202 Filed 09/28/17 Page 59 of 69
243. A discussion of mortality reviews recorded in the April 28, 2016 Monitoring Meeting minutes highlights the speculative nature of some of the claims arising from the ISCI deaths: “Mr. Searcy asked what the process was for declaring someone dead. Ms. Siegert responded that it could be a health care provider or a doctor. A mid-level provider would be acceptable—a PA could do this. Mr. Searcy said the question comes about in light of the offender death that occurred last week. Mr. Searcy said offenders were very upset by the conflict between what offenders saw on the tier and what was reported on the news. The news reported the offender was declared dead at the hospital hours later, while the offenders on the tier said he looked dead before he left.” Exhibit 1029 at 11.
244. The claim for contempt and damages regarding the number of deaths that occurred at ISCI during the monitoring period cannot be sustained on the evidence provided to the Court. b) IDOC Mortality and Morbidity Reviews
245. Concerning the IDOC Mortality and Morbidity Reviews (“mortality reviews”), the Court is unable to find any causal link between IDOC’s mode of conducting mortality reviews and the mortality rate at ISCI, or any link between the mode of monitoring and the deaths that occurred, even in instances where Siegert noted that medical care may have been inappropriate.
246. Addendum A requires that Health Services Director Siegert “conduct an internal review of mortality cases,” including that she “review[] the offender’s medical record, attend[] the mortality and morbidity review conducted by the contract
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR CONTEMPT [Dkt. 1090] - 59

Case 1:81-cv-01165-BLW Document 1202 Filed 09/28/17 Page 60 of 69
medical provider and complete[] the IDOC morality review form.” Exhibit 1001 at 19. To fulfill these duties, Siegert does a thorough review of the medical record, prepares a short narrative of the events surrounding the death, fills out the form, and meets with Corizon (the regional medical director and staff who participated in caring for the patient). She also prepares a national report for each death. Tr. at 109–12. 247. The purpose of the mortality review is to identify areas for improvement. In some instances, a mistake was made or an early test result went unheeded. Id. at 110– 120. From her mortality reviews in 2014, 2015, and 2016, Siegert made note of possible preventable errors and other omissions that may or may not have contributed to patient deaths. Those errors and omissions were discussed with Corizon’s regional medical director and any staff who actually participated in the care of the patient. Id. at 111. 248. Siegert did not report the omissions or possible preventable errors found in the mortality reviews to Plaintiffs. Id. at 51–53. Such reporting was not required by the MCP. See generally Exhibit 1001.There has been no showing that, had Siegert reported the issues, it would have made any difference in the monitoring or in preventing other bad outcomes. 249. The Deviation Matrix shows that the IDOC failed to conduct “serious incident reviews (SIRs)” in most of the mortality reviews from 2014 to 2016.18 Exhibit

18

An SIR was conducted in Offender #20’s death, as discussed below.

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR CONTEMPT [Dkt. 1090] - 60

Case 1:81-cv-01165-BLW Document 1202 Filed 09/28/17 Page 61 of 69
1075 at 33. Plaintiffs have not established what an SIR is or how the failure to conduct one caused Plaintiffs any harm. Plaintiffs’ response to the Deviation Matrix only asserts that Plaintiffs are entitled to these reviews conducted under Addenda A and B. 250. Nor is there any showing that any other Balla audit would have prevented any of the outcomes Siegert found in the mortality reviews or that she could have actually intervened in the care of the individuals for whom she performed the reviews prior to their deaths. Tr. at 129. 251. Errors and omissions can happen in medical treatment. Auditing serves the purpose of finding errors and omissions, and bringing those to the attention of health care personnel, so that the errors and omissions are not repeated. Here, the auditing is performing as intended when Siegert sits down with Corizon physicians and the personnel who cared for the decedents to review errors and omissions. 252. As to the errors and omissions themselves, none of the mortality reviews shows any particular systemic problem with the medical and mental health delivery system at ISCI. The estates of the decedents may, or could have, pursued these claims in individual state tort or civil rights lawsuits if they believed the errors and omissions rose to the level of deliberate indifference. 253. For example, Offender #2’s intake lab results showed that his liver enzymes were elevated. No one informed him of that, and no one followed up, but it turned out he had Hepatitis C (whether he knew this at the time of intake is unknown). About
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR CONTEMPT [Dkt. 1090] - 61

Case 1:81-cv-01165-BLW Document 1202 Filed 09/28/17 Page 62 of 69
one year later, at age sixty-three, Offender #2 died of “ESLD [likely, ‘end-stage liver disease’] due to complications of Hepatitis C.” Exhibit 1006 at Bates No. IDOC 000695. Plaintiffs have not shown that the problem at intake was systemic, nor have they shown that auditing exactly as Addenda A and B required would have changed the outcome. 254. Another example is Offender #1, a wheelchair-bound inmate who entered IDOC custody in June 2008 and died in November 2014, at the age of seventy-nine. The suspected cause of death was a cardiac event and the confirmed cause of death was acute myocardial ischemia. Siegert performed the mortality review of Offender #1 and found the following: (1) he was “in poor health with diagnoses of CAD, DM, HTN, A-Fib and CKD;” (2) he went to take a shower and was found unresponsive in his wheelchair after about twenty minutes; (3) at 7:30 a.m., the patient was determined to be pulseless; (4) a Corizon LPN put the patient on the floor and then called to find out his “code status” before initiating CPR; (5) upon finding out that the patient was a DNR (likely, “do not resuscitate”), medical staff did not initiate CPR; (6) the patient’s POST (likely, “physician orders for scope of treatment”) stated he did not want chest compressions but did want rescue breathing, use of an AED (likely, “automatic external defibrillator”), and aggressive interventions; and (7) at 8:20 a.m., the patient was pronounced dead. Exhibit 1007 at Bates No. IDOC 000710. Siegert identified “potentially preventable errors of omission or commission associated with opportunities for improvement in systems and processes unrelated to the event.” Id. at Bates No. IDOC 000709.
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR CONTEMPT [Dkt. 1090] - 62

Case 1:81-cv-01165-BLW Document 1202 Filed 09/28/17 Page 63 of 69
255. Siegert’s review of the medical records reflects that the Corizon emergency responder for Offender #1 noted there was no audible pulse and no audible blood pressure for Offender #1. Siegert does not believe the ER’s decision to call for a code status contributed to Offender #1’s death, but she identified calling for a code over resuscitation efforts to be an area for improvement to discuss with Corizon. Tr. at 120.
256. This appears to have been a one-time incident that reflects a need for correctional officer training and a clarification about what is to be done when a patient is nonresponsive with unknown POST instructions. There is no evidence that there was a systemic problem related to this incident or that any lack of or deficiency in auditing caused Offender #1 harm. In fact, the opposite appears true: Siegert’s mortality review identified an area where inappropriate care was given, so that improvements could be made.
257. Offender #7 was a seventy-six-year-old man with “poorly controlled diabetes due to patient[’]s non-compliance with diet, medication and CDP visits, longstanding diabetic foot ulcer, myocardial infarction with LV failure, and pulmonary hypertension.” Exhibit 1009 at Bates No. IDOC 000686. He had surgery for a chronically infected/osteomyelitis foot in June 2015. Tr. at 121:2–4. Siegert determined that Offender #7 had submitted an HSR in January 2015 complaining of difficulty breathing, but that he had not been appropriately referred to a provider. Id. at 121:14–22. That was six months before he died, and there is nothing in the record suggesting that his death—noted as due to complications
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR CONTEMPT [Dkt. 1090] - 63

Case 1:81-cv-01165-BLW Document 1202 Filed 09/28/17 Page 64 of 69

from diabetes—had anything to do with a respiratory issue like the one he complained of in January 2015.19 258. In two instances, one on May 7, 2015 (Offender #20) and one on January 10, 2013 (Offender #2), medical intake personnel arguably did not follow through with test results or notifications of conditions that should have been further tested or treated. Two incidents more than two years apart do not make a pattern or indicate a systemic problem. However, because Siegert was auditing, she was able to catch these isolated problems and bring them to the attention of Corizon supervisors and the staff who missed the issues, to improve the system. This is the purpose of the audits.
c) Suicides in Segregation Unit 259. The majority of all suicides at ISCI occur in segregated housing. Tr. at 43, 478. 260. Offender #5, a forty-eight-year-old with multiple psychological diagnoses,
committed suicide while in segregation on September 6, 2015. He was placed on suicide watch on August 25, 2015, because he had disclosed a plan to hang himself. He was assessed each day by mental health staff. While on suicide watch, he had a dirty urinalysis. He was approved to be transferred from suicide watch to

19

Siegert did perform a mortality review and IDOC did a SIR on the death of a thirty-one-year-old

inmate who was in good health other than his diagnosis of hypertension. Proposed Exhibit 1013 (Dkt.

1188-1). The inmate died after being in custody for about one month. Siegert noted that he was not taking

any medication for hypertension, nor was he being followed in the chronic care clinic. Siegert determined

that the failure to provide any treatment for his hypertension was likely an oversight of the intake staff.

An autopsy was conducted, and the confirmed cause of death was not hypertension but acute

methamphetamine toxicity. There is no evidence that the failure to follow up by intake personnel

regarding the hypertension had anything to do with his death from methamphetamine toxicity. The parties

did not seek admission of Proposed Exhibit 1013 at the hearing.

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR CONTEMPT [Dkt. 1090] - 64

Case 1:81-cv-01165-BLW Document 1202 Filed 09/28/17 Page 65 of 69
segregation on August 28, 2015. Prior to placement there, he had a mental health screening, where he denied suicide ideation. He was cleared for placement in restrictive housing, where he lived for about a week until he hung himself on September 6, 2015. Exhibit 1010 at Bates No. IDOC 000691–000692; Tr. at 121:23–25, 122:1–19. 261. Defendants identified deviations that were occurring about the same time period that Offender #5 died. See generally Exhibits 1, 1003. At the evidentiary hearing, Plaintiffs attempted to show that the changes were not implemented before Offender #5 died. 262. One deviation identified by Defendants was that the Training Sergeant rather than the Mental Health Clinical Supervisor had been auditing suicide prevention training for ISCI Staff. Id. at 52–53. However, no evidence in the record demonstrates a causal link between the supervision of the training and Offender #5’s death. 263. Another deviation was that, in 2015, IDOC staff were being trained annually when they should have been trained biannually. The last training before Offender #5’s death would have been in January 2015, because the next annual training was held in January 2016. Tr. at 482. Staff should have been trained again in June 2015, a few months prior to Offender #5’s death. Id. at 484. 264. The Court has seen no evidence linking the suicides described above to omissions by the IDOC personnel who were supervising these inmates at the time of death, or to the lack of the required June 2015 training session.
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR CONTEMPT [Dkt. 1090] - 65

Case 1:81-cv-01165-BLW Document 1202 Filed 09/28/17 Page 66 of 69
265. At the hearing, Plaintiffs pointed to the bad acts of Training Sergeant Marc Sandrus, who was in charge of ensuring that all staff had their second training of the year by June 30, 2016. Tr. at 504-511. Most staff were trained by that date, but four or five staff members were not. Id. at 507. Sandrus fabricated the training records, rather than require the staff to attend the training. Id. at 484–87; Exhibits 2, 3.
266. There is no evidence that any IDOC official other than Sandrus was involved in the fabrication of training records. Nor is there evidence that IDOC officials condoned his behavior. When Warden Yordy discovered the fabrication, Sandrus was demoted, his pay was reduced, and he was assigned to a different facility. Id. at 611. The Court finds that Sandrus unilaterally chose to falsify the training records and that no other officials were involved.
267. All IDOC staff completed the second training by July 31, 2016. Id. at 481–85. Accordingly, on that date IDOC became compliant with the MCP requirement that it provide biannual suicide prevention training. viii. Plaintiffs’ Other Allegations of Omissions and Harm
268. Plaintiffs made other allegations of omissions and harm, including that inmates helped other inmate patients bathe, a patient gave himself an injection with a nurse’s approval, and the medical annex smelled foul because some of the occupants were incontinent. Dkt. 1090-1 at 21; Tr. at 106, 477-78. The record shows no systemic issues or actual harm as a result of these anomalies.
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR CONTEMPT [Dkt. 1090] - 66

Case 1:81-cv-01165-BLW Document 1202 Filed 09/28/17 Page 67 of 69
269. In addition, the record shows that once IDOC had notice of these wrongs, it took steps to remedy them. There is no evidence that auditing differently would have changed the outcome of the above-listed incidents.
III. Conclusions of Law A. Compensatory Damages Addressing Plaintiffs’ requests for compensatory damages, the Court concludes
that Plaintiffs have not shown a causal link between Defendants’ deviations from the 2014 Order and the evidence of damages or harm presented in their briefing and at the hearing. Nor have Plaintiffs shown that any of the damages or harm—regardless of a causal link—amounted to systemic Eighth Amendment violations. Plaintiffs pointed to a few instances of potential harm—some of it security-related rather than medical- or mental-health related—that would have been better addressed in individual state tort or civil rights lawsuits focused on the individual provision of care, not a motion for contempt purporting to show that the type of auditing an institution conducted caused systemic harm.
The Court also concludes that some of the Plaintiff’s allegations, in particular, were unsupported by any evidence. For example, it would have been easy to find out the exact dates of Amy Houser’s mental health clinician license lapse and omit that evidence because it did not support Plaintiff’s damages, but Plaintiffs suggested, without supporting evidence, that the lapse was connected to Inmate #10’s suicide. Plaintiffs continued to suggest at the hearing that IDOC’s failure to screen suicide watch
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR CONTEMPT [Dkt. 1090] - 67

Case 1:81-cv-01165-BLW Document 1202 Filed 09/28/17 Page 68 of 69
companions occurred during the time frame when Houser assessed Inmate #10 for that position, after they were aware that the evidence clearly showed otherwise.
B. Coercive Relief Finally, given the favorable NCCHC evaluation and Plaintiffs’ failure to show that Eighth Amendment systemic issues remain as to the matters raised in the Motion for Contempt, as well as this Court’s finding that Defendants are in compliance with the Addenda as of July 2016, the dictates of the PLRA prevent the Court from ordering any further monitoring in this case.20 Similarly, the fact that there is no present contempt counsels against coercive monetary sanctions.
ORDER Accordingly, IT IS ORDERED that Plaintiffs’ Motion for Contempt (Dkt. 1090) is GRANTED IN PART and DENIED IN PART. Plaintiffs’ request that Defendants be held in contempt is GRANTED as to the period from June 6, 2014 and July 2016. However, Plaintiffs have not established that any class member suffered harm as a result of any violation; such harm is required for an award of compensatory damages. The Court does not determine at this time what remedy is appropriate to address Defendants’ past contempt. However, the Court notes that the PLRA bars a remedy of further monitoring and, in any case, equitable defenses may apply to any equitable remedies sought.

20

This Court makes no findings as to whether Defendants are currently operating in compliance

with the Eighth Amendment such that termination of monitoring would be appropriate.

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR CONTEMPT [Dkt. 1090] - 68

Case 1:81-cv-01165-BLW Document 1202 Filed 09/28/17 Page 69 of 69
The Court also notes that an award of attorney’s fees may be appropriate for Plaintiffs’ attorneys’ work in establishing IDOC’s past contempt. Much of Plaintiffs’ briefing was scattered, and some was opportunistic and aggrandizing, but the Court recognizes that this was in part a response to IDOC’s neglect, malfeasance, or willfulness in ignoring the Court’s orders between 2014 and 2016. The Court finds that Plaintiffs’ “throw everything at the wall” approach to this Motion was due in part to a lack of information, conclusory and false information about compliance provided to Plaintiffs by IDOC, and a lack of trust caused by Defendants’ delay in implementing the Court’s June 2014 Order. While Plaintiffs’ arguments were somewhat haphazard and some of their evidence extraneous, Plaintiff’s Motion for Contempt is not wholly without merit: Defendants clearly failed to take reasonable steps to comply with the Court’s June 2014 Order until Dowell took over and began the process of addressing Defendants’ noncompliance.
With this is mind, the Court leaves the determination of the most appropriate remedy to the presiding Idaho judge, to be determined when that Court rules on the upcoming termination motion in this case.
DATED: September 28, 2017
DAVID O. CARTER UNITED STATES DISTRICT
JUDGE
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR CONTEMPT [Dkt. 1090] - 69

 
 _

_:-:_:-:_:-:_;-:.:-:.___:::.::.:::.:::....:-~- .&. .&. I 0 I

Case 1:81-cv-01165-EJL

Document 601

Filed 12/13/2005

Page 1 of 2

p. 16

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

WALTER D. BALLA, et. al.,

)

)

Plaintiffs,

)

)

vs.

)

)

IDAHO BOARD OF CORRECTION, )

et al.,

)

)

Defendants.

)

Case No. CVBl-1165-S-EJL JUDGMENT

The Court entered a Memorandwn Decision and Order on September 26, 2005, denying

Defendants' Motion to Terminate Injunctive Relief. Therein, the Court found that there were

ongoing constitutional violations that necessitated the preservation of a permanent injunction

previously issued in the case: Based on the Court's Memorandum Decision and Order, and good

cause appearing therefore:

IT IS HEREBY ORDERED, ADJUDGED AND DECREED that:

.•

1. Defendants' Motion to Terminate (Docket No. 439 and 568-1) is DENIED. The

following sections of the permanent injunction in Balla v. Idaho State Board ofCorrection

(Balla II}, 656 F. Supp. 1108 (D. Idaho 1987) remain in effect:.

(A) Housing no more than one-hundred seventeen (I 17) inmates in Unit 9 at any

~

time;

I

' I

(B) Housing no more than one hun.dred eight (I 08) inmates in Unit 10 at any time;

I I I

JUDGMENT-I
I
I

I I

--- -- ---- -·--· ..
Case 1:81-cv-01165-EJL Document 601 Filed 12/13/2005 Page 2 of 2
(C) Housing no more than one hundred eight (108) inmates in Unit 11 at any time; and (D) Housing no more than one hundred forty-four (144) inmates in A-Block (Unitl3) at any time. The effective date ofthe preservation of the previous injunctive orders is October 28, 2005. 2. No more than two (2) inmates shall be housed in any cell for any period of time at any time and that no inmates be housed at any time in day rooms or other non-designed cell areas or forced to sleep on mattresses on the floor. This order shal,l take effect September 26, 2005. 3. Defendants shall attend to all plumbing disorders in the housing units within twentyfour (24) hours of oral or written report to the Idaho State Correctional Institution (ISCI) staff and that those plwnbing disorders be remedied within three (3) working days from such report. This order shall take effect on September 26, 2005. 4. This Court retains ancillary jurisdiction over this matter to enforce the provisions of the permanent injunction. 5. Plaintiffs' Motion for Attorney Fees and Costs (Docket No. 550) is GRANTED. Plaintiffs are entitled to costs in an amount of$ 5,804.53 and attorney fees in an amount of $ 150,054.15. The attorney fees and casts shall be paid within twenty (20) days of this Order's date.
Y Dated this day of December, 2005.
JUDGMENT-2

 
 Case 1:81-cv-1165 Document <docnum> Filed <datefiled> Page 1 of 81
CLASS,LC1,LC6,LC8,MEDIATION,PROBONO,PROTO,REFER,REOPEN,RFSETL
U.S. District Court District of Idaho (LIVE Database)Version 6.3 (Boise − Southern)
CIVIL DOCKET FOR CASE #: 1:81−cv−01165−BLW

Balla v. Idaho, State of Assigned to: Judge B. Lynn Winmill Referred to: Judge David O. Carter (Settlement) Demand: $0 Case in other court: 02−36092
Ninth Circuit Court of Appeals, 10−35413
Ninth Circuit Court of Appeals, 12−35541
9CCA, 15−35996
9CCA, 18−35151 Cause: 42:1983 Prisoner Civil Rights
Special Master
Marc Stern Dr

Date Filed: 05/15/1981 Jury Demand: None Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: Federal Question

Special Master
Amanda Ruiz Dr

Special Master
Susie Boring−Headlee TERMINATED: 12/21/2015

Plaintiff Walter D Balla

represented by Bradley J Dixon Stoel Rives LLP 101 S Capitol Blvd Ste 1900 Boise, ID 83702 208−387−4284 Email: bradley.dixon@stoel.com LEAD ATTORNEY

George C Patterson Patterson Law Offices, P.A. 410 S Orchard St., Suite 136 Boise, ID 83705 (208) 343−2240 Email: patlaw3@mindspring.com LEAD ATTORNEY

Jason Emerson Prince Holland & Hart LLP 800 W. Main Street, Suite 1750 Boise, ID 83702 (208) 342−5000 Fax: 208−343−8869 Email: jeprince@hollandhart.com TERMINATED: 10/22/2013 LEAD ATTORNEY

Stephen L Pevar AMERICAN CIVIL LIBERTIES UNION 330 Main St., First Floor Hartford, CT 06106 860−570−9830

Case 1:81-cv-1165 Document <docnum> Filed <datefiled> Page 2 of 81

Plaintiff Chelsea Pacheco
Plaintiff Hannah Taff

Fax: 860−570−9840 Email: Pevaraclu@aol.com TERMINATED: 01/11/2011 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Wendy Olson Stoel Rives, LLP 101 S. Capitol Blvd., Ste. 1900 Boise, ID 83702 208−389−9000 Fax: 208−389−9040 Email: wendy.olson@stoel.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
William C Pooser STOEL RIVES 101 S Capitol Blvd Ste 1900 Boise, ID 83702−5958 (208) 389−9000 Email: christopher.pooser@stoel.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Allison M Blackman Zions Bank 800 W. Main Street, Ste. 700 Boise, ID 83702 208−345−7000 Fax: 208−514−1900 Email: allison.blackman@zionsbank.com TERMINATED: 05/28/2013
Elijah Martin Watkins STOEL RIVES, LLP 101 S Capitol Blvd, Suite 1900 Boise, ID 83702−7705 208−389−9000 Email: elijah.watkins@stoel.com ATTORNEY TO BE NOTICED
J Walter Sinclair Holland & Hart LLP 800 West Main Street, Ste 1750 Boise, ID 83702 (208) 342−5000 Fax: (208) 343−8869 Email: jwsinclair@hollandhart.com TERMINATED: 01/09/2014

V. Defendant Idaho, State of

represented by

Case 1:81-cv-1165 Document <docnum> Filed <datefiled> Page 3 of 81
Brian V Church Office of the Attorney General, Civil Litigation Division 954 W. Jefferson St., 2nd Floor P.O. Box 83720 Boise, ID 83702−0010 208−334−2400 Fax: 208−854−8073 Email: brian.church@ag.idaho.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Chris Kronberg Office of the Attorney General PO Box 83720 Boise, ID 83720−0010 208−334−4536 Email: chris.kronberg@ag.idaho.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Colleen D Zahn Office of the Attorney General Civil Litigation Division 954 W Jefferson Street, Second Floor P.O. Box 83720 Boise, ID 83720−0010 208−334−4157 Fax: 208−854−8073 Email: colleen.zahn@ag.idaho.gov TERMINATED: 09/05/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark Alan Kubinski IDAHO DEPT OF CORRECTION 1299 N Orchard #110 Boise, ID 83706 (208) 658−2097 Fax: (208) 327−7485 Email: mkubinsk@idoc.idaho.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michaelina Brady Murphy Murphy Law Office 847 E Fairview Ave Meridian, ID 83642 (208) 855−2200 Fax: (208) 855−0873 Email: mia@murphylawoffice.com TERMINATED: 01/05/2016 LEAD ATTORNEY
Paul R Panther IDAHO DEPARTMENT OF CORRECTION P O Box 83720 Boise, ID 83720−0018 (208) 658−2097 Fax: 1−208−327−7485 Email: ppanther@idoc.idaho.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case 1:81-cv-1165 Document <docnum> Filed <datefiled> Page 4 of 81

Defendant Idaho Department of Correction
Personal Representative Alan Lee Brandt TERMINATED: 12/18/2007
Personal Representative Barry Searcy

Fred C Goodenough OFFICE OF ATTORNEY GENERAL Dept of Finance Statehouse Mail Boise, ID 83720 (208) 334−3678
Michael S Gilmore OFFICE OF ATTORNEY GENERAL Statehouse Rm 210 Boise, ID 83720 (208) 334−2400 Fax: (208) 854−8073 Email: mike.gilmore@ag.idaho.gov ATTORNEY TO BE NOTICED
Robert R Gates Saetrum Law Offices 101 S. Capitol Blvd., Ste. 1800 Boise, ID 83702 (208) 336−0484 Fax: (208) 336−0448 Email: general@saetrumlaw.com TERMINATED: 12/05/1996
Timothy R McNeese POB 186 Boise, ID 83631 (208) 392−4485 TERMINATED: 12/05/1996
William Michael Loomis OFFICE OF ATTORNEY GENERAL 1299 N Orchard Ste 10 Boise, ID 83706 (208) 658−2097 Fax: 1−208−327−7485 Email: wloomis@idoc.idaho.gov ATTORNEY TO BE NOTICED
represented by Chris Kronberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Bradley J Dixon (See above for address) LEAD ATTORNEY
Jason Emerson Prince (See above for address) TERMINATED: 10/22/2013 LEAD ATTORNEY
represented by Bradley J Dixon (See above for address) LEAD ATTORNEY
Elijah Martin Watkins (See above for address)

Case 1:81-cv-1165 Document <docnum> Filed <datefiled> Page 5 of 81

Personal Representative Keith A Brown TERMINATED: 01/09/2017
Personal Representative John Maynard TERMINATED: 05/01/2018
Personal Representative Albert Pete Veenstra, III TERMINATED: 01/29/2015

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jason Emerson Prince (See above for address) TERMINATED: 10/22/2013 LEAD ATTORNEY
William C Pooser (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Bradley J Dixon (See above for address) LEAD ATTORNEY
Elijah Martin Watkins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jason Emerson Prince (See above for address) TERMINATED: 10/22/2013 LEAD ATTORNEY
William C Pooser (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Bradley J Dixon (See above for address) LEAD ATTORNEY
Elijah Martin Watkins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jason Emerson Prince (See above for address) TERMINATED: 10/22/2013 LEAD ATTORNEY
William C Pooser (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Bradley J Dixon (See above for address) LEAD ATTORNEY
Elijah Martin Watkins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case 1:81-cv-1165 Document <docnum> Filed <datefiled> Page 6 of 81

Personal Representative Lance Conway Wood
Personal Representative Kent Ellis
Personal Representative David Johnson TERMINATED: 10/31/2016
Personal Representative Kenneth Workman

Jason Emerson Prince (See above for address) TERMINATED: 10/22/2013 LEAD ATTORNEY
William C Pooser (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Bradley J Dixon (See above for address) LEAD ATTORNEY
Jason Emerson Prince (See above for address) TERMINATED: 10/22/2013 LEAD ATTORNEY
represented by Elijah Martin Watkins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
William C Pooser (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Bradley J Dixon (See above for address) LEAD ATTORNEY
Jason Emerson Prince (See above for address) TERMINATED: 10/22/2013 LEAD ATTORNEY
William C Pooser (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elijah Martin Watkins (See above for address) ATTORNEY TO BE NOTICED
represented by Bradley J Dixon (See above for address) LEAD ATTORNEY
Jason Emerson Prince (See above for address) TERMINATED: 10/22/2013 LEAD ATTORNEY
William C Pooser (See above for address)

Case 1:81-cv-1165 Document <docnum> Filed <datefiled> Page 7 of 81

Personal Representative John McElhiney
Personal Representative Dennis Slaughter TERMINATED: 05/01/2018
Personal Representative David Meister Intervenor Michael A Lake Intervenor Evin DeVan ISCC, PO Box 51, Boise ID 83707 TERMINATED: 07/28/2016

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elijah Martin Watkins (See above for address) ATTORNEY TO BE NOTICED
represented by Bradley J Dixon (See above for address) LEAD ATTORNEY
Elijah Martin Watkins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jason Emerson Prince (See above for address) TERMINATED: 10/22/2013 LEAD ATTORNEY
William C Pooser (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Bradley J Dixon (See above for address) LEAD ATTORNEY
Elijah Martin Watkins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jason Emerson Prince (See above for address) TERMINATED: 10/22/2013 LEAD ATTORNEY
William C Pooser (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Evin DeVan 103006 no mailings PRO SE

Date Filed # Docket Text

Case 1:81-cv-1165 Document <docnum> Filed <datefiled> Page 8 of 81

07/27/1995 07/27/1995 07/27/1995 08/03/1995 08/08/1995 08/11/1995 08/11/1995 08/16/1995 08/16/1995
08/22/1995 08/22/1995 08/22/1995 08/24/1995 08/28/1995 08/28/1995 09/05/1995
09/05/1995
10/20/1995 10/31/1995 10/31/1995 11/17/1995 11/24/1995

326 MOTION by dft to modify the orders of 32/5/87 and 8/23/90 and 3/5/91 (wm) (Entered: 07/22/1996)
327 MEMORANDUM by dfts in support of motion to modify the orders of 32/5/87 and 8/23/90 and 3/5/91 [326−1] (wm) (Entered: 07/22/1996)
328 AFFIDAVIT of James Spalding in support of dfts motion to modify the orders of 32/5/87 and 8/23/90 and 3/5/91 [326−1] (wm) (Entered: 07/22/1996)
329 NOTICE by plas concerning class representation and request for temporary assignment of class representation (wm) (Entered: 07/22/1996)
330 REQUEST by pla for entry of contempt (wm) (Entered: 07/22/1996)
331 NOTICE OF ATTORNEY APPEARANCE for pla by Stephen L Pevar (wm) (Entered: 07/22/1996)
332 OJBECTION by pla to motion to modify the orders of 32/5/87 and 8/23/90 and 3/5/91 [326−1] (wm) (Entered: 07/22/1996)
333 REQUEST by pla for leave to file additional affidavit for request for entry of contempt (wm) (Entered: 07/22/1996)
334 NOTICE OF HEARING motion to modify the orders of 32/5/87 and 8/23/90 and 3/5/91 [326−1] 9:30 9/5/95 before EJL in Boise (cc: all counsel) (wm) (Entered: 07/22/1996)
335 NOTICE OF ATTORNEY APPEARANCE for pla by George C Patterson (wm) (Entered: 07/22/1996)
336 OBJECTION by dft to motion for entry of contempt [330−1] (wm) (Entered: 07/22/1996)
337 AFFIDAVIT of Arvon Arave regarding motion response [336−1] (wm) (Entered: 07/22/1996)
338 REPLY by dft to response to motion to modify the orders of 32/5/87 and 8/23/90 and 3/5/91 [326−1] (wm) (Entered: 07/22/1996)
339 ORDER OF TRANSPORT by Honorable Edward J. Lodge (cc: all counsel) (wm) (Entered: 07/22/1996)
340 REPLY by pla to response to motion for entry of contempt [330−1] (wm) (Entered: 07/22/1996)
341 MINUTES OF HEARING ON MOTION TO MODIFY − motion to modify the orders of 32/5/87 and 8/23/90 and 3/5/91 [326−1] ; hearing held 9:30 9/5/95, matter continued, date not set., EJL (wm) (Entered: 07/22/1996)
342 ORDER, from the 9th Circuit, no motions for reconsideration, rehearing, clarification stay of the mandate, or any other submissions shall be filed or entertained in this closed docket (cc: all counsel) (wm) (Entered: 07/22/1996)
343 REQUEST by pla to have terms of settlement agreement enrolled as the final order of the court (wm) (Entered: 07/22/1996)
344 RESPONSE by dft re: request [343−1] (wm) (Entered: 07/22/1996)
345 SETTLEMENT AGREEMENT AND STIPULATION for dismissal (wm) (Entered: 07/22/1996)
350 APPLICATION by pla for order to show cause why a contempt citation should not issue (wm) (Entered: 07/22/1996)
346 ORDER by Honorable Edward J. Lodge dismissing the motion for entry of contempt [330−1], dismissing the motion to modify the orders of 32/5/87 and 8/23/90 and 3/5/91 [326−1] and the memorandum of 10/12/95 are adopted herein as the terms upon which the parties have agreed to dismissal (cc: all counsel) (wm) (Entered: 07/22/1996)

Case 1:81-cv-1165 Document <docnum> Filed <datefiled> Page 9 of 81

11/28/1995 11/28/1995 12/17/1995 12/18/1995 12/28/1995 01/11/1996
01/31/1996
02/05/1996 02/05/1996 02/20/1996 04/26/1996 04/26/1996 04/26/1996 05/10/1996 05/10/1996 05/10/1996 05/29/1996 05/31/1996 06/10/1996 07/24/1996
07/24/1996
11/01/1996
12/05/1996
01/06/1997

347 APPLICATION by pla to intervene as of right (wm) (Entered: 07/22/1996)
348 REQUEST by pla for contempt (wm) (Entered: 07/22/1996)
349 SECOND OBJECTION by dft to motion for contempt [348−1], motion to intervene as of right [347−1] (wm) (Entered: 07/22/1996)
351 MOTION by pla for order to show cause why dfts should not be held in contempt (wm) (Entered: 07/22/1996)
352 REQUEST by intervenor to withdraw motion for intervention (wm) (Entered: 07/22/1996)
353 ORDER by Honorable Edward J. Lodge granting motion to withdraw motion for intervention [352−1], finding the for contempt [348−1] moot, finding the motion to intervene as of right [347−1] moot (cc: all counsel) (wm) (Entered: 07/22/1996)
354 RESPONSE by dft to motion for order to show cause why dfts should not be held in contempt [351−1], motion for order to show cause why a contempt citation should not issue [350−1] (wm) (Entered: 07/22/1996)
355 MOTION by pla for contempt (wm) (Entered: 07/22/1996)
356 APPLICATION by pla Alan Lee Brandt to intervene (wm) (Entered: 07/22/1996)
357 OBJECTION by dft to Brandt's motion to intervene [356−1], motion for contempt [355−1] (wm) (Entered: 07/22/1996)
358 MOTION by pla for summary judgment (wm) (Entered: 07/22/1996)
359 BRIEF by pla in support re: motion for summary judgment [358−1] (wm) (Entered: 07/22/1996)
360 STATEMENT OF MATERIAL FACTS by pla in support of motion for summary judgment [358−1] (wm) (Entered: 07/22/1996)
361 BRIEF by dfts in opposition re: motion for summary judgment [358−1] (wm) (Entered: 07/22/1996)
362 AFFIDAVIT of Brian D. Nicholas regarding brief [361−1] (wm) (Entered: 07/22/1996)
363 AFFIDAVIT of Joe Klauser regarding brief [361−1] (wm) (Entered: 07/22/1996)
364 REPLY BRIEF by pla to response to motion for summary judgment [358−1] (wm) (Entered: 07/22/1996)
365 NOTICE OF HEARING motion for summary judgment [358−1] 3:30 6/10/96 before EJL in Boise (cc: all counsel) (wm) (Entered: 07/22/1996)
366 MINUTES OF MOTION HEARING − taking under advisement on 6/10/96 the motion for summary judgment [358−1] EJL (wm) (Entered: 07/22/1996)
367 MEMORANDUM, DECISION, AND ORDER: by Honorable Edward J. Lodge denying motion to intervene [356−1], denying motion for contempt [355−1] (cc: all counsel) (wm) (Entered: 07/25/1996)
368 ORDER by Honorable Edward J. Lodge denying as moot motion for order to show cause why dfts should not be held in contempt [351−1] (cc: all counsel) (wm) (Entered: 07/25/1996)
369 MEMORANDUM, DECISION, AND ORDER: by Honorable Edward J. Lodge denying motion for summary judgment [358−1] (cc: all counsel) (wm) (Entered: 11/04/1996)
370 NOTICE OF ATTORNEY SUBSTITUTION: terminating attorney Robert R Gates and Timothy R McNeese for Idaho, State of and substituting attorney Michaelina Murphy (wm) (Entered: 12/06/1996)
371 NOTICE by plas atty of change of address to 1888 Sherman St #380, Denver CO, 80203, (303) 839−5752 (wm) (Entered: 01/07/1997)

Case 1:81-cv-1165 Document <docnum> Filed <datefiled> Page 10 of 81

05/15/1997 08/01/1997 08/01/1997 08/04/1997 08/15/1997 08/15/1997 08/15/1997 08/15/1997 08/15/1997 08/15/1997 09/09/1997 09/12/1997 09/12/1997 09/12/1997 09/15/1997
09/29/1997 10/03/1997 10/04/1997
10/09/1997 10/16/1997
10/24/1997 11/03/1997 02/26/1998
04/06/1998 04/20/1998

372 ORDER by Honorable Edward J. Lodge ; Status report ddl set for 8/1/97 (cc: all counsel) (wm) (Entered: 05/16/1997)
373 STATUS REPORT by dft (wm) (Entered: 08/05/1997)
374 ANSWER by dft to first amended complaint (wm) (Entered: 08/05/1997)
375 STATUS REPORT by pla (wm) (Entered: 08/05/1997)
376 MOTION by dft for summary judgment (wm) Modified on 10/15/1998 (Entered: 08/18/1997)
377 MEMORANDUM by dft in support of motion for summary judgment [376−1] (wm) (Entered: 08/18/1997)
378 AFFIDAVIT of Lisa Fluck Cates regarding motion for summary judgment [376−1] (wm) (Entered: 08/18/1997)
379 AFFIDAVIT of John L. Braese regarding motion for summary judgment [376−1] (wm) (Entered: 08/18/1997)
380 AFFIDAVIT of Captain Shannon S. Cluney regarding motion for summary judgment [376−1] (wm) (Entered: 08/18/1997)
421 AFFIDAVIT of Timothy R. McNeese (wm) (Entered: 10/29/1998)
381 NOTICE OF PAST DUE RESPONSE TO MOTION re motion for summary judgment [376−1] ; Response to motion ddl extended to 9/16/97 (wm)
382 PARTIAL REPLY by pla to motion for summary judgment [376−1] (wm)
382 MOTION by pla for relief under rule 56(f) (wm)
383 AFFIDAVIT of Stephen L. Pevar regarding motion for relief under rule 56(f) [382−1], regarding motion response [382−1] (wm)
384 NOTICE OF MOTION DETERMINATION PROCEDURE − motion for summary judgment [376−1] will be decided on written submissions (cc: all counsel) (wm) (Entered: 09/17/1997)
385 REPLY by dft to response to motion for summary judgment [376−1] (wm) (Entered: 09/30/1997)
386 MOTION by pla to amend reply brief (wm) (Entered: 10/06/1997)
387 NOTICE OF PAST DUE RESPONSE TO MOTION re motion for relief under rule 56(f) [382−1] ; Response to motion ddl extended to 10/14/97 (wm) (Entered: 10/06/1997)
388 BRIEF by dft in opposition re: motion for relief under rule 56(f) [382−1] (wm) (Entered: 10/10/1997)
389 NOTICE OF MOTION DETERMINATION PROCEDURE − motion for relief under rule 56(f) [382−1] will be decided on written submissions (cc: all counsel) (wm) (Entered: 10/17/1997)
390 REPLY by pla to response to motion for relief under rule 56(f) [382−1] (wm)
391 NOTICE OF MOTION DETERMINATION PROCEDURE − motion to amend reply brief [386−1] will be decided on written submissions (cc: all counsel) (wm)
392 ORDER by Honorable Edward J. Lodge denying motion for summary judgment [376−1], granting motion for relief under rule 56(f) [382−1], granting motion to amend reply brief [386−1] ; Discovery ddl set for 5/1/98 ; Motion Filing ddl 6/1/98 ; Trial set for 8/18/98 at 9:30 (cc: all counsel) (wm) (Entered: 02/27/1998)
393 MOTION by pla to compel discovery , and for sanctions , and to vacate trial set for 8/18/98 , and to extend discovery (wm)
394 RESPONSE by dft to motion to compel discovery [393−1], motion for sanctions [393−2], motion to vacate trial set for 8/18/98 [393−3], motion to extend discovery [393−4] (wm) (Entered: 04/21/1998)

Case 1:81-cv-1165 Document <docnum> Filed <datefiled> Page 11 of 81

04/20/1998 04/20/1998 04/20/1998 04/27/1998 05/04/1998
05/15/1998 05/15/1998 05/29/1998 05/29/1998 06/01/1998 06/19/1998 06/19/1998 06/19/1998 07/06/1998 07/06/1998 07/07/1998 07/07/1998 08/06/1998 08/24/1998 09/03/1998 09/16/1998 09/16/1998 09/16/1998 09/16/1998
10/05/1998

395 AFFIDAVIT of Fred C. Goodenough in support of motion response [394−1] (wm) (Entered: 04/21/1998)
396 MOTION by dft to strike unsworn testimony (wm) (Entered: 04/21/1998)
397 AFFIDAVIT of Fred C. Goodenough in support of motion to strike unsworn testimony [396−1] (wm) (Entered: 04/21/1998)
398 AMENDED AFFIDAVIT of Fred C. Goodenough in support of motion to strike unsworn testimony [396−1] (wm) (Entered: 04/28/1998)
399 REPLY by pla to response to motion to compel discovery [393−1], motion for sanctions [393−2], motion to vacate trial set for 8/18/98 [393−3], motion to extend discovery [393−4] (wm) (Entered: 05/05/1998)
400 SECOND MOTION by pla to compel dft to answer discovery (wm) Modified on 05/15/1998
FILE DIVISION − File # 9 begins with document # 401 (wm) (Entered: 05/20/1998)
401 REPLY by dft to motion to compel dft to answer discovery [400−1] (wm) (Entered: 06/01/1998)
402 AFFIDAVIT of Fred C. Goodenough regarding motion response [401−1], in accordian file (wm) (Entered: 06/01/1998)
403 RENEWAL by dft of motion for summary judgment [376−1] (wm) (Entered: 06/02/1998)
404 REPLY BRIEF by pla to response to motion to compel dft to answer discovery [400−1] (wm)
405 RESPONSE by pla to renewed motion for summary judgment [376−1] (wm)
405 MOTION by pla for rule 56(f) relief (wm)
406 REPLY by def to response to motion for summary judgment [376−1] (dkh) (Entered: 07/07/1998)
406 RESPONSE by def to motion to compel dft to answer discovery [400−1] (dkh) (Entered: 07/07/1998)
407 REPLY by defs to response to motion for summary judgment [376−1] (dkh) (Entered: 07/08/1998)
407 RESPONSE by defs to motion to compel dft to answer discovery [400−1] (dkh) (Entered: 07/08/1998)
408 NOTICE OF TRIAL ; Trial set for 8/18/98 is reset for 11/9/98 at 9:30 before EJL in Boise (cc: all counsel) (wm) (Entered: 08/07/1998)
409 NOTICE by dft of change of address (wm) (Entered: 08/25/1998)
410 RENEWED MOTION by pla to vacate trial set for 11/9/98 (wm)
411 RESPONSE by dft to renewed motion to vacate trial set for 11/9/98 [410−1] (wm) (Entered: 09/17/1998)
412 MOTION by dft to strike unsworn testimony in plas renewed motion to vacated trial (wm) (Entered: 09/17/1998)
413 MEMORANDUM by dft in support of motion to strike unsworn testimony in plas renewed motion to vacated trial [412−1] (wm) (Entered: 09/17/1998)
414 AFFIDAVIT of Paul Panther regarding motion to strike unsworn testimony in plas renewed motion to vacated trial [412−1], in accordian file (wm) (Entered: 09/17/1998)
415 RESPONSE by pla to motion to strike unsworn testimony in plas renewed motion to vacated trial [412−1] (wm)

Case 1:81-cv-1165 Document <docnum> Filed <datefiled> Page 12 of 81

10/05/1998 10/16/1998 10/16/1998 10/16/1998 10/16/1998 10/28/1998
11/09/1998 12/31/1998 12/31/1998 09/12/2002 09/27/2002 10/04/2002
10/09/2002 10/23/2002 10/23/2002 10/31/2002 11/04/2002
11/29/2002 12/13/2002 12/13/2002 01/06/2003
01/21/2003

416 REPLY by pla to response to motion to vacate trial set for 11/9/98 [410−1] (wm)
417 MOTION by dft to vacate trial set for 11/9/98 (wm) (Entered: 10/19/1998)
418 MEMORANDUM by dft in support of motion to vacate trial set for 11/9/98 [417−1], of motion for summary judgment [376−1] (wm) (Entered: 10/19/1998)
419 AFFIDAVIT of Paul R. Panther regarding motion to vacate trial set for 11/9/98 [417−1] (wm) (Entered: 10/19/1998)
420 MOTION by dft to shorten time for hearing on motion to vacate trial (wm) Modified on 10/20/1998 (Entered: 10/19/1998)
422 ORDER by Honorable Edward J. Lodge granting in part and denying in part motion for summary judgment [376−1] finding moot the motion for rule 56(f) relief [405−1], finding moot the motion to compel discovery [393−1], finding moot the motion to vacate trial set for 8/18/98 [393−3], finding moot the motion to extend discovery [393−4], denying motion for sanctions [393−2], granting motion to compel dft to answer discovery [400−1], denying motion to strike unsworn testimony [396−1], denying motion to strike unsworn testimony in plas renewed motion to vacated trial [412−1], granting motion to vacate trial set for 11/9/98 [410−1], granting motion to vacate trial set for 11/9/98 [417−1], finding moot the motion to shorten time for hearing on motion to vacate trial [420−1] ; Discovery ddl set for 2/1/99 ; Trial set for 11/9/98 is reset for 3/8/99 at 9:30 (cc: all counsel) (wm) (Entered: 10/29/1998)
423 RESPONSE by pla re: motion to vacate trial set for 11/9/98 [417−1] (wm)
424 STIPULATION AND ORDER by Honorable Edward J. Lodge : dismissing case per settlement agreement (cc: all counsel) (wm) (Entered: 01/08/1999)
425 SETTLEMENT AGREEMENT, filed under seal (wm) (Entered: 01/08/1999)
426 MOTION by William Lightner to reopen the case (wm) (Entered: 09/13/2002)
427 MOTION by Ramon L Smith to substitute pla in this case (wm)
428 OBJECTION by def to William Lightner's request to reopen Balla v. State of Idaho and Objection to Ramon Smith's Petition to substitute pla to inforce [sic] Federal Court Order already in law [427−1][426−1] (ja) (Entered: 10/07/2002)
429 MOTION by William Lightner for hearing (wm)
430 RESPONSE by Ramon L Smith re: motion response [428−1] (wm) (Entered: 10/24/2002)
431 REPLY by William Lightner to response to motion to reopen the case [426−1] (wm) (Entered: 10/24/2002)
432 MOTION by William Lightner to separate (wm)
433 ORDER by Honorable Edward J. Lodge denying motion to reopen the case [426−1], denying motion to substitute pla in this case [427−1], denying motion for hearing [429−1], finding moot the motion to separate [432−1], that no other pleadings shall be filed in 81−1165, petitioners may open their own cases and pay $150 filing fee (cc: all counsel) (wm)
434 NOTICE OF APPEAL by William Lightner from Dist. Court decision [433−1] (Receipt # Fees Not Paid) (rr) (Entered: 12/02/2002)
NOTIFICATION by 9CCA re [434−1] of Appellate Docket Number 02−36092 (rr)
435 CIRCUIT TIME SCHEDULE ORDER re [434−1] (rr)
436 ORDER of the 9th Circuit that within 21 days the appellant shall: (1) file a motion to proceed IFP; (2) pay the $105.00 filing fee to the District Court; or (3) show cause why this appeal shall not be dismissed. (rr) (Entered: 01/07/2003)
437 ORDER of the 9th Circuit denying appellants motion to proceed IFP. Within 21 days of entry of this order appellant shall pay the $105.00 filing fee along with proof of payment. Failure to pay fees will result in automatic dismissal (rr) (Entered: 01/22/2003)

Case 1:81-cv-1165 Document <docnum> Filed <datefiled> Page 13 of 81

02/24/2003 11/13/2003 11/13/2003 11/13/2003 11/24/2003 11/24/2003 12/01/2003 12/03/2003 12/04/2003 12/05/2003 12/05/2003 12/05/2003 12/05/2003 12/05/2003 12/05/2003 12/05/2003 12/05/2003 12/09/2003 12/11/2003 12/11/2003 12/23/2003 12/26/2003 01/06/2004
01/08/2004 01/08/2004 01/08/2004 01/08/2004

438 MANDATE from Circuit Court of Appeals dismissing the appeal [434−1] (rr)
439 MOTION by def to terminate prospective relief (wm)
440 MEMORANDUM by def in support of motion to terminate prospective relief [439−1] (wm)
441 AFFIDAVIT of Captain Jeff Henry regarding motion to terminate prospective relief [439−1] (wm)
442 NOTICE OF CLARIFICATION by pla's former counsel (wm)
FILE DIVISION − File # 10 begins with document # 442 (wm) (Entered: 03/20/2004)
443 OBJECTION by Law Browning to motion to terminate prospective relief [439−1] (wm)
444 RESPONSE by defendant to notice of clarification [442−1] (wm) (Entered: 12/04/2003)
445 RESPONSE by Kelly A Repp to motion to terminate prospective relief [439−1] (wm) (Entered: 12/05/2003)
446 RESPONSE by Gregory J Nelson to motion to terminate prospective relief [439−1] (wm)
447 RESPONSE by Alan Lee Brandt to motion to terminate prospective relief [439−1] (wm)
448 MEMORANDUM by Alan Lee Brandt in support of motion response [447−1] (wm)
449 RESPONSE by Stephen Floyd Ullrich to motion to terminate prospective relief [439−1] (wm)
450 OPPOSITION OF INMATE AND FRIEND OF THE COURT by Stephen Floyd Ullrich (wm)
451 MOTION by Stephen Floyd Ullrich for consortium (wm)
452 MEMORANDUM by Stephen Floyd Ullrich in support of motion for consortium [451−1] (wm)
453 MOTION by Stephen Floyd Ullrich to modify (wm)
454 RESPONSE by Jack Ward (wm) (Entered: 12/10/2003)
455 MOTION by def to extend time until 1/6/04 to file reply (wm) (Entered: 12/12/2003)
456 RESPONSE by Rauland J Grube re: motion to terminate prospective relief [439−1] (wm) (Entered: 12/12/2003)
457 OBJECTION by E Gene Dionne to motion to terminate prosepective relief [439−1] prospective relief [439−1] (wm) (Entered: 12/24/2003)
458 AFFIDAVIT of Dennis Orr in support of objection to motion to terminate prospective relief filed on 12/1/03 [443−1] (ja)
459 ORDER by Honorable Edward J. Lodge, any objections to appointment of firm Stoel Rives for plas shall be filed in 20 days of this order, denying motion for consortium [451−1], denying motion to modify [453−1], granting motion to extend time until 1/6/04 to file reply [455−1] (cc: all counsel) (wm)
460 MOTION by Barry Searcy for appointment of class counsel (wm)
461 MEMORANDUM by Barry Searcy in support of motion for appointment of class counsel [460−1] (wm)
462 MOTION by Barry Searcy to quash insufficient process of service (wm)
463 MEMORANDUM by Barry Searcy in support of motion to quash insufficient process of service [462−1] (wm)

Case 1:81-cv-1165 Document <docnum> Filed <datefiled> Page 14 of 81

01/08/2004 01/08/2004
01/08/2004 01/08/2004 01/08/2004 01/08/2004 01/08/2004 01/08/2004 01/08/2004 01/08/2004 01/08/2004 01/08/2004 01/08/2004 01/08/2004 01/08/2004 01/08/2004 01/08/2004 01/08/2004 01/26/2004
01/26/2004
01/26/2004
02/10/2004
02/12/2004 03/18/2004
03/18/2004 04/07/2004
04/13/2004
04/13/2004
04/19/2004

464 MOTION by Barry Searcy to recognize the entire pla class (wm)
465 MEMORANDUM by Barry Searcy in support of motion to recognize the entire pla class [464−1] (wm)
466 MOTION by Barry Searcy for additional discovery (wm)
467 BRIEF by Barry Searcy in support re: motion for additional discovery [466−1] (wm)
468 FIRST AFFIDAVIT of Barry Searcy (wm)
469 SECOND AFFIDAVIT of Barry Searcy (wm)
470 AFFIDAVIT of Chris Goodsell (wm)
471 AFFIDAVIT of Reuben E. Rich (wm)
472 AFFIDAVIT of Darin Milburn (wm)
473 AFFIDAVIT of Billy Brady (wm)
474 AFFIDAVIT of Daniel Bush (wm)
475 AFFIDAVIT of Derrick Current (wm)
476 AFFIDAVIT of Rick Welker (wm)
477 AFFIDAVIT of Paul Ybarra (wm)
478 AFFIDAVIT of Albert Martinez (wm)
479 AFFIDAVIT of Jeffrey T. Frederick (wm)
480 AFFIDAVIT of Jeffrey Lizee (wm)
481 AFFIDAVIT of Lawrence Archuleta (wm)
482 OBJECTIONS by Barry Searcy to appointment of pla class cousel (wm) (Entered: 01/27/2004)
483 THIRD AFFIDAVIT of Barry Searcy regarding objection [482−1] (wm) (Entered: 01/27/2004)
484 AFFIDAVIT of Alan Lee Brandt regarding objection [482−1] (wm) (Entered: 01/27/2004)
485 ORDER by Honorable Edward J. Lodge, confirming appointment of Stoel Rives as counsel for plas class, finding moot the motion for appointment of class counsel [460−1], denying motion to quash insufficient process of service [462−1], denying motion to recognize the entire pla class [464−1], denying motion for additional discovery [466−1] (cc: all counsel) (wm)
486 NOTICE by Dennis A Orr of change of address (wm)
487 NOTICE by defs re prison population issues and intent to double cell inmates in ISCI unites units 9,10,11, and 13 (wm) (Entered: 03/19/2004)
488 AFFIDAVIT of Rod Leonard regarding notice [487−1] (wm) (Entered: 03/19/2004)
489 ORDER by Honorable Edward J. Lodge ; Case Mgmt ddl set for 5/1/04 for plas counsel to designate the inmate class representative motion to terminate prospective relief [439−1] ddl extended until 6/4/04 (cc: all counsel) (wm)
490 MOTION by plas to appoint class representative and grant representative entitlements (wm) (Entered: 04/14/2004)
491 AFFIDAVIT of J. Walter Sinclair regarding motion to appoint class representative and grant representative entitlements [490−1] (wm) (Entered: 04/14/2004)
492 MOTION by pla for discovery , and to vacate briefing schedule (wm) (Entered: 04/20/2004)

Case 1:81-cv-1165 Document <docnum> Filed <datefiled> Page 15 of 81

04/19/2004 04/19/2004 04/19/2004 04/19/2004 04/19/2004 04/19/2004 04/19/2004 04/19/2004 05/07/2004 05/07/2004 05/07/2004 05/07/2004 05/07/2004 05/07/2004 05/07/2004 05/07/2004 05/27/2004 05/27/2004 05/27/2004 06/02/2004
06/04/2004 06/16/2004 06/16/2004
06/16/2004

493 MEMORANDUM by pla in support of motion for discovery [492−1], of motion to vacate briefing schedule [492−2] (wm) (Entered: 04/20/2004)
494 MOTION by pla to appoint experts (wm) (Entered: 04/20/2004)
495 MEMORANDUM by pla in support of motion to appoint experts [494−1] (wm) (Entered: 04/20/2004)
496 MOTION by pla to enjoin dfts from retaliating against representatives and class plas (wm) (Entered: 04/20/2004)
497 MEMORANDUM by pla in support of motion to enjoin dfts from retaliating against representatives and class plas [496−1] (wm) (Entered: 04/20/2004)
498 AFFIDAVIT of Jack L. Ward regarding motion to enjoin dfts from retaliating against representatives and class plas [496−1] (wm) (Entered: 04/20/2004)
499 AFFIDAVIT of Alan Lee Brandt regarding motion to enjoin dfts from retaliating against representatives and class plas [496−1] (wm) (Entered: 04/20/2004)
500 AFFIDAVIT of Barry Searcy regarding motion to enjoin dfts from retaliating against representatives and class plas [496−1] (wm) (Entered: 04/20/2004)
501 AFFIDAVIT of Captain Shannon Cluney (wm) (Entered: 05/10/2004)
502 RESPONSE by def to motion to appoint class representative and grant representative entitlements [490−1] (wm) (Entered: 05/10/2004)
503 RESPONSE by def to motion to vacate briefing schedule [492−2] (wm) (Entered: 05/10/2004)
504 RESPONSE by def to motion to appoint experts [494−1] (wm) (Entered: 05/10/2004)
505 RESPONSE by def to motion to enjoin dfts from retaliating against representatives and class plas [496−1] (wm) (Entered: 05/10/2004)
506 AFFIDAVIT of Kevin Burnett (wm) Modified on 11/14/2017 to seal per Order dkt 1213 (jp). (Entered: 05/10/2004)
507 AFFIDAVIT of Gloria Counsil (wm) (Entered: 05/10/2004)
508 AFFIDAVIT of John Hofland (wm) (Entered: 05/10/2004)
509 MOTION by def Idaho, State of to dismiss based upon failure to exhaust administrative remedies (dkh) (Entered: 05/28/2004)
510 MEMORANDUM by def in support of motion to dismiss based upon failure to exhaust administrative remedies [509−1] (dkh) (Entered: 05/28/2004)
FILE DIVISION − File # 11 begins with document # 511 (dkh) (Entered: 06/08/2004)
511 ORDER by Honorable Edward J. Lodge granting motion to terminate prospective relief [439−1] granting motion to appoint class representative and grant representative entitlements [490−1] granting motion for discovery [492−1], granting motion to vacate briefing schedule [492−2] denying without prejudice the motion to appoint experts [494−1] (cc: all counsel) (dkh)
512 AFFIDAVIT of Nicole C Hancock regarding motion to appoint class representative and grant representative entitlements [490−1] (dkh)
513 MOTION by pla for reconsideration and clarification of Court's 6/2/04 Order re: Temporary termination of prospective relief (ja) (Entered: 06/17/2004)
514 MEMORANDUM by pla in support of motion for reconsideration and clarification of Court's 6/2/04 Order re: Temporary termination of prospective relief [513−1] (ja) (Entered: 06/17/2004)
515 AFFIDAVIT of Nicole C. Hancock in support of motion for reconsideration and clarification of Court's 6/2/04 Order re: Temporary termination of prospective relief [513−1] (ja) (Entered: 06/17/2004)

Case 1:81-cv-1165 Document <docnum> Filed <datefiled> Page 16 of 81

06/16/2004 06/18/2004 06/18/2004 06/25/2004
06/28/2004 06/30/2004 07/01/2004 07/02/2004 07/06/2004 07/06/2004 07/06/2004
07/09/2004 07/09/2004 07/09/2004 07/12/2004
07/19/2004 07/21/2004 07/21/2004 07/21/2004 07/29/2004
08/02/2004 08/04/2004 08/06/2004 08/16/2004 09/02/2004

516 RESPONSE by pla to defs' motion to dismiss based upon failure to exhaust administrative remedies [509−1] (ja) (Entered: 06/17/2004)
517 MOTION by defs for partial reconsideration of order of 6/2/04 (dkt #511) (ja) (Entered: 06/21/2004)
518 MEMORANDUM by defs in support of motion for partial reconsideration of order of 6/2/04 (dkt #511) [517−1] (ja) (Entered: 06/21/2004)
519 AMENDED MEMORANDUM by def in support of motion for partial reconsideration of order of 6/2/04 (dkt #511) to include missing pages 14−18 (dkt 518) [517−1] (ja) (Entered: 06/29/2004)
520 AFFIDAVIT of Dennis Abbott (ja) (Entered: 06/29/2004)
521 MOTION by defendant for enlargement of time to comply with Court s order of 6/2/04 which required briefing (ja) (Entered: 07/01/2004)
522 AFFIDAVIT of Paul Panther in support of motion for enlargement of time to comply with Court s order of 6/2/04 which required briefing [521−1] (ja)
523 STIPULATED MOTION by pla to extend time to file litigation plan (wm)
524 REPLY by def to response to motion to dismiss based upon failure to exhaust administrative remedies [509−1] (wm) (Entered: 07/07/2004)
525 NOTICE re orders of 7/11/85 and 8/18/86 by def (wm) (Entered: 07/07/2004)
526 ORDER by Honorable Edward J. Lodge granting motion for enlargement of time to comply with Court s order of 6/2/04 which required briefing [521−1] (cc: all counsel) (dkh) (Entered: 07/07/2004)
527 RESPONSE by def Idaho, State of re: order Re: Additional briefing on double celling issues [511−1] (dkh) (Entered: 07/12/2004)
528 AFFIDAVIT of Thomas Hadlow (dkh) (Entered: 07/12/2004)
529 AFFIDAVIT of Kevin Burnett (dkh) (Entered: 07/12/2004)
530 RESPONSE by def to motion for reconsideration and clarification of Court's 6/2/04 Order re: Temporary termination of prospective relief [513−1] (dkh) (Entered: 07/13/2004)
531 RESPONSE by plas to motion for partial reconsideration of order of 6/2/04 (dkt #511) [517−1] (dkh) (Entered: 07/20/2004)
532 MOTION by def Idaho, State of for protective order (dkh) (Entered: 07/22/2004)
533 MEMORANDUM by def in support of motion for protective order [532−1] (dkh) (Entered: 07/22/2004)
534 AFFIDAVIT of Paul R Panther regarding motion for protective order [532−1] (dkh) (Entered: 07/22/2004)
535 REPLY by plas to response to motion for reconsideration and clarification of Court's 6/2/04 Order re: Temporary termination of prospective relief [513−1] (dkh) (Entered: 07/30/2004)
536 NOTICE of change of address of Dennis A. Orr (not party in case) (wm)
537 REPLY by defendant to response to motion for partial reconsideration of order of 6/2/04 (dkt #511) [517−1] (wm) (Entered: 08/05/2004)
538 ORDER by Honorable Edward J. Lodge granting motion to extend time to file litigation plan [523−1] (cc: all counsel) (dkh) (Entered: 08/09/2004)
539 MEMORANDUM by pla in opposition re: motion for protective order [532−1] (dkh) (Entered: 08/17/2004)
540 REPLY by defs to response to motion for protective order [532−1] (dkh) (Entered: 09/03/2004)

Case 1:81-cv-1165 Document <docnum> Filed <datefiled> Page 17 of 81

09/09/2004 10/07/2004 10/13/2004
10/27/2004 11/04/2004 11/05/2004 11/12/2004 11/19/2004 12/02/2004 01/03/2005 01/03/2005
01/14/2005
01/18/2005 01/25/2005 01/25/2005 02/01/2005 02/02/2005 02/02/2005
02/10/2005

541 ORDER by Honorable Edward J. Lodge Settlement conference referred to Honorable David O. Carter , ; Settlement conference set for 10/18/04 8:30 Boise (cc: all counsel) (dkh)
542 NOTICE OF CHANGE OF LOCATION FOR SETTLEMENT CONFERENCE ; Settlement conference set for 10/18/04 8:39 ISCI (cc: all counsel) (dkh)
543 ORDER by Honorable B. Lynn Winmill denying motion to enjoin dfts from retaliating against representatives and class plas [496−1] denying motion to dismiss based upon failure to exhaust administrative remedies [509−1] granting in part and denying in part motion for reconsideration and clarification of Court's 6/2/04 Order re: Temporary termination of prospective relief [513−1] granting in part and denying in part motion for partial reconsideration of order of 6/2/04 (dkt #511) [517−1] denying motion for protective order [532−1] without prejudice to refiling it (cc: all counsel) (dkh)
544 MOTION by def Idaho, State of to vacate order of 8/6/04 (Doc #538) , and to extend time to submit litigation plan (dkh) (Entered: 10/28/2004)
545 ORDER by Honorable Edward J. Lodge granting motion to vacate order of 8/6/04 (Doc #538) [544−1], granting motion to extend time to submit litigation plan [544−2] (cc: all counsel) (dkh)
546 STIPULATION and notice of intent to appoint a court expert (dkh) (Entered: 11/12/2004)
547 ORDER by Honorable Edward J. Lodge confirming Chase Riveland as the Court's Federal Rule of Evidence 706 expert (cc: all counsel) (dkh) (Entered: 11/15/2004)
548 AFFIDAVIT of Michael D Whiteley (dkh)
549 JOINT RESPONSE by defendant re: order [547−1] (wm) (Entered: 12/06/2004)
550 MOTION for Attorney Fees and Interim Costs by Walter D Balla. Responses due by 1/27/2005 (Hancock, Nicole)
551 MEMORANDUM in Support re 550 MOTION for Attorney Fees and Interim Costs filed by Walter D Balla. (Attachments: # 1 Affidavit of Nicole Hanock# 2 Exhibit Exhibits A−E to Affidavit of Nicole Hancock# 3 Affidavit of Janelle Finfrock)(Hancock, Nicole)
552 ORDER adopting the parties' joint directive and summary of the Eighth Amendment standard for the joint expert, Chase Riveland; The parties shall notify the Court's ADR Program Director whether they have chosen to attend a settlement conference with Judge David Carter on 2/18/05. Signed by Judge Edward J. Lodge. (dkh, )
553 MOTION for Extension of Time to File Response/Reply as to 550 MOTION for Attorney Fees and Interim Costs by Idaho, State of. Responses due by 2/11/2005 (Panther, Paul)
554 RESPONSE to Motion re 550 MOTION for Attorney Fees and Interim Costs filed by Idaho, State of. (Attachments: # 1 Affidavit Affidavit of Kevin Burnett# 2 Affidavit Affidavit of Paul R. Panther)(Panther, Paul)
Mail Returned as Undeliverable. Mail sent to George C Patterson (dkh, )
555 ORDER REFERRING CASE to Mediation; a judicially−supervised conference set for 2/18/05 9:00 a.m. at the Idaho State Correctional Institution, Boise, Idaho before Judge David O. Carter.. Signed by Judge Edward J. Lodge. (dkh, )
RETURN MAIL undelivered as to Stephen L. Pevar re: 552 Order, (dkh, )
556 ORDER to Transport ; IDOC to take appropriate measures to transport Jack L. Ward to Idaho State Correctional Institution in Boise, ID on 2/18/05 beginning at 9:00 a.m.. Signed by Judge Edward J. Lodge. (dkh, ) Modified on 2/2/2005 to indicate who will transport (dkh, ).
557 STIPULATION re 551 Memorandum in Support of Motion, to Enlarge Time for Plaintiffs to Reply to Defendant's Response to Plaintiffs Motion for Interim Costs and Attorney Fees by Walter D Balla. (Hancock, Nicole)

Case 1:81-cv-1165 Document <docnum> Filed <datefiled> Page 18 of 81

02/11/2005 02/11/2005 02/18/2005 02/18/2005
02/18/2005 03/03/2005 03/07/2005 03/17/2005
03/30/2005 04/20/2005 04/20/2005
04/20/2005
04/20/2005 04/20/2005 04/20/2005 05/03/2005 05/06/2005

558 NOTICE by Idaho, State of Prison Population Issues, Funding Request and Potential Out−of−State Move of Prisoners (Panther, Paul)
559 AFFIDAVIT of Dennis Dean re 558 Notice (Other) filed by Idaho, State of. (Panther, Paul)
560 MEMORANDUM in Support re 550 MOTION for Attorney Fees and Interim Costs filed by Walter D Balla. (Attachments: # 1 Affidavit of J. Walter Sinclair# 2 Affidavit of Janelle Finfrock)(Sinclair, J)
CORRECTIVE ENTRY − The entry docket number 560 Memorandum in Support of Motion filed by Walter D Balla, was filed incorrectly in this case. This should have been docketed as a reply to the response to the motion for attorney fees. There will be no need to refile however bear in mind for next time this type of filing is done. (dkh, ) (Entered: 02/22/2005)
561 Minute Entry for proceedings held before Judge David O. Carter : Settlement Conference held on 2/18/2005. Case did not settle at this time. (Court Reporter no.) (lc, ) (Entered: 02/22/2005)
562 STIPULATION Re Briefing Schedule and Oral Argument Re Defendants' Motion to Terminate Prospective Relief by Idaho, State of. (Panther, Paul)
563 AFFIDAVIT in Support re 550 MOTION for Attorney Fees and Interim Costs Supplemental Affidavit of Nicole C. Hancock in Support of Motion for Interim Costs and Attorney Fees filed by Walter D Balla. (Hancock, Nicole)
564 Statement Declaration of Plaintiffs' Class Representative Barry Searcy of Personal Out−of−Pocket Expenditures on Behalf of the Class Between November 13, 2003 through December 31, 2004 re 550 MOTION for Attorney Fees and Interim Costs filed by Walter D Balla. (Hancock, Nicole)
565 ORDER granting 562 Stipulation Re: Briefing schedule and oral argument on dft's motion to terminate prospective relief filed by Idaho, State of, . Signed by Judge Edward J. Lodge. (dkh, )
566 MEMORANDUM in Opposition re 439 Motion for Miscellaneous Relief Memorandum in Opposition to Defendants' Motion to Terminate Prospective Relief filed by Walter D Balla. (Hancock, Nicole)
567 AFFIDAVIT in Opposition by Nicole C. Hancock re 439 Motion for Miscellaneous Relief Affidavit in Support of Plaintiffs' Memorandum in Opposition to Defendants' Motion to Terminate Prospective Relief filed by Walter D Balla. (Attachments: # 1 # 2 # 3 # 4 # 5 # 6 # 7 # 8)(Hancock, Nicole)
568 INITIAL Brief in response to Court's Order of 3/30/05 (Doc #565) to Motion re 439 Motion to terminate prospective relief filed by Idaho, State of. (Attachments: # 1 Affidavit Richard David Haas# 2 Affidavit Bruce Wells−Moore# 3 Affidavit Henry Atencio# 4 Affidavit Todd Mahoney# 5 Affidavit Darrell Taylor# 6 Affidavit Randy Blades# 7 Affidavit Greg Wren# 8 Affidavit George Miller# 9 Affidavit Terry Knapp# 10 Affidavit Paul Panther# 11 Affidavit Don Drum)(dkh, ) (Entered: 04/21/2005)
569 AFFIDAVIT of Keith Yordy filed by Idaho, State of to motion to terminate prospective relief. (Attachments: # 1 Exhibit # 2 Exhibit)(dkh, ) (Entered: 04/21/2005)
570 AFFIDAVIT of Terrie Rosenthal filed by Idaho, State of to motion to terminate prospective relief (Coc #439). (Attachments: # 1 Exhibit # 2 Exhibit)(dkh, ) (Entered: 04/21/2005)
571 AFFIDAVIT of Katie Ball filed by Idaho, State of motion to terminate prospective relief (Doc #439). (Attachments: # 1 Exhibit # 2 Exhibit)(dkh, ) (Entered: 04/21/2005)
572 STIPULATION re 565 Order Stipulation to Exceed Response Page Limit by Walter D Balla. (Hancock, Nicole)
573 MOTION to Strike 567 Affidavit in Opposition to Motion, Motion to Strike Exhibits to Dkt. 567 by Idaho, State of. Responses due by 5/31/2005 (Attachments: #

Case 1:81-cv-1165 Document <docnum> Filed <datefiled> Page 19 of 81

05/06/2005 05/06/2005 05/06/2005 05/09/2005 05/16/2005 05/19/2005 05/27/2005
06/07/2005 06/07/2005

1)(Panther, Paul)
574 REPLY to Response to Motion re 439 Motion for Miscellaneous Relief Response to Plaintiff's Memorandum in Opposition to Motion to Terminate Prospective Relief filed by Idaho, State of. (Attachments: # 1 # 2 # 3)(Panther, Paul)
575 RESPONSE to Motion re 439 Motion for Miscellaneous Relief Response to Defendants' Initial Brief in Response to Court's Order of March 30, 2005, Filed 4/20/2005 filed by Walter D Balla. (Hancock, Nicole)
576 AFFIDAVIT in Opposition by Nicole C. Hancock re 439 Motion for Miscellaneous Relief Second Affidavit of Nicole Hancock in Support of Response to Defendants' Initial Brief in Response to Court's Order of March 30, 2005, Filed 4/20/2005 filed by Walter D Balla. (Hancock, Nicole)
577 ORDER granting 572 Stipulation to exceed response page limit filed by Walter D Balla, . Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by dkh, ) (Entered: 05/10/2005)
578 AFFIDAVIT of Jack Ward claiming dfts have retaliated against him. (dkh, )
579 ORDER granting 553 MOTION for Extension of Time to File Response/Reply as to 550 MOTION for Attorney Fees and Interim Costs filed by Idaho, State of,. Dfts motion to terminate injunctive order and pla's motion for attorney fees shall be held on 6/8/05 10:00 a.m. in Boise. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by dkh, )
580 RESPONSE to Motion re 573 MOTION to Strike 567 Affidavit in Opposition to Motion, Motion to Strike Exhibits to Dkt. 567 filed by Walter D Balla. (Attachments: # 1 Affidavit of Barry Searcy# 2 Affidavit of Alan Brandt# 3 Affidavit of Stephen Ullrich# 4 Affidavit of Rauland Grube# 5 Affidavit of Robert Bailey# 6 Affidavit of Thomas Sanger# 7 Affidavit of Darrell McCabe# 8 Affidavit of Michael Asbury# 9 Affidavit of Daniel Cambpell# 10 Affidavit of Daniel Bush# 11 Affidavit of Thomas Raudebaugh# 12 Affidavit of David McCabe# 13 Affidavit of Ken Quinlan# 14 Affidavit of Rex Wynn# 15 Affidavit of Paul Wilson# 16 Affidavit of Daniel Rodgers# 17 Affidavit of Rick Welker# 18 Affidavit of Rueben Rich# 19 Affidavit of Lance Wood# 20 Affidavit of Kelly Repp# 21 Affidavit of Kent Ellis# 22 Affidavit of Mark Hassard# 23 Affidavit of Gregory Nelson# 24 Affidavit of Ronnie Beals# 25 Affidavit of Thomas Boone# 26 Affidavit of Edwin Clawson# 27 Affidavit of Tyson Buss# 28 Affidavit of Thomas Brewer# 29 Affidavit of Daniel Rambow# 30 Affidavit of Moroni Fox# 31 Affidavit of Rodney Bernal# 32 Affidavit of Timothy Fox# 33 Affidavit of Lyle Goodsell# 34 Affidavit of Chris Goodsell# 35 Affidavit of Brad Thomasson# 36 Affidavit of Barry Searcy #2# 37 Affidavit of Dennis Orr# 38 Affidavit of David Isham# 39 Affidavit of Albert Adermann# 40 Affidavit of Jim White# 41 Affidavit of Daniel Torres# 42 Affidavit of Dave Kirkland# 43 Affidavit of Robert Hall# 44 Affidavit of Leon Murray# 45 Affidavit of Charles Tribe# 46 Affidavit of Kim Taylor# 47 Affidavit of Edward Hathaway# 48 Affidavit of James Walp# 49 Affidavit of Shaun Savell# 50 Affidavit of Dennis Slaughter# 51 Affidavit of Jorge Barajas# 52 Affidavit of Aaron Hunter# 53 Affidavit of Kenneth Harrold# 54 Affidavit of Frank Bedke# 55 Affidavit of Nicholas Loivier# 56 Affidavit of Lloyd Harrod# 57 Affidavit of Mark Coburn# 58 Affidavit of Jerry Castaneda# 59 Affidavit of Kelly Wilson# 60 Affidavit of Michael Hadcock# 61 Affidavit of Laurice Thompson# 62 Affidavit of Travis McNally# 63 Affidavit of Weston Ballard# 64 Affidavit of David Hawkins# 65 Affidavit of Theodore Johnson# 66 Affidavit of Leo Lavertu# 67 Affidavit of Larry Parrott)(Sinclair, J)
581 ORDER to Transport ; IDOC to take appropriate measures to transport Alan Brandt, Barry Searcy, and Rauland Grube to Boise on 6/8/05 beginning at 10:00 a.m.. Signed by Judge James M. Fitzgerald. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by dkh, )
582 MOTION to Seal Document Affidavit of Olivia Craven by Idaho, State of. Responses due by 7/1/2005 (Panther, Paul)

Case 1:81-cv-1165 Document <docnum> Filed <datefiled> Page 20 of 81

06/07/2005 06/08/2005
06/10/2005 09/26/2005
09/29/2005 10/04/2005 10/07/2005 10/10/2005 10/12/2005
10/13/2005 10/14/2005
10/20/2005 10/20/2005 10/24/2005 10/27/2005 11/04/2005

CORRECTIVE ENTRY − The entry docket number 582 MOTION to Seal Document Affidavit of Olivia Craven filed by Idaho, State of, was filed incorrectly in this case. The filing party shall re−submit their correct filing in the correct case. (dkh, )
583 Minute Entry for proceedings held before Judge James M. Fitzgerald : Motion Hearing held on 6/8/2005 re 550 MOTION for Attorney Fees and Interim Costs filed by Walter D Balla,, 573 MOTION to Strike 567 Affidavit in Opposition to Motion, Motion to Strike Exhibits to Dkt. 567 filed by Idaho, State of,. Matters taken under advisement. (Court Reporter Vicky Jones.) (mp, )
584 REPLY to Response to Motion re 573 MOTION to Strike 567 Affidavit in Opposition to Motion, Motion to Strike Exhibits to Dkt. 567 filed by Idaho, State of. (Panther, Paul)
585 MEMORANDUM DECISION AND ORDER tentatively granting 550 Motion for Attorney Fees, finding as moot 573 Motion to Strike, denying Motion to terminate [439 and 568−1] . Signed by Judge James M. Fitzgerald. (Attachments: # 1 Appendix A) (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by dkh, )
586 NOTICE by Walter D Balla (Proposed) Final Judgment (Hancock, Nicole)
587 AFFIDAVIT of Nicole C. Hancock filed by Walter D Balla In Support of Final Costs and Attorney Fees. (Attachments: # 1 # 2)(Hancock, Nicole)
588 MOTION for Reconsideration re 585 Order on Motion for Attorney Fees,, Order on Motion to Strike, by Idaho, State of. Responses due by 10/31/2005 (Attachments: # 1 Memorandum in Support)(Panther, Paul)
589 AMENDED DOCUMENT by Walter D Balla. Amendment to 587 Affidavit. (Attachments: # 1 # 2)(Hancock, Nicole)
590 NOTICE OF HEARING −− Please be advised that a Telephonic Hearing shall be conducted in this matter on Thursday, October 13, 2005 at 4:00 p.m. (Boise time), which is 2:00 p.m. Alaska time. The Honorable James M. Fitzgerald shall conduct the hearing on Plaintiffs' Motion for Attorneys Fees (Docket No. 550). Counsel for defense shall place the call to (907) 677−6211, with all counsel on the line. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by sbh)
591 NOTICE by Walter D Balla re 586 Notice (Other) (Amended Proposed) Final Judgment (Hancock, Nicole)
592 ORDER Re: Response to 588 MOTION for Reconsideration ddl 10/20/05 585 Order on Motion for Attorney Fees,, Order on Motion to Strike, filed by Idaho, State of, ; Additionally, the dft shall file a response to the Hancock affidavit (Doc #587) by 10/20/05. Signed by Judge James M. Fitzgerald. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by dkh, )
593 RESPONSE to Motion re 588 MOTION for Reconsideration re 585 Order on Motion for Attorney Fees,, Order on Motion to Strike, filed by Walter D Balla. (Hancock, Nicole)
594 RESPONSE to Motion re 550 MOTION for Attorney Fees and Interim Costs Response to Motion for Final Fees and Costs Per Order of October 14, 2005 filed by Idaho, State of. (Attachments: # 1 # 2 # 3 # 4 # 5 # 6 # 7 # 8)(Panther, Paul)
595 NOTICE by Idaho, State of re 591 Notice (Other) Objection to Amended Proposed Final Judgment (Panther, Paul)
596 REPLY to Response to Motion re 588 MOTION for Reconsideration re 585 Order on Motion for Attorney Fees,, Order on Motion to Strike, filed by Idaho, State of. (Panther, Paul)
597 REPLY to Response to Motion re 550 MOTION for Attorney Fees and Interim Costs Plaintiff's Opposition to Defendant's Response to Plaintiffs' Motion for Attorneys' Fees and Costs Filed 10/20/2005 filed by Walter D Balla. (Hancock, Nicole)

Case 1:81-cv-1165 Document <docnum> Filed <datefiled> Page 21 of 81

11/04/2005 11/04/2005 12/13/2005
12/13/2005
01/17/2006 01/19/2006 01/20/2006 01/20/2006 01/20/2006 01/20/2006 01/20/2006 01/20/2006 02/02/2006 02/02/2006
02/13/2006

598 AFFIDAVIT in Support by Nicole C. Hancock re 550 MOTION for Attorney Fees and Interim Costs Affidavit in Support of Nicole C. Hancock in Support of Plaintiffs' Opposition to Defendants' Response to Plaintiffs' Motion for Attorneys' Fees and Costs Filed 10/20/05 filed by Walter D Balla. (Hancock, Nicole)
599 AFFIDAVIT in Support by Wade L. Woodard re 550 MOTION for Attorney Fees and Interim Costs Affidavit of Wade L. Woodard in Support of Plaintiffs' Opposition to Defendants' Response to Plaintiffs' Motion for Attorneys' Fees and Costs Filed 10/20/2005 filed by Walter D Balla. (Hancock, Nicole)
600 ORDER denying 588 Motion for Reconsideration; The population cap in Unit 9 is clarified as set forth in the order; granting 550 Motion for attorney fees and costs; Pla's counsel shall be awarded $150,054.15 in attorney fees and $5,804.53 in costs . Signed by Judge James M. Fitzgerald. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by dkh, )
601 JUDGMENT denying 439 and [568−1] Motion to terminate; granting 550 Motion for attorney fees and costs; Pla's are entitled to costs in an amount of $5,804.53 and attorney fees in an amount of $150,054.15. The attorney fees and costs shall be paid within 20 days of this orders date . Signed by Judge James M. Fitzgerald. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by dkh, )
602 MOTION to Withdraw as Attorney as Plaintiffs' Counsel by Walter D Balla. Responses due by 2/10/2006 (Hancock, Nicole)
603 ORDER granting 602 Motion to Withdraw as Attorney. Attorney J Walter Sinclair terminated for plas . Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by dkh, )
604 MOTION for Temporary Restraining Order, MOTION for Order to Show Cause by plas Responses due by 2/13/2006 (dkh, ) (Entered: 01/23/2006)
605 MOTION for Preliminary Injunction by plas. Responses due by 2/13/2006 (dkh, ) (Entered: 01/23/2006)
606 MEMORANDUM in Support re 605 MOTION for Preliminary Injunction, 604 MOTION for Temporary Restraining Order MOTION for Order to Show Cause filed by Walter D Balla. (Attachments: # 1 Affidavit Barry Searcy# 2 Affidavit Rauland Grube)(dkh, ) (Entered: 01/23/2006)
607 MOTION for finding of contempt, MOTION for Sanctions by Walter D Balla. Responses due by 2/13/2006 (Attachments: # 1 Memorandum in Support # 2 Affidavit Barry Searcy# 3 Declaration of Reuben Parks# 4 Declaration of Gary Paul Gunderson)(dkh, ) (Entered: 01/23/2006)
608 MOTION to Appoint Counsel by plas. Responses due by 2/13/2006 (Attachments: # 1 Memorandum in Support # 2 Affidavit Barry Searcy)(dkh, ) (Entered: 01/23/2006)
609 MOTION for additional Discovery by plas. Responses due by 2/13/2006 (Attachments: # 1 Memorandum in Support)(dkh, ) (Entered: 01/23/2006)
610 RESPONSE to Motion re 605 MOTION for Preliminary Injunction, 604 MOTION for Temporary Restraining Order MOTION for Order to Show Cause filed by Idaho, State of. Replies due by 2/16/2006. (Attachments: # 1 Affidavit of Keith Yordy# 2 Affidavit of Pat Donaldson)(Loomis, William)
611 MOTION to Strike 605 MOTION for Preliminary Injunction, 604 MOTION for Temporary Restraining Order MOTION for Order to Show Cause affidavit of Barry Searcy in support of Preliminary Injunction and Temporary Restraining Order by Idaho, State of. Responses due by 2/27/2006 (Attachments: # 1 Memorandum in Support)(Loomis, William)
612 RESPONSE to Motion re 607 MOTION for finding of contempt MOTION for Sanctions MOTION for Sanctions, 609 MOTION for Discovery, 608 MOTION to Appoint Counsel filed by Idaho, State of. Replies due by 2/28/2006. (Attachments: # 1 Affidavit Debbie Shields# 2 Affidavit Rodney W. Schlienz)(dkh, ) (Entered: 02/14/2006)

Case 1:81-cv-1165 Document <docnum> Filed <datefiled> Page 22 of 81

02/13/2006 02/16/2006
02/16/2006 02/28/2006 03/01/2006 03/08/2006 03/15/2006 03/20/2006 04/03/2006 04/04/2006 04/18/2006 04/27/2006 05/01/2006
05/08/2006
05/12/2006 05/18/2006 05/23/2006 06/01/2006 06/16/2006

613 AFFIDAVIT of Keith Yordy re 607 MOTION for finding of contempt MOTION for Sanctions MOTION for Sanctions filed by Idaho, State of. (dkh, ) (Entered: 02/14/2006)
614 RESPONSE to Motion re 611 MOTION to Strike 605 MOTION for Preliminary Injunction, 604 MOTION for Temporary Restraining Order MOTION for Order to Show Cause affidavit of Barry Searcy in support of Preliminary Injunction and Temporary Restraining Order filed by Walter D Balla. Replies due by 3/3/2006. (dkh, )
615 REPLY to Response to Motion re 605 MOTION for Preliminary Injunction, 604 MOTION for Temporary Restraining Order MOTION for Order to Show Cause filed by Walter D Balla. (dkh, )
616 MOTION to Strike defendants' filed documents due to lack of service by plaintiffs. Responses due by 3/24/2006 (Attachments: # 1 Memorandum in Support # 2 Affidavit of Rauland Grube)(ja, ) (Entered: 03/01/2006)
617 REPLY to defs' Response to plaintiffs Motions for finding of contemp, for appointment of counsle, and for additional discovery re 609 607 608 filed by plaintiffs. (ja, )
618 MOTION to file supplemental complaint by plas. Responses due by 4/3/2006 (Attachments: # 1 Memorandum in Support)(wm, )
619 RESPONSE to Motion re 616 MOTION to Strike filed by Idaho, State of. Replies due by 3/29/2006. (Loomis, William)
620 RESPONSE to Motion re 618 MOTION to Amend/Correct filed by Idaho, State of. Replies due by 4/3/2006. (Loomis, William)
621 REPLY to Response to Motion re 616 MOTION to Strike filed by Barry Searcy. (dkh, )
622 REPLY to Response to Motion re 618 MOTION to file supplemental complaint filed by Barry Searcy. (dkh, )
623 NOTICE by Walter D Balla re 605 MOTION for Preliminary Injunction (Attachments: # 1 Cont'd# 2 Cont'd)(dkh, )
624 Letter from Signature unledgable (dkh, ) (Entered: 04/28/2006)
625 ORDER that the supplemental briefing as requested shall be submitted within 10 days of this order's date. Pla may file a reply to the supplemental briefing 10 days of receiving the dft's supplemental briefing . Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by dkh, )
626 RESPONSE to Motion re 605 MOTION for Preliminary Injunction, 604 MOTION for Temporary Restraining Order MOTION for Order to Show Cause SUPPLEMENTAL RESPONSE filed by Idaho, State of. Replies due by 5/22/2006. (Attachments: # 1 Affidavit of Patrick Donaldson)(Loomis, William)
627 NOTICE by Barry Searcy of lack of receipt of the Court's order re 625 Order (Attachments: # 1 Affidavit Barry Searcy)(dkh, )
NOTICE TO COURT that counsel Michaelina Murphy, Fred C. Goodenough, Robert R. Gates, Timothy R. McNeese wishes to no longer be noticed electronically on this case as of the date of this notice. (Panther, Paul)
628 RESPONSE to dfts' supplemental briefing re: 605 MOTION for Preliminary Injunction filed by Walter D Balla. (Attachments: # 1 Affidavit Barry Searcy)(dks, ) (Entered: 05/24/2006)
629 MOTION for class representative entitlements by Barry Searcy. Responses due by 6/26/2006 (Attachments: # 1 Memorandum in Support # 2 Affidavit Barry Searcy)(dks, )
630 RESPONSE to Motion re 629 MOTION for class representative entitlements filed by Idaho, State of. Replies due by 6/30/2006. (Attachments: # 1 Affidavit)(Loomis,

Case 1:81-cv-1165 Document <docnum> Filed <datefiled> Page 23 of 81

06/28/2006
06/30/2006 07/10/2006 10/17/2006 02/16/2007
02/27/2007 02/27/2007 02/27/2007 02/27/2007 02/27/2007 02/27/2007 02/27/2007 02/27/2007 02/28/2007 02/28/2007 02/28/2007 02/28/2007 02/28/2007 02/28/2007 03/01/2007 03/01/2007 03/02/2007
03/02/2007 03/02/2007 03/02/2007

William)
631 MEMORANDUM ORDER denying 604 Motion for TRO, denying 604 Motion for Order to Show Cause, denying 605 Motion for Preliminary Injunction, denying 607 Motion for contemp, denying 607 Motion for Sanctions, denying 608 Motion to Appoint Counsel, denying 609 Motion for Discovery, denying 611 Motion to Strike, denying 616 Motion to Strike, denying 618 Motion to Amend/Correct, denying 629 Motion for Class Representative Entitlements . Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by dks, )
632 REPLY to Response to Motion re 629 MOTION for class representative entitlements filed by Walter D Balla. (dks, )
633 Letter from Travis Darrel Gentry (dks, )
634 NOTICE of lack of receipt of the Court's order dated 6/28/06 by pla (Attachments: # 1 Affidavit Barry Searcy)(dks, )
635 MOTION termination of prospective relief re 585 Order on Motion for Attorney Fees, Order on Motion to Strike,, by Idaho, State of. Responses due by 3/12/2007 (Attachments: # 1 Memorandum in Support motion to terminate# 2 Affidavit Randy Blades# 3 Declaration of Robert Verdeyen)(Kubinski, Mark)
636 Letter from William Berg (dks, )
637 Letter from Michael A. Asbury (dks, )
638 Letter from Jeffrey W. Lizee (dks, )
639 Letter from Reube E Rich (dks, )
640 Letter from Mark Coburn (dks, )
641 Letter from Michael G. Vermaat (dks, )
642 Letter from Kenneth W. Quinlan (dks, )
643 Letter from Franklin Johnson (dks, )
644 Letter from Rex B. Wynn (dks, )
645 Letter from Kenneth Workman (dks, )
646 Letter from Dennis A. Orr (dks, )
647 Letter from Dennis R. Slaughter (dks, )
648 Letter from Robert Hall (dks, )
649 NOTICE by Idaho, State of re notice to inmate population (Attachments: # 1 Attached Notice)(Kubinski, Mark)
650 Letter from Ronald J. Ames (dks, )
651 Letter from James S. Tipton (dks, )
652 MOTION for Extension of Time to File Response as to 635 MOTION termination of prospective relief re 585 Order on Motion for Attorney Fees, Order on Motion to Strike,, MOTION termination of prospective relief re 585 Order on Motion for Attorney Fees, Order on Motion to Strike, by Class Member Raymond A. Roles. Responses due by 3/26/2007 (dks, )
653 Letter from Darrell McCabe (dks, )
654 Letter from Daniel Edward Rodgers (dks, )
655 MOTION for order requiring dft's to notify Balla Class and provide documents i.e. motion to terminate prospective relief by Walter D Balla. Responses due by 3/26/2007 (Attachments: # 1 Memorandum in Support # 2 Affidavit Barry Searcy)(dks, )

Case 1:81-cv-1165 Document <docnum> Filed <datefiled> Page 24 of 81

03/06/2007
03/06/2007 03/06/2007 03/06/2007 03/06/2007 03/06/2007
03/06/2007 03/08/2007 03/08/2007 03/09/2007
03/09/2007
03/09/2007
03/09/2007
03/09/2007
03/09/2007
03/09/2007
03/09/2007

656 RESPONSE to Motion re 635 MOTION termination of prospective relief re 585 Order on Motion for Attorney Fees, Order on Motion to Strike,, filed by Alan Lee Brandt. Replies due by 3/20/2007. (Attachments: # 1 Affidavit Alan Lee Brandt# 2 Declaration of Christopher Martin)(dks, )
657 MOTION to Appoint Counsel by Alan Lee Brandt Responses due by 3/30/2007 (dks, )
658 Letter from Jerry Palmer (dks, )
659 NOTICE by Walter D Balla of partial withdrawal of 655 MOTION for order requiring dft's to notify Balla Class and provide documents i.e. motion to terminate prospective relief (dks, )
660 Letter from Jess Aguilar (dks, )
661 AFFIDAVIT of Robert Hollifield, Antonio Torrez−Ford, Kevin Scheer, Daniel Jackson, Kimber Marston, Justin Leveque re 635 MOTION termination of prospective relief re 585 Order on Motion for Attorney Fees, Order on Motion to Strike,, MOTION termination of prospective relief re 585 Order on Motion for Attorney Fees, Order on Motion to Strike,, filed by Walter D Balla. (dks, )
662 MOTION to postpone effective date of automatic stay by Walter D Balla. Responses due by 3/30/2007 (Attachments: # 1 Memorandum in Support)(dks, )
663 Letter from Waldimar G. Witt (dks, )
664 MOTION for Rule 11 Relief by Walter D Balla. Responses due by 4/2/2007 (dks, )
665 OBJECTION to Motion re 635 MOTION termination of prospective relief re 585 Order on Motion for Attorney Fees, Order on Motion to Strike,, MOTION termination of prospective relief re 585 Order on Motion for Attorney Fees, Order on Motion to Strike,, filed by Walter D Balla. Replies due by 3/23/2007. (dks, )
666 DECLARATION of Michael D. Newsom re 635 MOTION termination of prospective relief re 585 Order on Motion for Attorney Fees, Order on Motion to Strike,, MOTION termination of prospective relief re 585 Order on Motion for Attorney Fees, Order on Motion to Strike,, filed by Walter D Balla. (dks, )
667 DECLARATION of Jason R. McDermott re 635 MOTION termination of prospective relief re 585 Order on Motion for Attorney Fees, Order on Motion to Strike,, MOTION termination of prospective relief re 585 Order on Motion for Attorney Fees, Order on Motion to Strike,, filed by Walter D Balla. (dks, )
668 DECLARATION of William Lightner re 635 MOTION termination of prospective relief re 585 Order on Motion for Attorney Fees, Order on Motion to Strike,, MOTION termination of prospective relief re 585 Order on Motion for Attorney Fees, Order on Motion to Strike,, filed by Walter D Balla. (dks, )
669 DECLARATION of Jeffrey W. Lizee re 635 MOTION termination of prospective relief re 585 Order on Motion for Attorney Fees, Order on Motion to Strike,, MOTION termination of prospective relief re 585 Order on Motion for Attorney Fees, Order on Motion to Strike,, filed by Walter D Balla. (dks, )
670 DECLARATION of Ronald W. Blong, Sr. re 635 MOTION termination of prospective relief re 585 Order on Motion for Attorney Fees, Order on Motion to Strike,, MOTION termination of prospective relief re 585 Order on Motion for Attorney Fees, Order on Motion to Strike,, filed by Walter D Balla. (dks, )
671 DECLARATION of Kenneth Workman re 635 MOTION termination of prospective relief re 585 Order on Motion for Attorney Fees, Order on Motion to Strike,, MOTION termination of prospective relief re 585 Order on Motion for Attorney Fees, Order on Motion to Strike,, filed by Walter D Balla. (dks, )
672 Statement of Stephen Floyd Ullrich re 635 MOTION termination of prospective relief re 585 Order on Motion for Attorney Fees, Order on Motion to Strike,, MOTION termination of prospective relief re 585 Order on Motion for Attorney Fees, Order on Motion to Strike,, filed by Walter D Balla. (dks, )

Case 1:81-cv-1165 Document <docnum> Filed <datefiled> Page 25 of 81

03/13/2007
03/13/2007 03/13/2007 03/13/2007 03/13/2007 03/13/2007 03/14/2007 03/14/2007 03/14/2007 03/14/2007 03/14/2007
03/14/2007 03/15/2007
03/16/2007 03/16/2007

673 AFFIDAVIT Randall Dean Davis re 635 MOTION termination of prospective relief re 585 Order on Motion for Attorney Fees, Order on Motion to Strike,, MOTION termination of prospective relief re 585 Order on Motion for Attorney Fees, Order on Motion to Strike,, filed by Walter D Balla. (Attachments: # 1 Cont'd# 2 Affidavit Cont'd# 3 Affidavit #14 House# 4 Affidavit Cont'd# 5 Declaratin of Kenneth W. Quinlan# 6 Affidavit David J.M. Kirkland# 7 Declaration of Melvin Luther Cox# 8 Declaration of Ronald O. Nipper# 9 Affidavit Philip A. Turney# 10 Declaration of Mark Coburn)(dks, )
674 OBJECTION to Motion re 635 MOTION termination of prospective relief re 585 Order on Motion for Attorney Fees, Order on Motion to Strike,, MOTION termination of prospective relief re 585 Order on Motion for Attorney Fees, Order on Motion to Strike,, filed by Lawny Browning Replies due by 3/27/2007. (dks, )
675 MOTION to Appoint Class Counsel by Walter D Balla. Responses due by 4/6/2007 (Attachments: # 1 Memorandum in Support)(dks, )
676 MOTION for Discovery by plas. Responses due by 4/6/2007 (Attachments: # 1 Memorandum in Support)(dks, )
677 DECLARATION of Barry Searcy re 635 MOTION termination of prospective relief re 585 Order on Motion for Attorney Fees, Order on Motion to Strike,, MOTION termination of prospective relief re 585 Order on Motion for Attorney Fees, Order on Motion to Strike. (dks, )
678 MOTION for Extension of Time to File statements of current and ongoing constitutional violators by Roy Burstein Responses due by 4/6/2007 (dks, )
679 DECLARATION of Rodney L. Plant re 635 MOTION termination of prospective relief re 585 Order on Motion for Attorney Fees, Order on Motion to Strike,, MOTION termination of prospective relief re 585 Order on Motion for Attorney Fees, Order on Motion to Strike,, filed by Walter D Balla. (dks, )
680 DECLARATION of David Hoskins re 635 MOTION termination of prospective relief re 585 Order on Motion for Attorney Fees, Order on Motion to Strike,, MOTION termination of prospective relief re 585 Order on Motion for Attorney Fees, Order on Motion to Strike,, filed by Walter D Balla. (dks, )
681 DECLARATION of David L. Santistevan re 635 MOTION termination of prospective relief re 585 Order on Motion for Attorney Fees, Order on Motion to Strike,, MOTION termination of prospective relief re 585 Order on Motion for Attorney Fees, Order on Motion to Strike,, filed by Walter D Balla. (dks, )
682 MOTION to be appointed as a class representative by Dennis R. Slaughter. Responses due by 4/9/2007 (dks, )
683 OBJECTION to Motion re 635 MOTION termination of prospective relief re 585 Order on Motion for Attorney Fees, Order on Motion to Strike,, MOTION termination of prospective relief re 585 Order on Motion for Attorney Fees, Order on Motion to Strike,, filed by Dennis R. Slaughter Replies due by 3/28/2007. (Attachments: # 1 Affidavit Dennis R. Slaughter)(dks, )
684 MOTION for Preliminary Injunction by Dennis R. Slaughter. Responses due by 4/9/2007 (Attachments: # 1 Memorandum in Support # 2 Certificate of Service)(dks, )
685 DOCKET ENTRY ORDER REASSIGNING CASE: This court deems itself disqualified to sit in judgment in the above−captioned case and the court believes that its recusal would be in the best interest of justice. Therefore, IT IS HEREBY ORDERED that this case be reassigned to Judge B. Lynn Winmill for all further proceedings. The case number will be changed to CV81−1165−S−BLW which the parties are directed to use on all future filings. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by dmc, )
686 REQUEST by Plas for hearing (dks, )
687 AFFIDAVIT of Michael D. Whiteley re 635 MOTION termination of prospective relief re 585 Order on Motion for Attorney Fees, Order on Motion to Strike,, MOTION termination of prospective relief re 585 Order on Motion for Attorney Fees,

Case 1:81-cv-1165 Document <docnum> Filed <datefiled> Page 26 of 81

03/16/2007 03/16/2007
03/20/2007
03/26/2007 03/30/2007 03/30/2007 03/30/2007 04/05/2007
04/05/2007 04/05/2007 04/06/2007 04/09/2007 04/11/2007

Order on Motion to Strike, (dks, )
688 EXHIBIT 1−Inmate Handbook by Michael D. Whiteley. (Attachments: # 1 Exhibit 2−Medical Issues# 2 Exhibit 3−Food Allergys# 3 Exhibit 4−Diseases, Infections# 4 Exhibit 5−Shower Issues# 5 Exhibit 5−Cont'd)(dks, )
689 ORDER AND ORDER TO SHOW CAUSE granting 652 Motion for Extension of Time to File Response ; granting 655 Motion for order to provide documents ; granting 657 Motion to Appoint Counsel ; granting 662 Motion to postpone automatic stay; The automatic stay shall not take effect prior to 5/17/07 ; denying without prejudice 664 Motion for Rule 11 Relief; granting 675 Motion to Appoint Counsel ; denying 676 Motion for Discovery; granting 678 Motion for Extension of Time to File. Dfts shall respond to the orders to show cause as set forth above on or before 3/30/07 and a hearing on these orders shall be held on or before 4/13/07. If the parties request a hearing, they shall contact the Pro Se Unit at 334−1172. 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 dks, )
690 ORDER that gives notice of intent to appoint Stoel Rives as counsel for the plas; No further inmate filings shall be accepted in this case, with the exception of objections to appointment of counsel from only the class representatives; The objections shall be filed on or before 3/30/07. In−Person Status Conference set for 4/6/2007 01:00 PM in Boise, ID before Honorable B. Lynn Winmill.. 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 dks, )Copy of order e−mailed to Mr. Sinclair by dks 3/20/07
691 NOTICE by Idaho, State of re 635 MOTION termination of prospective relief re 585 Order on Motion for Attorney Fees, Order on Motion to Strike,, MOTION termination of prospective relief re 585 Order on Motion for Attorney Fees, Order on Motion to Strike,, Notice of partial withdrawal (Kubinski, Mark)
692 RESPONSE re 690 Set Hearings, Order,,,, filed by Walter D Balla Plaintiffs' Non−Objection to the Court's Appointment of Stoel Rives LLP as Class Counsel. (Prince, Jason)
693 RESPONSE re 690 to the Court's appointment of Stoel Rives LLP as Class counsel filed by Barry Searcy. (dks, )
694 RESPONSE TO ORDER TO SHOW CAUSE by Idaho, State of. (Kubinski, Mark)
695 MEMORANDUM/BRIEF re 689 Order on Motion for Extension of Time to File Response/Reply, Order on Motion for Miscellaneous Relief, Order on Motion to Appoint Counsel,, Order on Motion for Relief,, Order on Motion for Discovery,,,,,,,,,,,,,,,,,,,,,,,,, filed by Walter D Balla, Alan Lee Brandt, Barry Searcy. (Dixon, Bradley)
696 NOTICE of Appearance by Bradley J Dixon on behalf of Walter D Balla, Alan Lee Brandt, Barry Searcy (Dixon, Bradley)
697 NOTICE of Appearance by Jason Emerson Prince on behalf of Walter D Balla, Alan Lee Brandt, Barry Searcy (Prince, Jason)
698 Minute Entry for proceedings held before Judge B. Lynn Winmill : Status Conference held on 4/6/2007. (Court Reporter Lisa Yant.) (mp, )
699 NOTICE by Idaho, State of re 635 MOTION termination of prospective relief re 585 Order on Motion for Attorney Fees, Order on Motion to Strike,, MOTION termination of prospective relief re 585 Order on Motion for Attorney Fees, Order on Motion to Strike,, Notice of Withdrawal (Kubinski, Mark)
700 DOCKET ENTRY ORDER − Based on the IDOC Defendants' Notice of Withdrawal of the Motion to Terminate Prospective Relief 699 , Plaintiffs' Motion to be Appointed as a Class Representative 682 and Plaintiffs' Motion for Preliminary Injunction 684 are now MOOT. 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 sbh)

Case 1:81-cv-1165 Document <docnum> Filed <datefiled> Page 27 of 81

04/11/2007 06/15/2007 07/20/2007 08/14/2007 09/05/2007 09/05/2007 09/06/2007
09/06/2007 09/14/2007 09/28/2007 10/04/2007 10/04/2007 10/15/2007
10/17/2007 10/22/2007 10/24/2007
10/25/2007
11/09/2007 11/16/2007

701 Letter from Phillip P. Curzon (dks, ) (Entered: 04/12/2007)
702 TRANSCRIPT of Proceedings (Status Conference) held on 4/6/07 before Judge B. Lynn Winmill. Court Reporter: Lisa Yant. This transcript is not available to the general public and as such is sealed. (dks, )
703 NOTICE of allegation of direct violation of policy by Randall Dean Davis (dks, )
704 NOTICE by Idaho, State of re 699 Notice (Other), Notice (Other) Supplement (Kubinski, Mark)
705 NOTICE by Walter D Balla Petition to Appoint Class Representatives (Prince, Jason)
706 AFFIDAVIT of J. Walter Sinclair re 705 Notice (Other) filed by Walter D Balla Affidavit of J. Walter Sinclair in Support of Petition to Appoint Class Representatives. (Prince, Jason)
CORRECTIVE ENTRY − The entry docket number 705 Notice (Other) filed by Walter D Balla, 706 Affidavit filed by Walter D Balla was filed incorrectly in this case. This appears to be a motion and thus should be filed as one with a miscellaneous relief and then as an attachment, attach the affidavit. The filing party shall re−submit their correct filing. (dks, )
707 MOTION to Appoint Class Representatives by Walter D Balla. Responses due by 10/1/2007 (Attachments: # 1 Affidavit of J. Walter Sinclair in Support of Motion to Appoint Class Representatives)(Prince, Jason) ).
708 NOTICE of grievances by Randall Dean Davis (dks, )
709 MEMORANDUM in Opposition re 707 MOTION Petition to Appoint Class Representatives Petition to Appoint Class Representatives filed by Idaho, State of. Replies due by 10/18/2007. (Attachments: # 1 Affidavit)(Panther, Paul)
710 NOTICE of property results of storage and disposition by Randall Dean Davis (dks, )
711 MOTION by Randall Dean Davis. Responses due by 10/29/2007 (Attachments: # 1 Cont'd)(dks, )
712 REPLY to Response to Motion re 707 MOTION Petition to Appoint Class Representatives Petition to Appoint Class Representatives filed by Walter D Balla. (Attachments: # 1 Affidavit Affidavit of Bradley J. Dixon in Support of Petition to Appoint Class Representatives)(Prince, Jason)
713 DOCKET ENTRY ORDER − This case is hereby ordered reopened. Signed by Judge B. Lynn Winmill. (sbh)
714 MOTION for Attorney Fees Petition for The Award of Interim Costs and Attorney Fees by Walter D Balla. Responses due by 11/16/2007 (Attachments: # 1 Memorandum in Support # 2 Affidavit)(Dixon, Bradley)
715 DOCKET ENTRY NOTICE of Hearing on Motion 707 MOTION Petition to Appoint Class Representatives Petition to Appoint Class Representatives : Motion Hearing set for 12/10/2007 10:00 AM in Boise, ID before Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by lg, ) Modified on 10/25/2007 (lg, ).
716 DOCKET ENTRY NOTICE of Hearing on Motion 714 MOTION for Attorney Fees Petition for The Award of Interim Costs and Attorney Fees : Motion Hearing set for 12/10/2007 10:00 AM in Boise, ID before Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by lg, )
717 NOTICE of Appearance by Michael S Gilmore on behalf of all defendants (Gilmore, Michael)
718 RESPONSE to Motion re 714 MOTION for Attorney Fees Petition for The Award of Interim Costs and Attorney Fees filed by Idaho, State of. Replies due by 12/6/2007. (Attachments: # 1 Affidavit Brent Reinke)(Kubinski, Mark)

Case 1:81-cv-1165 Document <docnum> Filed <datefiled> Page 28 of 81

11/19/2007 11/26/2007 12/05/2007 12/05/2007 12/10/2007
12/18/2007
12/20/2007 01/31/2008 01/31/2008 01/31/2008 06/23/2008 07/17/2008 08/04/2008 08/04/2008 10/21/2008
12/04/2008

719 RESPONSE to Motion re 707 MOTION Petition to Appoint Class Representatives Petition to Appoint Class Representatives filed by Alan Lee Brandt. Replies due by 12/7/2007. (Attachments: # 1 Affidavit Alan Lee Brandt)(dks, )
720 NOTICE for request of appearance by Alan Lee Brandt (dks, )
721 REPLY to Response to Motion re 714 MOTION for Attorney Fees Petition for The Award of Interim Costs and Attorney Fees filed by Walter D Balla. (Attachments: # 1 Affidavit of Barry Searcy# 2 Affidavit Dennis R. Slaughter# 3 Affidavit of Franklin Burton Johnson)(Dixon, Bradley)
722 ERRATA by Plaintiff Walter D Balla re 721 Reply to Response to Motion, Amended Affidavit of Barry Searcy with Exhibits 1 − 4. (Dixon, Bradley) Modified on 12/5/2007 to link to 707 Motion to Appoint Class Representatives (jlg, ).
723 Minute Entry for proceedings held before Judge B. Lynn Winmill : Motion Hearing held on 12/10/2007 Both Motions Taken UNDER ADVISEMENT re 707 MOTION Petition to Appoint Class Representatives Petition to Appoint Class Representatives filed by Walter D Balla, 714 MOTION for Attorney Fees Petition for The Award of Interim Costs and Attorney Fees filed by Walter D Balla. (Court Reporter Patty Terry.) (so, )
724 ORDER granting 707 Motion to appoint Class Representatives ; denying 711 Motion and petition ; granting 714 Motion for Attorney Fees and costs; and Allen Brandt's request for appearance is denied. 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 dks, )
725 RETURN MAIL undelivered as to Allan Lee Brandt re: 724 Order on Motion for Miscellaneous Relief,, Order on Motion for Attorney Fees,,, (dks, )
726 SUPPLEMENT by Plaintiff Walter D Balla re 724 Order on Motion for Miscellaneous Relief,, Order on Motion for Attorney Fees,,, Supplemental Affidavit of Bradley J. Dixon in Support of Petition for the Award of Interim Attorney Fees. (Dixon, Bradley)
727 AFFIDAVIT of Barry Searcy re 724 Order on Motion for Miscellaneous Relief,, Order on Motion for Attorney Fees,,, filed by Walter D Balla re Out of Pocket Expenses Incurred on Behalf of Balla Class Between February 16 2007 and March 29 2007. (Dixon, Bradley)
728 AFFIDAVIT of Barry Searcy re 724 Order on Motion for Miscellaneous Relief,, Order on Motion for Attorney Fees,,, filed by Walter D Balla re Out of Pocket Expenses Incurred on Behalf of Balla Class Between March 30 2007 and December 31 2007. (Dixon, Bradley)
729 MOTION to Clarify the Court's December 18, 2007 Order (Dkt. 724) Bradley J Dixon appearing for Plaintiff Walter D Balla. Responses due by 7/17/2008 (Attachments: # 1 Memorandum in Support)(Dixon, Bradley)
730 RESPONSE to Motion re 729 MOTION to Clarify the Court's December 18, 2007 Order (Dkt. 724) filed by Idaho, State of. Replies due by 8/4/2008. (Attachments: # 1 Affidavit Kevin Burnett)(Gilmore, Michael)
731 EXHIBIT J by Randall Dean Davis.. (dks)
732 REPLY to Response to Motion re 729 MOTION to Clarify the Court's December 18, 2007 Order (Dkt. 724) filed by Walter D Balla. (Attachments: # 1 Affidavit Bradley J. Dixon)(Prince, Jason)
733 ORDER awarding additional attorney fees incurred by Stoel Rives in the amount of $4,776.65 and costs to Mr. Searcy in the amount of $63.60. Payment of these amounts shall be made withing 30 days of the date of this order. 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 dks)
734 ORDER tentatively granting 729 Motion to Clarify order (Doc #729). In the event the dfts object to the tentative ruling, their counsel shall notify the Court's Pro Se Unit within 5 days and request a hearing on the motion. Signed by Judge B. Lynn Winmill.

Case 1:81-cv-1165 Document <docnum> Filed <datefiled> Page 29 of 81

12/12/2008 12/17/2008 01/05/2009 01/14/2009 01/15/2009
01/15/2009 01/16/2009 01/16/2009
01/21/2009 01/21/2009 01/22/2009 01/22/2009 01/23/2009

(caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by dks)
735 DOCKET ENTRY NOTICE of Hearing on (doc 729) Motion to clarify Court's December 18, 2007 Order (doc 724). Motion Hearing set for 2/18/2009 09:00 AM in Boise, ID before Judge B. Lynn Winmill. (lg)
736 RETURN MAIL undelivered as to Alan Lee Brandt re: 735 Notice of Hearing on Motion (dks)
737 RETURN MAIL undelivered as to Alan Lee Brandt re: 734 Order on Motion to Clarify, (dks)
738 Letter from Phillip V. Cook(dks) (Entered: 01/15/2009)
739 DOCKET ENTRY ORDER − Counsel have informed the Court that the plaintiffs intend to file a motion for contempt in this matter, and plaintiffs' counsel seek an expedited hearing on the motion. Accordingly, IT IS HEREBY ORDERED that the motion shall be filed on or before January 16, 2009. Defendants' response shall be filed on or before January 21, 2009. No reply shall be filed. A hearing is set for January 23, 2009, at 4:00 p.m. at the James A. McClure Federal Building and United States Courthouse in Boise. Given time constraints, the scope of the hearing shall be limited to whether the defendants are in contempt of the Court's injunctive orders related to the overcrowding of certain units at ISCI. Additionally, the parties shall contact In−Court Deputy LaDonna Garcia at 334−9021 to notify the Court of the names of the witnesses each side intends to call at the January 23, 2009 hearing. The Court will reset the currently scheduled February 18, 2009 hearing on its December 4, 2008 Tentative Ruling to an earlier date, if one becomes available. Signed by Judge B. Lynn Winmill. (sbh)
Set/Reset Hearings: The scope of the hearing shall be limited to whether the defendants are in contempt of the Court's injunctive orders related to the overcrowding of certain units at ISCI. In Court Hearing set for 1/23/2009 04:00 AM in Boise, ID before Judge B. Lynn Winmill. (dks)
Set/Reset Hearings: The scope of the hearing shall be limited to whether the defendants are in contempt of the Court's injunctive orders related to the overcrowding of certain units at ISCI. In Court Hearing reset for 1/23/2009 04:00 PM in Boise, ID before Judge B. Lynn Winmill. (dks)
740 MOTION for Order to Show Cause Why Defendants Should Not Be Held In Contempt of Court Jason Emerson Prince appearing for Plaintiff Walter D Balla. Responses due by 2/9/2009 (Attachments: # 1 Memorandum in Support Motion for Order to Show Cause Why Defendants Should Not Be Held In Contempt of Court, # 2 Affidavit of J. Walter Sinclair, # 3 Exhibit A Through M Declaration of J. Walter Sinclair)(Prince, Jason)
741 MEMORANDUM in Opposition re 740 MOTION for Order to Show Cause Why Defendants Should Not Be Held In Contempt of Court filed by Idaho, State of. Replies due by 2/9/2009.(Gilmore, Michael)
742 Witness List (sealed) by Idaho, State of. (Kubinski, Mark)
743 DOCKET ENTRY NOTICE of Hearing on Motion 740 MOTION for Order to Show Cause Why Defendants Should Not Be Held In Contempt of Court : Motion Hearing set for 1/23/2009 AT 4:00 PM HAS BEEN MOVED TO 03:00 PM in Boise, ID before Judge B. Lynn Winmill. PLEASE NOTE: ONLY THE TIME HAS CHANGED.(lg)
744 ORDER to transport. 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 dks) (Copy faxed to parties and given to USMS by dks) (Entered: 01/23/2009)
745 Exhibit List by Idaho, State of.. (Attachments: # 1 Exhibit 2001−2004)(Kubinski, Mark)

Case 1:81-cv-1165 Document <docnum> Filed <datefiled> Page 30 of 81

01/23/2009
01/23/2009 01/26/2009 01/30/2009 02/12/2009 02/13/2009 02/13/2009 02/16/2009
02/17/2009 02/17/2009 02/18/2009
02/19/2009 02/20/2009

746 DOCKET ENTRY ORDER − The hearing on Plaintiffs' Motion for Order to Show Cause, scheduled for January 23, 2009, is vacated and reset for February 18, 2009, at 9:00 a.m. at the James A. McClure Federal Building and United States Courthouse in Boise, Idaho. On that same date, the Court shall also take up argument related to the Court's December 4, 2008 Tentative Ruling. The parties shall contact In−Court Deputy LaDonna Garcia at 334−9021, and file any witness and exhibit lists, no later than February 16, 2009 to notify the Court of the evidence that each side intends to present at the hearing. Signed by Judge B. Lynn Winmill. (sbh)
Set/Reset Hearings: Show Cause Hearing set for 2/18/2009 09:00 AM in Boise, ID before Judge B. Lynn Winmill. (dks) (Entered: 01/26/2009)
747 DOCKET ENTRY ORDER − Docket Entry Order 746 is amended as follows: Counsel only need to file their witness and exhibit lists, along with a summary of the evidence that each side intends to present at the hearing. They should not call the Court with this type of information. Signed by Judge B. Lynn Winmill. (sbh)
748 RESPONSE to Motion re 740 MOTION for Order to Show Cause Why Defendants Should Not Be Held In Contempt of Court Supplemental filed by Idaho, State of. Replies due by 2/17/2009.(Kubinski, Mark)
749 Exhibit List Supplemental by Idaho, State of.. (Attachments: # 1 Exhibit 2005−2006)(Kubinski, Mark)
750 Witness List (sealed) by Walter D Balla. (Prince, Jason)
751 SUPPLEMENT by Plaintiff Walter D Balla re 740 MOTION for Order to Show Cause Why Defendants Should Not Be Held In Contempt of Court. (Attachments: # 1 Declaration of Cary Roberts)(Prince, Jason)
753 ORDER to Transport ; IDOC to take appropriate measures to transport Barry Searcy and Dennis Slaughter to Courtroom #3 in Boise on 2/18/09 beginning at 9:00 a.m. (Notice sent to USMS). 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 dks) (Copy of Doc #752 and Doc #753 faxed according to order and copy given to USMS by dks). (Entered: 02/17/2009)
752 ORDER to Transport ; IDOC to take appropriate measures to transport George T. Collins and Cary Roberts to Courtroom #3 in Boise on 2/18/09 beginning at 9:00 a.m. (Notice sent to USMS). 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 dks)
754 Exhibit List by Walter D Balla.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Errata K, # 12 Exhibit L)(Prince, Jason)
755 Minute Entry for proceedings held before Judge B. Lynn Winmill: Day oneMotion Hearing held on 2/18/2009 re 729 MOTION to Clarify the Court's December 18, 2007 Order (Dkt. 724)filed by Walter D Balla, 740 MOTION for Order to Show Cause Why Defendants Should Not Be Held In Contempt of Court filed by Walter D Balla. Set Hearing as to 729 MOTION to Clarify the Court's December 18, 2007 Order (Dkt. 724) 740 MOTION for Order to Show Cause Why Defendants Should Not Be Held In Contempt of Court :( Motion Hearing to resume on 2/20/2009 03:00 PM in Boise, ID before Judge B. Lynn Winmill.). (Court Reporter Tammy Hohenleitner.) (lg)
756 TRANSPORT ORDER for inmates Barry Searcy, Dennis Slaughter, George Collins, Jr. and Cary Roberts. Signed by Judge B. Lynn Winmill. (Copy sent out as indicated on the order by dks)(caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by dks)
757 Minute Entry for proceedings held before Judge B. Lynn Winmill: Motion Hearing held on 2/20/2009 re 729 MOTION to Clarify the Court's December 18, 2007 Order (Dkt. 724) filed by Walter D Balla, 740 MOTION for Order to Show Cause Why Defendants Should Not Be Held In Contempt of Court filed by Walter D Balla. Matters deemed UNDER ADVISEMENT. (Court Reporter Tammy Hohenleitner.) (lg)

Case 1:81-cv-1165 Document <docnum> Filed <datefiled> Page 31 of 81

02/24/2009 02/26/2009
03/11/2009
03/12/2009 04/02/2009 04/02/2009
04/07/2009 04/14/2009
04/14/2009 04/22/2009 05/28/2009 05/28/2009

Remark − Exhibits from Evidentiary hearing on 2/18/09 and 2/20/09 are with Law Clerk, Craig Durham. Exhibits will be returned to counsel following the courts decision. (lg)
758 DOCKET ENTRY ORDER − IT IS HEREBY ORDERED that on or before March 12, 2009, the court reporter shall prepare and file a transcript of the evidentiary hearing held in this matter on February 18 and 20, 2009. Because a transcript of this hearing is necessary for briefing and a resolution of the issues before the Court, and because the Plaintiffs are indigent and proceeding with pro bono counsel, the original shall be prepared at Court expense. IT IS FURTHER ORDERED that no later than 21 days after the transcript is filed, each party shall submit a supplemental brief, no longer than 35 pages, addressing (1) the Plaintiffs' Motion for Order to Show Cause Why Defendants Should Not Be Held in Contempt, and (2) the Court's December 4, 2008 Notice of Tentative Ruling and Proposed Order. No replies shall be filed unless the Court requests them. Signed by Judge B. Lynn Winmill. (sbh)
759 Transcript of Proceedings (Order to Show Cause Hearing) held on 2/18/09 & 2/20/09 before Judge B. Lynn Winmill. Court Reporter/Transcriber Tamara I. Hohenleitner, Telephone number (208) 334−1500. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. This transcript is not available to the general public and as such is sealed. Redaction Request due 4/6/2009. Redacted Transcript Deadline set for 4/14/2009. Release of Transcript Restriction set for 6/12/2009.(dks) (Entered: 03/12/2009)
760 Notice of Filing of Official Transcript (dks)
761 SUPPLEMENT by Defendant Idaho, State of re 740 MOTION for Order to Show Cause Why Defendants Should Not Be Held In Contempt of Court, 734 Order on Motion to Clarify,. (Kubinski, Mark)
762 SUPPLEMENT by Plaintiff Walter D Balla re 740 MOTION for Order to Show Cause Why Defendants Should Not Be Held In Contempt of Court, 734 Order on Motion to Clarify, PLaintiffs' Closing Argument in Support of Motion for Order to Show Cause Why Defendants Should not Be Held In Contempt and Supplemental Memorandum in Support of Motion for Clarification. (Attachments: # 1 Affidavit Of Jason Prince)(Prince, Jason)
763 DOCKET ENTRY ORDER − The Court's previous order setting a post−hearing briefing schedule 758 is amended as follows. Each party may file a reply to the opposing party's supplemental brief on or before April 14, 2009. Replies shall be no longer than ten pages. Signed by Judge B. Lynn Winmill. (sbh)
764 SUPPLEMENT by Plaintiff Walter D Balla re 734 Order on Motion to Clarify, Plaintiffs' Second Supplemental Memorandum in Support of Motion for Clarification of the Court's December 18, 2007 Order. (Attachments: # 1 Affidavit of Jason Prince, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I, # 11 Exhibit J, # 12 Exhibit K, # 13 Exhibit L, # 14 Exhibit M, # 15 Exhibit N, # 16 Exhibit O, # 17 Errata P, # 18 Exhibit Q, # 19 Exhibit R, # 20 Exhibit S, # 21 Exhibit T, # 22 Exhibit U)(Prince, Jason)
765 SUPPLEMENT by Defendant Idaho, State of re 762 Supplement, Reply to Plaintiffs' Supplement. (Attachments: # 1 Affidavit Lt. Clark, # 2 Exhibit photograph 1, # 3 Exhibit photograph 2, # 4 Exhibit photograph 3, # 5 Exhibit photograph 3, # 6 Exhibit photograph 5, # 7 Exhibit photograph 6, # 8 Exhibit photograph 7)(Kubinski, Mark)
766 NOTICE by Idaho, State of re 764 Supplement,, Objection to Prince Affidavit (Kubinski, Mark)
767 MEMORANDUM DECISION AND ORDER denying 740 Motion for Order to Show Cause. 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 dks)
768 MEMORANDUM DECISION AND ORDER granting 729 Motion for clarification of the Court's order of 12/18/07. 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 dks)

Case 1:81-cv-1165 Document <docnum> Filed <datefiled> Page 32 of 81

06/23/2009
07/16/2009 07/21/2009 07/24/2009
07/24/2009 07/30/2009 08/17/2009 03/30/2010 04/29/2010
04/29/2010 04/30/2010 04/30/2010 05/19/2010 05/24/2010 06/04/2010 06/04/2010

769 MOTION for Attorney Fees And Costs Jason Emerson Prince appearing for Plaintiff Walter D Balla. Responses due by 7/17/2009 (Attachments: # 1 Memorandum in Support of Petition for the Award of Interim Attorney Fees and Costs, # 2 Affidavit of J. Walter Sinclair in Support of Petition for the Award of Interim Attorney fees and Costs)(Prince, Jason)
770 MOTION for Extension of Time to File Response/Reply as to 769 MOTION for Attorney Fees And Costs Paul R Panther appearing for Defendant Idaho, State of. Responses due by 8/10/2009 (Attachments: # 1 Affidavit)(Panther, Paul)
771 SUPPLEMENT by Plaintiff Walter D Balla re 769 MOTION for Attorney Fees And Costs. (Prince, Jason)
772 DOCKET ENTRY ORDER − Pending before the the Court is Defendants' unopposed Motion for an Extension of Time to Respond to Plaintiff's Motion for Attorney Fees 769 . Plaintiff's motion was filed on June 23, 2009 and Defendants' response is due on July 17, 2009. Defendants request an extension of time until July 31, 2009. The Court having considered the pleadings shall grant the motion. IT IS HEREBY ORDERED THAT the Response shall be filed no later than July 31, 2009. 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 sbh)
Set/Reset Deadlines as to 769 MOTION for Attorney Fees And Costs. Responses due by 7/31/2009 (dks) (Entered: 07/27/2009)
773 RESPONSE to Motion re 769 MOTION for Attorney Fees And Costs filed by Idaho, State of. Replies due by 8/17/2009. (Attachments: # 1 Affidavit Kevin Burnett, # 2 Exhibit A)(Kubinski, Mark)
774 REPLY to Response to Motion re 769 MOTION for Attorney Fees And Costs filed by Walter D Balla. (Attachments: # 1 Affidavit of Jason E. Prince, # 2 Declaration of Barry Searcy)(Prince, Jason)
775 ORDER granting in part and denying in part 769 Motion for Attorney Fees. 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 dks) (Entered: 03/31/2010)
776 NOTICE OF APPEAL as to 775 Order on Motion for Attorney Fees by Idaho, State of. Filing fee $ 455, receipt number 0976−600609. (Notice sent to Court Reporter & 9th Cir) (Kubinski, Mark) (Main Document 776 replaced on 4/29/2010 with the 2 page Notice of Appeal) (jm). (Additional attachment(s) added on 4/29/2010: # 1 Attachments to Notice of Appeal (dkt 776)) (jm).
777 MOTION to Stay re 775 Order on Motion for Attorney Fees Mark A Kubinski appearing for Defendant Idaho, State of. Responses due by 5/24/2010 (Attachments: # 1 Memorandum in Support of motion to stay execution of order)(Kubinski, Mark)
778 USCA Case Number 10−35413 for 776 Notice of Appeal, filed by Idaho, State of. (dks)
779 USCA Time Scheduling Order as to 776 Notice of Appeal, filed by Idaho, State of. (Notice sent by e−mail to Court Reporter) (dks)
780 NOTICE OF PRELIMINARY CASE MANAGMENT ORDER. 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 dks)
781 RESPONSE to Motion re 777 MOTION to Stay re 775 Order on Motion for Attorney Fees filed by Walter D Balla. Replies due by 6/10/2010. (Attachments: # 1 Declaration)(Prince, Jason)
782 DOCKET ENTRY NOTICE of Hearing − A hearing on the Preliminary Case Management Order 780 is scheduled for Monday, July 19, 2010 at 2:00 pm in Boise, ID before Judge B. Lynn Winmill. (jlg)
Set Hearings: In Court Hearing re Preliminary Case Management Order 780 set for 7/19/2010 at 2:00 PM in Boise, ID before Judge B. Lynn Winmill. (jlg)

Case 1:81-cv-1165 Document <docnum> Filed <datefiled> Page 33 of 81

06/10/2010 06/18/2010
07/14/2010
07/14/2010 07/19/2010 07/28/2010
08/11/2010 08/24/2010
09/16/2010 09/27/2010 01/06/2011
01/11/2011 02/04/2011 02/04/2011

783 REPLY to Response to Motion re 777 MOTION to Stay re 775 Order on Motion for Attorney Fees filed by Idaho, State of.(Kubinski, Mark)
784 STATUS REPORT In Response to Preliminary Case Management Order DKT. 780 by Walter D Balla. (Attachments: # 1 Declaration of Ralph Heckard, # 2 Declaration of Richard Carlin, # 3 Sealed Declaration of Michael Asbury, # 4 Declaration of Richard Kelly, # 5 Declaration of Albert Martinez)(Prince, Jason) Modified on 6/21/2010 to seal attachment #3 due to medical records (dks).
785 ORDER to Transport ; IDOC to take appropriate measures to transport Barry Searcy and Lance Wood to Courtroom #3 in Boise on 7/19/10 beginning at 1:30 PM (Notice sent to USMS). 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 dks) Modified on 7/14/2010 copy of order emailed to parties pursuant to order (dks).
786 RESPONSE re 784 Status Report, 780 Order filed by Idaho, State of. (Panther, Paul)
787 Minute Entry for proceedings held before Judge B. Lynn Winmill: Argument on Preliminary Case Management Order held on 7/19/2010. (Court Reporter/ESR THohenleitner.) (td) Modified on 7/20/2010 to create a relationship to Doc #780 (dks).
788 MEMORANDUM DECISION AND ORDER denying 777 Motion to Stay Execution of Order Pending Appeal. With 14 days of the date of this order, dfts shall pay the fees and costs awarded to plas by the Court's March 30, 2010 order (Doc #775, pp. 11−12), or post a supersedeas bond to obtain a stay in accordance with Rule 62(d) of the Federal Rules of Civil Procedure. 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 dks)
789 NOTICE by Idaho, State of Notice of Supersedeas bond (Attachments: # 1 Supersedeas bond)(Kubinski, Mark)
790 DOCKET ENTRY ORDER. The Court is considering whether to appoint a special master in this case under 18 U.S.C. §3626(f) and Rule 53 of the Federal Rules of Civil Procedure. Defendants previously requested an opportunity to brief this issue before the Court makes a final decision. Accordingly, on or before September 17, 2010, Defendants shall file a supplemental response to Plaintiffs Status Report (Dkt. 784), addressing whether the appointment of a special master is appropriate under the circumstances of this case. Plaintiffs may file a reply within 10 days of receiving Defendants supplemental response. Signed by Judge B. Lynn Winmill. (cd)
791 RESPONSE re 786 Response(generic), 784 Status Report, Status Report, 790 Order, Order, Order filed by Idaho, State of. (Attachments: # 1 Affidavit, # 2 Affidavit, # 3 Affidavit, # 4 Affidavit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit)(Panther, Paul)
792 REPLY re 784 Status Report, Status Report filed by Walter D Balla. (Prince, Jason)
793 ORDER. On or before 2/7/2011, the parties shall submit the names of no more than 5 candidates who are qualified to serve as special masters given the facts and circumstances in this case. By 3/4/2011, the parties may strike up to 3 candidates from the opposing side's list. Also by 3/4/2011, the parties shall submit to the Court propsed instructions for the Court to give the special master. 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 cjm) (Entered: 01/07/2011)
794 NOTICE by Walter D Balla Notice of Withdrawal as Counsel (Pevar, Stephen)
795 MOTION for Extension of Time to File Defendants' Motion for Extension of Time to Submit Potential Special Master Candidates Re Dkt. 793 Paul R Panther appearing for Defendant Idaho, State of. Responses due by 2/28/2011 (Panther, Paul)
796 NOTICE by Walter D Balla re 795 MOTION for Extension of Time to File Defendants' Motion for Extension of Time to Submit Potential Special Master Candidates Re Dkt. 793 Of Non−Opposition (Dixon, Bradley)

Case 1:81-cv-1165 Document <docnum> Filed <datefiled> Page 34 of 81

02/04/2011
02/17/2011 02/17/2011 02/24/2011 03/17/2011 03/17/2011 03/18/2011 06/01/2011
06/15/2011 07/20/2011
09/30/2011 10/17/2011
01/20/2012 01/24/2012

797 DOCKET ENTRY ORDER. Defendants' Motion for Enlargement of Time 795 is granted. The parties' current deadline for the submission of names of potential special masters is extended to February 17, 2011. The deadline for each party to respond to the other party's submission, and to provide proposed instructions for the special master, is extended to March 17, 2010. 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 cd)
798 RESPONSE re 793 Order, Order, Order filed by Idaho, State of. (Attachments: # 1 McGovern CV, # 2 Schilling CV, # 3 Clark CV, # 4 Clark training, # 5 Clark lectures)(Kubinski, Mark)
799 RESPONSE re 793 Order, Order, Order filed by Walter D Balla Plaintiffs' Five Proposed Special Master Candidates. (Prince, Jason)
800 Transmitted Record on Appeal to US Court of Appeals re 776 Notice of Appeal. Sent sealed documents from our Court and requested 6 boxes from Archives. (Attachments: # 1 Sealed archive request forms)(cjm)
801 RESPONSE re 798 Response(generic) filed by Walter D Balla to Defendants' List of Proposed Special Master Canidates. (Prince, Jason)
802 NOTICE by Walter D Balla re 793 Order, Order, Order Plaintiffs' Proposed Special Master Instructions (Prince, Jason)
803 RESPONSE re 793 Order, Order, Order filed by Idaho, State of Second Response. (Kubinski, Mark)
804 ORDER. The Court gives notice of its intent to appoint Dr. Marc F. Stern to serve as special master in this case under the authority of Rule 53 of the Federal Rules of Civil Procedure and 18 USC § 3626(f). The Clerk shall notify Dr. Stern by sending a copy of this Order, together with the Court's Order at docket 793 , by mail and email. Within 21 days of the date of this Order, Dr. Stern shall filed an affidavit attesting to his availability to serve. IF such a ground for potential disqualification is disclosed, the parties may choose to waive any objection by filing a notice with the Court within 10 days of receiving the affidavit. 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 cjm)(emailed and mailed to Dr. Stern by cjm) (Additional attachment(s) added on 6/2/2011: # 1 email to Dr. Stern) (cjm). (Entered: 06/02/2011)
805 AFFIDAVIT of Marc F. Stern in Response to Order dkt 804 Order (jm) (Entered: 06/17/2011)
806 ORDER APPOINTING SPECIAL MASTER. Dr Marc F Stern is appointed as a special master in this case under Rule 53 of the FRCP and 18 USC § 3626(f). The Clerk shall send a copy of this Order to Dr Stern at his email address marcster@live.com. No later than six months from the date of this Order, Dr Stern shall submit to the Court and the parties a written report. 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 cjm)
807 Letter requesting two modifications of 806 Order from Dr Marc Stern (Attachments: # 1 Curriculum Vitae of Dr Ruiz)(cjm) (Entered: 10/03/2011)
808 ORDER re 806 Order Referring Case to Special Master. The Court's Order Appointing Special Master is amended to appoint Dr Amanda Ruiz as a deputy or assistant special master. The Clerk of Court shall send a copy of this Order by email to Dr Stern and to Dr Ruiz. 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 cjm)
809 MOTION for Extension of Time to File Status Report re: 806 Order Appointing Special Master by Special Master Marc Stern. Responses due by 2/13/2012 (cjm)
810 DOCKET ENTRY ORDER. Good cause appearing, the Special Master's request for an extension of time to file his report 809 is granted. The report shall be filed on or before February 3, 2012. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing

Case 1:81-cv-1165 Document <docnum> Filed <datefiled> Page 35 of 81

02/03/2012 02/06/2012
02/09/2012 02/14/2012
02/15/2012 02/17/2012 02/23/2012 03/05/2012 03/07/2012 03/08/2012
03/16/2012 03/19/2012 03/19/2012 03/20/2012

(NEF) by cd)
811 Sealed Document in Response to 806 Order Referring Case to Special Master. (Attachments: # 1 Report conintued pages 25 − 48, # 2 Report continued pages 49 − 71, # 3 Report continued pages 72 − 94, # 4 Affidavit of Marc F Stern)(cjm)
812 DOCKET ENTRY ORDER. The Special Master's report 811 has been filed under seal initially because it appears to contain confidential medical information about individuals who could reasonably be identified. However, the parties are ordered to confer and to attempt to reach an agreement as to a copy that may be filed publicly with redactions, if necessary. Accordingly, on or before February 17, 2012, the parties shall submit, under seal, either a joint stipulation as to possible redactions or each side shall submit its own proposed redactions. The Special Master's report shall not be released to the inmate class or to third parties until a copy has been unsealed. Signed by Judge B. Lynn Winmill.(cd)
813 NOTICE of Appearance by Colleen D Zahn on behalf of Idaho, State of (Zahn, Colleen)
814 DOCKET ENTRY ORDER. The deadline for filing objections or motions to modify or adopt the Special Master's report under Rule 53(f)(2) of the Federal Rules of Civil Procedure is stayed until further order of the Court. A status conference to discuss further proceedings in this matter is set for Thursday, March 8, 2012, at 3:30 p.m. in front of Chief Judge B. Lynn Winmill. Signed by Judge B. Lynn Winmill. (cd)
Set Hearings pursuant to Order #814: Status Conference set for 3/8/2012 at 3:30 PM in Boise − Courtroom 3 before Judge B. Lynn Winmill. (jlg)
815 STIPULATION re 812 Order, Order, Order Joint Stipulation Re Order Dkt. 812 by Walter D Balla. (Prince, Jason)
816 MOTION to Seal Document 811 Sealed Document Colleen D Zahn appearing for Defendant Idaho, State of. Responses due by 3/19/2012 (Attachments: # 1 Memorandum in Support)(Zahn, Colleen)
817 RESPONSE to Motion re 816 MOTION to Seal Document 811 Sealed Document filed by Walter D Balla. Replies due by 3/22/2012.(Blackman, Allison)
818 REPLY to Response to Motion re 816 MOTION to Seal Document 811 Sealed Document filed by Idaho, State of.(Kubinski, Mark)
819 Minute Entry for proceedings held before Judge B. Lynn Winmill: Motion Hearing/Status Conference held on 3/8/2012 re 816 Motion to Continue Sealing of Special Master's Report. Court Denied the motion. Parties shall adhere to the following deadlines: 1) Proposed language for the unsealing of the Special Master's Report due by 3/16/2012; 2) Case Management Plan and status regarding willingness to participate in mediation due by 3/23/2012; and 3) Response to the Special Master's Report due by 3/30/2012. (ESR Keith Bryan.) (jlg)THESE MINUTES SHALL STAND AS THE ORDER OF THE COURT (Entered: 03/09/2012)
820 STIPULATION Regarding Watermark for Special Master's Report (Dkt. No. 811) by Idaho, State of. (Zahn, Colleen)
821 ORDER adopting 820 Joint Stipulation Re Court Order. 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 (cjm)
822 SPECIAL MASTER'S REPORT/Unsealed Redacted filed per 821 Order (Attachments: # 1 Report continued, # 2 Report continued, # 3 Report continued, # 4 Affidavit of Marc F Stern)(cjm)
823 DOCKET ENTRY ORDER − IT IS HEREBY ORDERED THAT this matter shall be referred to The Honorable David O.Carter, United States District Judge for the Central District of California, sitting by special designation; and Susie Headlee, the Court's ADR Director, for the purpose of conducting a co−mediated Settlement Conference. The Settlement Conference is part of the Ninth Circuit's ADR Settlement Week, and shall be conducted on Tuesday, April 3, 2012 at 10:30 a.m., and Wednesday, April 4, 2012 at 9:30 a.m. at the James A. McClure Federal Building and

Case 1:81-cv-1165 Document <docnum> Filed <datefiled> Page 36 of 81

03/21/2012 03/22/2012
03/26/2012
03/30/2012 03/30/2012 04/03/2012 04/04/2012 04/05/2012
04/05/2012 04/06/2012 04/17/2012 04/18/2012
04/18/2012

U.S. Courthouse in Boise, Idaho. The Settlement Conference shall be held each day in Courtroom #7 on the 5th Floor, which is Judge Bush's Courtroom. An Inmate Order of Transport and mediation questionnaire will be issued separately. 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 the Court) (sbh).
Set Hearings: Settlement Conference set for 4/3/2012 10:30 AM in Boise − Courtroom 7 before Judge David O. Carter. Per Order dkt #823. (cjm)
824 DOCKET ENTRY ORDER. The Court's previous order setting deadlines in this matter 819 is amended, as follows. The parties have notified the Court of their availability to participate in a settlement conference, and the Court finds good cause for extending the deadline for the submission of proposed case management plans until April 11, 2012. The March 30, 2012, deadline for the filing of responses to the Special Master's Report is unchanged by this Order. Signed by Judge B. Lynn Winmill. ((cd)
825 ORDER to Transport ; IDOC to take appropriate measures to transport Barry Searcy, Lance Wood, and Jessie Ibarra to Courtroom #7 on 4/3/12 and 4/4/12 beginning at 9:00 a.m. for Settlement Conference to be conducted by The Honorable David O. Carter. (Notice sent to USMS). 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 (jm) (paper copy to USMS, emailed to M. Thorusen and D. Bromley and USMS)
826 RESPONSE re 822 Status Report filed by Idaho, State of Response to Special Master's Report. (Kubinski, Mark)
827 RESPONSE re 822 Status Report filed by Walter D Balla . (Blackman, Allison)
833 DOCKET TEXT Minute Entry for proceedings held before Judge David O. Carter: Settlement Conference held on 4/3/2012 Continued to 4/4/2012 at 9:30 a.m. (Court Reporter/ESR not recorded.) (so) (Entered: 04/24/2012)
834 DOCKET TEXT Minute Entry for proceedings held before Judge David O. Carter: Settlement Conference held on 4/4/2012 Continued to 4/5/2012. (Court Reporter/ESR not recorded.) (so) (Entered: 04/24/2012)
828 ORDER to Transport Prisoner; IDOC to take appropriate measures to transport Barry Search #27413, Lance Wood #31919, and Jesse Ibarra #68605 to 5th Floor in Boise on 4/5/2012 beginning at 8:00 (Notice sent to USMS) for Settlement Conference before Judge David O. Carter. 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 (cjm)
835 Minute Entry for proceedings held before Judge David O. Carter: Settlement Conference held on 4/5/2012 Continued to 4/6/2012. (Court Reporter/ESR not recorded.) (so) (Entered: 04/24/2012)
836 Minute Entry for proceedings held before Judge David O. Carter: Settlement Conference held on 4/6/2012 Continued to a date to be determined. (Court Reporter/ESR not recorded.) (so) (Entered: 04/24/2012)
829 OPINION of USCA as to 776 Notice of Appeal, filed by Idaho, State of. AFFIRMED. (cjm)
830 DOCKET ENTRY ORDER − IT IS HEREBY ORDERED THAT a second settlement conference shall be conducted in this matter on Tuesday, May 1, 2012, at 8:30 a.m. with The Honorable David O.Carter, United States District Judge for the Central District of California, sitting by special designation; and Susie Headlee. It shall be held at the James A. McClure Federal Building and U.S. Courthouse in Boise, Idaho, Courtroom #1 on the 6th Floor. An Inmate Order of Transport will be issued separately. 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 the Court) (sbh).
Set Deadlines/Hearings: Per Order dkt 830, Settlement Conference set for 5/1/2012 08:30 AM in Boise − Courtroom 1 before Judge David O. Carter. (jm)

Case 1:81-cv-1165 Document <docnum> Filed <datefiled> Page 37 of 81

04/18/2012 04/24/2012
04/24/2012 05/01/2012 05/06/2012
05/09/2012 05/11/2012 05/15/2012 05/15/2012 05/15/2012 05/22/2012 06/04/2012 06/04/2012
06/04/2012 06/11/2012 06/13/2012

831 DOCKET ENTRY NOTICE AMENDING Hearing (LOCATION ONLY): Settlement Conference set for 5/1/2012 08:30 AM in Boise − Courtroom 3 before Judge David O. Carter. (so)
832 ORDER to Transport Prisoners; IDOC to take appropriate measures to transport Barry Searcy #27413, Lance Wood #31919, Jesse Ibarra #68605 to Courtroom #3 in Boise on 5/1/2012 beginning at 8:30 AM (Notice sent to USMS). Second Settlement Conference set for 5/1/2012 08:30 AM in Boise − Courtroom 3 before Judge David O. Carter. 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 (cjm)(Emailed to dbromley and mdoan at IDOC by cjm.)
837 NOTICE of Appearance by Allison M Blackman on behalf of Walter D Balla (Blackman, Allison)
838 Minute Entry for proceedings held before Judge David O. Carter: Settlement Conference held on 5/1/2012 Continued, ( Settlement Conference set for 5/15/2012 08:30 AM in Boise − Courtroom 1 before Judge David O. Carter.). (Court Reporter/ESR not recorded.) (so) (Entered: 05/02/2012)
839 ORDER to Transport Prisoners; IDOC to take appropriate measures to transport Barry Searcy #27413, Lance Wood #31919, Jesse Ibarra #68605 to Courtroom #1 in Boise on 5/15/2012 beginning at 8:30 am (Notice sent to USMS). 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 (cjm)(Emailed to dbromley and mdoan at IDOC by cjm.) (Entered: 05/07/2012)
840 MANDATE of USCA as to 776 Notice of Appeal, filed by Idaho, State of re 829 Opinion of USCA. (cjm) (Entered: 05/10/2012)
841 MOTION to Intervene by Movant Michael A Lake. Responses due by 6/4/2012 (cjm)
842 STIPULATION Stipulated Motion to Modify Injunctive Relief by Walter D Balla. (Prince, Jason)
843 Minute Entry for proceedings held before Judge David O. Carter: Settlement Conference held on 5/15/2012 Stipulated Motion to Modify Injunctive Relief entered. (Court Reporter/ESR Darlene Smith.) (so) (Entered: 05/18/2012)
845 Minute Entry for proceedings held before Judge David O. Carter: AMENDING MINUTES: to reflect correct Case Caption 843 . (Court Reporter/ESR Darlene Smith.) (so) (Entered: 05/22/2012)
844 REQUEST by Movant Michael Sheridan for Settlement Agreement(cjm)(Mailed Docket Sheet to Mr. Sheridan for case 1:10−cv−00359−EJL by cjm.)
846 RESPONSE to Motion re 841 MOTION to Intervene filed by Walter D Balla. Replies due by 6/21/2012.(Blackman, Allison)
847 Transcript of Proceedings held on 5/15/2012 (Settlement Conference) before Judge David O. Carter. Court Reporter/Transcriber NW Transcripts, LLC, Telephone number 208−989−3455. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. This transcript is not available to the general public and as such is sealed. Redaction Request due 6/28/2012. Redacted Transcript Deadline set for 7/9/2012. Release of Transcript Restriction set for 9/7/2012.(cjm)
848 Notice of Filing of Official Transcript (cjm)
849 ORDER granting in the form 842 Stipulated Motion to Modify Injunctive Relief filed by Walter D Balla. 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 (dks)
850 STIPULATION to Appoint Class Representatives by Walter D Balla. (Blackman, Allison) Modified on 6/13/2012 to edit text per filing party and NEF regenerated (cjm).

Case 1:81-cv-1165 Document <docnum> Filed <datefiled> Page 38 of 81

06/15/2012
06/15/2012 06/15/2012
06/28/2012
06/29/2012 07/02/2012 07/05/2012
07/19/2012 07/20/2012 07/25/2012
07/30/2012 08/13/2012 11/16/2012 11/20/2012

851 DOCKET ENTRY ORDER − As agreed upon by the parties, IT IS HEREBY ORDERED THAT a site visit will be held on Monday, July 30, 2012 at Idaho State Correctional Institution (ISCI). Attending will be The Honorable David O. Carter, United States District Court for the Central District of California, and Susie Headlee, the Court's ADR/Pro Bono Director. The site visit will begin at 9:00 a.m. at ISCI. Signed by Judge David O. Carter (sbh).
852 NOTICE of Interlocutory Appeal by Movant Michael A Lake re 849 Order re 842 Stipulated Motion to Modify Injunctive Relief (Attachments: # 1 Motion for Appointment of Counsel, # 2 Affidavit of Santisteven, # 3 Affidavit of Kruger, # 4 Affidavit of Lake, # 5 Affidavit of Wolf, # 6 Exhibit 1, # 7 Exhibit 2)(cjm)
854 NOTICE OF INTERLOCUTORY APPEAL as to 849 Order, by Michael A Lake. (Notice sent to Court Reporter & 9th Cir) (Attachments: # 1 Motion for Appointment of Counsel, # 2 Affidavit of David Santistevan, # 3 Affidavit of R. Hans Kruger, # 4 Affidavit of Michael Lake, # 5 Affidavit of J.J. Wolf, # 6 Exhibit 1, # 7 Exhibit 2)(krb)(12−35541) (Entered: 06/28/2012)
853 ORDER denying 841 Motion to Intervene, denying 852 Motion to Stay. The Clerk of Court shall re−docket Michael A. Lakes Interlocutory Appeal and Motion to Stay (Dkt. 852) as a Notice of Appeal such that the Court of Appeals for the Ninth Circuit shall receive notice of this document. The filing date of the Notice shall be June 15, 2012.. 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 (krb)
855 USCA Case Number 12−35541 for 854 Notice of Interlocutory Appeal, filed by Michael A Lake. (cjm) (Entered: 07/02/2012)
856 USCA Scheduling Order as to 854 Notice of Interlocutory Appeal, filed by Michael A Lake. (Notice sent by e−mail to Court Reporter) (cjm)
857 MOTION for Attorney Fees Allison M Blackman appearing for Plaintiff Walter D Balla. Responses due by 7/30/2012 (Attachments: # 1 Memorandum in Support, # 2 Affidavit Declaration of Jason Prince, # 3 Exhibit A, # 4 Exhibit B, # 5 Exhibit C, # 6 Exhibit D, # 7 Exhibit E, # 8 Exhibit F, # 9 Exhibit G, # 10 Exhibit H, # 11 Exhibit I, # 12 Exhibit J)(Blackman, Allison)
858 ORDER adopting 850 Stipulation to Appoint Class Representatives. 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 (cjm)
859 STIPULATION Stipulated Motion to Appoint Class Representatives by Walter D Balla. (Blackman, Allison)
860 ORDER APPOINTING CLASS REPRESENTATIVES granting 859 Stipulation. Keith Brown (inmate number 18291), John Maynard (inmate number54248), and Albert Pete Veenstra (inmate number 21864) shall join current class representativesBarry Searcy (inmate number 27413) and Lance Wood (inmate number 31919) in serving as class representatives in this case. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjm)
861 RESPONSE to Motion re 857 MOTION for Attorney Fees filed by Idaho, State of. Replies due by 8/16/2012. (Attachments: # 1 Affidavit Kevin Burnett)(Kubinski, Mark)
862 REPLY to Response to Motion re 857 MOTION for Attorney Fees filed by Walter D Balla. (Attachments: # 1 Second Declaration of Jason E. Prince, # 2 Exhibit A)(Blackman, Allison)
863 STIPULATION re 842 Stipulation Stipulation to Extend Deadline re Dkt. 842 by Walter D Balla. (Blackman, Allison)
864 DOCKET ENTRY ORDER granting the parties' Stipulation to Extend Deadline Re: Dkt. 842. 863 The new deadline for execution of Addenda A and B is February 13, 2013. Signed by Judge B. Lynn Winmill. (cd)

Case 1:81-cv-1165 Document <docnum> Filed <datefiled> Page 39 of 81

12/13/2012 01/07/2013 02/08/2013
02/13/2013 02/14/2013 03/22/2013 04/15/2013 04/16/2013
04/17/2013
04/30/2013
05/01/2013 05/01/2013
05/01/2013 05/08/2013 05/16/2013 05/16/2013 05/28/2013

865 ORDER of USCA as to 854 Notice of Interlocutory Appeal, filed by Michael A Lake (krb) (Entered: 12/17/2012)
866 MANDATE of USCA as to 854 Notice of Interlocutory Appeal, filed by Michael A Lake (krb) (Entered: 01/08/2013)
867 MEMORANDUM DECISION AND ORDER granting in part and denying in part 857 Motion for Attorney Fees. 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 (krb)
868 STIPULATION re 864 Order Stipulation to Extend Deadline Re Dkt. 864 by Walter D Balla. (Prince, Jason)
869 DOCKET ENTRY ORDER granting the parties' Stipulation to Extend Deadline Re: Dkt. 864. 868 The new deadline for execution of Addenda A and B is April 15, 2013. Signed by Judge B. Lynn Winmill. (cd)
870 MOTION Remove Class Representative (Unopposed) Jason Emerson Prince appearing for Plaintiff Walter D Balla. Responses due by 4/15/2013 (Prince, Jason)
871 STIPULATION re 869 Order Third Stipulation to Extend Deadline by Walter D Balla. (Blackman, Allison)
872 ORDER granting 870 Motion Unopposed Motion to Remove Class Representative Lance Wood, granting 871 Third Stipulation to Extend Deadline. The new deadline for execution of Addenda A and B is May 8, 2013. 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 (krb)
873 DOCKET TEXT ORDER. IT IS ORDERED that, pursuant to the parties' Third Stipulation to Extend Deadline (Dkt. 871), the new deadline for execution of Addenda A and B will be extended to June 17, 2013, superseding the deadline set in Dkt. 872. Signed by Judge B. Lynn Winmill. (jd)
874 DOCKET ENTRY ORDER − IT IS HEREBY ORDERED THAT a continuation of the settlement conference previously held shall be conducted on Wednesday, May 8, 2013 at the James A. McClure Federal Building and U.S. Courthouse in Boise, Idaho. The settlement conference shall be held on the 6th Floor, Courtroom #1, to determine the unresolved aspects of Appendices A and B of the modified compliance plan. An order of transport will be issued separately. Signed by Judge David O. Carter (sbh).
Set Hearings: Settlement Conference set for 5/8/2013 08:30 AM in Boise − Courtroom 1 before Judge David O. Carter. Per Order dkt #874.(cjm)
875 ORDER TO TRANSPORT PRISONERS. IDOC shall take appropriate measures to transport Barry Searcy, John Maynard, Albert (Pete) Veenstra III, and Keith Brown to Courtroom #1 on the 6th Floor, Boise, ID on 5/8/2013 beginning at 8:30 a.m. (Notice sent to USMS). The Clerk of Court shall provide notice to the following additional individuals by email and to the U.S. Marshals Service. 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 (cjm)
876 CERTIFICATE OF SERVICE by Clerk of Court of emailing 875 Order to Transport Prisoners to vbates, sthompso, and jcash. Hard copy to USM. (cjm)
878 DOCKET TEXT Minute Entry for proceedings held before Judge David O. Carter: Settlement Conference held on 5/8/2013. Settlement Conference Continued. Time in Court 6 hrs 30 min. (Court Reporter/ESR Tiffany Fisher.) (so) (Entered: 05/28/2013)
877 NOTICE by Walter D Balla Notice of Withdrawal of Attorney Allison Blackman (Blackman, Allison)
NOTICE TO COURT that counsel Allison Blackman wishes to no longer be noticed electronically on this case as of the date of this notice. (Blackman, Allison)
NOTICE TO COURT that counsel Bradley J. Dixon wishes to no longer be noticed electronically on this case as of the date of this notice. (Dixon, Bradley)

Case 1:81-cv-1165 Document <docnum> Filed <datefiled> Page 40 of 81

05/28/2013 06/19/2013 07/09/2013 07/12/2013 07/12/2013 07/12/2013
07/15/2013 07/16/2013 07/16/2013
07/22/2013 07/22/2013 07/26/2013
08/06/2013
08/06/2013
08/08/2013

879 SEALED ORDER re Settlement Stipulation. Signed by Judge David O. Carter. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjm)
880 STIPULATION re 873 Order, Fourth Stipulation to Extend Deadline re Dkt. 873 by Walter D Balla. (Prince, Jason)
881 STIPULATION For Protective Order by Walter D Balla. (Watkins, Elijah)
882 PROTECTIVE ORDER granting 881 Stipulation for Protective Order. 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 (cjm)
883 ORDER re 880 Stipulation. The new deadline for execution of Addenda A and B will be extended to 9/20/2013. (Case Management Deadline set.). 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 (cjm)
884 DOCKET ENTRY ORDER − IT IS HEREBY ORDERED THAT a continuation of the settlement conference previously held on May 8, 2013 shall be conducted on Tuesday, August 6, 2013 at 8:30 a.m. at the James A. McClure Federal Building and U.S. Courthouse in Boise, Idaho. The settlement conference shall be held on the 6th Floor, Courtroom #1, to finalize the unresolved aspects of Appendices A and B of the modified compliance plan as well as to discuss the issue on Continuing Care. An order of transport will be issued separately. Signed by Judge David O. Carter (sbh).
Reset Hearings: re: 884 DOCKET ENTRY ORDER Settlement Conference set for 8/6/2013 08:30 AM in Boise − Courtroom 1 before Judge David O. Carter. (krb)
885 MOTION Unopposed Motion to Remove Class Representative Barry Searcy and Appoint a Class Representative Elijah Martin Watkins appearing for Plaintiff Walter D Balla. Responses due by 8/9/2013 (Watkins, Elijah)
886 ORDER to Transport ; IDOC to take appropriate measures to transport John Maynard, Albert Veenstra and Keith Brown to Courtroom #1 on 8/6/2013 beginning at 8:00 a.m. (Notice sent to USMS). Signed by Judge David O. Carter. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (krb) (Entered: 07/19/2013)
887 MOTION for Reinstatement of Class Representative. Responses due by 8/15/2013 (Attachments: # 1 Cover Sheet, # 2 Affidavit of Alan Brandt)(krb) (Entered: 07/23/2013)
888 NOTICE for Hearing and Transport by Alan Lee Brandt (krb) (Entered: 07/23/2013)
889 ORDER to Transport ; IDOC to take appropriate measures to transport John Maynard, Albert (Pete) Veenstra, Keith Brown, Kent Ellis and Barry Searcy to Courtroom #1 on 8/6/2013 beginning at 7:30 am (Notice sent to USMS). Signed by Judge David O. Carter. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (krb)
890 ORDER granting in part and denying in part 885 Motion to Remove Class Representative Barry Searcy and Appoint a Class Representativefor Reinstatement as a Class Representive; denying 887 Motion to Remove Calss Representative Barry Searcy and Appoint a Class Representativefor Reinstatement as a Class Representive. 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 (krb)
892 Minute Entry for proceedings held before Judge David O. Carter: Settlement Conference/In−Court Hearing held on 8/6/2013. Hearing held to finalize unresolved aspects of Appendices A and B of the modified compliance plan and to discusee the issue on Continuing Care. Second in person hearing will be held Thursday, 8/8/2013, to discuss issue of Unit 16. Time in Court 5 hours 20 minutes. (Court Reporter/ESR Christine Rhodes.) (cjm) (Entered: 08/14/2013)
891 DOCKET ENTRY NOTICE of Hearing: In−person Conference set for 8/8/2013 12:00 PM in Boise − Courtroom 1 before Judge David O. Carter. (so)

Case 1:81-cv-1165 Document <docnum> Filed <datefiled> Page 41 of 81

08/08/2013 08/08/2013 08/08/2013 08/22/2013 09/26/2013 10/03/2013 10/15/2013
10/18/2013
10/22/2013 10/24/2013
10/24/2013 10/25/2013 10/25/2013 11/01/2013
11/05/2013 11/07/2013 11/07/2013

NOTICE TO COURT that counsel Jason Prince wishes to no longer be noticed electronically on this case as of the date of this notice. (Prince, Jason)
NOTICE TO COURT that counsel Bradley J. Dixon wishes to no longer be noticed electronically on this case as of the date of this notice. (Dixon, Bradley)
894 Minute Entry for proceedings held before Judge David O. Carter: Status Conference held on 8/8/2013. (Court Reporter/ESR Christie Valcich.) (krb) (Entered: 09/11/2013)
893 Letter from Alan Brandt (docket sheet sent to Mr. Brandt)(krb)
895 STIPULATION re 883 Order, Set Deadlines/Hearings,, Fifth Stipulation to Extend Deadline by Walter D Balla, Keith A Brown, Kent Ellis, John Maynard, Barry Searcy, Albert Pete Veenstra, III. (Watkins, Elijah)
896 Letter from John Warren (copy of dkt 788 mailed to Mr Warren)(jp) (Entered: 10/04/2013)
897 MEMORANDUM DECISION AND ORDER (SEALED), The Court's rulings leave a few loose ends that should be resolved in the update that the parties must file within ten days of this Order. The parties should include the revised Addenda A & B in that update, either in final form or a draft if the revisions are not yet complete. ( Case Management deadline set for 10/25/2013) Signed by Judge David O. Carter. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp) Modified on 10/15/2013 to seal (jp).
898 Interim MOTION for Attorney Fees and Costs Elijah Martin Watkins appearing for Plaintiff Walter D Balla, Personal Representatives Keith A Brown, Kent Ellis, John Maynard, Barry Searcy, Albert Pete Veenstra, III. Responses due by 11/12/2013 (Watkins, Elijah)
899 NOTICE by Walter D Balla Notice of Withdrawal of Jason E. Prince (Prince, Jason)
900 NOTICE by Walter D Balla, Keith A Brown, Kent Ellis, John Maynard, Barry Searcy, Albert Pete Veenstra, III re 849 Order, 842 Stipulation, 897 Memorandum Decision, of Disaffirmance and Proceeding Under Protest Re: Court's Ordered Addenda A and B Injunctive Relief (Watkins, Elijah) Modified on 10/24/2013 to seal at the filer's request (jp).
901 ERRATA by Plaintiff Walter D Balla, Personal Representatives Keith A Brown, Kent Ellis, John Maynard, Barry Searcy, Albert Pete Veenstra, III re 900 Notice (Other), Amended Certificate of Service of Document 900. (Watkins, Elijah)
902 Sealed Document Re: 897 Memorandum Decision, Set Deadlines/Hearings,,,, Joint. (Attachments: # 1 Exhibit Exhibit 1−Addendum A, # 2 Exhibit Exhibit 2−Addendum B)(Kubinski, Mark)
903 NOTICE by Idaho, State of re 902 Sealed Document Certificate of Service (Kubinski, Mark)
904 ORDER TO RESPONSE FOR FILING, re 897 Memorandum Decision and Order, and 900 Notice. The Court ORDERS IDOC to respond to the Notice on or before November 5, 2013. Signed by Judge David O. Carter. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)
905 RESPONSE re 900 Notice (Other), filed by Idaho, State of . (Attachments: # 1 Affidavit Zahn Affidavit Supporting Response, # 2 Exhibit Exhibits A through F to Zahn Affidavit)(Zahn, Colleen)
906 MOTION for Extension of Time to File Response/Reply as to 898 Interim MOTION for Attorney Fees and Costs Unopposed Mark Alan Kubinski appearing for Defendant Idaho, State of. Responses due by 12/2/2013 (Kubinski, Mark)
907 SUPPLEMENT by Plaintiff Walter D Balla, Personal Representatives Keith A Brown, Kent Ellis, John Maynard, Barry Searcy, Albert Pete Veenstra, III re 900 Notice (Other), 905 Response(generic) to Plaintiffs' Notice of Disaffirmance and Proceeding Under Protest Re: Court's Ordered Addenda A and B Injunctive Relief. (Watkins, Elijah)

Case 1:81-cv-1165 Document <docnum> Filed <datefiled> Page 42 of 81

11/08/2013
11/13/2013 11/26/2013 11/26/2013 11/26/2013 11/27/2013
11/27/2013 12/06/2013 12/09/2013
12/10/2013
01/02/2014 01/09/2014 01/09/2014 01/21/2014

908 DOCKET ENTRY ORDER − Pending before the Court is Defendant's unopposed Motion 906 for an Extension of Time to respond to Plaintiff's interim fee request. The Court having considered the pleadings shall grant the Motion. NOW THEREFORE, IT IS HEREBY ORDERED THAT the response shall be filed on or before December 3, 2013. Signed by Judge B. Lynn Winmill (sbh).
909 NOTICE of Appearance by William C Pooser on behalf of Walter D Balla, Keith A Brown, Kent Ellis, John Maynard, Barry Searcy, Albert Pete Veenstra, III (Pooser, William)
910 STIPULATION re 898 Interim MOTION for Attorney Fees and Costs Joint Stipulation by Walter D Balla, Keith A Brown, Kent Ellis, John Maynard, Barry Searcy, Albert Pete Veenstra, III. (Watkins, Elijah)
911 SEALED Transcript of Proceedings held on 8/6/2013 (Settlement Conference) before Judge David O. Carter. Court Reporter/Transcriber Tucker & Associates, Telephone number 208−345−3704. This transcript is not available to the general public and as such is sealed.(cjm) (Entered: 11/27/2013)
913 SEALED Transcript of Proceedings held on 8/8/2013 (Settlement Conference) before Judge David O. Carter. Court Reporter/Transcriber Tucker & Associates, Telephone number 208−345−3704. This transcript is not available to the general public and as such is sealed.(cjm) (Entered: 11/27/2013)
912 DOCKET ENTRY ORDER − IT IS HEREBY ORDERED THAT the Minutes 892 894 of the closed settlement conference conducted on August 6 and 8, 2013, should reflect that the Transcripts in this case shall be placed under seal and remain sealed unless instructed otherwise by Order of the Court. Signed by Judge David O. Carter (sbh).
914 Notice of Filing of Official Transcript (cjm)
915 SEALED REVISED Transcript of Proceedings held on 8/6/13 before Judge David O. Carter. Court Reporter/Transcriber Christine E. Rhodes, Telephone number (208) 345−3704. (re 911 )(jp)
916 MOTION for Relief Partial Relief from October 15, 2013 Memorandum Decision and Order Elijah Martin Watkins appearing for Plaintiff Walter D Balla, Personal Representatives Keith A Brown, Kent Ellis, John Maynard, Barry Searcy, Albert Pete Veenstra, III. Responses due by 1/2/2014 (Attachments: # 1 Memorandum in Support, # 2 Declaration of Barry Searcy, # 3 Exhibit D to Searcy Declaration, # 4 Exhibit E to Searcy Declaration, # 5 Exhibit F to Searcy Declaration)(Watkins, Elijah)
917 ORDER GRANTING JOINT STIPULATION RE PLAINTIFFS REQUEST FOR INTERIM ATTORNEYS FEES AND COSTS granting 898 Joint Stipulation for Plaintiff's Request for Interim Attorneys' Fees. IT IS HEREBY ORDERED that Plaintiffs be awarded $64,115.59 in costs and fees, to be paid no later than 30 days from the date of the Order. 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 (cjm)
918 RESPONSE to Motion re 916 MOTION for Relief Partial Relief from October 15, 2013 Memorandum Decision and Order filed by Idaho, State of. Replies due by 1/21/2014. (Attachments: # 1 Affidavit of Mark Kubinski, # 2 Exhibit Exhibits A − D to Affidavit of Mark Kubinski)(Zahn, Colleen)
919 NOTICE by Walter D Balla Of Withdrawal of Attorney J. Walter Sinclair (Sinclair, J)
NOTICE TO COURT that counsel J. Walter Sinclair wishes to no longer be noticed electronically on this case as of the date of this notice. (Sinclair, J)
920 REPLY to Response to Motion re 916 MOTION for Relief Partial Relief from October 15, 2013 Memorandum Decision and Order filed by Walter D Balla, Keith A Brown, Kent Ellis, John Maynard, Barry Searcy, Albert Pete Veenstra, III. (Attachments: # 1 Affidavit, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D)(Watkins, Elijah)

Case 1:81-cv-1165 Document <docnum> Filed <datefiled> Page 43 of 81

03/27/2014 03/27/2014 03/28/2014 04/01/2014 04/07/2014 05/27/2014 05/27/2014 05/27/2014 06/05/2014
06/05/2014 06/06/2014
06/10/2014 06/10/2014 06/10/2014

921 DOCKET ENTRY ORDER − IT IS HEREBY ORDERED THAT an in−person status conference shall be held with counsel only on Tuesday, April 1, 2014 at 1:30 p.m., Courtroom #2, 6th Floor of the James A. McClure Federal Building and U.S. Courthouse in Boise, Idaho. Signed by Judge David O. Carter (sbh).
Set/Reset Hearings: Per Order dkt 921, Status Conference set for 4/1/2014 01:30 PM in Boise − Courtroom 2 before Judge David O. Carter. (jp)
922 ORDER OF REFERRAL Plaintiff's Motion for Partial Relief from the 10/15/13 Order (Dkt. 916 ) is REFERRED to The Honorable David O. Carter, United States District Judge for the Central District of California, sitting by special designation. 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)
923 SEALED Minute Entry for proceedings held before Judge David O. Carter: Settlement Conference held on 4/1/2014 Time in Court 1 hour, 20 minutes. (jp) (Entered: 04/07/2014)
924 SEALED ORDER. Signed by Judge David O. Carter. (jp)
925 DOCKET ENTRY ORDER − IT IS HEREBY ORDERED THAT a continuation of the Settlement Conference shall be held in this matter on Thursday, June 5, 2014 at 9:00 a.m. at the Idaho State Correctional Institute (ISCI) in Boise, Idaho. A separate sealed order will be issued outlining discussion topics. Signed by Judge David O. Carter (sbh).
926 MOTION to Seal Document Confidential Modified Compliance Plan Documents Pursuant to Stipulation Elijah Martin Watkins appearing for Plaintiff Walter D Balla, Personal Representatives Keith A Brown, Kent Ellis, John Maynard, Barry Searcy, Albert Pete Veenstra, III. Responses due by 6/20/2014 (Watkins, Elijah)
927 NOTICE by Walter D Balla, Keith A Brown, Kent Ellis, John Maynard, Barry Searcy, Albert Pete Veenstra, III re 849 Order, 842 Stipulation of Execution and Filing of Modified Compliance Plans (Watkins, Elijah) (1 sealed binder & disk/ 1 public binder & disk received− on shelf in Clerk's office−jp).
928 ORDER ON MOTION FOR PARTIAL RELIEF from October 15, 2013 Memorandum Decision, re 916 Motion for Relief. The Court hereby STRIKES from the October 15, 2013 Order any order that the monitoring period begin. The monitoring period specified in the Stipulated Motion shall begin on the date that the presiding Court enters an order incorporating the Addenda into the June 11, 2012, Order. Signed by Judge David O. Carter. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp) (Entered: 06/06/2014)
929 Minute Entry for proceedings held before Judge David O. Carter: Settlement Conference held on 6/5/2014. Time in Court 7 hours 50 minutes. Stipulated proposed orders are to be provided to the Court on June 6, 2014. (jp) (Entered: 06/06/2014)
930 ORDER RE NOTICE OF EXECUTIONS OF MODIFIED COMPLIANCE PLANS, re 849 Order, 842 Stipulation. The parties' Notice of Execution is GRANTED and the Modified Compliance Plans are hereby expressly incorporated into this Court's June 11, 2012 Order (Dkt. 849 ) pursuant to §§ 4.1(a)(4), (b)(3) of the Stipulated Motion. (Dkt. 842 at §§ 4.1(a)(4), (b)(3).) 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)
931 MOTION to Amend/Correct 926 MOTION to Seal Document Confidential Modified Compliance Plan Documents Pursuant to Stipulation Exhibit A to DKT 926 Elijah Martin Watkins appearing for Plaintiff Walter D Balla, Personal Representatives Keith A Brown, Kent Ellis, John Maynard, Barry Searcy, Albert Pete Veenstra, III. Responses due by 7/7/2014 (Watkins, Elijah)
932 Joint MOTION to Amend/Correct 927 Notice (Other), Colleen D Zahn appearing for Defendant Idaho, State of. Responses due by 7/7/2014 (Zahn, Colleen)
933 RESPONSE to Motion re 931 MOTION to Amend/Correct 926 MOTION to Seal Document Confidential Modified Compliance Plan Documents Pursuant to

Case 1:81-cv-1165 Document <docnum> Filed <datefiled> Page 44 of 81

06/12/2014 06/12/2014
06/13/2014 08/22/2014 09/09/2014 10/09/2014 11/25/2014 11/26/2014 01/28/2015 01/29/2015
01/29/2015 03/13/2015 03/13/2015 03/13/2015 03/25/2015

Stipulation Exhibit A to DKT 926, 926 MOTION to Seal Document Confidential Modified Compliance Plan Documents Pursuant to Stipulation filed by Idaho, State of. Replies due by 6/27/2014.(Zahn, Colleen)
934 ORDER Plaintiffs' Motions (Dkts. 926 and 931 ) are GRANTED. The documents referenced herein on Exhibit A hereto are SEALED. 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)
935 ORDER the Parties' Motion 927 is GRANTED and that the Court's June 6, 2014 Order (Dkt. 930 ) incorporating the Modified Compliance Plans into this Court's June 11, 2012 Order Dkt. 849 ) is hereby amended to remove certain documents from the MCPs. 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)
936 Letter from Alan Brandt (dkt sheet from dkt 894 to present mailed to Mr. Brandt)(jp)
937 STIPULATION re 867 Order on Motion for Attorney Fees, Joint Stipulation for Plaintiff's Requested Interim Attorneys Fees and Costs by Walter D Balla, Keith A Brown, Kent Ellis, John Maynard, Barry Searcy, Albert Pete Veenstra, III. (Watkins, Elijah)
938 ORDER APPROVING JOINT STIPULATION FOR PLAINTIFFS REQUESTED INTERIM ATTORNEYSFEES AND COSTS re 937 Stipulation. 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 (cjm)
939 DOCKET ENTRY ORDER − Pending before the Court is the Joint Motion to Amend/Correct 932 filed June 10, 2014. With the filing of this Court's Order 935 filed June 12, 2014, the pending Motion 932 is deemed moot. Signed by Judge B. Lynn Winmill (sbh).
940 DOCKET ENTRY ORDER − IT IS HEREBY ORDERED THAT a continuation of the Settlement Conference shall be held in this matter on Thursday, January 29, 2015 at 10:00 a.m. at the Idaho State Correctional Institute (ISCI) in Boise, Idaho. Signed by Judge David O. Carter (sbh).
Set/Reset Hearings: Per Order dkt 940, a continuation of the Settlement Conference set for 1/29/2015 10:00 AM in Other (ISCI) before Judge David O. Carter. (jp)
941 STIPULATION re 849 Order, Joint Stipulation to Remove Class Representative Veenstra and Appoint Class Representative by Walter D Balla, Keith A Brown, Kent Ellis, John Maynard, Barry Searcy, Albert Pete Veenstra, III. (Watkins, Elijah)
942 ORDER Granting Joint Stipulation to Remove Class Representative Albert Pete Veenstra and Appoint Class Representatives, re 941 Stipulation. David Johnson (inmate number 82887) will replace Alberta Pete Veenstra as Class Representative and that Kenneth Workman (inmate number 61342) is appointed as the sixth Class Representative. 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)
943 SEALED Minute Entry for sealed proceedings held before Judge David O. Carter held on 1/29/2015. Time in Court 6 hours, 9 minutes, Document sealed. (Court Reporter/ESR Susie Boring−Headlee.) (jp) (Main Document 943 replaced on 2/5/2015 to correct date of hearing) (so). (Entered: 02/02/2015)
944 STIPULATION for appointment of special master by Idaho, State of. (Kubinski, Mark)
945 AFFIDAVIT of Susie Headlee to the Stipulation filed by the Parties, re 944 . (jp)
946 CERTIFICATE OF SERVICE re 945 Affidavit of Susie Headlee (jp)
947 ORDER re 944 Stipulation for Special Master. The Stipulation (docket no. 944) is APPROVED, and Susie Boring−Headlee is appointed as a special master in this case. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)

Case 1:81-cv-1165 Document <docnum> Filed <datefiled> Page 45 of 81

04/14/2015 04/14/2015 04/23/2015 05/08/2015 05/08/2015 05/19/2015 05/19/2015 05/20/2015 05/20/2015 06/22/2015 06/22/2015
06/22/2015
07/02/2015

948 STIPULATION re 943 Settlement Conference, Document Sealed,, Joint Stipulation Outlining the Parties' Agreements from the January 29, 2015 Hearing by Walter D Balla. (Watkins, Elijah)
949 Sealed Document Re: 948 Stipulation Areas of Discussion during Judge Carter's January 29, 2015 Visit to ISCI. (Watkins, Elijah)
950 ORDER Granting Joint Stipulation Outlining the Parties' Agreements from the January 29, 2015 Hearing, re 948 Stipulation. Signed by Judge David O. Carter. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)
951 Minute Entry for proceedings held before Judge David O. Carter: Status Conference held on 5/8/2015, ( Evidentiary Hearing set for 7/22/2015 09:00 AM in Boise − Courtroom 1 before Judge David O. Carter., Evidentiary Hearing set for 7/23/2015 09:00 AM in Boise − Courtroom 1 before Judge David O. Carter.) (jp) Modified on 5/11/2015 to indicate evidentiary hearing (jp). (Entered: 05/11/2015)
Set Deadlines/Hearings: Per Minutes dkt 951, Plaintiffs will file its opening brief on 6/22/15: Case Management deadline set for 6/22/2015. (jp) (Entered: 05/11/2015)
952 WITHDRAWN − NOTICE by Walter D Balla Plaintiff's Notice of Deposition of Brian Farris (Watkins, Elijah) Withdrawn on 5/20/2015 per Dkt. 954 (cjs).
953 WITHDRAWN − WITHDRAWAL OF DOCUMENT re: 952 Notice (Other) filed by Walter D Balla. (Watkins, Elijah) Withdrawn on 5/20/2015 per Dkt. 954 (cjs).
CORRECTIVE ENTRY − The entry docket number 953 Withdrawal of a document filed by Walter D Balla was filed incorrectly in this case as a duplicate document of Docket 952 was filed instead of a withdrawal document. The filing party shall re−submit their correct filing.(cjs)
954 WITHDRAWAL OF DOCUMENT re: 953 Withdrawal of a document filed by Walter D Balla, 952 Notice (Other) filed by Walter D Balla. (Watkins, Elijah)
955 MOTION for Leave to File Plaintiffs' Motion for Leave to File Overlength Brief Elijah Martin Watkins appearing for Plaintiff Walter D Balla. Responses due by 7/16/2015 (Watkins, Elijah)
956 MOTION for Sanctions Plaintiffs' Motion for Sanctions or, In the Alternative, Contempt Elijah Martin Watkins appearing for Plaintiff Walter D Balla. Responses due by 7/16/2015 (Attachments: # 1 Memorandum in Support Plaintiffs' Memorandum in Support of Motion for Sanctions or, In the Alternative, Contempt, # 2 Affidavit Declaration of Elijah M. Watkins in Support of Motion for Sanctions or, In the Alternative, Contempt, # 3 Exhibit Exhibit A to Watkins Declaration, # 4 Exhibit Exhibit B to Watkins Declaration, # 5 Exhibit Exhibit C to Watkins Declaration, # 6 Exhibit Exhibit D to Watkins Declaration, # 7 Exhibit Exhibit E to Watkins Declaration, # 8 Exhibit Exhibit F to Watkins Declaration, # 9 Exhibit Exhibit G to Watkins Declaration, # 10 Exhibit Exhibit H to Watkins Declaration, # 11 Exhibit Exhibit I to Watkins Declaration, # 12 Exhibit Exhibit J to Watkins Declaration, # 13 Exhibit Exhibit K to Watkins Declaration, # 14 Exhibit Exhibit L to Watkins Declaration, # 15 Exhibit Exhibit M to Watkins Declaration, # 16 Exhibit Exhibit N to Watkins Declaration, # 17 Exhibit Exhibit O to Watkins Declaration, # 18 Exhibit Exhibit P to Watkins Declaration)(Watkins, Elijah)
957 MOTION to Take Judicial Notice Plaintiffs' Request for Judicial Notice Elijah Martin Watkins appearing for Plaintiff Walter D Balla. Responses due by 7/16/2015 (Attachments: # 1 Exhibit Exhibit 1 to Plaintiffs' Request for Judicial Notice, # 2 Exhibit Exhibit 2 to Plaintiffs' Request for Judicial Notice, # 3 Exhibit Exhibit 3 to Plaintiffs' Request for Judicial Notice, # 4 Exhibit Exhibit 4 to Plaintiffs' Request for Judicial Notice, # 5 Exhibit Exhibit 5 to Plaintiffs' Request for Judicial Notice)(Watkins, Elijah)
958 DOCKET ENTRY ORDER granting 955 Motion for Leave to File. 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 (dm)

Case 1:81-cv-1165 Document <docnum> Filed <datefiled> Page 46 of 81

07/06/2015 07/07/2015
07/13/2015
07/13/2015
07/13/2015 07/13/2015 07/13/2015 07/13/2015
07/14/2015 07/14/2015 07/14/2015 07/14/2015 07/16/2015

959 ERRATA by Plaintiff Walter D Balla re 956 MOTION for Sanctions Plaintiffs' Motion for Sanctions or, In the Alternative, Contempt . (Attachments: # 1 Errata)(Watkins, Elijah)
960 ORDER to Transport ; IDOC to take appropriate measures to transport Barry Searcy, David Johnson, Ken Ellis, Keith Brown, John Maynard, and Kenneth Workman to Courtroom #1 on 7/22/15 and 7/23/15 beginning at 8:30 a.m. (Notice sent to USMS). Signed by Judge David O. Carter. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)(cc: mdoan@idoc.idaho.gov, vbates@idoc.gov, S Booth, H Moore, P Thompson, D Simpson by jp)
961 ORDER of Transport for Inmate David Johnson; IDOC to take appropriate measures to transport David Johnson to Courtroom 1 on 7/23/15 beginning immediately following the end of his parole hearing at ISCI (Notice sent to USMS). Signed by Judge David O. Carter. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp) (cc: mdoan@idoc.idaho.gov, vbates@idoc.gov, S Booth, H Moore, P Thompson, D Simpson by jp)
962 RESPONSE to Motion re 956 MOTION for Sanctions Plaintiffs' Motion for Sanctions or, In the Alternative, Contempt filed by Idaho, State of. Replies due by 7/30/2015. (Attachments: # 1 Affidavit Affidavit of Colleen D. Zahn, # 2 Exhibit A to Affidavit of Colleen D. Zahn, # 3 Exhibit Exhibit B to Affidavit of Colleen D. Zahn, # 4 Affidavit Affidavit of Mark A. Kubinski, # 5 Exhibit Exhibit A to Affidavit of Mark A. Kubinski, # 6 Affidavit Affidavit of Kristy Bobish−Thompson, # 7 Affidavit Affidavit of Dr. Richard Craig, # 8 Exhibit Exhibit A to Affidavit of Dr. Richard Craig, # 9 Affidavit Affidavit of Shell Wamble−Fisher, # 10 Exhibit Exhibit A to Affidavit of Shell Wamble−Fisher)(Zahn, Colleen)
963 Sealed Document Re: 962 Response to Motion,,, Exhibit B to Affidavit of Shell Wamble−Fisher. (Attachments: # 1 Exhibit Exhibit C to Affidavit of Shell Wamble−Fisher, # 2 Exhibit Exhibit D to the Affidavit of Shell Wamble−Fisher)(Zahn, Colleen)
964 Sealed Document Re: 962 Response to Motion,,, Affidavit of Ryan Valley. (Zahn, Colleen)
965 Sealed Document Re: 964 Sealed Document Exh A−1 to Valley Aff. (Attachments: # 1 Exhibit Exh A−2 to Valley Aff, # 2 Exhibit Exh A−3 to Valley Aff)(Zahn, Colleen) (Entered: 07/14/2015)
969 ORDER CHANGING TIME OF EVIDENTIARY HEARING AND REVISED ORDER OF TRANSPORT re 951 ( Evidentiary Hearing RESET for 7/22/2015 08:00 AM in Boise − Courtroom 1 before Judge David O. Carter., Evidentiary Hearing RESET for 7/23/2015 08:00 AM in Boise − Courtroom 1 before Judge B. Lynn Winmill). Signed by Judge David O. Carter. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp) cc: mdoan@idoc.idaho.gov, vbates@idoc.gov, S Booth, H Moore, P Thompson, D Simpson by jp) (Entered: 07/14/2015)
966 Sealed Document Re: 964 Sealed Document Exh B to Valley Aff. (Zahn, Colleen)
967 Sealed Document Re: 964 Sealed Document Exh C−1 to Valley Aff. (Attachments: # 1 Exhibit Exh C−2 to Valley Aff, # 2 Exhibit Exh C−3 to Valley Aff)(Zahn, Colleen)
968 Sealed Document Re: 964 Sealed Document Exh D−1 to Valley Aff. (Attachments: # 1 Exhibit Exh D−2 to Valley Aff, # 2 Exhibit Exh D−3 to Valley Aff)(Zahn, Colleen)
970 Minute Entry for proceedings held before Judge David O. Carter: Telephonic Status Conference held on 7/14/2015. (jp)
971 ORDER REFERRING MOTIONS TO JUDGE DAVID O. CARTER, Sitting by Designation. Plaintiffs' Motion for Sanctions (Dkt. 956 ) and Motion to Take Judicial Notice (Dkt. 957 ) are hereby referred to the Honorable David O. Carter, United States District Judge for the Central District of California, sitting by designation. 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)

Case 1:81-cv-1165 Document <docnum> Filed <datefiled> Page 47 of 81

07/20/2015 07/21/2015
07/21/2015 07/22/2015 07/23/2015 07/27/2015
07/28/2015 07/29/2015
07/30/2015
07/30/2015 08/04/2015 08/06/2015 08/11/2015

Set Hearings pursuant to Order 969 : Evidentiary Hearing reset for 7/22/2015 at 8:00 AM in Boise − Courtroom 1 before Judge David O. Carter. Evidentiary Hearing reset for 7/23/2015 at 8:00 AM in Boise − Courtroom 1 before Judge David O. Carter. (jlg)
972 ORDER to Transport ; IDOC to take appropriate measures to transport Inmates Jerry Anthony Romero (aka Mona Lisa Romero), David Hochstetler and Lee Ridgley to Courtroom #1 on 7/22/15 beginning at 7:45 (Notice sent to USMS). Signed by Judge David O. Carter. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)cc: mdoan@idoc.idaho.gov, vbates@idoc.idaho.gov, sbheadlee@gmail.com S Booth, H Moore, P Thompson, D Simpson by jp Modified on 7/21/2015 (jp).
973 DECLARATION of Elijah M. Watkins filed by Walter D Balla, Keith A Brown, Kent Ellis, David Johnson, John Maynard, Barry Searcy, Kenneth Workman Regarding Bill Arnold, Ph.D. ABPP. (Watkins, Elijah)
974 Minute Entry for proceedings held before Judge David O. Carter: Evidentiary Hearing Day 1 held on 7/22/2015. Hearing continued until 8:00a.m. on 7/23/2015. (Court Reporter Brooke Bohr.) (wm)THESE MINUTES SHALL STAND AS THE ORDER OF THE COURT (Main Document 974 replaced on 7/29/2015 to reflect class representatives present at hearing) (wm). (Entered: 07/27/2015)
975 Minute Entry for proceedings held before Judge David O. Carter: Evidentiary Hearing Final Day 2 held on 7/23/2015. Matter taken under Advisement. (Court Reporter Brooke Bohr.) (wm)THESE MINUTES SHALL STAND AS THE ORDER OF THE COURT (Main Document 975 replaced on 7/29/2015 to reflect class representatives present at hearing) (wm). (Entered: 07/27/2015)
976 Transcript of Proceedings held on 7/22/2015 (Evidentiary Hearing) before Judge David O. Carter. Court Reporter/Transcriber David Cromwell, Telephone number 208−345−3704 ext. 301. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. This transcript is not available to the general public and as such is sealed. Redaction Request due 8/20/2015. Redacted Transcript Deadline set for 8/31/2015. Release of Transcript Restriction set for 10/29/2015.(cjs) (Entered: 07/28/2015)
977 Notice of Filing of Official Transcript (cjs)
978 Transcript of Proceedings held on July 23, 2015 before Judge David O. Carter. Court Reporter/Transcriber Brooke R. Bohr, Telephone number 208−345−3704. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. This transcript is not available to the general public and as such is sealed. Redaction Request due 8/24/2015. Redacted Transcript Deadline set for 9/3/2015. Release of Transcript Restriction set for 10/30/2015.(jp) (Entered: 07/30/2015)
979 REVISED Transcript of Proceedings held on July 23, 2015 before Judge David O. Carter. Court Reporter/Transcriber Brooke R. Bohr, Telephone number 208−345−3704. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. This transcript is not available to the general public and as such is sealed. Redaction Request due 8/24/2015. Redacted Transcript Deadline set for 9/3/2015. Release of Transcript Restriction set for 11/2/2015.(jp)
980 Notice of Filing of Official Transcript (jp) (dkt 978 & 979)
981 NOTICE by Walter D Balla Plaintiffs' Notice of Intent to Redact Court Transcripts (Pooser, William)
982 NOTICE by Walter D Balla re 979 Transcript,, 980 Notice of Filing of Official Transcript Plaintiffs' Notice of Intent to Request to Redact Court Transcripts (Pooser, William)
983 ORDER Granting in part 956 Motion for Sanctions. Signed by Judge David O. Carter. (caused to be mailed to non Registered Participants at the addresses listed on the

Case 1:81-cv-1165 Document <docnum> Filed <datefiled> Page 48 of 81

08/14/2015
08/20/2015 08/20/2015 08/20/2015 09/02/2015 09/02/2015 09/02/2015 09/02/2015 09/02/2015 09/02/2015 09/09/2015
09/15/2015

Notice of Electronic Filing (NEF) by (jp)
984 ORDER SETTING BRIEFING SCHEDULE RE: ATTORNEY'S FEES, (1) Plaintiffs shall submit their application for attorneys fees and costs and any supporting exhibits, such as billing records, to the Court on or before 9/15/15. (2) Defendant may file an opposition, if any, on or before 10/1/15. (3) Plaintiff may file a reply brief, if any, on or before 10/15/15. Signed by Judge David O. Carter. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)
985 MOTION to Seal Motion to Seal Stipulated Motion to Redact Inmates' Names from Hearing Transcripts William C Pooser appearing for Plaintiff Walter D Balla. Responses due by 9/14/2015 (Pooser, William)
986 SEALED MOTION Stipulated Motion to Redact Inmates' Names from Hearing Transcripts William C Pooser appearing for Plaintiff Walter D Balla. Responses due by 9/14/2015 (Pooser, William)
987 MOTION to Seal Stipulated Motion to Seal Certain Hearing Exhibits William C Pooser appearing for Plaintiff Walter D Balla. Responses due by 9/14/2015 (Pooser, William)
988 MOTION for Attorney Fees Joint Stipulation for Plaintiffs' Requested Interim Attorneys' Fees and Costs Elijah Martin Watkins appearing for Plaintiff Walter D Balla. Responses due by 9/28/2015 (Watkins, Elijah)
989 RESPONSE to Motion re 985 MOTION to Seal Motion to Seal Stipulated Motion to Redact Inmates' Names from Hearing Transcripts filed by Idaho, State of. Replies due by 9/21/2015.(Zahn, Colleen)
990 ORDER Granting 985 Motion to Seal Stipulated Motion to Redact Inmates' Names from Hearing Transcripts (Dkt. 985 ); and Extending Deadline for Redactions to be Completed. Signed by Judge David O. Carter. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)
991 ORDER re 986 Sealed Motion. Signed by Judge David O. Carter. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)
992 ORDER Granting 987 Stipulated Motion to Seal Certain Hearing Exhibits. Signed by Judge David O. Carter. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)
Set Deadlines/Hearings: Per Order dkt 990 the deadline for the redactions to be completed is extended from September 3, 2015 to Friday, September 18, 2015 : Case Management deadline set for 9/18/2015. (jp)
993 DOCKET ENTRY AMENDED ORDER re 991 Order Granting Stipulated Motion to Redact Inmate's Names from Hearing Transcripts. IT IS HEREBY ORDERED that the Clerk shall provide Exhibit 2 from the Stipulated Motion (Dkt. 986) to the court reporter and they are to prepare the redacted transcripts and file with the Court on or before Friday, September 25, 2015. Signed by Judge David O. Carter. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (wm) Order and Exhibit 2 sent to court reporter 9/9/2015 (wm).
994 MOTION for Attorney Fees and Costs William C Pooser appearing for Plaintiff Walter D Balla. Responses due by 10/9/2015 (Attachments: # 1 Memorandum in Support Plaintiff's Memorandum in Support of Motion for Attorney Fees and Costs, # 2 Affidavit Declaration of W. Christopher Pooser ISO Motion for Attorney Fees and Costs, # 3 Exhibit Exhibit A to Pooser Declaration, # 4 Exhibit Exhibit B to Pooser Declaration, # 5 Exhibit Exhibit C, Part 1 to Pooser Declaration, # 6 Exhibit Exhibiti C, Part 2 to Pooser Declaration, # 7 Exhibit Exhibit C, Part 3 to Pooser Declaration, # 8 Exhibit Exhibit D to Pooser Declaration, # 9 Affidavit Declaration of Elijah M. Watkins ISO Motion for Attorney Fees and Costs, # 10 Affidavit Declaration of Andrea W. Reynolds ISO Motion for Attorney Fees and Costs, # 11 Affidavit Declaration of Jacqueline Franolich, # 12 Affidavit Declaration of Darin S. Frost ISO Motion for Attorney Fees and Costs, # 13 Affidavit Declaration of J. Walter Sinclair

Case 1:81-cv-1165 Document <docnum> Filed <datefiled> Page 49 of 81

ISO Motion for Attorney Fees and Costs, # 14 Affidavit Declaration of Howard A. Belodoff ISO Motion for Attorney Fees and Costs)(Pooser, William)

09/25/2015 995 Redaction of 976 Transcript, Transcript of Proceedings held on 7/22/2015 (Evidentiary Hearing) before Judge David O. Carter. Court Reporter/Transcriber Brooke Bohr, Telephone number 208−345−3704 ext. 301.) (jp) Volume 1

09/25/2015 996 Redaction of 978 Transcript, 979 Revised Transcript. Proceedings held on July 23, 2015 before Judge David O. Carter. Court Reporter/Transcriber Brooke R. Bohr, Telephone number 208−345−3704. Volume 2 (jp)

10/01/2015

997 RESPONSE to Motion re 994 MOTION for Attorney Fees and Costs filed by Idaho, State of. Replies due by 10/19/2015. (Attachments: # 1 Affidavit of Colleen D. Zahn, # 2 Exhibit Exh A to Zahn Aff, # 3 Affidavit of Cindy McMackin, # 4 Exhibit Exh A to McMackin Aff)(Zahn, Colleen)

10/15/2015 998 MOTION for Leave to File Excess Pages Plaintiffs' Motion for Leave to File Overlength Brief William C Pooser appearing for Plaintiff Walter D Balla. Responses due by 11/9/2015 (Pooser, William)

10/15/2015

999 REPLY to Response to Motion re 994 MOTION for Attorney Fees and Costs Reply Memorandum in Support of Plaintiffs' Motion for Attorney Fees and Costs filed by Walter D Balla. (Attachments: # 1 Exhibit Second Declaration of W. Christopher Pooser ISO Plaintiffs' Motion for Attorney Fees and Costs, # 2 Exhibit Second Declaration of Elijah M. Watkins ISO Plaintiffs' Motion for Attorney Fees and Costs)(Pooser, William)

10/15/2015

1000

MOTION to Supplement Supplement to Plaintiffs' Motion for Attorney Fees and Costs re: 994 MOTION for Attorney Fees and Costs William C Pooser appearing for Plaintiff Walter D Balla. Responses due by 11/9/2015 (Attachments: # 1 Exhibit Pooser Declaration ISO Supplement to Plaintiffs' Motion for Attorney Fees and Costs, # 2 Exhibit Exhibit A to Pooser Declaration, # 3 Exhibit Exhibit B to Pooser Declaration)(Pooser, William)

10/16/2015 1001 ORDER GRANTING PLAINTIFFS' MOTION TO FILE AN OVERLENGTH REPLY MEMORANDUM granting 998 Motion for Leave to File Excess Pages. Signed by Judge David O. Carter. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)

11/09/2015 1002 MEMORANDUM in Opposition re 1000 MOTION to Supplement Supplement to Plaintiffs' Motion for Attorney Fees and Costs re: 994 MOTION for Attorney Fees and Costs filed by Idaho, State of. Replies due by 11/27/2015.(Zahn, Colleen)

11/20/2015 1003 ORDER Granting Plaintiffs' Motion for Attorney's Fees and Costs, ( 994 , 1000 ). Signed by Judge David O. Carter. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)

12/11/2015

1004

ORDER RE: STATUS CONFERENCE. IT IS ORDERED that the attorneys for the parties shall appear for an in−person conference with the presiding judge to discuss the status of this case on 12/18/2015, from 1:00 p.m. to 3:00 p.m., at the James A. McClure Federal Building and United States Courthouse, 550 West Fort Street, Boise, Idaho, 6th Floor, Chambers of Chief United States District Judge B. Lynn Winmill.(Status Conference set for 12/18/2015 01:00 PM in Boise − Courtroom 3 before Judge B. Lynn Winmill.). Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)

12/17/2015

1005

DOCKET ENTRY ORDER The earlier Order of the Court 1004 stated that the hearing on December 18, 2015, would be conducted in Chambers. To clarify, the hearing will be held in Courtroom 3, rather than in Chambers. The hearing will be open to the public, and will be reported by a Court Reporter. 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 (dm)

12/18/2015 1006 NOTICE OF APPEAL as to 1003 Order on Motion for Attorney Fees, Order on Motion to Supplement,, by Idaho, State of. Filing fee $ 505, receipt number 0976−1385767. (Notice sent to Court Reporter & 9th Cir) (Kubinski, Mark) (15−35996)

Case 1:81-cv-1165 Document <docnum> Filed <datefiled> Page 50 of 81

12/18/2015 1007 NOTICE by Idaho, State of re 1006 Notice of Appeal Representation statement (Kubinski, Mark)

12/18/2015 1008 MOTION to Amend/Correct Plaintiffs' Motion to Correct Order Granting Plaintiffs' Motion for Attorney's Fees and Costs (Dkt. 1003) William C Pooser appearing for Plaintiff Walter D Balla. Responses due by 1/11/2016 (Pooser, William)

12/18/2015 1010 Minute Entry for proceedings held before Judge B. Lynn Winmill: An In Person Status Conference was held on 12/18/2015. The next Status Conference is set for 1/8/2016 at 10:00 AM in Boise − Courtroom 3 before Judge B. Lynn Winmill. (Court Reporter Tammy Hohenleitner.) (jlb) (Entered: 12/22/2015)

12/21/2015

1009

ORDER It is hereby ORDERED that the referral to The Honorable David O. Carter, United States District Judge for the Central District of California (docket no. 823 ) is hereby WITHDRAWN. It is further ORDERED, that the appointment of Susie Boring−Headlee as a Special Master (docket no. 947 ) is hereby TERMINATED. 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)

12/29/2015 1011 USCA Case Number 15−35996 for 1006 Notice of Appeal filed by Idaho, State of. (jp)

12/29/2015 1012 USCA Time Schedule Order as to 1006 Notice of Appeal filed by Idaho, State of. (Notice sent by e−mail to Court Reporter) (jp)

01/05/2016

1013

ORDER. NOW THEREFORE IT IS HEREBY ORDERED, that this matter shall be referredto the Honorable David O. Carter, United States District Judge for the Central District of California, sitting by special designation for the purpose of continuing work on the implementation of the parties Settlement Agreement. 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 (cjs)

01/06/2016 1014 DOCKET ENTRY ORDER − The hearing set for January 8, 2016, before Judge Winmill is VACATED. 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 (dm)

01/11/2016 1015 RESPONSE to Motion re 1008 MOTION to Amend/Correct Plaintiffs' Motion to Correct Order Granting Plaintiffs' Motion for Attorney's Fees and Costs (Dkt. 1003) Non−Opposition filed by Idaho, State of. Replies due by 1/28/2016.(Kubinski, Mark)

01/19/2016

1016

Transcript of Proceedings held on 7/19/10 (Motion Hearing) before Judge B. Lynn Winmill. Court Reporter/Transcriber Tamara I. Hohenleitner, Telephone number 208−334−1500. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. This transcript is not available to the general public and as such is sealed. Redaction Request due 2/12/2016. Redacted Transcript Deadline set for 2/22/2016. Release of Transcript Restriction set for 4/21/2016.(jp) (Entered: 01/20/2016)

01/19/2016

1017

Transcript of Proceedings held on 12/18/15 (Status Conference) before Judge B. Lynn Winmill. Court Reporter/Transcriber Tamara I. Hohenleitner, Telephone number 208−334−1500. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. This transcript is not available to the general public and as such is sealed. Redaction Request due 2/12/2016. Redacted Transcript Deadline set for 2/22/2016. Release of Transcript Restriction set for 4/21/2016.(jp) (Entered: 01/20/2016)

01/20/2016 1018 Notice of Filing of Official Transcript (jp)

01/29/2016 1019 ORDER of USCA as to 1006 Notice of Appeal filed by Idaho, State of. Within 7 days after the district courts ruling on the pending motion, appellants shall notify this court in writing of the ruling and shall advise whether appellants intend to prosecute this appeal. (jp)

02/01/2016 1020 AMENDED ORDER GRANTING PLAINTIFFS' MOTION FOR ATTORNEY'S FEES AND COSTS [994, 1000]. re 1003 Order. Signed by Judge David O. Carter.

Case 1:81-cv-1165 Document <docnum> Filed <datefiled> Page 51 of 81

(caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)

03/02/2016 1021 AMENDED NOTICE OF APPEAL as to 1020 Order, Terminate Motions,, by Idaho, State of. (Notice sent to Court Reporter & 9th Cir) (Kubinski, Mark)

04/01/2016 1023 MOTION to Intervene by Intervenor Evin DeVan. Responses due by 4/25/2016 (Attachments: # 1 letter request, # 2 envelope with address)(jp) (Entered: 04/05/2016)

04/04/2016

1022

ORDER granting 988 Joint Stipulation for Plaintiffs' Requested Interim Attorneys' Fees and Costs. It is hereby ORDERED Plaintiffs be awarded $49,279.93 in costs and fees, plus $98.26 in costs to be reimbursed to certain class representatives directly, including $38.26 to Inmate David Johnson, $20.00 to Inmate Kent Ellis, and $40.00 to Inmate Pete Veenstra. All costs and fees are to be paid no later than 30 days from the date of this Order. Signed by Judge David O. Carter. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)

04/20/2016

1024

MINUTE ORDER, the Court ORDERS Plaintiffs to respond to the IDOCs letter dated October 9, 2015 and the attached Deviations from Modified Compliance Plans on or before April 27, 2016 at 4:00 p.m. Signed by Judge David O. Carter. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (so)

04/27/2016 1025 NOTICE by Walter D Balla Notice of Compliance with Court Order (Pooser, William)

04/29/2016 1026 RESPONSE to Motion re 1023 MOTION to Intervene Plaintiffs' Opposition to Movant Evin DeVan's Motion to Intervene (Dkt. 1023) filed by Walter D Balla. Replies due by 5/16/2016.(Pooser, William)

04/29/2016 1027 RESPONSE to Motion re 1023 MOTION to Intervene Joinder filed by Idaho, State of. Replies due by 5/16/2016.(Kubinski, Mark)

05/09/2016 1028 REQUEST by Intervenor Evin DeVan for copy of dkt 1026 and copy of docket sheet 11/15 to current date. (jp)(mailed to Mr. DeVan by jp) (Entered: 05/10/2016)

05/19/2016 1029 Joint MOTION to Amend/Correct 1022 Order on Motion for Attorney Fees,, Mark Alan Kubinski appearing for Defendant Idaho, State of. Responses due by 6/13/2016 (Kubinski, Mark)

05/19/2016

1030

ORDER GRANTING JOINT MOTION TO AMEND/CORRECT ORDER ON MOTION FOR ATTORNEY FEES 1029 . The Court WITHDRAWS its Order Granting Joint Stipulation for Plaintiffs' Requested Interim Attorneys' Fees and Cost issued at Docket 1022 . It is further ORDERED that Plaintiffs be awarded $47,226.60 in costs and attorney's fees, plus $98.26 in separate costs to be reimbursed to certain class representative directly, including $38.26 to inmate David Johnson, $20.00 to inmate Kent Ellis, and $40.00 to inmate Pete Veenstra. Signed by Judge David O. Carter. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)

06/01/2016 1031 MOTION Requesting Ruling Withheld for Movant to Amend Motion to Comply with Local Rules and adequately and properly petition the Court by Intervenor Evin DeVan. Responses due by 6/27/2016 (jp)

06/13/2016 1032 AMENDED MOTION to Intervene and Memorandumby Intervenor Evin DeVan. Responses due by 7/8/2016 (Attachments: # 1 Memorandum in Support)(jp)

07/08/2016 1033 RESPONSE to Motion re 1032 MOTION to Intervene Plaintiffs' Response to Intervenor Evin DeVan's Amended Motion to Intervene (Dkt. 1032) filed by Walter D Balla. Replies due by 7/25/2016.(Pooser, William)

07/28/2016

1034

ORDER ON EVIN DeVANS AMENDED MOTION TO INTERVENE (Dkt. 1032) − IT IS ORDERED: 1. Evin DeVans Amended Motion to Intervene (Dkt. 1032 ) is DENIED. 2. Mr. DeVans initial Motion to Intervene (Dkt. 1023 ) and his Motion Requesting Ruling Withheld (Dkt. 1031 ) are DENIED AS MOOT. 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 (cjs)

Case 1:81-cv-1165 Document <docnum> Filed <datefiled> Page 52 of 81

07/29/2016 1035 ORDER FOR CASE MANAGEMENT CONFERENCE − Video Case Management Conference set for 8/15/2016 01:30 PM in Boise − Courtroom 1 before Judge David O. Carter. Signed by Judge David O. Carter. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)

08/15/2016 1036 CASE MANAGEMENT ORDER ( The parties shall submit briefs by August 22, 2016: Case Mgmt Ddl set for 8/22/2016). Signed by Judge David O. Carter. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp) (Entered: 08/16/2016)

08/22/2016 1037 MEMORANDUM/BRIEF re 1036 Order, Set Deadlines/Hearings,, filed by Walter D Balla Brief in Compliance with the Court's Case Management Order re Balla Concern Forms (Dkt. 1036). (Watkins, Elijah)

08/22/2016 1038 Sealed Document Re: 1037 Memorandum/Brief (generic) Exhibits A−C to Brief (Dkt. 1037). (Watkins, Elijah)

08/22/2016 1039 MEMORANDUM/BRIEF re 1036 Order, Set Deadlines/Hearings,, filed by Idaho, State of Defendants' Brief Pursuant to Case Management Order (Docket No. 1036). (Attachments: # 1 Exhibit A)(Zahn, Colleen) Modified on 8/23/2016 (cjs).

08/22/2016 1040 Sealed Document Re: 1039 Memorandum/Brief (generic) Exhibits B−E (DKT 1039). (Zahn, Colleen)

08/22/2016 1041 MOTION to Seal Document 1040 Sealed Document Exhibits B−D Colleen D Zahn appearing for Defendant Idaho, State of. Responses due by 9/15/2016 (Zahn, Colleen)

08/22/2016 1042 Amended MOTION to Seal Document 1040 Sealed Document Exhibits B−E Colleen D Zahn appearing for Defendant Idaho, State of. Responses due by 9/15/2016 (Attachments: # 1 Affidavit)(Zahn, Colleen)

08/23/2016 1043 CERTIFICATE OF SERVICE by Idaho, State of re 1040 Sealed Document (Zahn, Colleen)

08/23/2016 1044 CERTIFICATE OF SERVICE by Walter D Balla re 1038 Sealed Document Certificate of Service of Sealed Documents (1038) re Memorandum/Brief (1037) (Watkins, Elijah) Modified on 8/23/2016 to correct linked document (cjs).

08/23/2016

1045

ORDER GRANTING DEFENDANTS' MOTION TO SEAL EXHIBITS B,C,S, AND E TO DEFENDANTS' BRIEF PURSUANT TO CASE MANAGEMENT ORDER (DKT. 1036 ) REGARDING CONCERN FORMS granting 1042 Motion to Seal Document 1040 Sealed Document. Signed by Judge David O. Carter. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)

08/23/2016 1046 SUPPLEMENT by Plaintiff Walter D Balla re 1037 Memorandum/Brief (generic) Plaintiffs' Notice re Footnote Omission from Motion to Reinstate Balla Concern Form Procedure and to Remove "Attorney's Eyes Only" Designation from Balla Concern Form Responses. (Watkins, Elijah)

08/24/2016 1047 MOTION to Seal Document 1038 Sealed Document Plaintiffs' Motion to Seal Exhibits A−C to Plaintiffs' Brief in Compliance with the Court's Management Order (Docket 1036) Regarding Concern Forms Elijah Martin Watkins appearing for Plaintiff Walter D Balla. Responses due by 9/19/2016 (Watkins, Elijah)

08/29/2016 1048 Minute Entry for proceedings held before Judge David O. Carter: Video Status Conference held on 8/29/2016. (Court Reporter/ESR S. O'Larey.) Audio File Location Boise − Courtroom 1. (so)

09/30/2016 1050 STIPULATION Stipulation to Remove Class Representative David Johnson and Appoint Proposed Class Representative Omar Escobedo by Walter D Balla. (Pooser, William)

10/05/2016

1051

ORDER RE: STATUS CONFERENCE − IT IS ORDERED THAT that counsel for the parties shall appear by telephone on Wednesday, October 19, 2016, at 1:30 p.m. (Idaho time)/12:30 p.m. (California time) for a one−hour status conference and be prepared to discuss audit tools for the NCCHC evaluation and any other case management concerns. Signed by Judge David O. Carter. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing

Case 1:81-cv-1165 Document <docnum> Filed <datefiled> Page 53 of 81

(NEF) by (km)

10/12/2016 1052 STIPULATION re 849 Order, Modified Stipulation to Remove Class Representative David Johnson and Appoint Proposed Class Representative John McElhiney by Walter D Balla. (Watkins, Elijah)

10/17/2016 1053 MOTION Motion for Order Requiring Defendants to Make Class Representatives Present for hearing on Wednesday, October 19th Elijah Martin Watkins appearing for Plaintiff Walter D Balla. Responses due by 11/10/2016 (Watkins, Elijah)

10/17/2016

1054

ORDER GRANTING PLAINTIFFS' MOTION FOR AN ORDER REQUIRING DEFENDANTS TO MAKE CLASS REPRESENTATIVES PRESENT TELEPHONICALLY − IT IS HEREBY ORDERED that Plaintiff's Motion Requiring Defendants to make the Class Representatives Present Telephonically (Dkt. 1053 ) is hereby GRANTED. Defendants shall provide access to the class representatives to dial into the hearing at the appointed time. Signed by Judge David O. Carter. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (km) (Entered: 10/18/2016)

10/19/2016 1055 Minute Entry for proceedings held before Judge David O. Carter: Telephone Status Conference held on 10/19/2016. Simultaneous briefing due by 11/02/2016, not to exceed five pages. Counsel to meet with Staff Attorney Janis Dotson on 10/20/2016. (Court Reporter/ESR Tammy Hohenleitner.) (dmc)

10/25/2016 1056 ORDER of USCA (15−35996) as to 1006 Notice of Appeal and 1021 Notice of Appeal filed by Idaho. Appellant's motion to dismiss this appeal is granted. (km) (Entered: 10/27/2016)

10/31/2016

1057

ORDER GRANTING MOTION TO SEAL and ORDER APPROVING MODIFIED STIPULATION RE: CLASS REPRESENTATIVES (Dkt. 1047 & 1052) − IT IS ORDERED: 1. Plaintiff's Motion to Seal Exhibits A−C to Plaintiff's Brief in Compliance with the Court's Management Order (Dkt. 1047 ) is GRANTED. 2. The parties' Modified Stipulation to Remove Class Representative David Johnson and Appoint Proposed Class Representative [John McElhiney] (Dkt. 1052 ) is APPROVED. David Johnson is hereby REMOVED as Class Representative. John McHeliney is hereby APPOINTED as a Class Representative. Signed by Judge B. Lynn Winmill. Motions terminated: 1047 MOTION to Seal Document 1038 Sealed Document Plaintiffs' Motion to Seal Exhibits A−C to Plaintiffs' Brief in Compliance with the Court's Management Order (Docket 1036) Regarding Concern Forms filed by Walter D Balla. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (km) Modified on 10/31/2016 to correct docket text (km).

11/03/2016

1059

(SEALED) CASE MANAGEMENT ORDER, Counsel are to meet monthly with the pro se staff attorney to review the progress of this case, as follows: November 16, 2016, 10:00 a.m. to 12:00 p.m.; December 14, 2016, 10:00 a.m. to 12 p.m.; January 18, 2016, 10:00 a.m. to 12 p.m.( If the parties have not agreed to use the 2008 or 2014 NCCHC standards by November 18, 2016, they shall simultaneous briefs of no longer than 5 pages each on that issue by November 21, 2016: Case Mgmt Ddl set for 11/21/2016.) Signed by Judge David O. Carter. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp) Modified on 11/30/2016 to seal per law clerk (jp). (Entered: 11/04/2016)

11/08/2016 1060 ORDER clarifying re 1057 Order. The Court's October 31, 2016 Order approving the parties' stipulation as to class representatives shall take effect upon Johnson's release from custody. Signed by Judge B. Lynn Winmill. ((sd)

11/16/2016 1061 NOTICE Re: Violation of Balla and Possible Retaliation Against Me by Keith A Brown (Attachments: # 1 attachment, # 2 attachment)(jp) (Entered: 11/17/2016)

11/21/2016

1062

ORDER RE: EXTENSION OF TIME. Pursuant to the stipulation of the parties in the November case management meeting, IT IS SO ORDERED that, if the parties cannot come to an agreement on the 2008 or 2014 NCCHC audit standards issue, they shall file simultaneous briefs of no longer than 5 pages each on that issue by December 9, 2016 ( Case Management deadline set for 12/9/2016.). Signed by Judge David O. Carter. (caused to be mailed to non Registered Participants at the addresses listed on

Case 1:81-cv-1165 Document <docnum> Filed <datefiled> Page 54 of 81

the Notice of Electronic Filing (NEF) by (km)

12/02/2016

1063

Transcript of Proceedings held on 10/19/16 before Judge David O. Carter. Court Reporter/Transcriber Tamara I. Hohenleitner, Telephone number 208−334−1500. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. This transcript is not available to the general public and as such is sealed. Redaction Request due 12/27/2016. Redacted Transcript Deadline set for 1/6/2017. Release of Transcript Restriction set for 3/6/2017.(jp) (Entered: 12/05/2016)

12/05/2016 1064 Notice of Filing of Official Transcript (jp)

12/28/2016 1065 STIPULATION for Plaintiffs' Requested Interim Attorneys' Fees and Costs by Walter D Balla. (Watkins, Elijah)

12/28/2016

1066

MOTION Enforce Stipulation re 850 Stipulation Elijah Martin Watkins appearing for Plaintiff Walter D Balla. Responses due by 1/23/2017 (Attachments: # 1 Memorandum in Support, # 2 Declaration of Elijah M. Watkins, # 3 Exhibit A to Watkins Declaration, # 4 Exhibit B to Watkins Declaration, # 5 Exhibit C to Watkins Declaration)(Watkins, Elijah)

12/30/2016 1067 ORDER Granting Joint Stipulation for Plaintiffs' Requested Interim Attorneys' Fees and Costs, re 1065 Stipulation filed by Walter D Balla. 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)

01/04/2017 1076 DOCKET TEXT Minute Entry for proceedings held before Judge David O. Carter: Proceedings held on 1/4/2017. (Court Reporter/ESR Not Recorded.). (so) (Entered: 02/02/2017)

01/05/2017 1068 STIPULATION re 842 Stipulation by Walter D Balla and Idaho, State of. (km)

01/05/2017 1077 DOCKET TEXT Minute Entry for proceedings held before Judge David O. Carter: Proceedings held on 1/5/2017. (Court Reporter/ESR Not Recorded.). (so) (Entered: 02/02/2017)

01/09/2017

1069

ORDER ON MODIFIED COMPLIANCE PLAN DISPUTES AND CASE MANAGEMENT. IT IS SO ORDERED: Plaintiffs' Motion to Enforce the Stipulation to Appoint Class Representatives, to Remove Inmate Keith Brown, and to Appoint Inmate Dennis Slaughter (Dkt. 850 ), is GRANTED to the extend that, at this time, the Court is permitting Plaintiffs to continue with a sixth class representative, and Dennis Slaughter is appointed to replace Keith Brown. Signed by Judge David O. Carter. Dennis Slaughter added. Keith A Brown terminated. Attorneys Bradley J Dixon, Elijah Martin Watkins, Jason Emerson Prince, and William C Pooser for Dennis Slaughter added. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (km) (Entered: 01/10/2017)

01/23/2017 1071 Letter from Alan Brandt (Attachments: # 1 Envelope) (km) (Entered: 01/31/2017)

01/30/2017 1075 NOTICE and Request for Docket Sheet by Alan Lee Brandt (The requested portion of the docket sheet was mailed to Alan Brandt on 2/1/17) (km) (Entered: 02/01/2017)

01/31/2017 1072 DOCKET ENTRY NOTICE OF HEARING: An Ex Parte Status Conference with Plaintiffs' counsel is set for 3/15/2017 at 9:00 AM in Boise − Courtroom 3 before Judge B. Lynn Winmill. (jlb)

01/31/2017 1073 DOCKET ENTRY NOTICE OF VACATED HEARING: The Ex Parte Status Conference set for 3/15/2017 at 9:00 AM is Vacated. This hearing was entered in error. (jlb)

02/15/2017 1078 SEALED MOTION Elijah Martin Watkins appearing for Plaintiff Walter D Balla. Responses due by 3/8/2017 (Watkins, Elijah)

02/15/2017 1079 Sealed Document Re: 1078 SEALED MOTION . (Attachments: # 1 Addenda A, # 2 Addenda B, # 3 Addenda)(Watkins, Elijah)

Case 1:81-cv-1165 Document <docnum> Filed <datefiled> Page 55 of 81

02/15/2017 1080 Sealed Document Re: 1078 SEALED MOTION . (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Watkins, Elijah)

02/15/2017 1081 Sealed Document Re: 1078 SEALED MOTION . (Watkins, Elijah)

02/15/2017 1082 Sealed Document Re: 1078 SEALED MOTION . (Watkins, Elijah)

02/15/2017 1083 Sealed Document Re: 1078 SEALED MOTION . (Watkins, Elijah)

02/24/2017 1084 Emergency Request for Court Intervention by Movant Brandon Paul Ferreira. Responses due by 3/17/2017 (Attachments: # 1 Addendum) (km) (Entered: 02/28/2017)

03/03/2017

1085

CASE MANAGEMENT ORDER. IT IS ORDERED that: 1. No interim audit shall take place. 2. The compliance audit shall occur in May 2017. 3. The follow−up audit, if needed, shall occur in September 2017, or on such date that the NCCHC auditors can accommodate that is reasonably close to September 2017. Signed by Judge David O. Carter. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (km)

03/08/2017 1086 MOTION to Seal Colleen D Zahn appearing for Defendant Idaho, State of. Responses due by 3/29/2017 (Attachments: # 1 Memorandum in Support)(Zahn, Colleen)

03/08/2017 1087 SEALED RESPONSE to Motion re 1078 SEALED MOTION filed by Idaho, State of. Replies due by 3/22/2017. (Attachments: # 1 Affidavit, # 2 Exhibit)(Zahn, Colleen)

03/13/2017 1088 RESPONSE to Motion re 1084 MOTION Emergency Request for Court Intervention filed by Walter D Balla. Replies due by 3/27/2017.(Watkins, Elijah)

03/17/2017 1089 RESPONSE to Motion re 1084 MOTION Emergency Request for Court Intervention filed by Idaho, State of. Replies due by 3/31/2017.(Zahn, Colleen)

03/20/2017

1090

MOTION Contempt Plaintiffs' Motion for Order To Show Cause Why Defendants Should Not Be Held in Contempt ( Responses due by 4/10/2017), MOTION for Hearing , MOTION for Sanctions William C Pooser appearing for Plaintiff Walter D Balla. (Attachments: # 1 Memorandum in Support Memorandum in Support of Plaintiffs' Motion for Order to Show Cause Why Defendants Should Not Be Held in Contempt, # 2 Declaration of Elijah M. Watkins in Support of Plaintiffs' Motion for Order to Show Cause Why Defendants Should Not Be Held in Contempt, # 3 Exhibit A, # 4 Exhibit B, # 5 Exhibit C, # 6 Exhibit D, # 7 Exhibit E, Part 1 of 4, # 8 Exhibit E, Part 2 of 4, # 9 Exhibit E, Part 3 of 4, # 10 Exhibit E, Part 4 of 4, # 11 Exhibit F, Part 1 of 8, # 12 Exhibit F, Part 2 of 8, # 13 Exhibit F, Part 3 of 8, # 14 Exhibit F, Part 4 of 8, # 15 Exhibit F, Part 5 of 8, # 16 Exhibit F, Part 6 of 8, # 17 Exhibit F, Part 7 of 8, # 18 Exhibit F, Part 8 of 8, # 19 Exhibit G, # 20 Exhibit H, # 21 Exhibit I, # 22 Exhibit J, # 23 Exhibit K, Part 1 of 3, # 24 Exhibit K, Part 2 of 3, # 25 Exhibit K, Part 3 of 3, # 26 Exhibit L, # 27 Exhibit M, # 28 Exhibit N, # 29 Exhibit O, # 30 Exhibit P, # 31 Exhibit Q, # 32 Exhibit R, # 33 Exhibit S, # 34 Exhibit T)(Pooser, William)

03/20/2017

1091

MOTION to Seal the Sealed Declaration of Elijah M. Watkins in Support of Plaintiffs' Motion for Order to Show Cause Why Defendants Should Not Be Held in Contempt (Dkt. 1090) and Exhibits William C Pooser appearing for Plaintiff Walter D Balla. Responses due by 4/10/2017 (Attachments: # 1 Memorandum in Support of Plaintiffs' Motion to Seal the Sealed Declaration of Elijah M. Watkins ISO Plaintiffs' Motion for Order To Show Cause Why Defendants Should Not Be Held in Contempt (Dkt. 1090) and Exhibits)(Pooser, William)

03/20/2017

1092

Sealed Document Re: 1090 MOTION Contempt Plaintiffs' Motion for Order To Show Cause Why Defendants Should Not Be Held in Contempt MOTION for Hearing MOTION for Sanctions , 1091 MOTION to Seal the Sealed Declaration of Elijah M. Watkins in Support of Plaintiffs' Motion for Order to Show Cause Why Defendants Should Not Be Held in Contempt (Dkt. 1090) and Exhibits . (Attachments: # 1 Exhibit Declaration, # 2 Exhibit Declaration, # 3 Exhibit Declaration, # 4 Exhibit Declaration, # 5 Exhibit Declaration, # 6 Exhibit Declaration, # 7 Exhibit Declaration, # 8 Exhibit Declaration, # 9 Exhibit Declaration, # 10 Exhibit Declaration, # 11 Exhibit Declaration, # 12 Exhibit Declaration, # 13 Exhibit Declaration, # 14 Exhibit Declaration, # 15 Exhibit Declaration, # 16 Exhibit Document)(Pooser, William)

Case 1:81-cv-1165 Document <docnum> Filed <datefiled> Page 56 of 81

03/20/2017 1093 MOTION for Leave to File Overlength Brief William C Pooser appearing for Plaintiff Walter D Balla. Responses due by 4/10/2017 (Pooser, William)

03/21/2017 1094 CERTIFICATE OF SERVICE by Walter D Balla re 1092 Sealed Document,,, Amendment to Certificate of Service for the SEALED Declaration of Elijah M. Watkins (Dkt. 1092) (Pooser, William)

03/22/2017 1095 SEALED REPLY to Response to Motion re 1078 SEALED MOTION Reply In Support of Plaintiffs' Motion to Seal filed by Walter D Balla.(Watkins, Elijah)

03/24/2017 1096 STIPULATION re 1090 MOTION Contempt Plaintiffs' Motion for Order To Show Cause Why Defendants Should Not Be Held in Contempt MOTION for Hearing MOTION for Sanctions by Idaho, State of. (Zahn, Colleen)

03/24/2017 1097 NOTICE by Walter D Balla re 1086 MOTION to Seal Plaintiffs' Non−Opposition to Defendant's Motion to Seal (Dkt. 1086) (Pooser, William)

03/24/2017

1098

ORDER. IT IS ORDERED that the parties' Stipulation to Extend the Deadline for Defendants' Response Brief re: Plaintiffs' Motion for Order to Show Cause Why Defendants Should not be Held in Contempt (Dkt. 1096) is GRANTED. Defendants' response shall be filed on or before May 26, 2017. IT IS FURTHER ORDERED that Plaintiffs' Motion for Leave to File Overlength Brief (Dkt. 1093) is GRANTED. 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)

03/24/2017 1099 Letter from Brandon P. Ferreira (Attachments: # 1 Addendum Originally attached to docket no. 1084) (km) (Entered: 03/28/2017)

03/29/2017

CORRECTIVE ENTRY − The entry docket number 1097 Notice (Other) filed by Walter D Balla was filed incorrectly in this case. The filing party shall re−submit their filing and use the correct event of Response to Motion, located under Motions and Related Filings, Responses and Replies. (km)

03/29/2017 1100 RESPONSE to Motion re 1086 MOTION to Seal Plaintiff's Non−Opposition to Defendant's Motion to Seal (Dkt. 1086) filed by Walter D Balla. Replies due by 4/12/2017.(Pooser, William)

03/31/2017 1101 NOTICE of Appearance by Wendy Olson on behalf of Walter D Balla (Olson, Wendy)

04/05/2017 1102 NOTICE of Appearance by Brian V Church on behalf of Idaho, State of (Church, Brian)

04/05/2017 1103 NOTICE of Non−Opposition by Idaho, State of re 1091 MOTION to Seal the Sealed Declaration of Elijah M. Watkins in Support of Plaintiffs' Motion for Order to Show Cause Why Defendants Should Not Be Held in Contempt (Dkt. 1090) and Exhibits (Zahn, Colleen) Modified on 4/12/2017 to correct document title (km).

04/17/2017 1107 Letter re: Request for Resolution to "Emergency" Request for Court Intervention by Movant Brandon Paul Ferreira re 1084 MOTION Emergency Request for Court Intervention. (Attachments: # 1 Attachment 1−4) (km) (Entered: 04/19/2017)

04/18/2017

1104

CASE MANAGEMENT ORDER. IT IS ORDERED: Plaintiffs' Motion to File Overlength Brief (Dkt. 1093 ) is GRANTED. Plaintiff's Motion to Seal Documents (Dkt. 1091 ) is GRANTED. On or before May 12, 2017, ISCI prison officials shall post a notice informating class members (1) how to contact class action counsel by mail, (2) that inmates can anticipate that class action counsel may address class members' concerns in writing or in person, and (3) that a copy of public Orders is available for their review in the legal resource center. Prison officials shall work with Plaintiffs' counsel to determine a procedure for class counsel to be able to meet with these members on or before April 21, 2017. Counsel for the parties shall work together to place in the legal resource center, and maintain, copies of public orders in this case, beginning with the Case Management Order at Docket 1085 on or before April 21, 2017. Signed by Judge David O. Carter. Motions terminated: 1091 MOTION to Seal the Sealed Declaration of Elijah M. Watkins in Support of Plaintiffs' Motion for Order to Show Cause Why Defendants Should Not Be Held in Contempt (Dkt. 1090) and Exhibits filed by Walter D Balla, 1093 MOTION for Leave to File Overlength Brief filed by Walter D Balla. (caused to be mailed to non Registered

Case 1:81-cv-1165 Document <docnum> Filed <datefiled> Page 57 of 81

Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (km)

04/18/2017 1105 SEALED ORDER re 1078 Sealed Motion. Signed by Judge David O. Carter. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (km)

04/19/2017

1106

MOTION to Appoint Expert Plaintiffs' Motion for Authorization to Retain Expert Witnesses Wendy Olson appearing for Plaintiff Walter D Balla. Responses due by 5/10/2017 (Attachments: # 1 Memorandum in Support, # 2 Declaration of Wendy J. Olson In Support of Motion for Authorization to Retain Expert Witnesses, # 3 Exhibit A to Olson Declaration, # 4 Exhibit B to Olson Declaration, # 5 Exhibit C to Olson Declaration, # 6 Exhibit D to Olson Declaration, # 7 Exhibit E to Olson Declaration)(Olson, Wendy)

04/25/2017

1108

ORDER ON BRANDON PAUL FERREIRA'S REQUEST FOR COURT INTERVENTION (Dkt. 1084). IT IS ORDERED that Brandon Paul Ferreira's Request for Court Intervention (Dkt. 1084 ) is DENIED. 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 (km)

04/26/2017 1119 Letter Request from Brandon P. Ferreira for Status Update (I mailed a docket sheet from February 2017 to today's date to Brandon Ferreira) (km) (Entered: 05/02/2017)

04/28/2017

1109

CASE MANAGEMENT ORDER. To ensure that Judge Carter's last order, requiring an audit in May 2017, is effectuated, IT IS HEREBY ORDERED: Counsel for the parties are ordered to meet with the court facilitator on April 28, 2017, beginning at 1:00 p.m., in the Syringa conference room on the fourth floor of the federal courthouse, to attempt to reach an agreement on the parties' suggested change to the audit tools. No later than Monday, May 1, 2017, at 5:00 p.m., the parties shall submit simultaneous briefs on their positions on any disagreements as to the audit tools. The Court will then issue an order deciding the disagreements by May 2, near 5:00 p.m., and the parties will be ordered to revise their joint draft audit tools, and provide that, with the Court's Order, to NCCHC no later than 10:00 p.m. on May 2, 2017, or at such other date and time prior to the audit that is acceptable to NCCHC. 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 (km)

05/01/2017

1110

Exhibits D−O (Exhibit N attached as Main Document) to Memorandum/Brief re 1109 Order, filed by Idaho, State of . (Attachments: # 1 Affidavit, # 2 Exhibit D, # 3 Exhibit E, # 4 Exhibit F, # 5 Exhibit G, # 6 Exhibit H, # 7 Exhibit K, # 8 Exhibit L, # 9 Exhibit M, # 10 Exhibit O)(Zahn, Colleen) (Refer to docket no. 1115 for Memorandum/Brief) Modified on 5/2/2017 to update docket text to reflect the actual documents attached to docket entry (km).

05/01/2017 1111 Sealed Document Re: 1110 Memorandum/Brief (generic), Affidavit of Colleen Zahn Sealed Exhibits. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit)(Zahn, Colleen)

05/01/2017 1112 MOTION to Seal Brian V Church appearing for Defendant Idaho, State of. Responses due by 5/22/2017 (Attachments: # 1 Memorandum in Support, # 2 Declaration, # 3 Exhibit A to Declaration)(Church, Brian)

05/01/2017 1113 Sealed Document Re: 1111 Sealed Document Exh J Aff Colleen Zahn. (Zahn, Colleen)

05/01/2017

1114

MEMORANDUM/BRIEF re 1109 Order,,,, filed by Walter D Balla Memorandum In Support of Plaintiffs' Proposed NCCHC Audit Tools. (Attachments: # 1 Declaration of Elijah M. Watkins In Support of Plaintiffs' Memorandum, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit E−1, # 8 Exhibit F, # 9 Exhibit G)(Pooser, William)

05/01/2017 1115 MEMORANDUM/BRIEF re 1109 Order,,,, filed by Idaho, State of . (Zahn, Colleen)

05/01/2017 1116 AMENDED DOCUMENT by Idaho, State of. Amendment to 1110 Memorandum/Brief (generic), Exhibit I, Exhibit N Aff CDZ. (Attachments: # 1 Exhibit)(Zahn, Colleen)

05/02/2017

CORRECTIVE ENTRY − Exhibits C, D, E, E−1, and F to docket number 1114 Memorandum/Brief were sealed by Clerk per phone call from the office of William

Case 1:81-cv-1165 Document <docnum> Filed <datefiled> Page 58 of 81

Pooser. The filing party shall resubmit a corrected certificate of service using Certificate of Service located under Service of Process and link to the docket entry. (km)

05/02/2017 1117 CERTIFICATE OF SERVICE by Walter D Balla re 1114 Memorandum/Brief (generic), Certificate of Service of Plaintiffs' SEALED Exhibits C−F (Dkt 1114−4 through 8) (Dkt. 1114) to Defendants (Pooser, William)

05/02/2017

CORRECTIVE ENTRY − Please disregard docket number 1113 Sealed Document, as the wrong PDF document was attached. The filing party will re−submit the document. Docket numbers 1110 Exhibits D−O and 1111 Sealed Document, filed by Idaho, State of was filed incorrectly in this case as it pertains to the Certificate of Service only. The filing party shall refer to ECF Procedure 8 and re−submit their correct certificate of service using Certificate of Service located under Service of Process and link to the docket entries. (km)

05/02/2017 1118 SEALED ORDER. Signed by Judge David O. Carter. (km) Modified on 5/2/2017 to seal order (st).

05/02/2017 1120 CERTIFICATE OF SERVICE by Idaho, State of re 1110 Memorandum/Brief (generic), Certificate of Service of Exhibits D−O to Plaintiffs (Zahn, Colleen)

05/02/2017 1121 CERTIFICATE OF SERVICE by Idaho, State of re 1111 Sealed Document Certificate of Service of Sealed Exhibits B, C, J to Plaintiffs (Zahn, Colleen)

05/02/2017 1122 Sealed Document Sealed Exhibit A to Affidavit of Colleen Zahn. (Zahn, Colleen)

05/02/2017 1123 CERTIFICATE OF SERVICE by Idaho, State of re 1122 Sealed Document Certificate of Service of Defendants' Sealed Exhibit A (Zahn, Colleen)

05/03/2017 1124 Sealed Document Re: 1111 Sealed Document Sealed Amended Exhibit C to Affidavit of Colleen D. Zahn. (Attachments: # 1 Certificate of Service for Amended Exh. C to Affidavit of CZ)(Zahn, Colleen)

05/05/2017 1125 STIPULATION CONCERNING THE COMPLIANCE AUDIT by Idaho, State of. (Church, Brian)

05/05/2017

1126

ORDER RE: STATUS OF NON−MEDICAL INJUNCTIONS. THEREFORE, IT IS ORDERED that the parties shall contact Jamie Bracke, at jamie_bracke@id.uscourts.gov, to determine an appropriate date and time for the status conference, to be set in August 2017 or later. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)

05/08/2017 1127 STIPULATION re 1106 MOTION to Appoint Expert Plaintiffs' Motion for Authorization to Retain Expert Witnesses by Idaho, State of. (Church, Brian)

05/09/2017 1128 DOCKET ENTRY NOTICE OF HEARING: An In Person Status Conference is set for 8/28/2017 at 11:00 AM in Boise − Courtroom 3 before Judge B. Lynn Winmill. (jlb)

05/11/2017

1129

ORDER. Pursuant to the parties' Stipulation (Dkt. 1127), IT IS ORDERED that the deadline for Defendants to file their response to Plaintiffs' Motion for Authorization to Retain Expert Witnesses (Dkt. 1106) is extended to May 19, 2017. 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 (jd))

05/12/2017 1130 Sealed Document . (Olson, Wendy)

05/19/2017 1131 RESPONSE to Motion re 1106 MOTION to Appoint Expert Plaintiffs' Motion for Authorization to Retain Expert Witnesses filed by Idaho, State of. Replies due by 6/2/2017.(Church, Brian)

05/26/2017

1132

MEMORANDUM in Opposition re 1090 MOTION Contempt Plaintiffs' Motion for Order To Show Cause Why Defendants Should Not Be Held in Contempt MOTION for Hearing MOTION for Sanctions filed by Idaho, State of. Replies due by 6/9/2017. (Attachments: # 1 Affidavit of Florendo, # 2 Exhibit A to Florendo Aff, # 3 Exhibit B to Florendo Aff, # 4 Affidavit of Hightower, # 5 Exhibit A to Hightower Aff, # 6 Exhibit B to Hightower Aff, # 7 Affidavit of Kinney, # 8 Exhibit A to Kinney Aff, # 9

Case 1:81-cv-1165 Document <docnum> Filed <datefiled> Page 59 of 81

Affidavit of Smock, # 10 Affidavit of Dowell, # 11 Exhibit A to Dowell Aff, # 12 Exhibit B to Dowell Aff, # 13 Affidavit of Counsel, # 14 Exhibit A to Counsel Aff, # 15 Exhibit B to Counsel Aff, # 16 Exhibit C to Counsel Aff, # 17 Exhibit D to Counsel Aff, # 18 Exhibit E to Counsel Aff, # 19 Exhibit F to Counsel Aff, # 20 Exhibit G to Counsel Aff, # 21 Exhibit H to Counsel Aff, # 22 Exhibit 1 to Counsel Aff, # 23 Exhibit 2 to Counsel Aff, # 24 Exhibit 3 to Counsel Aff, # 25 Exhibit 4 to Counsel Aff, # 26 Exhibit 5 to Counsel Aff, # 27 Exhibit 6 to Counsel Aff, # 28 Exhibit 7 to Counsel Aff, # 29 Exhibit 8 to Counsel Aff, # 30 Exhibit 9 to Counsel Aff, # 31 Exhibit 10 to Counsel Aff, # 32 Exhibit 11 to Counsel Aff, # 33 Exhibit 12 to Counsel Aff, # 34 Exhibit 13 to Counsel Aff, # 35 Affidavit of Church, # 36 Exhibit D of Church Aff, # 37 Exhibit E of Church Aff)(Zahn, Colleen)

05/26/2017 1133 Sealed Document Re: 1132 Memorandum in Opposition to Motion,,,,, Exhibit A to Church Aff. (Attachments: # 1 Exhibit B to Church Aff, # 2 Exhibit C to Church Aff)(Zahn, Colleen)

05/26/2017 1134 Sealed Document Re: 1132 Memorandum in Opposition to Motion,,,,, Affidavit of Brewer. (Attachments: # 1 Exhibit A to Brewer Aff, # 2 Exhibit B to Brewer Aff)(Zahn, Colleen) (Entered: 05/27/2017)

05/27/2017 1135 Sealed Document Re: 1132 Memorandum in Opposition to Motion,,,,, Affidavit of Campbell. (Attachments: # 1 Exhibit A to Campbell Aff, # 2 Exhibit B to Campbell Aff)(Zahn, Colleen)

05/27/2017 1136 Sealed Document Re: 1132 Memorandum in Opposition to Motion,,,,, Affidavit of Clark. (Attachments: # 1 Exhibit A to Clark Aff)(Zahn, Colleen)

05/27/2017 1137 Sealed Document Re: 1132 Memorandum in Opposition to Motion, Affidavit of Frashier. (Attachments: # 1 Exhibit A to Frashier Aff, # 2 Exhibit B to Frashier Aff, # 3 Exhibit C to Frashier Aff)(Zahn, Colleen) (Modified on 4/9/2018 to UNSEAL the Affidavit ONLY per the Order (Dkt 1245 ) jp).

05/27/2017 1138 Sealed Document Re: 1132 Memorandum in Opposition to Motion,,,,, Affidavit of Grace. (Attachments: # 1 Exhibit A to Grace Aff, # 2 Exhibit B to Grace Aff)(Zahn, Colleen)

05/27/2017 1139 Sealed Document Re: 1132 Memorandum in Opposition to Motion,,,,, Affidavit of Hofer. (Zahn, Colleen)

05/27/2017 1140 Sealed Document Re: 1132 Memorandum in Opposition to Motion,,,,, Affidavit of Kubinski. (Attachments: # 1 Exhibit A to Kubinski Aff)(Zahn, Colleen)

05/27/2017 1141 Sealed Document Re: 1132 Memorandum in Opposition to Motion,,,,, Affidavit of Martin. (Attachments: # 1 Exhibit A to Martin Aff, # 2 Exhibit B to Martin Aff)(Zahn, Colleen)

05/27/2017 1142 Sealed Document Re: 1132 Memorandum in Opposition to Motion,,,,, Affidavit of Wingert. (Attachments: # 1 Exhibit A to Wingert Aff)(Zahn, Colleen)

05/27/2017

1143

Sealed Document Re: 1132 Memorandum in Opposition to Motion,,,,, Affidavit of Yordy. (Attachments: # 1 Exhibit A to Yordy Aff, # 2 Exhibit B to Yordy Aff, # 3 Exhibit C to Yordy Aff, # 4 Exhibit D to Yordy Aff, # 5 Exhibit E to Yordy Aff, # 6 Exhibit F to Yordy Aff, # 7 Exhibit G to Yordy Aff, # 8 Exhibit H to Yordy Aff)(Zahn, Colleen)

05/27/2017 1144 Sealed Document Re: 1132 Memorandum in Opposition to Motion,,,,, Affidavit of Siegert. (Attachments: # 1 Exhibit A to Siegert Aff, # 2 Exhibit B to Siegert Aff, # 3 Exhibit C to Siegert Aff, # 4 Exhibit D to Siegert Aff, # 5 Exhibit E to Siegert Aff, # 6 Exhibit F to Siegert Aff, # 7 Exhibit G to Siegert Aff)(Zahn, Colleen)

05/27/2017 1145 MOTION for Leave to File Excess Pages to File an Overlength Memorandum Brian V Church appearing for Defendant Idaho, State of. Responses due by 6/19/2017 (Church, Brian)

05/27/2017 1146 MOTION to Seal Brian V Church appearing for Defendant Idaho, State of. Responses due by 6/19/2017 (Attachments: # 1 Memorandum in Support Memorandum in Support of Motion to Seal)(Church, Brian)

Case 1:81-cv-1165 Document <docnum> Filed <datefiled> Page 60 of 81

05/27/2017

1147

Sealed Document Re: 1132 Memorandum in Opposition to Motion,,,,, Affidavit of Osorio. (Attachments: # 1 Exhibit A to Osorio Aff, # 2 Exhibit B to Osorio Aff, # 3 Exhibit C to Osorio Aff, # 4 Exhibit D to Osorio Aff, # 5 Exhibit E to Osorio Aff, # 6 Exhibit F to Osorio Aff, # 7 Exhibit G to Osorio Aff, # 8 Exhibit H to Osorio Aff, # 9 Exhibit I to Osorio Aff, # 10 Exhibit J to Osorio Aff, # 11 Exhibit K to Osorio Aff, # 12 Exhibit L to Osorio Aff, # 13 Exhibit M to Osorio Aff, # 14 Exhibit N to Osorio Aff, # 15 Exhibit O to Osorio Aff)(Zahn, Colleen)

05/27/2017

1148

Sealed Document Re: 1132 Memorandum in Opposition to Motion,,,,, Affidavit of Lemons. (Attachments: # 1 Exhibit A to Lemons Aff, # 2 Exhibit B to Lemons Aff, # 3 Exhibit C to Lemons Aff, # 4 Exhibit D to Lemons Aff, # 5 Exhibit E to Lemons Aff, # 6 Exhibit F to Lemons Aff, # 7 Exhibit G to Lemons Aff, # 8 Exhibit H to Lemons Aff, # 9 Exhibit I to Lemons Aff, # 10 Exhibit J to Lemons Aff, # 11 Exhibit K to Lemons Aff, # 12 Exhibit L to Lemons Aff)(Zahn, Colleen)

05/27/2017

1149

Sealed Document Re: 1132 Memorandum in Opposition to Motion,,,,, Affidavit of Hansen. (Attachments: # 1 Exhibit A to Hansen Aff, # 2 Exhibit B to Hansen Aff, # 3 Exhibit C to Hansen Aff, # 4 Exhibit D to Hansen Aff, # 5 Exhibit E to Hansen Aff, # 6 Exhibit F to Hansen Aff, # 7 Exhibit G to Hansen Aff, # 8 Exhibit H to Hansen Aff, # 9 Exhibit I to Hansen Aff)(Zahn, Colleen)

05/27/2017

1150

Sealed Document Re: 1132 Memorandum in Opposition to Motion,,,,, Affidavit of Benton. (Attachments: # 1 Exhibit A to Benton Aff, # 2 Exhibit B to Benton Aff, # 3 Exhibit C to Benton Aff, # 4 Exhibit D−1 to Benton Aff, # 5 Exhibit D−2 to Benton Aff, # 6 Exhibit E to Benton Aff, # 7 Exhibit F−1 to Benton Aff, # 8 Exhibit F−2 to Benton Aff, # 9 Exhibit G to Benton Aff, # 10 Exhibit H to Benton Aff, # 11 Exhibit I to Benton Aff, # 12 Exhibit J−1 to Benton Aff, # 13 Exhibit J−2 to Benton Aff, # 14 Exhibit J−3 to Benton Aff, # 15 Exhibit J−4 to Benton Aff, # 16 Exhibit K to Benton Aff, # 17 Exhibit L to Benton Aff, # 18 Exhibit M to Benton Aff)(Zahn, Colleen)

06/02/2017 1151 REPLY to Response to Motion re 1106 MOTION to Appoint Expert Plaintiffs' Motion for Authorization to Retain Expert Witnesses filed by Walter D Balla. (Attachments: # 1 Declaration ISO Reply, # 2 Exhibit A to Declaration Filed Under Seal, # 3 Exhibit B to Declaration Filed Under Seal)(Olson, Wendy)

06/02/2017 1152 Sealed Document Re: 1151 Reply to Response to Motion, SEALED Exhibit A and SEALED Exhibit B to Declaration of Wendy J. Olson ISO Reply to Plaintiffs' Motion for Authorization to Retain Expert Witnesses (Dkt. 1106). (Attachments: # 1 Exhibit B)(Olson, Wendy)

06/02/2017 1153 MOTION to Seal Exhibits A and B to Declaration of Wendy J. Olson (Dkt. 1152) In Support of Reply to Plaintiffs' Motion for Authorization to Retain Expert Witnesses (Dkt. 1106) Wendy Olson appearing for Plaintiff Walter D Balla. Responses due by 6/23/2017 (Olson, Wendy)

06/02/2017 1155 REPLY to Response to Motion/Opposition to Defendant's motion of Opposition to re 1084 Emergency Request for Court Intervention, filed by Brandon Paul Ferreira. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit)(cjs) Modified on 6/6/2017 to correct Date Filed (cjs). (Entered: 06/06/2017)

06/05/2017

1154

MOTION for Hearing re 1090 MOTION Contempt Plaintiffs' Motion for Order To Show Cause Why Defendants Should Not Be Held in Contempt MOTION for Hearing MOTION for Sanctions Plaintiffs' Motion re Hearing on Plaintiffs' Motion to Show Cause Why Defendants Should Not Be Held in Contempt and Proposed Case Management Wendy Olson appearing for Plaintiff Walter D Balla. Responses due by 6/26/2017 (Attachments: # 1 Declaration of Wendy J. Olson ISO Plaintiffs' Motion re Hearing on Plaintiffs' Motion to Show Cause Why Defendants Should Not Be Held in Contempt and Proposed Case Management, # 2 Exhibit A to Declaration of Wendy J. Olson ISO Plaintiffs' Motion re Hearing on Plaintiffs' Motion to Show Cause Why Defendants Should Not be Held in Contempt and Proposed Case Management)(Olson, Wendy)

06/07/2017

1156

ORDER SETTING HEARING ON CONTEMPT MOTION. IT IS ORDERED as follows: Plaintiffs' Motion for Hearing on Plaintiffs' Motion to Show Cause Why Defendants Should Not Be Held in Contempt and Proposed Case Management (Dkt. 1154 ) is DENIED. Plaintiffs' optional reply in support of their Motion for Contempt shall be due no later than June 16, 2017. The Court shall hold a hearing on July 27

Case 1:81-cv-1165 Document <docnum> Filed <datefiled> Page 61 of 81

and 28, 2017. As soon as the Motion is fully briefed, the Court will issue an order explaining the nature and details of the hearing. The parties shall provide the court facilitator with a copy of the NCCHC report as soon as they receive it. Defendants' Motion to File Excess Pages (Dkt. 1145 ) is GRANTED. Plaintiffs' and Defendants' Motions to Deal (Dkt. 1146 & 1153) are GRANTED. Signed by Judge David O. Carter. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (km)

06/08/2017 1157 Letter re: Emergency Request for Court Intervention (Dkt. 1084 ) by Movant Brandon Paul Ferreira. (km) (Additional attachment(s) added on 6/12/2017: # 1 Supplemental Documentation) (km). (Entered: 06/12/2017)

06/12/2017

Set/Reset Deadlines as to 1090 MOTION Contempt Plaintiffs' Motion for Order To Show Cause Why Defendants Should Not Be Held in Contempt MOTION for Hearing MOTION for Sanctions . Motion Hearing set for 7/27/2017 08:30 AM in Boise − Courtroom 1 before Judge David O. Carter. (so)

06/15/2017 1158 MOTION for Sanctions Against State's Counsel for Fraud; MOTION to Disbar State's Counsel for Stating Known Lies to the Court; JUDICIAL NOTICE of Lodging of Class Members Statement, by Movant Faron Raymond Hawkins. Responses due by 7/6/2017. (cjs)

06/16/2017

1159

MEMORANDUM in Support re 1090 MOTION Contempt Plaintiffs' Motion for Order To Show Cause Why Defendants Should Not Be Held in Contempt MOTION for Hearing MOTION for Sanctions Reply Memorandum In Support of Plaintiffs' Motion for Order to Show Cause Why Defendants Should Not Be Held in Contempt filed by Walter D Balla. (Attachments: # 1 Supplemental Declaration, # 2 Exhibit A to Supplemental Declaration of Elijah M. Watkins)(Pooser, William)

06/16/2017 1160 MOTION for Leave to File Overlength Brief (Dkt. 1159) William C Pooser appearing for Plaintiff Walter D Balla. Responses due by 7/7/2017 (Pooser, William)

06/16/2017

CORRECTIVE ENTRY − The entry docket number 1159 Memorandum in Support of Motion, filed by Walter D Balla was filed incorrectly in this case as the wrong event was used. The filing party shall re−submit their filing using the correct event of "Reply to Response to Motion" located under Responses and Replies as this event correctly links to the motion and terms the reply deadline.(cjs)

06/16/2017

1161

REPLY to Response to Motion re 1090 MOTION Contempt Plaintiffs' Motion for Order To Show Cause Why Defendants Should Not Be Held in Contempt MOTION for Hearing MOTION for Sanctions Reply Memorandum In Support of Plaintiffs' Motion for Order to Show Cause Why Defendants Should Not Be Held in Contempt filed by Walter D Balla. (Attachments: # 1 Supplemental Declaration of Elijah M. Watkins, # 2 Exhibit A to Supplemental Declaration of Elijah M. Watkins)(Pooser, William)

06/16/2017

1162

Sealed Document Re: 1090 MOTION Contempt Plaintiffs' Motion for Order To Show Cause Why Defendants Should Not Be Held in Contempt MOTION for Hearing MOTION for Sanctions SEALED Supplemental Declaration of Elijah M. Watkins ISO Plaintiffs' Motion for Order To Show Cause Why Defendants Should Not Be Held in Contempt. (Attachments: # 1 Exhibit 1 ISO Sealed Declaration of Elijah M. Watkins, # 2 Exhibit 2 ISO Sealed Declaration of Elijah M. Watkins, # 3 Exhibit 3 ISO Sealed Declaration of Elijah M. Watkins, # 4 Exhibit 4 ISO Sealed Declaration of Elijah M. Watkins)(Pooser, William) Modified on 7/27/2017 to reflect filed under seal pursuant to Order Dkt. 1185 (cjs).

06/16/2017 1163 MOTION to Seal SEALED Declaration of Elijah M. Watkins In Support of Plaintiffs' Motion for Order to Show Cause Why Defendants Should Not Be Held in Contempt William C Pooser appearing for Plaintiff Walter D Balla. Responses due by 7/7/2017 (Attachments: # 1 Memorandum in Support)(Pooser, William)

06/21/2017 1164 NOTICE by Walter D Balla Notice of Service of Discovery Document Upon Defendants (Watkins, Elijah)

06/21/2017

CORRECTIVE ENTRY − The entry docket number 1164 Notice (Other) filed by Walter D Balla was filed incorrectly in this case. Pursuant to Local Rule 5.4 Non−Filing of Discovery, discovery documents must be served upon other counsel

Case 1:81-cv-1165 Document <docnum> Filed <datefiled> Page 62 of 81

and parties but must not be filed with the Clerk of Court unless on order of the court or for use in the proceeding.(cjs)

06/29/2017

1165

ORDER − IT IS ORDERED: 1. Plaintiff's Motion for Order to Show Cause Why Defendants Should Not Be Held in Contempt (Dkt. 1090 ) is REFERRED to the Honorable David O. Carter. 2. Plaintiffs Motion for Authorization to Retain Expert Witnesses (Dkt. 1106 ) is DENIED without prejudice. 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 (cjs)

07/03/2017

1166

ORDER TO SHOW CAUSE− Hearing will begin Thursday, 7/27/17, at 9:00 a.m., and will end Friday 7/28/17, at 12:00 p.m. The hearing will be held at ISCI, if ISCI can accommodate the request to have the hearing at that location. Counsel for Defendants shall report to the Court within three business days whether ISCI can host the hearing. At 1:00 p.m. on Friday, 7/28/17, the Court and counsel shall meet to discuss a potential time frame and other logistics for a final compliance audit, if necessary, and other items pertaining to termination proceedings. Signed by Judge David O. Carter. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)

07/12/2017

1167

PRE−HEARING CASE MANAGEMENT ORDER. The hearing will be held at the federal courthouse on July 27, 2017 at 8:30 a.m. to 4:30 p.m. and July 28, 2017, from 8:30 a.m. to 1:00 p.m. No later than July 17, 2017, the parties shall notify the Court of which inmates need to be transported on which day(s) to the courthouse. A transport order will then be issued. SO ORDERED. Signed by Judge David O. Carter. (km) (Entered: 07/13/2017)

07/13/2017 1168 NOTICE of Lodging Judicial Notice Christopher Pooser, Elijah Watkins, Stoel Rives Firm, does not have authority to use and or represent Faron R. Hawkins and or Leslie Lott for any purpose without written consent, filed by Movant Faron Raymond Hawkins. (jp) (Entered: 07/14/2017)

07/19/2017 1169 Sealed Document Re: 1150 Sealed Document,, Amended Affidavit of Amanda Benton. (Zahn, Colleen)

07/20/2017

1170

ORDER to Transport Prisoners; IDOC to take appropriate measures to transport Barry Searcy, No. 27413, John McElhiney, No. 60799, Kent Ellis, No. 60074, Dennis Slaughter, No. 13568, John Maynard, No. 54248, Kenneth Workman, No. 61342, Timothy Estep, No. 88439, Andy Gallegos, No. 26591, Christopher Weaver, No. 107693 to Courtroom #1, Boise on 7/27/2017 beginning at 8:30 a.m. (arrival time 8:00 a.m.) (Notice sent to IDOC & USMS). Signed by Judge David O. Carter. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)

07/20/2017 1171 PRETRIAL MEMORANDUM by Walter D Balla. (Olson, Wendy)

07/20/2017 1172 Exhibit List Plaintiffs' Exhibit and Witness List for July 27−28, 2017 Hearing re Motion for Contempt by Walter D Balla.. (Olson, Wendy)

07/20/2017 1173 Exhibit List by Idaho, State of.. (Zahn, Colleen)

07/20/2017 1174 Witness List (sealed) by Idaho, State of. (Zahn, Colleen)

07/20/2017 1175 PRETRIAL MEMORANDUM by Idaho, State of. (Church, Brian)

07/21/2017

1176

AMENDED ORDER to Transport Prisoners; IDOC to take appropriate measures to transport Barry Searcy, No. 27413, John McElhiney, No. 60799, Kent Ellis, No. 60074, Dennis Slaughter, No. 13568, John Maynard, No. 54248, Kenneth Workman, No. 61342, Timothy Estep, No. 88439, Christopher Weaver, No. 107693 to Courtroom #1, Boise on 7/27/2017 beginning at 8:30 a.m. (arrival time 8:00 a.m.) (Notice sent to IDOC & USMS). Signed by Judge David O. Carter. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)

07/24/2017 1177 MOTION in Limine Motion in Limine to Limit Testimony of Dr. Brent Gibson and Defendants' Exhibit 2000 Elijah Martin Watkins appearing for Plaintiff Walter D Balla. Responses due by 8/14/2017 (Attachments: # 1 Memorandum in Support Memorandum in Support of Motion in Limine to Limit Testimony of Dr. Brent

Case 1:81-cv-1165 Document <docnum> Filed <datefiled> Page 63 of 81

Gibson and Defendants' Exhibit 2000)(Watkins, Elijah)

07/24/2017 1178 Exhibit List Plaintiffs' Supplemental Exhibit List by Walter D Balla.. (Watkins, Elijah)

07/26/2017

1179

MOTION to Supplement Plaintiffs' Motion to Supplement Their Exhibit List for Contempt Hearing Elijah Martin Watkins appearing for Plaintiff Walter D Balla. Responses due by 8/16/2017 (Attachments: # 1 Memorandum in Support, # 2 Declaration of Elijah M. Watkins In Support ot Plaintiffs' Motion to Supplement Their Exhibit List for Contempt Hearing)(Watkins, Elijah)

07/26/2017 1180 Sealed Document Re: 1179 MOTION to Supplement Plaintiffs' Motion to Supplement Their Exhibit List for Contempt Hearing . (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit)(Watkins, Elijah)

07/26/2017 1181 MEMORANDUM in Opposition re 1177 MOTION in Limine Motion in Limine to Limit Testimony of Dr. Brent Gibson and Defendants' Exhibit 2000 filed by Idaho, State of. Replies due by 8/9/2017.(Church, Brian)

07/26/2017

1182

RESPONSE to Motion re 1179 MOTION to Supplement Plaintiffs' Motion to Supplement Their Exhibit List for Contempt Hearing Objection and Opposition filed by Idaho, State of. Replies due by 8/9/2017. (Attachments: # 1 Affidavit Declaration, # 2 Exhibit Exhibit A, # 3 Exhibit Exhibit B, # 4 Exhibit Exhibit C)(Church, Brian) Modified on 7/26/2017 to refer to Amended Document (Errata) Dkt. 1183 (cjs).

07/26/2017

CORRECTIVE ENTRY − The entry docket number 1182 Response to Motion, filed by Idaho, State of was filed incorrectly in this case. Thsi document is two things in one and is correctly filed as a Response. The filing party shall also submit their filing as a Motion to Strike.(cjs)

07/26/2017

1183

AMENDED DOCUMENT (Errata) by Idaho, State of. Amendment to 1182 Response to Motion, 1179 MOTION to Supplement Plaintiffs' Motion to Supplement Their Exhibit List for Contempt Hearing, Corrective Entry, . (Attachments: # 1 Declaration, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C)(Church, Brian) Modified on 7/26/2017 (cjs).

07/26/2017 1184 DISREGARD − Objection by Defendant Idaho, State of to. Related document: Corrective Entry,. (Attachments: # 1 Declaration, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C)(Church, Brian) Modified on 7/26/2017 pursuant to Corrective Entry (cjs).

07/26/2017

CORRECTIVE ENTRY − The entry docket number 1184 Objection filed by Idaho, State of was filed incorrectly in this case as it is a duplicate filing of Docket 1183. Disregard docket 1184.(cjs)

07/26/2017

The Response Dkt. 1182 and the Amended Document (Errata) Dkt. 1183 are not intended to be a Motion to Strike and therefore will not be filed on the document as a pending motion pursuant to the filing party. (cjs)

07/27/2017

1185

ORDER ON MATTERS PRELIMINARY TO THE EVIIDENTIARY HEARING − IT IS ORDERED:1. Plaintiffs Motion to Supplement Exhibits (Dkt. 1179 ) is GRANTED in part, and CONDITIONALLY GRANTED in part. 2. Plaintiffs Motion in Limine (Dkt. 1177 ) is DENIED. 3. Plaintiffs Motion to Seal Declaration (Dkt. 1163 ) is GRANTED. 4. Plaintiffs Motion to File Overlength Brief (Dkt. 1160 ) is GRANTED. Signed by Judge David O. Carter. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)

07/27/2017

1186

Minute Entry for proceedings held before Judge David O. Carter: Motion Hearing held on 7/27/2017 re 1090 MOTION Contempt Plaintiffs' Motion for Order To Show Cause Why Defendants Should Not Be Held in Contempt MOTION for Hearing MOTION for Sanctions filed by Walter D Balla, Evidentiary Hearing held on 7/27/2017. Continued to 8:30 am, 7/28/2017. (Court Reporter/ESR Amy Simmons.) (lc)

07/28/2017 1187 NOTICE of Hearing on Motion 1090 MOTION Contempt Plaintiffs' Motion for Order To Show Cause Why Defendants Should Not Be Held in Contempt MOTION for Hearing MOTION for Sanctions : Motion Hearing set for 7/28/2017 08:30 AM in Boise − Courtroom 1 before Judge David O. Carter. (dmc)

Case 1:81-cv-1165 Document <docnum> Filed <datefiled> Page 64 of 81

07/28/2017

1188

Minute Entry for proceedings held before Judge David O. Carter: Motion Hearing held on 7/28/2017 re 1090 MOTION Contempt Plaintiffs' Motion for Order To Show Cause Why Defendants Should Not Be Held in Contempt MOTION for Hearing MOTION for Sanctions filed by Walter D Balla. (Court Reporter/ESR Amy Simmons.) (dmc) (Additional attachment(s) added on 8/3/2017: # 1 Plaintiff's Exhibit List) (km). (Additional attachment(s) added on 8/4/2017: # 2 Defendant's Exhibit List) (km). Modified on 9/21/2017 to SEAL Attachments pursuant to request from Chambers due to medical conditions referenced (cjs).

08/15/2017

1191

Sealed Transcript of Proceedings held on 7/27/2017 and 7/28/2017 before Judge David O. Carter. Court Reporter/Transcriber Amy E. Simmons, telephone number 208−345−3704. This transcript is not available to the general public and as such is sealed. (Attachments: # 1 Part 2 of 2)(cjs) Modified on 8/22/2017 to reflect that is is a transcript (km). Modified on 8/23/2017 to indicate sealed per Order, dkt. 1185 (km).

08/18/2017 1192 Sealed Document for the Court. (cjs) (Entered: 08/21/2017)

08/22/2017

Set/Reset Transcript Deadlines re 1191 Transcript. Redacted Transcript Deadline set for 9/12/2017. Redaction Request due 9/22/2017. Release of Transcript Restriction set for 11/20/2017. (km)

08/24/2017

1193

ORDER − IT IS ORDERED: 1. Brandon Ferreira shall not file anything further in this case unless he is residing at ISCI. 2. The Clerk of Court shall not accept for filing any documents from Brandon Ferreira intended to be filed in this action unless his address shows that he resides at ISCI. 3. Regardless of where he resides, Brandon Ferreira may file his own civil rights action, which shall be separate from this case, at any time. 4. The Emergency Request for Court Intervention (Dkt. 1157 ) is DENIED. 5. Class Member Faron Raymond Hawkinss Motion for Sanctions against States Counsel for Fraud, Motion to Disbar States Counsel for Stating Known Lies to the Court, Motion for Judicial Notice of Lodging of Class Members Statement, and Motion to Demand Correction of the Record (Dkt. 1158 ) are DENIED without prejudice. All such motions must be submitted through class counsel, only. 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 (cjs)

08/24/2017

CERTIFICATE OF SERVICE by Clerk of Court of mailing 1193 ORDER to movant Brandon Paul Ferreira, #105609, SICI, MD 343, PO Box 8509, Boise, ID 83707. (cjs)

08/24/2017

1194

MOTION for Conflict of Counsel by Personal Representative Alan Lee Brandt. Responses due by 9/14/2017. (Attachments: # 1 Affidavit of Alan Brandt With Evidence Attached, # 2 Affidavit of Alan Brandt in Support, # 3 Brief in Support of Brandt's Complaint, # 4 Exhibit of Evidences)(cjs) Modified on 8/24/2017 to reflect address updated for inmate Brandt per this filing (cjs). Modified on 9/13/2017 to refer to Supplement Dkt. 1198 (cjs). Modified on 11/14/2017 to seal per Order dkt 1213 (jp).

08/25/2017 1195 AMENDED DOCKET ENTRY NOTICE OF HEARING: Due to the Court's calendar, the in person Status Conference set for 8/28/2017 is rescheduled for 10/19/2017 at 3:30 PM in Boise − Courtroom 3 before Judge B. Lynn Winmill. (jlb)

08/28/2017

1196

ORDER. The Clerk of Court shall provide counsel William Pooser, Wendy Olson, Elijah Watkins, Brian Church, Colleen Zahn, and Mark Kubinski with an electronic copy of the transcript from the hearing held on July 27, 2017, and July 28, 2017. Counsel shall file the Redaction Request by September 18, 2017. The original transcript in this matter, filed on August 15, 2017, shall remain sealed. Signed by Judge David O. Carter. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jd))

08/28/2017

Reset Transcript Redaction Request Deadline re 1191 Sealed Transcript per Order, docket no. 1196. Redaction Request due 9/18/2017. (km) (Entered: 08/29/2017)

08/28/2017 1197 RETURN MAIL undelivered as to Brandon Paul Ferreira, #105609 re: 1193 Order. IDOC indicated "Parole" & "Return to Sender − Gone − Left No Forwarding Address". (cjs) (Entered: 08/30/2017)

09/07/2017 1198 SUPPLEMENT by Personal Representative Alan Lee Brandt re 1194 MOTION. (Attachments: # 1 Exhibit)(cjs) (Entered: 09/13/2017)

Case 1:81-cv-1165 Document <docnum> Filed <datefiled> Page 65 of 81

09/18/2017 1199 SEALED MOTION Sealed Stipulated Motion William C Pooser appearing for Plaintiff Walter D Balla. Responses due by 10/10/2017 (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit)(Pooser, William)

09/19/2017 1200 REQUEST to Take Notice to Remove Aaron Bert Fodge Off as a Class Member, by Movant Aaron Bert Fodge. Responses due by 10/10/2017. (cjs) (Entered: 09/20/2017)

09/20/2017 1201 SEALED MOTION Sealed Stipulated Motion William C Pooser appearing for Plaintiff Walter D Balla. Responses due by 10/11/2017 (Attachments: # 1 Exhibit, # 2 Exhibit)(Pooser, William)

09/28/2017

1202

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS MOTION FOR CONTEMPT (Dkt. 1090 ) − Accordingly, IT IS ORDERED that Plaintiffs Motion for Contempt (Dkt. 1090 ) is GRANTED IN PART and DENIED IN PART. Plaintiffs request that Defendants be held in contempt is GRANTED as to the period from 6/6/2014 and 7/2016. However, Plaintiffs have not established that any class member suffered harm as a result of any violation; such harm is required for an award of compensatory damages. The Court leaves the determination of the most appropriate remedy to the presiding Idaho judge, to be determined when that Court rules on the upcoming termination motion in this case. Signed by Judge David O. Carter. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs) (Entered: 09/29/2017)

09/29/2017 1203 REQUEST to Take Notice to Remove Rob L Mitchell Off as a Class Member in the Above Case by Movant Rob L Mitchell. Responses due by 10/20/2017. (cjs) (Entered: 10/03/2017)

10/09/2017

1204

MEMORANDUM/BRIEF re 1126 Order, filed by Walter D Balla Plaintiffs' Pre−Hearing Memorandum Regarding Status Conference on Non−Medical Injunctions (Dkt. 1126). (Attachments: # 1 Declaration of W. Christopher Pooser In Support of Plaintiffs' Pre−Hearing Memorandum Regarding Status Conference on Non−Medical Injunctions (Dkt. 1126), # 2 Exhibit A to Declaration of W. Christopher Pooser)(Pooser, William)

10/13/2017

1205

ORDER RE: REMEDIES FOR PAST CONTEMPT and ORDER VACATING OCTOBER 19, 2017 CASE MANAGEMENT CONFERENCE − IT IS ORDERED: 1. No monetary or other relief shall be awarded for Defendants contempt of the June 2014 Order. 2. The case management conference currently scheduled for 10/19/2017, is VACATED.3. Within 28 days after entry of this Order, counsel for the parties shall meet and confer (1) to attempt to negotiate any outstanding issues with respect to the Plaintiffs motion for contempt, and (2) to consider a potential schedule for the litigation of the remainder of this case, including the filing of other motions for contempt or motions to terminate injunctive relief. Any agreements between the parties may be submitted to this Court by joint motion or by stipulation. 4. Any procedural questions regarding this case, as well as any future proposed orders, should be directed to Sarah E. Davis, Staff Attorney with the Courts Prison Litigation Unit. 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 (cjs)

11/02/2017 1207 STIPULATION re 1188 Motion Hearing,, Motion to Amend List of Admitted Exhibits by Idaho, State of. (Attachments: # 1 Declaration Brian V. Church, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D)(Church, Brian)

11/07/2017 1208 MOTION to Seal Document Stipulated Motion to Seal Certain Hearing Exhibits William C Pooser appearing for Plaintiff Walter D Balla. Responses due by 11/28/2017 (Pooser, William)

11/08/2017 1209 Lodging of Class Affidavit of Faron R. Hawkins Showing Clear Proof of Fraud and Perjured Statements by Defendants and Class Counsels Failure Due Diligence to Dispute by Faron Raymond Hawkins (st) (Entered: 11/09/2017)

11/14/2017

1210

ORDER Class member Alan Brandt's Motion for Conflict of Counsel (Dkt. 1194) isDENIED. 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) (cc: Alan Brandt, IDOC No. 16679, ISCI, Unit 11, P.O. Box 14, Boise, Idaho, 83707−jp)

Case 1:81-cv-1165 Document <docnum> Filed <datefiled> Page 66 of 81

11/14/2017

1211

ORDER Aaron Bert Fodge's motion to opt out of the class (Dkt. 1200 ) is DENIED. Rob L. Mitchell's motion to opt out of the class (Dkt. 1203 ) is DENIED. 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) (mailed to Aaron Fodge, 20264, ISCI 11−A−9−A, PO Box 14, Boise ID 83707 and Rob L Mitchell, 35495, ISCI, 11−A−5−A, PO Box 14, Boise, ID 83707− jp).

11/14/2017 1212 ORDER The parties' Stipulated Motion to Seal Certain Hearing Exhibits (Dkt. 1208 ) is GRANTED. 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)

11/14/2017 1213 SEALED ORDER. Signed by Judge B. Lynn Winmill. (jp)

11/14/2017 1219 REDACTED Version of Docket Nos. 1194, 1194−2, 1194−3, and 1194−4 (filed per Order dkt 1213) (jp) (Entered: 12/20/2017)

11/14/2017 1220 REDACTED Version of Docket No. 506. (filed per Order dkt 1213) (jp) (Entered: 12/20/2017)

11/21/2017 1214 MOTION for Reconsideration re 1210 Order on Motion,. Responses due by 12/12/2017 (Attachments: # 1 Brief in Support for Brandt's Motion to Reconsider)(jp) (Entered: 11/24/2017)

11/28/2017 1215 SUPPLEMENTAL BRIEF TO BRANDTS FIRST BRIEF by Alan Lee Brandt re 1214 MOTION for Reconsideration re 1210 Order (Attachments: # 1 Affidavit of Alan Brandt)(jp) (Entered: 11/29/2017)

12/01/2017 1216 Lodging of Declaration of Class Member in Support of Removal of Class Representatives and Class Counsel for Cause and MOTION to set Hearing for the Matter by Movant Faron Raymond Hawkins. Responses due by 12/22/2017 (jp) (Entered: 12/05/2017)

12/07/2017 1217 Lodging of Declaration and MOTION for Hearing by Movant Faron Raymond Hawkins. Responses due by 12/28/2017. (cjs) (Entered: 12/08/2017)

12/07/2017 1218 AFFIDAVIT of Alan Brandt in Support re 1214 MOTION for Reconsideration re 1210 Order on Motion for Miscellaneous Relief, filed by Alan Lee Brandt. (Attachments: # 1 Exhibit)(cjs) (Entered: 12/08/2017)

12/21/2017 1221 Lodging of Declaration and MEMORANDUM in Support of Removal of Class Counsel and Class Representatives for Hearing filed by Faron Raymond Hawkins.(jp) (Entered: 12/26/2017)

12/26/2017 1222 STIPULATION for Plaintiffs' Requested Interim Attorneys' Fees and Costs by Walter D Balla. (Olson, Wendy)

12/28/2017 1224 REQUEST for Fairness and Civility by Alan Lee Brandt (jp) (Entered: 01/09/2018)

12/28/2017 1225 MOTION for Hearing on Plaintiff Brandt's Motion to Reconsider, re 1214 MOTION for Reconsideration re 1210 Order. Responses due by 1/18/2018 (Attachments: # 1 Exhibits)(jp) (Entered: 01/09/2018)

01/02/2018 1223 ORDER Granting Joint 1222 Stipulation for Plaintiffs' Requested Interim Attorneys' Fees and Costs. 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)

01/09/2018

Notice: Due to a connectivity issue with the ISCI scanner there is a difference between the file date and the actual date docket numbers 1224 and 1225 were placed on the docket. They were received by the Clerk on 1/8/2018 but are considered filed on 12/28/17. (jp)

01/18/2018 1228 DECLARATION of Faron R. Hawkins Regarding Conversation with Barry Searcy, Class Rep, and Memorandum in Support of Removal of Class Representatives, and Stoel and Rives Lodging of Documents of Class Member "Brackett" as Exhibit in Support filed by Faron Raymond Hawkins. (jp) (Entered: 01/25/2018)

Case 1:81-cv-1165 Document <docnum> Filed <datefiled> Page 67 of 81

01/19/2018 1226 Letter from Richard Paul Meyer(jp) (Entered: 01/23/2018)

01/19/2018 1227 STRICKEN by Order dkt 1230 − MOTION for Extension / Motion to Compel for Release of Property / Motion for Appointment of Special Investigatorby Movant Richard Paul Meyers. Responses due by 2/9/2018 (jp) Modified on 2/6/2018 to Strike (jp). (Entered: 01/23/2018)

02/06/2018

1229

ORDER Class member Alan Brandt's Motion to Reconsider (Dkt. 1214 ) is DENIED. Class member Faron Hawkinss Lodge of Declaration of Class Member in Support of Removal of Class Representatives and Class Counsel for Cause and Motion to Set Hearing for the Matter (Dkt. 1216 ) is DENIED. Mr. Hawkins's Lodging of Declaration and Motion for Hearing (Dkt. 1217 ) is DENIED. Mr. Brandt's Motion for Hearing on Plaintiff Brandt's Motion to Reconsider (Dkt. 1225 ) is DENIED. (mailed to Alan Brandt, 16679, ISCI, 11−C−72−A, P.O. Box 14, Boise, Idaho83707; and to Faron Hawkins, #17833, ISCI Unit 9, P.O. Box 14, Boise,Idaho 83707.). 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)

02/06/2018

1230

ORDER Richard Paul Meyers's "Motion for Extension/Motion to Compel forRelease of Property/Motion for Appointment of Special Investigator" (Dkt. 1227 ) is DENIED and STRICKEN from the record in this action. (mailed to Richard Paul Meyers, 48342, Idaho Maximum Security Institution, P.O. Box 51, Boise, Idaho 83707). 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)

02/12/2018 1231 REDACTION of Balla Contempt Hearing Transcript for Day 1 − 7−27−2017 by Walter D Balla. (Watkins, Elijah)

02/12/2018 1232 REDACTION of Balla Contempt Hearing Transcript for Day 2 − 7−28−2017 by Walter D Balla. (Watkins, Elijah)

02/13/2018 1233 Redaction of 1191 Sealed Transcript. (Redacted transcript was provided to counsel before it was received by the Court and docketed by counsel at dkt. no. 1231) (km)

02/13/2018 1234 Redaction of 1191 Sealed Transcript. (Redacted transcript was provided to counsel before it was received by the Court and docketed by counsel at dkt. no. 1232) (km)

02/15/2018 1235 NOTICE OF APPEAL as to 1229 Order by Alan Lee Brandt. (Notice sent to Court Reporter & 9th Cir) (jp) (18−35151). (Entered: 02/20/2018)

02/16/2018 1236 MOTION for Certificate of Appeal Judges Decision to Not Disqualify Himself or Hold a Hearing to Issue Under Section 455 and FRAP Included Exhibits in Support (Notice sent to 9th Cir)by Movant Faron Raymond Hawkins. Responses due by 3/9/2018 (jp) (Entered: 02/20/2018)

02/28/2018 1237 USCA Case Number 18−35151 for 1235 Notice of Appeal filed by Alan Lee Brandt. (jp) (Entered: 03/01/2018)

02/28/2018 1238 USCA Time Schedule Order as to 1235 Notice of Appeal filed by Alan Lee Brandt. (Notice sent by e−mail to Court Reporter) (jp) (Entered: 03/01/2018)

03/02/2018

1239

MOTION Appointmennt of Class Representative Motion to Replace Class Representative Slaughter and Remove Class Representative Maynard Elijah Martin Watkins appearing for Plaintiff Walter D Balla. Responses due by 3/23/2018 (Attachments: # 1 Memorandum in Support, # 2 Declaration of Elijah Watkins, # 3 Declaration of Barry Searcy, # 4 Declaration of John Maynard)(Watkins, Elijah)

03/12/2018 1240 MOTION for Leave to Appeal in forma pauperis by Alan Brandt. Responses due by 4/2/2018 (jp) (Main Document 1240 replaced on 3/13/2018 to fix a bad scan) (jp).

03/23/2018 1241 RESPONSE to Motion re 1239 MOTION Appointmennt of Class Representative Motion to Replace Class Representative Slaughter and Remove Class Representative Maynard filed by Idaho, State of. Replies due by 4/6/2018.(Kubinski, Mark)

03/23/2018 1242 STIPULATION re 1137 Sealed Document Joint Stipulation to Unseal Affidavit of Kim Frashier (Dkt. 1137) by Walter D Balla. (Watkins, Elijah)

03/27/2018 1243 STIPULATION for Plaintiffs' Attorney Fees and Costs by Walter D Balla. (Pooser, William)

Case 1:81-cv-1165 Document <docnum> Filed <datefiled> Page 68 of 81

04/05/2018

1244

REPLY to Response to Motion re 1239 MOTION Appointmennt of Class Representative Motion to Replace Class Representative Slaughter and Remove Class Representative Maynard Reply In Support of Plaintiffs' Motion to Replace Class Representative Slaughter and Remove Class Representative Maynard (Dkt. 1239) filed by Walter D Balla.(Watkins, Elijah)

04/09/2018

1245

ORDER GRANTING JOINT STIPULATIONS (Dkt 1242 , 1243 ) The Clerk of Court is directed to unseal the Affidavit of Kim Frashier, found at Docket No. 1137 . Plaintiffs are awarded $168,239.08 in costs and fees, to be paid no later than 30 days from the date of this Order. 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)

05/01/2018

1246

ORDER ON PENDING CLASS MEMBER MOTIONS Class member Faron R. Hawkins' Motion for Certificate of Appeal of Judge's Decision to Not Disqualify Himself or Hold a Hearing (Dkt. 1236 ) is DENIED because a Certificate of Appealability is not necessary. Class member Alan Brandt's Request to Proceed in Forma Pauperis onAppeal or Allow Monthly Payments (Dkt. 1240 ) is DENIED because the Court finds that Brandt's appeal is frivolous. See 28 U.S.C. §§ 1915 & 1915A. 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) (mailed to Alan Brandt, 16679, ISCI, 11−C−72−A, P.O. Box 14, Boise, Idaho83707; and to Faron Hawkins, #17833, ISCI Unit 9, P.O. Box 14, Boise,Idaho 83707 and emailed to 9CCA ).

05/01/2018

1247

ORDER Removing and Appointing Class Representatives− It is ORDERED that Plaintiffs' Motion to Replace Class Representative Slaughter and Remove Class Representative Maynard (Dkt. 1239 ) is GRANTED. The Court hereby REMOVES Mr. Slaughter and Mr. Maynard as class representatives and APPOINTS David Meister (inmate number 70703) as a class representative. 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)

05/01/2018 1248 ORDER of USCA as to 1235 Notice of Appeal filed by Alan Lee Brandt. Appellant's motion for voluntary dismissal of this appeal is granted. This appeal is dismissed. (jp)

05/09/2018 1249 RESPONSE to Court's Order re 1246 Order, 1247 Order, filed by Alan Lee Brandt. (Attachments: # 1 Exhibit U.S. Court of Appeals Order)(cjs)

11/16/2018 1250 DOCKET ENTRY NOTICE OF HEARING: A Telephonic Status Conference is set for 11/20/2018 at 11:00 AM before Judge B. Lynn Winmill. The call in information is as follows: dial in number 1−877−336−1828, access code 4685496, and security code 9466. (jlb)

11/20/2018

1251

DOCKET TEXT MINUTE ENTRY for proceedings held before Judge B. Lynn Winmill: Telephonic Status Conference held on 11/20/2018. Appearances: Wendy Olson and William Pooser on behalf of plaintiffs. Colleen Zahn, Mark Kubinski, and Brian Church on behalf of defendant. An Order setting forth the outcome of the hearing is forthcoming. (ESR Jamie Bracke.) Audio File Location Pocatello − District Courtroom. (jlb)

11/20/2018

1252

ORDER It is ORDERED that if a motion to terminate injunctive relief is not filed in this case on or before 2/28/19, the parties will submit, on 3/1/19, suggested comprehensive case management plans. The parties are encouraged, but not required, to stipulate to such a case management plan. 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) (Entered: 11/21/2018)

12/17/2018 1253 NOTICE of Balla Class Member Concern Form submitted by "Doe" (Attachments: # 1 Envelope)(cjs) (Entered: 12/20/2018)

02/22/2019 1254 Joint MOTION for Attorney Fees Joint Stipulation for Attorney Fees and Costs William C Pooser appearing for Plaintiff Walter D Balla. Responses due by 3/15/2019 (Pooser, William)

02/27/2019 1255 MOTION for Leave to File Excess Pages to File Overlength Brief Colleen D Zahn appearing for Defendant Idaho, State of. Responses due by 3/20/2019 (Zahn, Colleen)

Case 1:81-cv-1165 Document <docnum> Filed <datefiled> Page 69 of 81

02/28/2019 1256 ORDER granting 1255 Motion for Leave to File Excess Pages. 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 (sd)

03/01/2019

1257

MOTION Terminate Prospective Relief Colleen D Zahn appearing for Defendant Idaho, State of. Responses due by 3/22/2019 (Attachments: # 1 Memorandum in Support, # 2 Affidavit of Counsel, # 3 Exhibit A to Affidavit of Counsel, # 4 Exhibit B to Affidavit of Counsel, # 5 Exhibit C − 1 of 3 to Affidavit of Counsel, # 6 Exhibit C − 2 of 3 to Affidavit of Counsel, # 7 Exhibit C − 3 of 3 to Affidavit of Counsel, # 8 Exhibit D to Affidavit of Counsel, # 9 Exhibit E to Affidavit of Counsel, # 10 Exhibit F to Affidavit of Counsel, # 11 Exhibit G to Affidavit of Counsel, # 12 Affidavit of Kirsten Brown, # 13 Exhibit A−H to Affidavit of Kirsten Brown, # 14 Affidavit of Scott Brown, # 15 Exhibit A−B to Affidavit of Scott Brown, # 16 Affidavit of Walter Campbell, # 17 Exhibit A−H to Affidavit of Walter Campbell, # 18 Affidavit of Jeremy Clark, # 19 Exhibit A−Z to Affidavit of Jeremy Clark, # 20 Exhibit AA−OO to Affidavit of Jeremy Clark, # 21 Affidavit of Peter Coulson, # 22 Exhibit A to Affidavit of Peter Coulson, # 23 Affidavit of Pat Donaldson, # 24 Exhibit A−M to Affidavit of Pat Donaldson, # 25 Affidavit of John Fraser, # 26 Exhibit A−B to Affidavit of John Fraser, # 27 Affidavit of Dr. Rebekah Haggard, # 28 Exhibit A−E to Affidavit of Dr. Rebekah Haggard, # 29 Affidavit of Aaron Hofer, # 30 Exhibit A−MM to Affidavit of Aaron Hofer, # 31 Affidavit of Jeannette Hunter, # 32 Exhibit A−B to Affidavit of Jeannette Hunter, # 33 Affidavit of Charles Kinkead, # 34 Exhibit A−B to Affidavit of Charles Kinkead, # 35 Affidavit of Joni Lemons, # 36 Exhibit A−P to Affidavit of Joni Lemons, # 37 Affidavit of Connie Lowder, # 38 Exhibit A−I to Affidavit of Connie Lowder, # 39 Affidavit of Shelli Mallet, # 40 Exhibit A−D to Affidavit of Shelli Mallet, # 41 Affidavit of Chester Martin, # 42 Affidavit of Zarah Martin, # 43 Exhibit A−O to Affidavit of Zarah Martin, # 44 Affidavit of Dana Maybon, # 45 Affidavit of Korin Maybon, # 46 Exhibit A−E to Affidavit of Korin Maybon, # 47 Affidavit of Dr. Steven Menard, # 48 Affidavit of Alberto Ramirez, # 49 Exhibit A to Affidavit of Alberto Ramirez, # 50 Affidavit of Christopher Rufe, # 51 Exhibit A−B to Affidavit of Christopher Rufe, # 52 Affidavit of Corey Seely, # 53 Affidavit of Rona Siegert, # 54 Exhibit A−Z to Affidavit of Rona Siegert, # 55 Exhibit AA−ZZ to Affidavit of Rona Siegert, # 56 Exhibit AAA−ZZZ to Affidavit of Rona Siegert, # 57 Exhibit AAAA−CCCC to Affidavit of Rona Siegert, # 58 Affidavit of Connie Smock, # 59 Exhibit A−B to Affidavit of Connie Smock, # 60 Affidavit of Marianne Takeda, # 61 Exhibit A−B to Affidavit of Marianne Takeda, # 62 Affidavit of Josh Tewalt, # 63 Affidavit of Amanda Tillemans, # 64 Exhibit A−C to Affidavit of Amanda Tillemans, # 65 Affidavit of Jessyka Tyler−Leekley, # 66 Exhibit A−I to Affidavit of Jessyka Tyler−Leekley, # 67 Affidavit of Jennifer Tyvand, # 68 Exhibit A−C to Affidavit of Jennifer Tyvand, # 69 Affidavit of Laura Watson, # 70 Exhibit A−D to Affidavit of Laura Watson, # 71 Affidavit of Mark Way, # 72 Exhibit A−G to Affidavit of Mark Way, # 73 Affidavit of William J. Wingert, # 74 Exhibit A−S to Affidavit of William J. Wingert, # 75 Affidavit of Keith Yordy, # 76 Exhibit A to Affidavit of Keith Yordy, # 77 Affidavit of Brian V. Church, # 78 Exhibit A to Affidavit of of Brian V. Church)(Zahn, Colleen)

03/13/2019 1258 STIPULATION re 1257 MOTION Terminate Prospective Relief Joint Stipulation for Entry of Order Postponing the Effective Date of Automatic Stay by Walter D Balla. (Pooser, William)

03/14/2019

1259

ORDER GRANTING JOINT STIPULATION FOR PLAINTIFFS' ATTORNEY FEES AND COSTS. IT IS ORDERED that the Parties' Joint Stipulation (Dkt. 1254 ) is GRANTED.Plaintiffs are awarded $110,211.30 in costs and fees, to be paid no later than 30 days after entry of this Order. Signed by Judge B. Lynn Winmill. (alw) (Entered: 03/15/2019)

03/15/2019

1260

AMENDED ORDER GRANTING JOINT STIPULATION FOR PLAINTIFFS ATTORNEY FEES AND COSTS. IT IS ORDERED that the Parties' Joint Stipulation (Dkt. 1254 ) is APPROVED. Plaintiffs are awarded $100,211.30 in costs and fees, to be paid no later than 30 days after entry of this Order. Signed by Judge B. Lynn Winmill. (alw)

03/18/2019 1261 ERRATA by Defendant Idaho, State of re 1257 MOTION Terminate Prospective Relief . (Attachments: # 1 Errata Hunter Exh A−B, # 2 Errata Lemons Exh B)(Zahn, Colleen)

Case 1:81-cv-1165 Document <docnum> Filed <datefiled> Page 70 of 81

03/20/2019

1262

NOTICE TO PARTIES OF COURT'S PRELIMINARY RULINGS AND CASE MANAGEMENT ORDER. The claims regarding Hepatitis C treatment are being addressed in another lawsuit. Therefore, that issue will not be litigated in this case. The Court concludes it would be helpful to have monthly status conferences with counsel to ensure that the case is moving toward a final resolution of whether any injunctions need to remain in place. Signed by Judge B. Lynn Winmill. (alw)

03/21/2019 1263 ORDER Telephone Case Management Conference set for 4/23/2019 10:00 AM in Boise − Courtroom 3 before Judge B. Lynn Winmill. Signed by Judge B. Lynn Winmill. (alw) (Entered: 03/22/2019)

03/25/2019 1264 RESPONSE re 1263 Scheduling Order filed by Idaho, State of . (Kubinski, Mark)

03/25/2019

1265

RESPONSE re 1263 Scheduling Order filed by Walter D Balla . (Attachments: # 1 Declaration of Elijah Watkins, # 2 Exhibit A to Watkins Decl., # 3 Exhibit B to Watkins Decl., # 4 Exhibit C to Watkins Decl., # 5 Exhibit D to Watkins Decl., # 6 Exhibit E to Watkins Decl., # 7 Exhibit F to Watkins Decl., # 8 Declaration of Barry Searcy, # 9 Declaration of Joshua McGiboney 1, # 10 Declaration of Joshua McGiboney 2)(Pooser, William)

03/28/2019

1266

ORDER RE: AUTOMATIC STAY OF PROSPECTIVE INJUNCTIVE RELIEF. It is ORDERED: Because good cause does not exist for postponement of the statutory automatic stay under 18 U.S.C. § 3626(e)(3), the parties' previous Stipulation for Entry of Order Postponing the Effective Date of Automatic Stay (Dkt. 1258 ) is DENIED. The automatic stay of all prospective injunctive relief in this case will go into effect, by operation of law, on 3/31/19. Id. § 3626(e)(2). Plaintiffs' request to include issues of HCV treatment in this action (contained in Dkt. 1265 ) is DENIED. Plaintiffs' response to Defendants' Motion to Terminate Prospective Relief must be filed no later than 4/19/19. Defendants' reply must be filed no later than 5/10/19.. 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)

03/28/2019

Set/Reset Deadlines as to 1257 MOTION Terminate Prospective Relief . Responses due by 4/19/2019 Replies due by 5/10/2019. (jp) (per Order dkt 1266)

04/04/2019 1267 MOTION for Reconsideration re 1266 Order,,, Motion for Reconsideration of Dkt. 1266 (Order re Automatic Stay of Prospective Injunctive Relief William C Pooser appearing for Plaintiff Walter D Balla. Responses due by 4/25/2019 (Attachments: # 1 Memorandum in Support)(Pooser, William)

04/04/2019 1268 ERRATA by Plaintiff Walter D Balla re 1267 MOTION for Reconsideration re 1266 Order,,, Motion for Reconsideration of Dkt. 1266 (Order re Automatic Stay of Prospective Injunctive Relief Errata to Cover Page of Memorandum In Support of Motion for Reconsideration. (Pooser, William)

04/08/2019 1269 MOTION to Expedite Plaintiffs' Motion to Expedite Motion for Reconsideration of Dkt. 1266 (Order re Automatic Stay of Prospective Injunctive Relief)(Dkt. 1267) Elijah Martin Watkins appearing for Plaintiff Walter D Balla. Responses due by 4/29/2019 (Attachments: # 1 Memorandum in Support)(Watkins, Elijah)

04/11/2019

1270

DOCKET ENTRY ORDER granting in part and denying in part 1269 Motion to Expedite. Defendants shall file their response brief to the motion to reconsider 1266 on or before April 15, 2019, by noon. Plaintiffs shall file their reply brief on or before April 17, 2019, by noon. 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 (dm)

04/15/2019

1271

RESPONSE to Motion re 1267 MOTION for Reconsideration re 1266 Order,,, Motion for Reconsideration of Dkt. 1266 (Order re Automatic Stay of Prospective Injunctive Relief Opposition filed by Idaho, State of. Replies due by 4/29/2019. (Attachments: # 1 Declaration of Colleen D Zahn, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit I, # 9 Exhibit J, # 10 Exhibit k)(Zahn, Colleen) Modified on 4/15/2019 (cjs).

04/15/2019 1272 MOTION to Seal Exhibits G and H to Dec. Colleen Zahn Colleen D Zahn appearing for Defendant Idaho, State of. Responses due by 5/6/2019 (Zahn, Colleen)

Case 1:81-cv-1165 Document <docnum> Filed <datefiled> Page 71 of 81

04/15/2019 1273 Sealed Document Re: 1271 Response to Motion, . (Attachments: # 1 Exhibit H)(Zahn, Colleen)

04/17/2019

1274

REPLY to Response to Motion re 1267 MOTION for Reconsideration re 1266 Order,,, Motion for Reconsideration of Dkt. 1266 (Order re Automatic Stay of Prospective Injunctive Relief Reply in Support of Motion for Reconsideration of Docket 1266 (Order re Automatic Stay of Prospective Injunctive Relief) (Dkt. 1267) filed by Walter D Balla.Motion Ripe Deadline set for 4/18/2019.(Watkins, Elijah)

04/17/2019 1275 DECLARATION of Wendy J. Olson and Anna E. Courtney re 1274 Reply to Response to Motion, filed by Walter D Balla . (Attachments: # 1 Exhibit B, C, E, F, and G, # 2 Exhibit A, # 3 Exhibit B)(Watkins, Elijah)

04/17/2019 1276 ERRATA by Plaintiff Walter D Balla Missing Exhibit A to Courtney Declaration in Dkt. 1275. (Watkins, Elijah)

04/17/2019 1277 MOTION to Seal Document 1275 Declaration Exhibits A and D to Olson Declaration ISO Reply, MOTION to Seal ( Responses due by 5/8/2019)Elijah Martin Watkins appearing for Plaintiff Walter D Balla. (Watkins, Elijah)

04/17/2019 1278 Sealed Document Re: 1277 MOTION to Seal Document 1275 Declaration Exhibits A and D to Olson Declaration ISO Reply MOTION to Seal . (Attachments: # 1 Exhibit D)(Watkins, Elijah)

04/18/2019

1279

ORDER Plaintiffs' Motion for Reconsideration (Dkt. 1267 ) is GRANTED. Plaintiffs' response to Defendants Motion to Terminate Prospective Relief (Dkt. 1257 ) must be filed no later than 5/17/19. Defendants' reply in support of the termination motion must be filed no later than 14 days thereafter. Defendants' Motion to Seal (Dkt. 1272 ) is GRANTED. Plaintiffs' Motion to Seal (Dkt. 1277 ) is GRANTED. 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)

04/18/2019

Set/Reset Deadlines as to 1257 MOTION Terminate Prospective Relief . Per Order dkt 1279, Responses due by 5/17/2019 (jp)

04/19/2019 1280 STIPULATION Joint Stipulation re Voluntary Termination of Certain Injunctive Relief by Walter D Balla. (Watkins, Elijah)

04/23/2019 1281 Minute Entry for proceedings held before Judge B. Lynn Winmill: Telephone Conference held on 4/23/2019. (Court Reporter/ESR Lynette Parson.) Audio File Location CDA − Bankruptcy/Magistrate Courtroom. (lp)THESE MINUTES SHALL STAND AS THE ORDER OF THE COURT

04/25/2019

1282

ORDER APPROVING JOINT STIPULATION RE: VOLUNTARY TERMINATION OF CERTAIN INJUNCTIVE RELIEF (Dkt. 1280 ). IT IS ORDERED that parties' Joint Stipulation Re: Voluntary Termination of Certain Injunctive Relief (Dkt. 1280 ) is APPROVED. The prospective relief ordered with respect to Order Nos. 1, 2, 7, 8, and 9 of Balla I is hereby TERMINATED.. Signed by Judge B. Lynn Winmill. (alw) (Entered: 04/26/2019)

05/17/2019

1283

MEMORANDUM/BRIEF re 1257 MOTION Terminate Prospective Relief filed by Walter D Balla Offer of Proof on Hepatitis C. (Attachments: # 1 Declaration of Anna Courtney, # 2 Exhibit A to Courtney Decl., # 3 Exhibit B to Courtney Decl., # 4 Declaration of Dr. Bick, # 5 Exhibit A to Bick Decl., # 6 Declaration of Dr. Gish, # 7 Exhibit A to Gish Decl., # 8 Exhibit B to Gish Decl., # 9 Declaration of Dr. Witte, # 10 Exhibit A to Witte Decl., # 11 Declaration of Richard Hearn, # 12 Exhibit A to Hearn Decl., # 13 Exhibit B to Hearn Decl., # 14 Exhibit C to Hearn Decl., # 15 Exhibit D to Hearn Decl., # 16 Exhibit E to Hearn Decl., # 17 Exhibit F to Hearn Decl., # 18 Exhibit G to Hearn Decl., # 19 Exhibit H to Hearn Decl., # 20 Exhibit I to Hearn Decl., # 21 Exhibit J to Hearn Decl., # 22 Exhibit K to Hearn Decl., # 23 Exhibit L to Hearn Decl., # 24 Exhibit M to Hearn Decl., # 25 Exhibit N to Hearn Decl., # 26 Exhibit O to Hearn Decl., # 27 Exhibit P to Hearn Decl., # 28 Exhibit Q to Hearn Decl., # 29 Exhibit R to Hearn Decl.)(Olson, Wendy)

05/17/2019 1284 MEMORANDUM/BRIEF re 1262 Scheduling Order, filed by Idaho, State of Defendants' Brief re: Need for Evidentiary Hearing on Mtn to Terminate. (Kubinski, Mark)

Case 1:81-cv-1165 Document <docnum> Filed <datefiled> Page 72 of 81

05/17/2019 1285 MOTION for Leave to File Excess Pages Wendy Olson appearing for Plaintiff Walter D Balla. Responses due by 6/7/2019 (Olson, Wendy)

05/17/2019

1286

RESPONSE to Motion re 1257 MOTION Terminate Prospective Relief And Request for Evidentiary Hearing filed by Walter D Balla. Replies due by 5/31/2019. (Attachments: # 1 Declaration of Barry Searcy, # 2 Exhibit A to Searcy Decl., # 3 Exhibit B to Searcy Decl., # 4 Exhibit C to Searcy Decl, # 5 Exhibit D to Searcy Decl, # 6 Exhibit E to Searcy Decl., # 7 Exhibit F to Searcy Decl., # 8 Exhibit G to Searcy Decl., # 9 Declaration of Richard Hearn, # 10 Exhibit A to Hearn Decl., # 11 Exhibit B to Hearn Decl., # 12 Exhibit C to Hearn Decl., # 13 Exhibit D to Hearn Decl., # 14 Declaration of Choice Luster, # 15 Declaration of Donald Young, # 16 Declaration of Dr. Menard, # 17 Declaration of Kate Shelton, # 18 Declaration of Robert Vian)(Olson, Wendy)

05/17/2019

1287

DECLARATION of Wendy J. Olson re 1286 Response to Motion,,, filed by Walter D Balla in Support of Opposition to Motion to Terminate. (Attachments: # 1 Exhibit 1 to Olson Declaration, # 2 Exhibit 2 to Olson Declaration, # 3 Exhibit 3 to Olson Declaration, # 4 Exhibit 4 to Olson Declaration, # 5 Exhibit 5 to Olson Declaration, # 6 Exhibit 6 to Olson Declaration, # 7 Exhibit 7 to Olson Declaration, # 8 Exhibit 8 to Olson Declaration, # 9 Exhibit 9 to Olson Declaration, # 10 Exhibit 10 to Olson Declaration, # 11 Exhibit 11 to Olson Declaration, # 12 Exhibit 12 to Olson Declaration, # 13 Exhibit 13 to Olson Declaration, # 14 Exhibit 14 to Olson Declaration, # 15 Exhibit 15 to Olson Declaration, # 16 Exhibit 16 to Olson Declaration, # 17 Exhibit 17 to Olson Declaration, # 18 Exhibit 18 to Olson Declaration, # 19 Exhibit 19 to Olson Declaration, # 20 Exhibit 20 to Olson Declaration, # 21 Exhibit 21 to Olson Declaration, # 22 Exhibit 22 to Olson Declaration, # 23 Exhibit 23 to Olson Declaration, # 24 Exhibit 24 to Olson Declaration, # 25 Exhibit 25 to Olson Declaration, # 26 Exhibit 26 to Olson Declaration, # 27 Exhibit 27 to Olson Declaration, # 28 Exhibit 28 to Olson Declaration, # 29 Exhibit 29 to Olson Declaration, # 30 Exhibit 30 to Olson Declaration, # 31 Exhibit 31 to Olson Declaration, # 32 Exhibit 32 to Olson Declaration, # 33 Exhibit 33 to Olson Declaration, # 34 Exhibit 34 to Olson Declaration, # 35 Exhibit 35 to Olson Declaration, # 36 Exhibit 36 to Olson Declaration, # 37 Exhibit 37 to Olson Declaration, # 38 Exhibit 38 to Olson Declaration, # 39 Exhibit 39 to Olson Declaration, # 40 Exhibit 40 to Olson Declaration, # 41 Exhibit 41 to Olson Declaration, # 42 Exhibit 42 to Olson Declaration, # 43 Exhibit 43 to Olson Declaration, # 44 Exhibit 44 to Olson Declaration)(Olson, Wendy) (Entered: 05/18/2019)

05/18/2019 1288 MOTION to Seal Document 1287 Declaration,,,,,,, Exhibits to Declaration Wendy Olson appearing for Plaintiff Walter D Balla. Responses due by 6/10/2019 (Olson, Wendy)

05/18/2019

1289

Sealed Document Re: 1288 MOTION to Seal Document 1287 Declaration,,,,,,, Exhibits to Declaration Exhibit 7 to Olson Decl.. (Attachments: # 1 Exhibit 8 to Olson Decl, # 2 Exhibit 9 to Olson Decl, # 3 Exhibit 11 to Olson Decl, # 4 Exhibit 12 to Olson Decl, # 5 Exhibit 13 to Olson Decl, # 6 Exhibit 15 to Olson Decl, # 7 Exhibit 16 to Olson Decl, # 8 Exhibit 23 to Olson Decl, # 9 Exhibit 25 to Olson Decl, # 10 Exhibit 26 to Olson Decl, # 11 Exhibit 27 to Olson Decl, # 12 Exhibit 28 to Olson Decl, # 13 Exhibit 29 to Olson Decl, # 14 Exhibit 30 to Olson Decl, # 15 Exhibit 31 to Olson Decl, # 16 Exhibit 33 to Olson Decl, # 17 Exhibit 34 to Olson Decl, # 18 Exhibit 35 to Olson Decl, # 19 Exhibit 36 to Olson Decl, # 20 Exhibit 37 to Olson Decl, # 21 Exhibit 38 to Olson Decl, # 22 Exhibit 39 to Olson Decl, # 23 Exhibit 41 to Olson Decl, # 24 Exhibit 42 to Olson Decl, # 25 Exhibit 44 to Olson Decl)(Olson, Wendy)

05/20/2019 1290 NOTICE by Walter D Balla re 1286 Response to Motion,,, Plaintiffs' Notice of Errata (Attachments: # 1 Declaration of Robert Vian)(Olson, Wendy)

05/30/2019 1291 MOTION for Leave to File Excess Pages Colleen D Zahn appearing for Defendant Idaho, State of. Responses due by 6/20/2019 (Zahn, Colleen)

05/30/2019 1292 RESPONSE to Motion re 1288 MOTION to Seal Document 1287 Declaration,,,,,,, Exhibits to Declaration Defendants' Non−Opposition to Mtn to Seal (Dkt. 1288) filed by Idaho, State of. Replies due by 6/13/2019.(Zahn, Colleen)

Case 1:81-cv-1165 Document <docnum> Filed <datefiled> Page 73 of 81

05/31/2019 1293 REPLY to Response to Motion re 1257 MOTION Terminate Prospective Relief filed by Idaho, State of.Motion Ripe Deadline set for 6/3/2019. (Attachments: # 1 Affidavit Zahn Reply Declaration, # 2 Exhibit B, # 3 Exhibit F, # 4 Affidavit Hall Declaration)(Zahn, Colleen)

05/31/2019 1294 MOTION to Seal Deposition Transcripts Colleen D Zahn appearing for Defendant Idaho, State of. Responses due by 6/21/2019 (Zahn, Colleen)

05/31/2019 1295 Sealed Document Re: 1294 MOTION to Seal Deposition Transcripts Exhibits to Zahn Reply Declaration. (Attachments: # 1 Exhibit C, # 2 Exhibit D, # 3 Exhibit E)(Zahn, Colleen)

05/31/2019 1296 RESPONSE to Motion re 1285 MOTION for Leave to File Excess Pages filed by Idaho, State of. Replies due by 6/14/2019.(Zahn, Colleen)

05/31/2019 1297 MOTION to Strike 1283 Memorandum/Brief (generic),,,, Colleen D Zahn appearing for Defendant Idaho, State of. Responses due by 6/21/2019 (Zahn, Colleen)

06/07/2019 1298 MEMORANDUM/BRIEF re 1263 Scheduling Order filed by Idaho, State of Response Brief re Evidentiary Hearing. (Zahn, Colleen)

06/07/2019 1299 RESPONSE to Motion re 1297 MOTION to Strike 1283 Memorandum/Brief (generic),,,, Plaintiffs' Opposition to Defendants' Motion to Strike Offer of Proof on Hepatitis C (Dkt. 1297) filed by Walter D Balla. Replies due by 6/21/2019.(Pooser, William)

06/07/2019 1300 REPLY to Response to Motion re 1285 MOTION for Leave to File Excess Pages Reply In Support of Plaintiffs' Motion to File Overlength Brief (Dkt. 1285) filed by Walter D Balla.Motion Ripe Deadline set for 6/10/2019.(Pooser, William)

06/07/2019 1301 MEMORANDUM/BRIEF re 1263 Scheduling Order filed by Walter D Balla Plaintiffs' Response Brief on Need for Evidentiary Hearing on Motion to Terminate (Dkt. 1263). (Pooser, William)

06/13/2019 1302 Declaration of and MOTION to Expand Balla Class to IMSI, ISCC for Cause by Movant Faron Raymond Hawkins. Responses due by 7/5/2019 (alw) (Entered: 06/19/2019)

06/21/2019 1303 REPLY to Response to Motion re 1297 MOTION to Strike 1283 Memorandum/Brief (generic),,,, filed by Idaho, State of.Motion Ripe Deadline set for 6/24/2019.(Zahn, Colleen)

07/08/2019 1304 ORDER ( Case Management deadline set for 7/29/2019.). Signed by Judge B. Lynn Winmill. (alw)

08/12/2019

1305

ORDER SETTING EVIDENTIARY HEARING and SCHEDULING ORDER. An evidentiary hearing on Defendants Motion to Terminate Prospective Relief will begin on January 27, 2020, at 8:30 a.m., in the James A. McClure Federal Building and United States Courthouse, 550 West Fort Street, Boise, Idaho, Courtroom 3. Plaintiffs request for appointment of a special master (contained in Dkt. 1286 ) is DENIED. Signed by Judge B. Lynn Winmill. ((alw)

09/04/2019 1306 MOTION to Issue Emergency Injunction for Medical Treatment, MOTION for Audit of Corizon and IDOL Recordsby Movant Faron Raymond Hawkins. Responses due by 9/25/2019 (alw) (Entered: 09/05/2019)

09/05/2019 1307 NOTICE of Substitution − Attorney Chris Kronberg for Idaho, State of added. Attorney Colleen D Zahn terminated. (Zahn, Colleen)

09/24/2019 1308 MOTION for Appointment of Master to Audit Defendants Medical and Internal Email Records and Motion for Order to Require Defendants to Meet Constitutional Requirements for Treatment by Movant Faron Raymond Hawkins. Responses due by 10/15/2019 (alw)

09/24/2019 1309 MOTION for Temporary Restraining Order and Motion for Injunctive Reliefby Movant Faron Raymond Hawkins. Responses due by 10/15/2019 (Attachments: # 1 Exhibit)(alw)

Case 1:81-cv-1165 Document <docnum> Filed <datefiled> Page 74 of 81

10/17/2019 1310 MOTION for Order requiring Defendants to Treat medical issues and declaration in support by Movant Faron Raymond Hawkins. Responses due by 11/7/2019 (jd)

11/01/2019 1311 SUBPOENA RETURNED EXECUTED as to Choice Luster served on 10/23/2019. (Watkins, Elijah)

11/01/2019 1312 SUBPOENA RETURNED EXECUTED as to Kate Shelton served on 10/28/2019. (Watkins, Elijah)

11/01/2019 1313 SUBPOENA RETURNED EXECUTED as to Donald Young served on 10/26/2019. (Watkins, Elijah)

11/05/2019

1314

ORDER. Mr. Hawkins's Motion to Issue Emergency Injunction for Medical Treatment and for Audit of Corizon and IDOC Records (Dkt. 1306 ) is DENIED. Mr. Hawkins's Motion for Appointment of Master and for Order to Require Defendants to Meet Constitutional Requirements for Treatment and Established Federal Law (Dkt. 1308 ) is DENIED. Mr. Hawkins's Motion for Temporary Restraining Order and for Injunctive Relief to Require Defendants to Provide Chronic Care Medical Treatment (Dkt. 1309 ) is DENIED. Mr. Hawkins's Motion for Order Requiring Defendants to Treat Medical Issues (Dkt. 1310 ) is DENIED. 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 (alw)

11/06/2019 1315 AFFIDAVIT of Service for Subpoena DT and Notice of Deposition served on David Joseph Meister on 10/11/2019, filed by Idaho, State of. (Church, Brian)

11/06/2019 1316 AFFIDAVIT of Service for Subpoena DT and Ntc of Deposition served on Barryngton Searcy on 10/9/2019, filed by Idaho, State of. (Church, Brian)

11/06/2019 1317 AFFIDAVIT of Service for Amended Subpoena DT and Amended Ntc. of Deposition served on Barryngton Searcy on 10/30/2019, filed by Idaho, State of. (Church, Brian)

11/06/2019 1318 SUBPOENA RETURNED EXECUTED as to Subpoena to Appear and Testify to Dr. S. Menard served on 10/31/2019. (Watkins, Elijah)

11/06/2019 1319 ERRATA by Defendant Idaho, State of re 1315 Affidavit of Service Executed to David Meister − correct declaration. (Church, Brian)

11/08/2019 1320 AFFIDAVIT of Service for Declaration of Service served on Kate Shelton on November 4, 2019, filed by Idaho, State of. (Church, Brian)

11/13/2019

1321

ORDER RESETTING EVIDENTIARY HEARING. The 10−day evidentiary hearing previously set to begin on January 27, 2020, at 8:30 a.m., is RESCHEDULED to begin on February 3, 2020, at 8:30 a.m. No other scheduling dates or deadlines are affected by this Order. See Dkt. 1305 . 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 (ckh)

11/18/2019 1322 AFFIDAVIT of Service for Affidavit of Service of Notice of Deposition, Subpoena DT, and Witness Fee served on Dr. Steven Menard on 11/14/2018, filed by Idaho, State of. (Kronberg, Chris)

11/19/2019 1323 AFFIDAVIT of Service for Notice of Deposition, Subpoena DT, Witness Fee served on Robert Vian on 11/13/2019, filed by Idaho, State of. (Kronberg, Chris)

11/22/2019 1324 AFFIDAVIT of Service for Amended Notice of Deposition and Amended Subpoena DT served on Choice Luster on 11/18/2019, filed by Idaho, State of. (Kronberg, Chris)

11/25/2019 1325 SUBPOENA RETURNED EXECUTED as to Choice Luster served on 11/18/2019. (Pooser, William)

12/02/2019 1326 AFFIDAVIT of Service for Declaration of Service served on Donald Young on 11/15/2019, filed by Idaho, State of. (Kronberg, Chris)

12/05/2019 1327 SUBPOENA RETURNED EXECUTED as to Robert Vian served on 11/26/2019. (Pooser, William)

12/09/2019 1328 SUBPOENA RETURNED EXECUTED as to Stephen Menard served on 11/29/2019. (Pooser, William)

Case 1:81-cv-1165 Document <docnum> Filed <datefiled> Page 75 of 81

12/09/2019 1329 SUBPOENA RETURNED EXECUTED as to Donald Young served on 12/3/2019. (Pooser, William)

12/09/2019 1330 SUBPOENA RETURNED EXECUTED as to Daniel E. Williams on behalf of Kate Shelton served on 12/2/2019. (Pooser, William)

12/09/2019 1331 ERRATA by Plaintiff Walter D Balla Errata to Docket 1328 Subpoena Returned Executed Upon Stephen Menard to correct the attachment. (Pooser, William)

12/09/2019 1332 ERRATA by Plaintiff Walter D Balla Errata to Docket 1330 Subpoena Returned Executed Upon Daniel E. Williams on behalf of Kate Shelton to correct the attachment. (Pooser, William)

12/09/2019 1333 ORDER. Plaintiffs' request to communicate with their inmate clients and to authorize inmate demonstrations of daily activities during a site visit to Units 9 & 13 is DENIED. Signed by Judge B. Lynn Winmill. (alw)

12/09/2019 1334 AFFIDAVIT of Service for Declaration of Service of Amd. Ntc of Depo and Amd. Subpoena served on Donald Young on 12/3/2019, filed by Idaho, State of. (Kronberg, Chris)

12/19/2019 1335 ORDER re 1333 Memorandum Decision. Signed by Judge B. Lynn Winmill. (alw) (Entered: 12/20/2019)

12/23/2019 1336 STIPULATION for Plaintiffs' Requested Interim Attorney Fees and Costs by Walter D Balla. (Pooser, William)

01/14/2020

1337

ORDER APPROVING JOINT STIPULATION FOR PLAINTIFF'S REQUESTED INTERIM ATTORNEY FEES AND COSTS − IT IS ORDERED that the Parties Joint Stipulation (Dkt. 1336 ) is APPROVED. Plaintiffs are awarded $74,043.00 for interim fees and costs, to be paid no later than 30 days after entry of this Order. 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 (jd)

01/14/2020 1338 MOTION in Limine Elijah Martin Watkins appearing for Plaintiff Walter D Balla. Responses due by 2/4/2020 (Attachments: # 1 Memorandum in Support, # 2 Declaration of Watkins, # 3 Exhibit A to Declaration of Watkins, # 4 Exhibit B to Declaration of Watkins)(Watkins, Elijah)

01/14/2020 1339 MOTION in Limine Elijah Martin Watkins appearing for Plaintiff Walter D Balla. Responses due by 2/4/2020 (Attachments: # 1 Memorandum in Support)(Watkins, Elijah)

01/14/2020 1340 MOTION to Seal Declaration of Elijah Watkins and Exhibits Elijah Martin Watkins appearing for Plaintiff Walter D Balla. Responses due by 2/4/2020 (Watkins, Elijah)

01/14/2020 1341 MOTION in Limine Chris Kronberg appearing for Defendant Idaho, State of. Responses due by 2/4/2020 (Attachments: # 1 Memorandum in Support Motion in Limine)(Kronberg, Chris)

01/14/2020

1342

Sealed Document Re: 1340 MOTION to Seal Declaration of Elijah Watkins and Exhibits . (Attachments: # 1 Exhibit A to Watkins Declaration, # 2 Exhibit B to Watkins Declaration, # 3 Exhibit C to Watkins Declaration, # 4 Exhibit D to Watkins Declaration, # 5 Exhibit E to Watkins Declaration, # 6 Exhibit F to Watkins Declaration, # 7 Exhibit G to Watkins Declaration, # 8 Exhibit H to Watkins Declaration, # 9 Exhibit I to Watkins Declaration, # 10 Exhibit J to Watkins Declaration, # 11 Exhibit K to Watkins Declaration, # 12 Exhibit L to Watkins Declaration, # 13 Exhibit M to Watkins Declaration, # 14 Exhibit N to Watkins Declaration, # 15 Exhibit O to Watkins Declaration, # 16 Exhibit P to Watkins Declaration)(Watkins, Elijah)

01/15/2020 1343 MEMORANDUM in Opposition re 1338 MOTION in Limine filed by Idaho, State of. Replies due by 1/29/2020.(Kronberg, Chris)

01/15/2020 1344 RESPONSE to Motion re 1341 MOTION in Limine filed by Walter D Balla. Replies due by 1/29/2020.(Pooser, William)

01/15/2020 1345 RESPONSE to Motion re 1339 MOTION in Limine No. 2 (Doe Video) filed by Idaho, State of. Replies due by 1/29/2020. (Attachments: # 1 Affidavit Decl. of Counsel, # 2

Case 1:81-cv-1165 Document <docnum> Filed <datefiled> Page 76 of 81

Exhibit Exh. A. to Decl of Counsel)(Church, Brian)

01/16/2020 1346 REPLY to Response to Motion re 1338 MOTION in Limine filed by Walter D Balla.Motion Ripe Deadline set for 1/17/2020.(Pooser, William)

01/16/2020 1347 REPLY to Response to Motion re 1339 MOTION in Limine filed by Walter D Balla.Motion Ripe Deadline set for 1/17/2020. (Attachments: # 1 Affidavit Declaration of Watkins, # 2 Exhibit A to Watkins Declaration)(Watkins, Elijah)

01/16/2020 1348 REPLY to Response to Motion re 1341 MOTION in Limine filed by Idaho, State of.Motion Ripe Deadline set for 1/17/2020.(Church, Brian)

01/21/2020 1349 SUMMONS Returned Executed by Walter D Balla. (Watkins, Elijah)

01/21/2020 1350 SUMMONS Returned Executed by Walter D Balla. (Watkins, Elijah)

01/21/2020 1351 Exhibit List Plaintiffs' Witness and Exhibit List re Termination Hearing by Walter D Balla.. (Watkins, Elijah)

01/21/2020 1352 Exhibit List Defendants' Exhibit List 1−304 by Idaho, State of.. (Kronberg, Chris)

01/21/2020 1353 Witness List (sealed) by Idaho, State of. (Kronberg, Chris)

01/21/2020 1354 NOTICE by Idaho, State of re 1305 Order,, Set Deadlines/Hearings,, Terminate Motions, (Kronberg, Chris)

01/21/2020

1355

MOTION to Intervene and Plaintiff's Opposition to Defendants' Motion to Terminate Prospective relief (Dkt. (1257]) − Responses due by 2/11/2020. (Attachments: # 1 Memorandum in Support, # 2 Declaration of R. Hans Kruger, # 3 Declaration of Andrew J.J. Wolf, # 4 Lodging of Exhibits, # 5 Exhibit 1−19, # 6 Exhibit 20−23, # 7 Exhibit 24−26, # 8 Exhibit 27−34)(jd) (Entered: 01/22/2020)

01/24/2020

1356

ORDER ON MOTIONS IN LIMIINE re 1338 Motion in Limine, 1339 Motion in Limine, 1340 Motion to Seal and 1341 Motion in Limine. IT IS ORDERED: Plaintiff's Motion in Limine No. 1: To Exclude 2017 NCCHC Audit and the Testimony of Dr. Brent Gibson (Dkt. 1338 ) is DENIED. Plaintiff's Motion in Limine No. 2: To Admit Doe Video (Dkt. 1339 ) is GRANTED. Plaintiff's Motion to Seal (Dkt. 1340 ) is GRANTED. Defendants' Motion in Limine (Dkt. 1341 ) is GRANTED IN PART to the extent set forth above. 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 (ckh)

01/24/2020

1357

AMENDED ORDER ON MOTIONS IN LIMINE re 1338 MOTION in Limine, 1339 MOTION in Limine, 1340 Motion to Seal and 1341 MOTION in Limine. IT IS ORDERED: Plaintiff's Motion in Limine No. 1: To Exclude 2017 NCCHC Audit and the Testimony of Dr. Brent Gibson (Dkt. 1338 ) is DENIED. Plaintiff's Motion in Limine No. 2: To Admit Doe Video (Dkt. 1339 ) is GRANTED. Plaintiff's Motion to Seal (Dkt. 1340 ) is GRANTED. Defendants' Motion in Limine (Dkt. 1341 ) is GRANTED IN PART to the extent set forth above. 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 (ckh)

01/24/2020 1358 AFFIDAVIT of Service for Subpoenas to Appear and Testify for Keith Yordy, Al Ramirez, Julie McKay, James Dutoit, Samuel Erbe and Connie Smock served on Mark Kubinski on January 17, 2020, filed by Walter D Balla. (Olson, Wendy)

01/27/2020 1359 RESPONSE to Motion re 1355 MOTION to Intervene filed by Idaho, State of. Replies due by 2/10/2020.(Church, Brian)

01/27/2020 1360 Summons Returned Unexecuted by Walter D Balla as to Idaho Department of Correction. (Watkins, Elijah)

01/29/2020 1361 Exhibit List Amended State of Idaho by Idaho (Kronberg, Chris) Lodging of exhibit 305 and 306 received and maintained in Clerk's office file room. Modified on 1/29/2020, to add lodging information (jd).

01/30/2020 1362 Wolf and Kruger's Reply to Defendants' Response to Kruger and Wolf's Motion re 1355 MOTION to Intervene.Motion Ripe Deadline set for 1/31/2020.(jd)

Case 1:81-cv-1165 Document <docnum> Filed <datefiled> Page 77 of 81

01/31/2020 1363 Letter from Andrew J.J. Wolf requesting copy of docket sheet. (Mailed docket sheet)(kt)

01/31/2020

1364

ORDER DENYING MOTION TO INTERVENE re 1355 Motion to Intervene. IT IS ORDERED: Mr. Wolf and Mr. Kruger's Motion to Intervene (Dkt. 1355 ) is DENIED. The Clerk of Court will provide copies of this Order to Mr. Wolf and Mr.Kruger. 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 (ckh)

01/31/2020 1365 Exhibit List Balla's Supplemental Exhibit and Witness List by Walter D Balla.. (Olson, Wendy)

01/31/2020

1366

ORDER to Transport Class Representative Prisioners ; IDOC to take appropriate measures to transport Barry Searcy #27413, Kent Ellis #60074, Kenneth Workman #61342 and David Meister #70703 to Courtroom #3 in Boise on 02/03/2020 through 02/14/2020 beginning at 8:30 a.m. (Notice sent to USMS). Signed by Judge B. Lynn Winmill. (jd)

02/03/2020

1367

Minute Entry for proceedings held before Judge B. Lynn Winmill: Evidentiary Motion Hearing (Day 1) held on 2/3/2020 re 1257 MOTION Terminate Prospective Relief. The Evidentiary Hearing will resume on 2/4/2020 at 8:30 AM in Boise − Courtroom 3 before Judge B. Lynn Winmill. (Court Reporter Tammy Hohenleitner.) (jlb)

02/04/2020

1368

Minute Entry for proceedings held before Judge B. Lynn Winmill: Evidentiary Motion Hearing (Day 2) held on 2/4/2020 re 1257 MOTION Terminate Prospective Relief filed by State of Idaho. (Motion Hearing continued to 2/5/2020 08:30 AM in Boise − Courtroom 3 before Judge B. Lynn Winmill). (Court Reporter: Tammy Hohenleitner.) (st)

02/05/2020

1369

Minute Entry for proceedings held before Judge B. Lynn Winmill: Evidentiary Motion Hearing (Day 3) held on 2/5/2020 re 1257 MOTION Terminate Prospective Relief: The Motion Hearing is continued to 2/6/2020 at 8:30 AM in Boise − Courtroom 3 before Judge B. Lynn Winmill. (Court Reporter Tammy Hohenleitner.) (jlb)

02/06/2020

1370

Minute Entry for proceedings held before Judge B. Lynn Winmill: Evidentiary Motion Hearing (Day 4) held on 2/6/2020 re 1257 MOTION Terminate Prospective Relief filed by State of Idaho. (Motion Hearing continued to 2/7/2020 08:30 AM in Boise − Courtroom 3 before Judge B. Lynn Winmill.) (Court Reporter: Tammy Hohenleitner.) (st)

02/07/2020 1371 Exhibit List Balla's Second Supplement Exhibit and Witness List by Walter D Balla.. (Watkins, Elijah)

02/07/2020

1372

Minute Entry for proceedings held before Judge B. Lynn Winmill: Evidentiary Motion Hearing (Day 5) held on 2/7/2020 re 1257 MOTION Terminate Prospective Relief filed by State of Idaho. (Motion Hearing continued to 2/10/2020 08:30 AM in Boise − Courtroom 3 before Judge B. Lynn Winmill.) (Court Reporter: Tammy Hohenleitner.) (st)

02/07/2020

1373

ORDER to Transport ; IDOC to take appropriate measures to transport Ronald Coleman #30828 and Jack Swisher #131315 to Courtroom #3 on February 3, 2020 through February 14, 2020 beginning at 8:00 a.m. (Notice sent to USMS). 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 (jd)

02/07/2020

1374

ORDER to Transport ; IDOC to take appropriate measures to transport Omar Escobedo #55971, Halton Flowers #91303 and Gary Merchant #87719 to Courtroom #3 on February 3, 2020 through February 14, 2020 beginning at 8:00 a.m. (Notice sent to USMS). 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 (jd) Modified on 2/7/2020, to add inmate Gary Merchant (jd).

02/07/2020 1375 ORDER to Transport ; IDOC to take appropriate measures to transport Daniel Goodrick #13304, Peter Jaime #33499 and Troy Wolf #88755 to Courtroom #3 on February 3, 2020 through February 14, 2020 beginning at 8:00 a.m. (Notice sent to USMS). Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered

Case 1:81-cv-1165 Document <docnum> Filed <datefiled> Page 78 of 81

Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jd)

02/07/2020

1376

ORDER to Transport ; IDOC to take appropriate measures to transport Keith Dickson #122571, Robroy Wall #77817 and Joshua McGiboney #85623 to Courtroom #3 on February 3, 2020 through February 14, 2020 beginning at 8:00 a.m. (Notice sent to USMS). 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 (jd)

02/10/2020

1377

Minute Entry for proceedings held before Judge B. Lynn Winmill: Evidentiary Motion Hearing (Day 6) held on 2/10/2020 re 1257 MOTION Terminate Prospective Relief filed by State of Idaho. (Motion Hearing continued to 2/11/2020 08:30 AM in Boise − Courtroom 3 before Judge B. Lynn Winmill.) (Court Reporter: Tammy Hohenleitner) (st)

02/11/2020

1378

Minute Entry for proceedings held before Judge B. Lynn Winmill: Evidentiary Motion Hearing (Day 7) held on 2/11/2020 re 1257 MOTION Terminate Prospective Relief: The Motion Hearing will continue on 2/12/2020 at 8:30 AM in Boise − Courtroom 3 before Judge B. Lynn Winmill. (Court Reporter Tammy Hohenleitner.) (jlb)

02/12/2020

1379

Minute Entry for proceedings held before Judge B. Lynn Winmill: Evidentiary Motion Hearing (Day 8) held on 2/12/2020 re 1257 Defendants' MOTION to Terminate Prospective Relief. The Motion Hearing is continued to 2/13/2020 at 8:30 AM in Boise − Courtroom 3 before Judge B. Lynn Winmill. (Court Reporter Tammy Hohenleitner.) (jlb)

02/13/2020

1380

Minute Entry for proceedings held before Judge B. Lynn Winmill: Evidentiary Motion Hearing (Day 9) held on 2/13/2020 re 1257 MOTION Terminate Prospective Relief filed by State of Idaho. (Motion Hearing continued to 2/14/2020 08:30 AM in Boise − Courtroom 3 before Judge B. Lynn Winmill.) (Court Reporter: Tammy Hohenleitner.) (st)

02/13/2020 1381 MEMORANDUM/BRIEF filed by Walter D Balla Plaintiffs' Submission of Legal Research re the Applicability of the Community Standard of Care to Deliberate Indifference. (Watkins, Elijah)

02/14/2020

1382

Minute Entry for proceedings held before Judge B. Lynn Winmill: Evidentiary Motion Hearing (Day 10) held on 2/14/2020 re 1257 MOTION Terminate Prospective Relief filed by State of Idaho. (Motion Hearing continued to 2/21/2020 02:30 PM in Boise − Courtroom 3 before Judge B. Lynn Winmill.) (Court Reporter: Tammy Hohenleitner.) (st)

02/18/2020

1383

ORDER TO TRANSPORT CLASS REPRESENTATIVE PRISONERS. IT IS HEREBY ORDERED that the Idaho Department of Correction shall take appropriate measures to transport Class Representative Inmates Bary Searcy, Kent Ellis, Kenneth Workman, and David Meister to the James A. McClure Federal Building and United States Courthouse, 550 West Fort Street, 5th Floor, Courtroom #3, Boise, Idaho to be present at the Evidentiary hearing on February 21, 2020 at 2:30 p.m., to arrive no later than 2:00 p.m. and to remain until business with the Court has concluded for the day. The Clerk of Court shall provided notice to Director Josh Tewalt, Warden Al Ramirez, and the U.S. Marshal's Service (Notice sent to USMS). 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 (km)

02/21/2020 1384 Minute Entry for proceedings held before Judge B. Lynn Winmill: Evidentiary Motion Hearing (Day 11 − final day) held on 2/21/2020 re 1257 MOTION Terminate Prospective Relief filed by State of Idaho. (Court Reporter: Tammy Hohenleitner.) (st)

02/21/2020 1385 EXHIBIT LISTS. Plaintiffs' Exhibit List. (Attachments: # 1 Defendants' Exhibit List)(st)

03/23/2020

1386

Notice of Filing of Official Transcript of Proceedings, Evidentiary Hearing, Day 1, held on 2/3/20 before Judge B. Lynn Winmill. Court Reporter/Transcriber Tamara I. Hohenleitner, Email tammy_hohenleitner@id.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be

Case 1:81-cv-1165 Document <docnum> Filed <datefiled> Page 79 of 81

obtained through PACER. This transcript is not available to the general public and as such is sealed until release of transcript restriction. Redaction Request due 4/13/2020. Redacted Transcript Deadline set for 4/23/2020. Release of Transcript Restriction set for 6/22/2020. (th)

03/23/2020

1387

Notice of Filing of Official Transcript of Proceedings, Evidentiary Hearing, Day 2, held on 2/4/20 before Judge B. Lynn Winmill. Court Reporter/Transcriber Tamara I. Hohenleitner, Email tammy_hohenleitner@id.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. This transcript is not available to the general public and as such is sealed until release of transcript restriction. Redaction Request due 4/13/2020. Redacted Transcript Deadline set for 4/23/2020. Release of Transcript Restriction set for 6/22/2020. (th)

03/23/2020

1388

Notice of Filing of Official Transcript of Proceedings, Evidentiary Hearing, Day 3, held on 2/5/20 before Judge B. Lynn Winmill. Court Reporter/Transcriber Tamara I. Hohenleitner, Email tammy_hohenleitner@id.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. This transcript is not available to the general public and as such is sealed until release of transcript restriction. Redaction Request due 4/13/2020. Redacted Transcript Deadline set for 4/23/2020. Release of Transcript Restriction set for 6/22/2020. (th)

03/23/2020

1389

Notice of Filing of Official Transcript of Proceedings, Evidentiary Hearing, Day 4, held on 2/6/20 before Judge B. Lynn Winmill. Court Reporter/Transcriber Tamara I. Hohenleitner, Email tammy_hohenleitner@id.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. This transcript is not available to the general public and as such is sealed until release of transcript restriction. Redaction Request due 4/13/2020. Redacted Transcript Deadline set for 4/23/2020. Release of Transcript Restriction set for 6/22/2020. (th)

03/23/2020

1390

Notice of Filing of Official Transcript of Proceedings, Evidentiary Hearing, Day 5 held on 2/7/20 before Judge B. Lynn Winmill. Court Reporter/Transcriber Tamara I. Hohenleitner, Email tammy_hohenleitner@id.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. This transcript is not available to the general public and as such is sealed until release of transcript restriction. Redaction Request due 4/13/2020. Redacted Transcript Deadline set for 4/23/2020. Release of Transcript Restriction set for 6/22/2020. (th)

03/23/2020

1391

Notice of Filing of Official Transcript of Proceedings, Evidentiary Hearing, Day 6, held on 2/10/20 before Judge B. Lynn Winmill. Court Reporter/Transcriber Tamara I. Hohenleitner, Email tammy_hohenleitner@id.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. This transcript is not available to the general public and as such is sealed until release of transcript restriction. Redaction Request due 4/13/2020. Redacted Transcript Deadline set for 4/23/2020. Release of Transcript Restriction set for 6/22/2020. (th)

03/23/2020

1392

Notice of Filing of Official Transcript of Proceedings, Evidentiary Hearing, Day 7, held on 2/11/20 before Judge B. Lynn Winmill. Court Reporter/Transcriber Tamara I. Hohenleitner, Email tammy_hohenleitner@id.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. This transcript is not available to the general public and as such is sealed until release of transcript restriction. Redaction Request due 4/13/2020. Redacted Transcript Deadline set for 4/23/2020. Release of Transcript Restriction set for 6/22/2020. (th)

Case 1:81-cv-1165 Document <docnum> Filed <datefiled> Page 80 of 81

03/23/2020

1393

Notice of Filing of Official Transcript of Proceedings, Evidentiary Hearing, Day 8, held on 2/12/20 before Judge B. Lynn Winmill. Court Reporter/Transcriber Tamara I. Hohenleitner, Email tammy_hohenleitner@id.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. This transcript is not available to the general public and as such is sealed until release of transcript restriction. Redaction Request due 4/13/2020. Redacted Transcript Deadline set for 4/23/2020. Release of Transcript Restriction set for 6/22/2020. (th)

03/23/2020

1394

Notice of Filing of Official Transcript of Proceedings, Evidentiary Hearing, Day 9, held on 2/13/20 before Judge B. Lynn Winmill. Court Reporter/Transcriber Tamara I. Hohenleitner, Email tammy_hohenleitner@id.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. This transcript is not available to the general public and as such is sealed until release of transcript restriction. Redaction Request due 4/13/2020. Redacted Transcript Deadline set for 4/23/2020. Release of Transcript Restriction set for 6/22/2020. (th)

03/23/2020

1395

Notice of Filing of Official Transcript of Proceedings, Evidentiary Hearing, Day 10, held on 2/14/20 before Judge B. Lynn Winmill. Court Reporter/Transcriber Tamara I. Hohenleitner, Email tammy_hohenleitner@id.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. This transcript is not available to the general public and as such is sealed until release of transcript restriction. Redaction Request due 4/13/2020. Redacted Transcript Deadline set for 4/23/2020. Release of Transcript Restriction set for 6/22/2020. (th)

03/23/2020

1396

Notice of Filing of Official Transcript of Proceedings, Evidentiary Hearing, Day 11, held on 2/21/20 before Judge B. Lynn Winmill. Court Reporter/Transcriber Tamara I. Hohenleitner, Email tammy_hohenleitner@id.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. This transcript is not available to the general public and as such is sealed until release of transcript restriction. Redaction Request due 4/13/2020. Redacted Transcript Deadline set for 4/23/2020. Release of Transcript Restriction set for 6/22/2020. (th)

04/01/2020 1397 NOTICE by Walter D Balla of Intent to Propose Redactions to the Hearing Transcript (Olson, Wendy)

04/01/2020 1398 Letter from Michael Whiteley. (ckh) (Entered: 04/02/2020)

04/06/2020 1399 Sealed Document. (Kronberg, Chris)

04/06/2020 1400 MOTION to Seal Document 1399 Sealed Document Chris Kronberg appearing for Defendant Idaho Department of Correction. Responses due by 4/27/2020 (Attachments: # 1 Memorandum in Support Defendants' Mtn to Seal)(Kronberg, Chris)

04/06/2020 1401 Sealed Document Re: 1257 MOTION Terminate Prospective Relief , 1286 Response to Motion,,,. (Olson, Wendy)

04/06/2020 1402 MOTION re 1257 MOTION Terminate Prospective Relief , 1286 Response to Motion,,, Motion to Seal Wendy Olson appearing for Plaintiff Walter D Balla. Responses due by 4/27/2020 (Attachments: # 1 Memorandum in Support, # 2 Exhibit)(Olson, Wendy)

04/07/2020 1403 SEALED ORDER re 1400 MOTION to Seal Document. Signed by Judge B. Lynn Winmill. (ckh)

04/07/2020 1404 SEALED ORDER re 1402 MOTION. Signed by Judge B. Lynn Winmill. (ckh)

04/13/2020 1405 STIPULATION Stipulated Motion to Extend Time to File Redacted Hearing Transcripts by Walter D Balla. (Pooser, William)

Case 1:81-cv-1165 Document <docnum> Filed <datefiled> Page 81 of 81
04/14/2020 1406 DOCKET ENTRY ORDER − The Stipulation 1405 is APPROVED. 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 (dm)
04/20/2020 1407 NOTICE by Walter D Balla of Compliance re Request for Transcript Redactions (Pooser, William)
04/27/2020 1408 Redaction of 1386 Transcript. Evidentiary Hearing, Day 1, held on 2/3/20 before Judge B. Lynn Winmill. Court Reporter/Transcriber Tamara I. Hohenleitner. (ckh)
04/27/2020 1409 Redaction of 1387 Transcript. Evidentiary Hearing, Day 2, held on 2/4/20 before Judge B. Lynn Winmill. Court Reporter/Transcriber Tamara I. Hohenleitner. (ckh)
04/27/2020 1410 Redaction of 1388 Transcript. Evidentiary Hearing, Day 3, held on 2/5/20 before Judge B. Lynn Winmill. Court Reporter/Transcriber Tamara I. Hohenleitner. (ckh)
04/27/2020 1411 Redaction of 1389 Transcript. Evidentiary Hearing, Day 4, held on 2/6/20 before Judge B. Lynn Winmill. Court Reporter/Transcriber Tamara I. Hohenleitner. (ckh)
04/27/2020 1412 Redaction of 1390 Transcript. Evidentiary Hearing, Day 5 held on 2/7/20 before Judge B. Lynn Winmill. Court Reporter/Transcriber Tamara I. Hohenleitner. (ckh)
04/27/2020 1413 Redaction of 1391 Transcript. Evidentiary Hearing, Day 6, held on 2/10/20 before Judge B. Lynn Winmill. Court Reporter/Transcriber Tamara I. Hohenleitner. (ckh)
04/27/2020 1414 Redaction of 1392 Transcript. Evidentiary Hearing, Day 7, held on 2/11/20 before Judge B. Lynn Winmill. Court Reporter/Transcriber Tamara I. Hohenleitner. (ckh)
04/27/2020 1415 Redaction of 1393 Transcript. Evidentiary Hearing, Day 8, held on 2/12/20 before Judge B. Lynn Winmill. Court Reporter/Transcriber Tamara I. Hohenleitner. (ckh)
04/27/2020 1416 Redaction of 1394 Transcript. Evidentiary Hearing, Day 9, held on 2/13/20 before Judge B. Lynn Winmill. Court Reporter/Transcriber Tamara I. Hohenleitner. (ckh)
04/27/2020 1417 Redaction of 1395 Transcript. Evidentiary Hearing, Day 10, held on 2/14/20 before Judge B. Lynn Winmill. Court Reporter/Transcriber Tamara I. Hohenleitner. (ckh)
04/27/2020 1418 Redaction of 1396 Transcript. Evidentiary Hearing, Day 11, held on 2/21/20 before Judge B. Lynn Winmill. Court Reporter/Transcriber Tamara I. Hohenleitner. (ckh)

 
 656 F.Supp. 1108 (1987)
Walter D. BALLA, et al., Plaintiffs, v.
BOARD OF CORRECTIONS, et al., Defendants.
Civ. Nos. 81-1165, 78-1045.
United States District Court, D. Idaho.
March 25, 1987.
1109 *1109 Walter D. Balla, William M. Prince, Timothy Haak, Gary G. Allen, Weyland R. Cowan, Darby J. Sharp, pro se.
Dean Schwartzmiller, Appointed Lay-Assistant, ISIC Law Library, Boise, Idaho, for plaintiffs.
Jim Jones, Atty. Gen., State of Idaho, Robert R. Gates, Timothy R. McNeese, Deputy Attys. Gen., Corrections Section, Boise, Idaho, for defendants.
FINDINGS OF FACT CONCLUSIONS OF LAW AND ORDER
RYAN, District Judge.
INTRODUCTION
After thirteen days of trial, beginning on March 5, 1984, this court entered its Memorandum Opinion, Findings of Fact, Conclusions of Law and Order on November 1, 1984, in which the court dealt with a variety of eighth and fourteenth amendment claims regarding conditions and policies at the Idaho State Correctional Institution (ISCI). Balla v. Idaho State Board of Corrections, 595 F.Supp. 1558 (D.Idaho 1984). Upon entering Findings of Fact and Conclusions of Law, the court required certain changes to be made at ISCI. The court's order encompassed areas identified in Rhodes v. Chapman, 452 U.S. 337, 364, 101 S.Ct. 2392, 2408, 69 L.Ed.2d 59 (1981), including food preparation; medical facilities; places for eating; safety; clothing; nutrition; medical, dental and mental health care; certain rehabilitative programming; and staffing.
On July 11, 1985, after the court conducted compliance hearings to determine whether defendants had complied with the opinion and order entered November 1, 1984, the court adopted defendants' plans for compliance with certain amendments and ordered that the procedures outlined in those plans be formally adopted and implemented in all respects not later than October 1, 1985.
On October 10, 1985, plaintiffs filed a Motion for Contempt alleging that the defendants had not complied with and were in violation of this court's order of July 11, 1985, regarding the issue of psychiatric care. The plaintiffs did not challenge, through a contempt motion, the implementation of any programs or policies ordered adopted in the July 11, 1985, order except the psychiatric care program. On July 29, 1986, this court held a hearing regarding the plaintiffs' Motion for Contempt. In the court's order of August 18, 1986, the court determined that the defendants had complied with the requirements specified in the plans previously adopted by the court. The court rejected plaintiffs' arguments in support of their position that the policies and programs adopted by the court, even if in place, did not raise psychiatric care at ISCI to constitutional minima and that the court should completely reopen and re-try the adequacy of the psychiatric care program. The court's order of August 18, 1986, closed to relitigation all issues raised in this action except the issue of overcrowding.
In Balla v. Idaho State Board of Corrections, 595 F.Supp. 1558 (D.Idaho 1984), the court did not explicitly find, in terms of numbers of inmates, unconstitutional overcrowding at ISCI. In fact, this court, based upon the testimony heard in March of 1984, felt the obvious overcrowding at ISCI would in all likelihood be alleviated by giving the

Board of Corrections a little time to develop some of their announced plans. Of particular concern to this court was the historical failure in the operation of ISCI to meet constitutional minima in the housing of high-security and close custody inmates. Thus, the court in its original decision sidestepped the issue of overcrowding for another day.
However, from an inmate and prison personnel safety standpoint, the overcrowding and double-celling of inmates 1110 in medium *1110 custody had reached a critical state to the end that the court did order a doubling of the
employment of security personnel, particularly in the medium security tiers.
At the compliance hearings held in the summer of 1985, the court became concerned and was persuaded that a full determination needed to be made regarding the overall overcrowded condition at ISCI. Instead, the court found that increased numbers of medium custody inmates resulting in double-celling of inmates would require the prison administration to employ twice the security personnel on those medium security tiers. The court viewed this requirement from a personal safety standpoint. At the behest of the plaintiffs, the court has agreed to make a determination regarding overcrowding at ISCI as a specific condition of confinement.
On October 31, and November 1, 1985, the court heard testimony on plaintiffs' claim that ISCI is overcrowded to such an extent as to violate the eighth amendment of the United States Constitution. At the close of testimony, both parties agreed that the court would benefit from expert testimony. Further hearing on the matter was continued until such time as a court-appointed expert would be prepared to testify as to his findings and conclusions.
Thomas Lonergan was appointed the court's expert. Mr. Lonergan toured the prison facility and retired to prepare his report. Scheduled hearings were vacated and reset due to Mr. Lonergan having been overcome by illness. On September 3, 1986, the court was forced to relieve Mr. Lonergan of his duties as court-appointed expert.
The court directed the parties to meet in an attempt to agree on an expert to replace Mr. Lonergan. Failing to do so, the court ordered that the parties submit names and vitae of persons whom they recommended as the next court-appointed expert. On December 3, 1986, the court appointed W. Raymond Nelson as the court's expert.
Mr. Nelson toured the ISCI facility in January of 1987 and submitted his report during the first week of February 1987. On February 12, 1987, the court and its staff independently toured the ISCI facility. On February 13, 1987, the court conducted a hearing to provide the parties and the court an opportunity to question Mr. Nelson regarding his findings and conclusions contained in his report. The court then took the entire matter under advisement and, being fully advised in the premises, hereby sets forth the following Findings of Fact and Conclusions of Law on the issue of whether or not the admitted overcrowding at ISCI is of such proportions that the housing of inmates at ISCI does not meet the constitutional minima as required by the eighth amendment.
LEGAL STANDARDS AND ANALYTICAL FRAMEWORK
The eighth amendment prohibits cruel and unusual punishment involving the unnecessary and wanton infliction of pain. Rhodes v. Chapman, 452 U.S. 337, 346, 101 S.Ct. 2392, 2398, 69 L.Ed.2d 59 (1981); Gregg v. Georgia, 428 U.S. 153, 173, 96 S.Ct. 2909, 2925, 49 L.Ed.2d 859 (1976). There is no static test by which the court can determine whether conditions of confinement are cruel and unusual since the eighth amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society. Rhodes v. Chapman, 452 U.S. at 346, 101 S.Ct. at 2398; Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958).
The concurring opinion in Rhodes v. Chapman, 452 U.S. 337, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981), sets forth the specific conditions and situations which the court must look to when analyzing overall prison conditions and overcrowding:
In determining when prison conditions pass beyond legitimate punishment and become cruel and unusual, the "touchstone is the effect upon the imprisoned." Laaman v. Helgemoe, 437 F Supp [269], at 323. The court must examine the effect upon inmates of the condition of the physical plant (lighting, heat, plumbing, ventilation, living space, noise levels, recreation space); sanitation

1111

(control of *1111 vermin and insects, food preparation, medical facilities, lavatories and showers, clean places for eating, sleeping, and working); safety (protection from violent, deranged, or diseased inmates, fire protection, emergency evacuation); inmate needs and services (clothing, nutrition, bedding, medical, dental, and mental health care, visitation time, exercise and recreation, educational and rehabilitative programming); and staffing (trained and adequate guards and other staff, avoidance of placing inmates in positions of authority over other inmates). See ibid.; Ramos v. Lamm, 639 F2d [559], at 567-581. When "the cumulative impact of the conditions of incarceration threatens the physical, mental, and emotional health and well-being of the inmates and/or creates a probability of recidivism and future incarceration," the court must conclude that the conditions violate the Constitution. Laaman v. Helgemoe, supra, at 323.

Id. at 364, 101 S.Ct. at 2408.

The Ninth Circuit, in Hoptowit v. Ray, 682 F.2d 1237 (9th Cir.1982), identified the proper analysis for eighth amendment claims:

In analyzing claims of Eighth Amendment violations, the courts must look at discrete areas of basic human needs. As we have recently held, "`[A]n institution's obligation under the eighth amendment is at an end if it furnishes sentenced prisoners with adequate food, clothing, shelter, sanitation, medical care, and personal safety.'" Wright v. Rushen, 642 F.2d 1129, 1132-33 (9th Cir.1981) (Wright), quoting Wolfish v. Levi, supra, 573 F.2d [118] at 125.

....

As we have said, however, "[E]ach condition of confinement does not exist in isolation; the court must consider the effect of each condition in the context of the prison environment, especially when the ill-effects of particular conditions are exacerbated by other related conditions." Id. at 1133. This is no more than a recognition that a particular violation may be the result of several contributing factors. "But the court's principal focus must be on specific conditions of confinement. It may not use the totality of all conditions to justify federal intervention requiring remedies more extensive than are required to correct Eighth Amendment violations." Id. To find an Eighth Amendment violation, courts must identify specific conditions that fail to meet Eighth Amendment requirements. We cannot rely on a vague conclusion that the "totality of conditions" violates the Eighth Amendment.

Id. at 1246-47.

An excellent case dealing with overcrowding is Fischer v. Winter, 564 F.Supp. 281 (N.D.Calif.1983). Judge Peckham saw overcrowding as the cause and specific substandard conditions and situations as the effect of overcrowding. However, the court was careful not to find overcrowding as an eighth amendment violation based on the totality of conditions at the prison. The court identified specific conditions that failed to meet eighth amendment requirements, but recognized that particular violations may be the result of other contributing factors. The Ninth Circuit, in Hoptowit v. Ray, 682 F.2d 1237 (9th Cir.1982), mandates this analysis and prohibits a totality of conditions analysis. Id. at 1247.

In Fischer v. Winter, 564 F.Supp. 281, the court considered the problem of overcrowding specifically in the context of minimum square footage available to each inmate. The court noted:

Expert testimony establishes as a general proposition that overcrowding increases stress, that excessive levels of stress may induce or aggravate physical illness and mental or emotional disturbance, and that overcrowding correlates with both suicidal and assaultive behavior. A common-sense definition of overcrowding would be "too many people in too little space." Correctional professionals have attempted to quantify overcrowding by establishing standards for the minimum square footage that should be available to each inmate in his or her housing area for the maintenance of physical and mental health.

1112

*1112 The minimum square footage standards are affected by several variables, the most important of which are opportunities for movement outside the immediate housing area, for activities, and for exercise. Other stress-related variables also influence the square footage standard; these include lighting 0907 both type and amount, noise levels, privacy or the lack thereof, and visitation opportunities. Over the past couple of decades, minimum square footage standards recommended by various professional organizations have increased, from 50 square feet per inmate to 70 or 80, depending on the amount of mobility allowed to the inmates. By professional definition, then, a jail is overcrowded when it does not provide its inmates with the minimum square footage required by the applicable minimum standard.
Id. at 291 (footnote omitted).
The courts, however, must refrain from constitutionalizing the American Correctional Association (ACA) standards and it is error to rely exclusively on per capita square footage recommendations. Hoptowit v. Ray, 682 F.2d at 1249. The Hoptowit court further defines the role of experts in determining eighth amendment violations:
In determining whether a challenged condition violates "evolving standards of decency," courts may consider opinions of experts and pertinent organizations. But these opinions will not ordinarily establish constitutional minima. What experts may consider desirable may well constitute appropriate goals to which the other branches may aspire but they do not usually establish those minimums below which the Constitution establishes a prohibition. See Rhodes v. Chapman, supra [452 U.S. 337], 101 S.Ct. [2392] at 2400 n. 13 [69 L.Ed.2d 59]. Indeed, they weigh less heavily in this determination than what the general public would consider decent. Id.
Id. at 1246.
FINDINGS OF FACT
1. At the first hearing on overcrowding held on October 31, and November 1, 1985, testimony from inmates and correction officials alike established that increased staffing did not provide the increase in personal safety and property protection for the inmates which is necessary and required. While Glen Johnson and Director Alfred Murphy testified that violence had decreased even though population had increased at ISCI, numerous inmates testified to knowledge of violent acts and personal attacks. Correctional Officer Michael Boegeman testified that the inability to lock inmates down, especially those housed in day rooms, creates a real safety problem. Correctional Officer Boegeman testified that he could not guarantee the safety of the inmates in Unit 10. The court finds that increased staffing proportionate to inmate population increases does not fully alleviate problems associated with overcrowding, nor significantly enhance personal safety of inmates and employees.
2. Unit 1 presently houses inmates being treated for psychological disorders. The design or rated capacity of Unit 1 is twelve inmates. The nature of the inmate classification and the physical structure of Unit 1 permits only one inmate per cell. On January 7, 1987, thirteen inmates were housed in Unit 1. Plaintiffs' Ex. 1 and 9.
3. Unit 2 currently houses geriatric and infirm inmates. This classification of offenders often have unique needs and require special care. Unit 2 consists of twenty-four cells of approximately 72 square feet. A day room of approximately 523 square feet is available to inmates housed in Unit 2. Each cell is equipped with a sink and toilet, and shower heads are located at the end of each group of twelve cells. On January 7, 1987, forty-four inmates were housed in Unit 2. These inmates spend most of their time in the day room. Plaintiffs Ex. 1 and 9.
4. Unit 3 currently houses inmates that require protective custody. Protective custody is the classification level designed to segregate those inmates subject to sexual assault, or extortion, or who are unable to pay debts to 1113 inmates in the prison population at large, and who have provided that *1113 information to prison officials. Balla v. Idaho State Board of Corrections, 595 F.Supp. 1558, 1570 (D.Idaho 1984). Protective custody inmates are allowed approximately one and one-half hours per week in the gymnasium. Protective custody inmates are in their units well over twenty hours per day and have their movements severely restricted. These inmates spend considerable time in their unit primarily due to their classification status. Id. at 1570-71. Unit 3 consists of twenty-

four cells. The twelve cells on the left side of the Unit 3 building are approximately 65 square feet. The twelve cells on the right side of Unit 3 are approximately 70 square feet. The day room available in Unit 3 is approximately 216 square feet. Each cell of one tier is equipped with a sink, toilet, and shower heads at the end of the tier. The other tier of cells consists of what is known as "dry cells," i.e., no sinks or toilets in the cells. On January 7, 1987, Unit 3 housed forty-eight inmates.
5. Unit 7 is currently used as a receiving unit. Unit 7 consists of forty cells of approximately 59 square feet. The forty cells are divided into four separate ranges of ten cells each. The corridor and cage space in front of the cells is used for exercise purposes. There are no day rooms. Each cell contains a stainless steel toilet and sink and shower heads are provided at the end of each row of ten cells. On January 7, 1987, seventy-seven inmates were housed in Unit 7, of which seventy-three were housed in the thirty cells used for male inmates. One-half of the thirty cells used for male inmates had three persons assigned to them. Seven inmates had been housed in the unit between four and five weeks, eighteen had been housed in the unit between three and four weeks, sixteen had been housed in the unit between two and three weeks, and thirty-six less than two weeks. Plaintiffs' Ex. 9. Director Murphy testified that the average length of time an inmate spends in reception is five to six weeks. Defendants' Memorandum on Overcrowding, filed October 15, 1985, at 14, states:
The new reception unit is Unit 7. There are times when Unit 7 has more than its capacity of 40 prisoners. However, these prisoners are rarely in Unit 7 for longer than two weeks. Such practice is acceptable within the parameters set out by the U.S. Supreme Court in Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861 [60 L.Ed.2d 447] (1979).
One tier in Unit 7 was used for receiving and classification of women prisoners. Thus, it is clear that close to half of these thirty, 52-square-foot cells are from time to time occupied by three human beings, one required of necessity to sleep on the very limited floor space. It takes no imagination to realize such confined conditions would be and are highly stressful, degrading and intolerable and three times beyond design.
6. Unit 8 consists of seventy-eight cells, each containing approximately 66 square feet. The seventy-eight cells are divided into three separate wings. One wing houses those inmates under death sentence, a second wing is reserved for those in punitive segregation and the third is utilized for administrative segregation. Administrative segregation is composed of those individuals who are the most difficult to deal with from an institutional standpoint. One wing of Unit 8 is currently under reconstruction, which is nearly completed. Each cell is furnished with a stainless steel sink and toilet and shower heads are available in each wing. Exercise rooms are available in Unit 8. Inmates housed in Unit 8 are rarely outside of their cells for more than one hour per day. Inmates housed in Unit 8 are not permitted to be in the same cell or exercise area with another inmate. See generally Balla v. Idaho State Board of Corrections, 595 F.Supp. 1558, 1571 (D.Idaho 1984) (Finding of Fact No. 30); plaintiffs' Ex. 1 and 9. There are approximately fifteen cages on the yard which may be used for outside exercise.
7. Close custody inmates are currently housed in Unit 9. Close custody is the custody level between medium custody and maximum security. Those inmates in close custody represent a higher security risk of either escape 1114 or antisocial behavior than do those in medium custody and a lesser degree *1114 of those two possibilities than maximum security. Those inmates in close custody are relegated to that custody level because their sentence is such that they will not be released in the near future or because they have received a disciplinary report(s) and are unable to conform their behavior to acceptable standards. Balla v. Idaho State Board of Corrections, 595 F.Supp. 1558, 1570 (D.Idaho 1984) (Finding of Fact No. 27). Close custody inmates are in their units more than twenty-two hours per day. Unit 9 consists of seventy-eight cells, each containing approximately 66 square feet. The seventy-eight cells are divided into three separate wings. Each cell is equipped with a toilet and sink, with shower heads at the end of each wing. Day rooms are located at the end of each wing and are approximately 500 square feet. On January 7, 1987, Unit 9, while having a design capacity of seventy-eight inmates, housed one hundred one inmates. See generally Balla v. Idaho State Board of Corrections, 595 F.Supp. 1558, 1570 (D.Idaho 1984) (Findings of Fact 27 and 28); plaintiffs' Ex. 1 and 9.
8. As previously noted by this court, medium custody is the least restrictive custody designation at the main site. Medium custody inmates are housed in A-Block, Housing Unit 10, and Housing Unit 11. Medium custody inmates are those inmates deemed less likely to escape, better able to deal with personal interaction in prison, and more capable of holding down a prison industries job than either those inmates in close custody or maximum security.

Presently, Housing Units 10 and 11 are double-bunked and double-housed. The cells are approximately 60 square feet each. While most of the units have two persons in each cell, those inmates in medium custody enjoy a greater degree of flexibility than do those inmates in either close or maximum custody. Inmates in medium custody are confined to their cells from 9:00 p.m. until 8:00 a.m. (although the doors are not locked and inmates continue to have access to rest room facilities); but at times other than this, inmates have freedom to roam the tier, which includes the hallway and day room. Moreover, many of those inmates in medium custody have a job of some sort which occupies all or a certain portion of their day. Those inmates in medium custody also have access to the yard areas which include the gymnasium and ball fields for approximately five and one-half hours each day from 1:00 p.m. until 3:30 p.m. and again from 6:00 p.m. until 9:00 p.m. Since most of the inmates in medium custody have jobs during the day, they are unable to utilize either the gymnasium or ball fields from 1:00 p.m. until 3:30 p.m. Balla v. Idaho State Board of Corrections, 595 F.Supp. 1558, 1569-70 (D.Idaho 1984) (Finding of Fact 25). Units 10 and 11 are identical in design and consist of seventy-two cells with each, as noted, containing just over 60 square feet. The seventy-two cells are divided into three wings of twenty-four cells. Each wing contains a central bathroom consisting of four urinals, three toilets, four sinks, and three showers. Day rooms are provided at the end of each wing, which are approximately 500 square feet each. On January 7, 1987, all cells were double-bunked and double-housed except one. One hundred forty-three and one hundred forty-four inmates were housed in Units 10 and 11, respectively.
Undisputed testimony was that from time to time numbers of inmates for periods of time were housed in the day rooms and/or required to sleep on mattresses on the floor. Providing for the housing of inmates in such an overcrowded fashion threatens the physical, mental and emotional health and certainly threatens their personal and property safety. Such conditions are dehumanizing, intolerable and certainly of no penological benefit.
9. A-Block is also a medium custody housing unit. A-Block consists of ninety-six cells, each containing approximately 68 square feet. A-Block is divided into four, twenty-four cell sub-units with each sub-unit having a 1,045 square foot day room. For each twelve-cell area there is a central bathroom with one urinal, two toilets, one shower and two sinks. Inmates housed in A-Block are assigned to full-time work details in prison industries.
1115 *1115 In A-Block, as in Units 10 and 11, the court heard testimony and has received letters from inmates advising that from time to time and for periods of time medium custody inmates are required to sleep on mattresses on the floor in the cells in A-Block. Again, this causes unnecessary discomfort, pain and stress wherein such cells are housing inmates three times beyond their design capacity. Even though these are inmates who may have fulltime prison industry jobs, such overcrowded confining incarceration threatens their physical, mental and emotional health, foreseeably causing such stress setting off normal human reactions, causing disciplinary problems wherein a well-meaning medium custody inmate can find himself placed in the confines of maximum security.
10. Medium custody inmates are free to roam the tier, including the hallway and day room. Medium custody inmates are out of their unit at prison industries jobs, visiting, gymnasium, law library, blood plasma, ball fields, education courses, religious education and services, and meals for the majority of the day. The opportunity for such activities is present whether or not a particular inmate takes advantage of them. Plaintiffs' Ex. 1 and 9.
11. Plaintiffs have alleged that due in part to the sheer number of inmates on the main yard, personal hygiene products have not been supplied in a timely manner. Director Murphy testified that the problem has been in supplies being back-ordered rather than in distributing those supplies once delivered to the prison site. The court's expert, Raymond Nelson, recommends that the court impose a condition upon the institution that personal hygiene materials be supplied in a timely manner. Plaintiffs' Ex. 9.
12. Mr. Nelson, in his report, recommends that all malfunctioning plumbing fixtures be repaired within forty-eight hours. Plaintiffs' Ex. 9. At the hearing in this matter, Mr. Nelson indicated that forty-eight hours was a target time frame and that forty-eight hours could be exceeded upon a showing of cause. Mr. Nelson indicated that inmate damage should be taken into consideration on a showing of cause. He further indicated that this condition may be suspended in the event of an emergency such as riot. Director Murphy testified that forty-eight hours was unreasonable in certain circumstances when plumbing fixtures and parts had to be ordered. Director Murphy preferred three working days from the date of the written or oral report of the plumbing problem to an ISCI employee.

13. Mr. Nelson recommends that the court impose the condition that headphones be used on radios to reduce noise in the housing units. The plaintiffs concurred in this condition, but only during the time period from 10:30 p.m. to 8:00 a.m. Increased noise levels result in increased stress. The court makes no finding as to whether the typical noise levels in any unit in the main site at ISCI are excessive.
14. To the extent that any Conclusions of Law are deemed to be Findings of Fact, they are incorporated into these Findings of Fact.
CONCLUSIONS OF LAW
1. To the extent that any Findings of Fact are deemed to be Conclusions of Law, they are incorporated into these Conclusions of Law.
2. In this action, the court has previously found various conditions of confinement, policies and practices at the main site of ISCI to violate constitutional standards and ordered those violations remedied. In dealing with the problem of overcrowding, the court made no express finding or conclusion regarding overcrowding per se. The court ordered an increase in staffing proportionate to increase in double-bunking, or 200 percent over design capacity, focusing upon personal safety rather than the potential infliction of pain due to space restrictions and population levels. After reopening the issue of overcrowding and conducting hearings on the matter, the court has determined that the admitted overcrowded condition at ISCI has reached the level of unconstitutional 1116 overcrowding which is the unnecessary and wanton infliction of pain. See Rhodes v. Chapman, 452 *1116 U.S. 337, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981). The court hereby incorporates its November 1, 1984, Memorandum Opinion, Findings of Fact, Conclusions of Law and Order; Balla v. Idaho State Board of Corrections, 595 F.Supp. 1558 (D.Idaho 1984).
3. As hereinafter discussed with specificity as to each unit, bunking practices, coupled with the length of time each day inmates are restricted to their cells and/or unit common areas, provide the basis for the court's analysis in a challenge to overcrowded conditions. The specific size of cells and common areas is highly relevant in analyzing crowded conditions. Also, access to toilet, sink and shower facilities is an important inquiry. See Toussaint v. Yockey, 722 F.2d 1490, 1492 (9th Cir.1984). In Hoptowit v. Ray, 682 F.2d 1237 (9th Cir.1982), the court stated:
[T]he district court constitutionalized the ACA standards. The district judge failed to analyze how much time the prisoners must spend in their cells each day. If prisoners need not remain in their cells for a substantial part of the day, analysis of square footage in cells may be largely irrelevant.
Id. at 1249.
4. Inmates housed in Unit 1 for treatment of psychological disorders may not, consistent with eighth amendment guarantees, be double-celled. Single-celling is required for treatment needs and personal safety. The court concludes that Unit 1 be single-celled with a maximum capacity, consistent with design capacity, of twelve inmates, as long as this unit continues to serve its present function of treating psychiatric inpatients.
5. Unit 2 houses geriatric and infirm inmates with unique needs. The court notes that many geriatric inmates have been moved from ISCI and are currently housed in the Idaho correctional facility in Orofino. While the cells in Unit 2 contain more square footage than all other units except Unit 3, the day room, in which these inmates spend the majority of the day, is only 523 square feet. With forty-four inmates assigned to this unit as of January 7, 1987, less than 12 square feet of day room is available per inmate. Complete double-celling would reduce that figure to below ten square feet. These inmates are rarely, if ever, outside of their unit. Given the total area available to these inmates in the unit and the time spent in the unit, the court has concluded that housing more than 150 percent of design capacity, or thirty-six inmates, is constitutionally impermissible. The court concludes that no more than thirty-six inmates be housed in Unit 2 at any time.
6. Protective custody inmates, currently housed in Unit 3, are severely restricted in movement and access to programs often simply because they are young and subject to predatory inmates. Double-celling these inmates

would seem inconsistent with the goal of separating them for their own protection. Some protective custody inmates can be safely double-celled after an administrative determination of compatability. The cells in this unit are the same size as in Unit 2 and larger than any other units; however, the day room has been cut down to half of that available in Unit 2. These inmates are outside of their unit only very infrequently during the week. It is certainly contrary to constitutional standards to double-cell protective custody inmates that can only be protected if single-celled and separated from other inmates, especially during those times of the day when attacks are most likely. There is certainly no penological justification for double-celling protective custody inmates of this nature. Therefore, recognizing that certain protective custody inmates may safely be double-celled, the court concludes that no more than 150 percent of the design capacity, or thirty-six inmates, be housed in Unit 3.
7. Unit 4 is currently not designed or utilized for housing of inmates and the court makes no finding nor conclusion as to the availability or suitability of Unit 4 for housing inmates.
8. The cells in Unit 7 (designed as the former maximum security unit) are the smallest available at the main site 1117 of ISCI, and no day rooms are available to inmates housed in Unit 7. Inmates housed in Unit *1117 7 for
receiving and processing face severe space restrictions. While Director Murphy testified that the average length of time an inmate spends in Unit 7 is five to six weeks, defendants' trial brief notes that these inmates are rarely in receiving longer than two weeks. This inconsistency is substantial. The court's expert found several inmates on January 7, 1987, to have been in Unit 7 for over four weeks. The court has concluded that double-celling of inmates in Unit 7 is constitutionally acceptable, but due to movement and space restrictions, no inmate may be double-celled in Unit 7 for more than three weeks. While the court will not herein impose a maximum length of time within which an inmate may be housed in Unit 7, the court believes that three weeks is more than adequate time to process inmates. After questioning Director Murphy, the court is convinced that administrative alteration of policies regarding ordering presentence investigation reports and FBI reports and only accepting inmates unaccompanied by these reports would streamline processing of inmates once accepted into Unit 7.
As to Unit 7, the court further concludes that there is absolutely no penological justification or reasonable administrative justification for the defendants to at any time cause inmates to be triple-celled in Unit 7. The court would know of no evolving standards of decency that mark the progress of a maturing society which would condone the dehumanizing effect upon inmates being triple-celled in these small cells in Unit 7 for any period of time. The cumulative impact of such conditions of incarceration threatens the physical, mental and emotional health and well-being of any inmate even temporarily subjected to such treatment and/or creates probability of stressful human reaction surely leading to foreseeable disciplinary problems, recidivism and continued future incarceration. Such over-crowded housing of inmates falls well below constitutional minima and certainly causes wanton pain and suffering of such an unusual nature, it is prohibited by the eighth amendment.
9. Maximum custody inmates housed in Unit 8 are the most violent and administratively difficult inmates. All agree that penological concerns and constitutional protections mandate that these inmates be single-celled. Double-celling of maximum custody inmates currently housed in Unit 8 is intolerable under any circumstances. The design capacity of Unit 8 is seventy-eight and, therefore, the court concludes that no more than seventyeight inmates be housed in Unit 8 at any time.
10. As a security risk, close custody inmates fall between medium custody inmates and maximum security inmates. Close custody inmates are currently housed in Unit 9 with thirty-three out of seventy-eight cells doublebunked as of January 7, 1987. Close custody inmates are often volatile, violent and predatory. While it has been the stated goal of the administration at ISCI to single-cell these inmates since early in 1984, that goal has not been reached. The propensity and potential for violence and sexual attacks among these inmates and the length of time during the day in which these inmates are confined to their unit dictates single-celling. The good intentions of the administration to single-cell these inmates and the administration's recognition that there is no penological justification for double-celling these inmates are praiseworthy, but do not change the fact that evolving standards of decency that mark the progress of our maturing society demand, at a minimum, protection of inmates from each other. In a situation such as found in Unit 9, defusing a potentially explosive situation is best accomplished with an ounce of prevention. Taking into consideration the nature of these inmates and their classification and the time the entire close custody inmate population is restricted to the unit, the court has concluded that constitutional

minima can only be reached by single-celling the entire unit. The court concludes that, consistent with the design capacity, no more than seventy-eight inmates be housed in Unit 9.
11. Medium custody inmates currently housed in Units 10 and 11 are completely double-celled in relatively small 1118 cells containing approximately 66 square feet. A day room of approximately 500 square feet *1118 is allocated for
use by forty-eight inmates. Medium custody inmates have more freedom to be outside of their cells and their unit, than any other custody level at the main site of ISCI. Double-celling of medium custody inmates is not the protection and security concern which is associated with close, protective or maximum custody inmates. However, if the medium custody units are totally double-celled, overall space allocation is compromised. Each inmate's total space allocation is substantially constricted, causing increase in tension, noise, and potential for violent reaction. Units 10 and 11 were designed for seventy-two inmates. Double-celling at 150 percent of design capacity will allow for a maximum of one hundred eight inmates in each unit. This would reduce by thirty-six the number of inmates in each unit, providing for more space per inmate and commensurately less noise and anxiety. The court concludes that Units 10 and 11 be used to house no more than one hundred eight inmates in each unit at any time.
12. A-Block is also a medium custody unit with slightly larger cell space and substantially larger day room space. Bathroom facilities are less adequate than in other units. Inmates housed in A-Block work full-time in prison industries and the demand upon space within the unit is greatly reduced. The court has concluded that upon the condition that these inmates remain in a full-time work status, 150 percent double-celling over design capacity is constitutionally permissible. The design capacity in A-Block is ninety-six inmates and the court concludes that this housing unit can constitutionally accommodate no more than one hundred forty-four inmates. To exceed one hundred forty-four inmates in A-Block would place a more severe strain on the toilet facilities which are already inadequate and cause the total living space available to each inmate to be intolerable.
A-Block is a housing unit provided for the commendable purpose of achieving rehabilitative effects and a place to house inmates working in prison industries. Even though rehabilitation is not constitutionally required, such inmates have attained the status and character of responsibility necessary to have meaningful prison industry jobs. The causing of A-Block to be intolerably overcrowded with inadequate plumbing causes a cumulative impact that this court concludes would threaten the physical, mental and emotional health and well-being of such class of inmates and creates a high probability of recidivism and future incarceration.
13. Based upon the evidence, the court's personal inspection and familiarity with the facility, expert opinion, case law, human nature and human decency, this court further concludes: It is constitutionally prohibited, under the circumstances herein described at the main yard at ISCI, for any cell to house more than two inmates at any time. It is constitutionally prohibited, under the circumstances, for inmates to be housed at any time in day rooms or other non-designed cell areas or to be forced to sleep on mattresses on the floor. See Fischer v. Winter, 564 F.Supp. 281 (N.D. Calif.1983); Battle v. Anderson, 447 F.Supp. 516, 525 (E.D.Okla.), aff'd, 564 F.2d 388 (10th Cir.1977). The court does conclude that these constitutional prohibitions be adhered to at all times.
14. The court is aware that personal hygiene products have not been readily available in certain instances. The court heard no substantial evidence that personal hygiene supplies were being withheld for any improper purpose. The court concludes that, under the evidence as presented, while individual inmates may have been inconvenienced by delays in providing supplies, no pain has been demonstrated such that an eighth amendment violation has occurred. The court believes the testimony that this untimely supply of personal hygiene products from time to time is due to back-order and not because they are being withheld for any other purpose. The court trusts that the administration will take all steps necessary to alleviate the problem, but will refrain from fashioning a specific order.
15. The toilet facilities available in the various housing units at ISCI makes prompt repair crucial in the event of 1119 plumbing *1119 problems. Mr. Nelson recommends that the court compel the defendants to correct any plumbing
disorders within a forty-eight hour period. Director Murphy insists that three working days time is logistically more feasible. The court heard very little specific evidence of instances of infliction of pain due to extended periods of time in which plumbing fixtures were in disrepair. However, since toilet facilities are limited in the various housing units at ISCI, the court is constrained to mandate that the defendants attend to all plumbing disorders within

twenty-four hours of their oral or written report to ISCI staff and remedy those plumbing problems within three working days from such report.
16. Specific evidence of noise levels in the various housing units at the main site of ISCI has not been produced to the court. Mr. Nelson recommends that the court order that headphones be used on personal radios to cut down on noise. At the hearing in this matter, plaintiffs suggested that this condition be imposed only during the hours of 10:30 p.m. to 8:00 a.m. The court lacks sufficient evidence to make a finding regarding problems with noise other than those associated with the general din which accompanies groups of people. As a specific problem, the court can draw no legal conclusion. The court would applaud plaintiffs' self-regulation to this extent and would not undermine defendants' regulatory policies currently in existence or which may be imposed as to use of headphones with personal radios. The court will not dictate those policies and cannot mandate headphone use during specific times. The court has no way to adequately police such a condition. Furthermore, the court is confident that the caps herein ordered on the number of inmates allowable in each housing unit will alleviate much of the stated problem associated with noise.
17. The court concludes that a permanent injunction shall issue prohibiting defendants from causing the population caps to be exceeded per housing unit discussed above. Only through adequate structural change or redesign of the housing units may the population caps ordered herein be increased. Defendants will be further enjoined from engaging in any reclassification inconsistent with this court's November 1, 1984, opinion, or in any other vehicle, scheme or mechanism designed to undermine the spirit and letter of this opinion and order.
18. It is the further conclusion of this court that the permanent injunction will be suspended until June 30, 1987, in order that defendants have sufficient time to take whatever steps they deem necessary and appropriate under the circumstances to come into compliance with the terms of this order.
19. Upon entry of this order, all issues raised in this action will be decided. The court will, therefore, cause this action to be closed.
20. While the clerk will cause this action to be closed, plaintiffs will retain the right and opportunity to petition this court to reopen this matter in the event the terms of the permanent injunction are violated. Violation of the terms of this injunction may be deemed a contempt of court. This court will not hesitate to invoke its broad power to impose punishment for contempt of court and to take any other action necessary to deter similar conduct in the future.
ORDER

Based upon the foregoing, and the court being fully advised in the premises,

IT IS HEREBY ORDERED that defendants be, and are hereby, PERMANENTLY ENJOINED from:

1. Double-celling inmates in Unit 1 or causing more than twelve (12) inmates to be housed in Unit 1 at any time.

2. Housing more than thirty-six (36) inmates in Unit 2 at any time.

3. Housing more than thirty-six (36) inmates in Unit 3 at any time.

4. Double-celling inmates in Unit 7 for more than three (3) weeks, or triple-celling inmates, or housing more than eighty (80) inmates in Unit 7 at any time.

1120

*1120 5. Double-celling maximum custody inmates or housing more than seventy-eight (78) inmates in Unit 8 at any time.

6. Double-celling close custody inmates or housing more than seventy-eight (78) inmates in Unit 9 at any time.

7. Housing more than one hundred eight (108) inmates in Units 10 and/or 11 at any time.

8. Housing more than one hundred forty-four (144) inmates in A-Block at any time.
In order to allow the defendants a reasonable opportunity to comply, this injunction will be suspended until June 30, 1987, and effective July 1, 1987, shall automatically take full force and effect as the order of this court.
IT IS FURTHER ORDERED that no more than two (2) inmates be housed in any cell for any period of time at any time and that no inmates be housed at any time in day rooms or other non-designed cell areas or forced to sleep on mattresses on the floor. This order shall take effect immediately.
IT IS FURTHER ORDERED that defendants attend to all plumbing disorders in the housing units within twentyfour (24) hours of oral or written report to the Idaho State Correctional Institution (ISCI) staff and that those plumbing disorders be remedied within three (3) working days from such report.
IT IS FURTHER ORDERED that the clerk of the court terminate the above-entitled action in his records, without prejudice to the right of the parties to reopen the proceedings for good cause shown, for the entry of any stipulation or order, or for any other purpose required to obtain a final determination of the litigation.
Save trees - read court opinions online on Google Scholar.

 
 869 F.2d 461 (1989)
Walter D. BALLA, et al., Plaintiffs-Appellants, v.
IDAHO STATE BOARD OF CORRECTIONS, et al., Defendants-Appellees. Walter D. BALLA, et al., Plaintiffs-Appellees, v.
IDAHO STATE BOARD OF CORRECTIONS, et al., Defendants-Appellants.
Nos. 87-3800, 87-3959.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted September 16, 1988. Decided March 3, 1989.
4623 *462 *463 Stephen L. Pevar, American Civil Liberties Union, Denver, Colo., for plaintiffs-appellants-crossappellees.
Robert R. Gates, Deputy Atty. Gen., State of Idaho, Boise, Idaho, for defendants-appellees-cross-appellants.
Before WRIGHT, WALLACE and HUG, Circuit Judges.
WALLACE, Circuit Judge:
In these consolidated appeals, Balla and a class of prisoners (prisoners) incarcerated in Idaho appeal from the denial of their motions for contempt and for reconsideration. The prisoners contend that the district court (1) employed the wrong order as a benchmark against which to judge the compliance of the Idaho State Board of Corrections (Board) for purposes of their contempt motion, (2) erroneously denied their motion for contempt, and (3) erroneously denied their motion to reconsider. In its cross-appeal, the Board challenges the district court's refusal to grant an extension of time to comply with a court-ordered population cap. The Board also contests the district court's legal conclusion that Idaho Code § 20-223 requires the state to provide a treatment program for sex offenders. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm the district court's denial of the prisoners' motions for contempt and for reconsideration. We also affirm the district court's refusal to grant an extension of time to the Board. We reverse the district court's conclusion that Idaho Code § 20-223 requires a treatment program.
I
In 1981, the prisoners brought this action pursuant to 42 U.S.C. § 1983 against the Board and various prison officials. They alleged a range of unconstitutional conditions of confinement in the Idaho State Correctional Institution, main site (prison), which is located south of Boise, Idaho. The prisoners sought declaratory and injunctive relief as well as damages. Trial before the district judge lasted 13 days.
On November 1, 1984, the district court issued an opinion and order holding that prison conditions violated the eighth and fourteenth amendments. Balla v. Idaho State Board of Corrections, 595 F.Supp. 1558 (D.Idaho 1984) ( Balla I). In the section of its opinion dealing with psychiatric care, the court adopted six "essential" components of a mental health treatment program required by the Constitution. Id. at 1576-77. The court also held that Idaho Code § 20-223, the state's statutory parole scheme, required the Board to establish a treatment program for sex offenders. Id. at 1577-78. At the end of its opinion, the court issued a skeletal order requiring the Board to submit in writing within 180 days a plan that would meet the six constitutional minimum standards and would embody the required sex offender program. Id. at 1583.

464 The district court held a compliance hearing on June 27 and 28, 1985. It issued an *464 order on July 11, 1985, which reviewed the adequacy of the Board's plans, adopted in full the plan for providing psychiatric care, adopted with one modification the plan for treating sex offenders, and ordered implementation by October 1, 1985.
On October 10, 1985, the prisoners filed a motion for contempt. A hearing was held on July 29, 1986. The district court denied the prisoners' contempt motion on August 18, 1986, in an order which also closed to relitigation all issues except overcrowding. The prisoners brought a motion for reconsideration on August 27, 1986, and it was denied on December 12, 1986. On March 25, 1987, the district court issued a second opinion holding that double celling in the prison violated the Constitution. Balla v. Board of Corrections, 656 F.Supp. 1108 (D.Idaho 1987) ( Balla II). On April 3, 1987, the Board filed a Rule 59 motion to alter or amend the judgment. The court granted in part and denied in part this motion on May 20, 1987.
II
In their appeal, the prisoners maintain that the district court erroneously denied their motions for contempt and for reconsideration. We review the denial of a motion for contempt for abuse of discretion. General Signal Corp. v. Donallco, Inc., 787 F.2d 1376, 1379 (9th Cir.1986) (Donallco). We also review a denial of a proper motion for reconsideration under Fed.R.Civ.P. 59(e) for abuse of discretion. Coastal Transfer Co. v. Toyota Motor Sales, U.S.A., 833 F.2d 208, 211 (9th Cir.1987) (Coastal Transfer); Swimmer v. IRS, 811 F.2d 1343, 1345 (9th Cir.1987); see also Frederick S. Wyle P.C. v. Texaco, Inc., 764 F.2d 604, 608 (9th Cir.1985) ("manifest" abuse of discretion standard); Walker v. Bank of America National Trust & Savings Association, 268 F.2d 16, 25 (9th Cir.) (same) ( Walker), cert. denied, 361 U.S. 903, 80 S.Ct. 211, 4 L.Ed.2d 158 (1959).
A.
Before we can address whether the district court erred in denying the prisoners' motion for contempt, we must face a threshold issue: Which court order should the district court have used to measure the Board's compliance for purposes of the prisoners' contempt motion? The Board argues that the district court properly measured compliance against its July 11, 1985, order, which approved and incorporated concrete plans for compliance with the November 1, 1984, opinion. The prisoners argue that the benchmark for compliance should have been Balla I, the November 1, 1984, opinion and order. The answer to this question depends upon the legal relationship between the November 1 and the July 11 decisions. Since this is a purely legal question, we review it independently. United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc) (McConney), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984).
The district court's November 1 opinion and order was interlocutory in nature. Because it did not resolve all the issues as to all the parties on the merits, leaving nothing to be done but to execute the judgment, this order was not a "final" order under 28 U.S.C. § 1291. Coopers & Lybrand v. Livesay, 437 U.S. 463, 467, 98 S.Ct. 2454, 2457, 57 L.Ed.2d 351 (1978) (Coopers & Lybrand). The order contained a declaration of legal principles as well as a skeletal order requiring the Board to "submit a plan in writing within one hundred eighty (180) days ... which will establish a psychiatric care program [including a sex offender treatment program] for the inmates" as required by the opinion's conclusions of law. Balla I, 595 F.Supp. at 1583. This relief was, by its own terms, incomplete. Although our court has not addressed this issue, other circuits have ruled that court orders which require the submission of detailed plans are not final orders appealable under 28 U.S.C. § 1291. See, e.g., Sherpell v. Humnoke School District No. 5 of Lonoke County, 814 F.2d 538, 539-40 (8th Cir.1987) (order finding school environment racially discriminatory and ordering formation of biracial committee as well as formulation and 465 submission of remedial plans not appealable under section 1291); Groseclose v. Dutton, *465 788 F.2d 356, 358-61 (6th Cir.1986) (per curiam) (court order finding death row conditions unconstitutional and ordering nomination of a master and submission of a remedial plan not a final judgment); Liddell v. Board of Education of City of St. Louis, 693 F.2d 721, 722-23 (8th Cir.1981) ("A district court order requiring submission of a plan, without more, is not appealable.") (footnote omitted); Spates v. Manson, 619 F.2d 204, 208-11 (2d Cir.1980) (order finding unconstitutional denial of library access and ordering submission of a plan, yet not mandating content of plan, held not appealable); Taylor v. Board of Education, 288 F.2d 600, 601-02 (2d Cir.1961) (order

directing school board to submit desegregation plan not appealable) (Taylor); but cf. United States v. Alabama, 828 F.2d 1532, 1536-38 (11th Cir.1987) (per curiam) (where order requiring submission of plans is itself detailed, specific, and comprehensive, it is appealable under § 1291), cert. denied, ___ U.S. ___, 108 S.Ct. 2857, 101 L.Ed.2d 894 (1988).
Courts have inherent power to modify their interlocutory orders before entering a final judgment. Marconi Wireless Telegraph Co. v. United States, 320 U.S. 1, 47-48, 63 S.Ct. 1393, 1414-15, 87 L.Ed. 1731 (1943); John Simmons Co. v. Grier Brothers Co., 258 U.S. 82, 88, 42 S.Ct. 196, 198, 66 L.Ed. 475 (1922). In addition, the Federal Rules of Civil Procedure explicitly grant courts the authority to modify their interlocutory orders. See Fed.R.Civ.P. 54(b) (any order which is not certified under Rule 54(b) and which adjudicates fewer than all the claims as to all the parties "is subject to revision at any time before the entry of [final] judgment").
In its memorandum order dated July 11, 1985, the district court explicitly "adopted" the state's plans after ruling that they were "adequate ... for compliance with this court's November Opinion." Thus, the July 11 order operated as a legal modification and completion of the November 1 opinion and order. We hold, therefore, that the district judge properly used the July 11 order as the benchmark for judging the Board's compliance.
Our holding is consistent with settled principles of the law of civil contempt. Civil contempt is appropriate only when a party fails to comply with a court order that is both specific and definite. Gifford v. Heckler, 741 F.2d 263, 265 (9th Cir.1984) (Gifford). Thus, to support a contempt motion, the order alleged to have been disobeyed must be sufficiently specific. International Longshoremen's Association, Local 1291 v. Philadelphia Marine Trade Association, 389 U.S. 64, 76, 88 S.Ct. 201, 208, 19 L.Ed.2d 236 (1967). The standards cited by the prisoners in the November 1 order are too vague to support a contempt motion. They include such requirements as a "systematic" program for screening and evaluation, participation of "sufficient" numbers of mental health professionals, and implementation of a "basic" program for identifying, treating, and supervising suicidal prisoners. See Balla I, 595 F.Supp. at 1577-78. These terms are too general to be enforced through a contempt motion.
By challenging, through a contempt motion, the sufficiency of the plans adopted July 11 in light of the November 1 principles, the prisoners were in fact challenging the basis of the July 11 order itself. Yet, it is well settled that "a contempt proceeding does not open to reconsideration the legal or factual basis of the order alleged to have been disobeyed and thus become a retrial of the original controversy." United States v. Rylander, 460 U.S. 752, 756, 103 S.Ct. 1548, 1552, 75 L.Ed.2d 521 (1983), quoting Maggio v. Zeitz, 333 U.S. 56, 69, 68 S.Ct. 401, 408, 92 L.Ed. 476 (1948). To challenge whether the plans adopted by the court satisfied the six standards articulated in the November 1 opinion, the prisoners could have either appealed the July 11 order once it became final, or attempted to reopen testimony in the compliance hearings. They did neither.
B.
Having determined that the district court properly judged the Board's compliance against the July 11 order, we 466 must now *466 assess the prisoners' argument that the court abused its discretion by denying their motion for
contempt.
As we have previously stated, civil contempt is appropriate when a party fails to comply with a specific and definite court order. Gifford, 741 F.2d at 265. Failure to comply consists of not taking "all the reasonable steps within [one's] power to insure compliance with the order [ ]." Sekaquaptewa v. MacDonald, 544 F.2d 396, 406 (9th Cir.1976), cert. denied, 430 U.S. 931, 97 S.Ct. 1550, 51 L.Ed.2d 774 (1977). The proof for civil contempt must be clear and convincing 0907 a higher standard than the preponderance of the evidence standard but less stringent than beyond a reasonable doubt. United States v. Powers, 629 F.2d 619, 626 n. 6 (9th Cir.1980) (dictum). Substantial compliance with a court order is a defense to an action for civil contempt. Donallco, 787 F.2d at 1379.
Applying these principles, we hold that the district judge did not abuse his discretion. The psychiatric care plan adopted on July 11, 1985, by the court is embodied in a letter from Ralph Pierce, the Deputy Warden of Programs, to Idaho's Deputy Attorney General. After describing the mental health program's staffing, the letter proposes (1) to add four more hours of psychiatric coverage per week, and (2) to hire two more psychologists,

"one of whom will be an Idaho State licensed Ph.D." In its order denying the prisoners' contempt motion, the district court found that the "testimony is uncontradicted that four additional hours of psychiatrists' time have been added and that two additional psychologists have been hired by the Department." Because, as we hold later, no sex offender treatment program was required, the Board could not properly have been held in contempt of that portion of the order. Since the Board has otherwise complied fully with the July 11 order, it is clear that there was no abuse of discretion in denying the prisoners' contempt motion.
C.
The prisoners also argue that the district court erred in denying their motion for reconsideration. Because we hold that the prisoners' motion for reconsideration was improperly brought under Rule 59(e), we need not reach the merits of the issue.
The prisoners' motion for reconsideration, filed on August 27, 1986, requested that the district court alter or amend its judgment of August 18, 1986, "pursuant to Rule 59 of the Federal Rules of Civil Procedure." The August 18 order had denied the prisoners' motion for contempt and closed to relitigation all issues except overcrowding. In a brief accompanying their motion for reconsideration, the prisoners advanced two grounds for reconsideration. First, they argued that the Board's plans were insufficient because they did not satisfy the six constitutional minima contained in the November 1 decision. The prisoners therefore requested that "a new remedial plan ... be constructed." Second, the prisoners argued that the Board had not complied with the plans adopted on July 11.
Rule 59(e) provides: "A motion to alter or amend the judgment shall be served not later than 10 days after entry of the judgment." Fed.R.Civ.P. 59(e) (emphasis added). Rule 59(e) "clearly contemplates entry of judgment as a predicate to any motion." Stephenson v. Calpine Conifers II, Ltd., 652 F.2d 808, 812 (9th Cir.1981) (Stephenson), overruled in part on other grounds, In re Washington Public Power Supply System Securities Litigation, 823 F.2d 1349, 1350-52, 1358 (9th Cir.1987) (en banc); see also 10 C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2651 (2d ed. 1983).
The word "judgment" as used in the Federal Rules of Civil Procedure is defined in Rule 54(a). See Financial Services Corp. v. Weindruch, 764 F.2d 197, 198 (7th Cir.1985) (per curiam) (Weindruch); 10 C. Wright, A. Miller & M. Kane, supra. A judgment "includes a decree and any order from which an appeal lies." Fed.R.Civ.P. 54(a). 467 Thus, the word "judgment" encompasses final judgments and appealable interlocutory orders. See Weindruch, *467 764 F.2d at 198; Morgan Guaranty Trust Co. v. Third National Bank of Hampden County, 545 F.2d 758, 760 (1st Cir.1976).
As we stated in Stephenson, the requirement of a judgment as a prerequisite to moving for reconsideration under Rule 59(e) protects against the specter of piecemeal review. Stephenson, 652 F.2d at 812. This is so because the denial of a Rule 59(e) motion is itself a final, appealable judgment. Walker, 268 F.2d at 25. In Stephenson, we observed that "were we to permit Rule 59(e) motions without entry of judgment, litigants could obtain appellate review of partial judgments by simply appealing a Rule 59(e) order, completely bypassing the requirements of Rule 54(b) and 28 U.S.C. § 1291." 652 F.2d at 812.
The prisoners' first ground for reconsideration in their August 27 motion in effect challenged the court's July 11 order, which had adopted the Board's plans as adequate to meet the constitutional minima articulated in Balla I. For purposes of this appeal, we assume without deciding that the district court's July 11 order was an appealable order under 28 U.S.C. § 1292(a)(1) and, as such, a "judgment" properly challengeable through a Rule 59(e) motion for reconsideration. See id. Yet to challenge the July 11 order under Rule 59(e), the prisoners would have had to serve their motion within ten days of the entry of that order. Fed.R.Civ.P. 59(e). They failed to do so. For this reason, their motion was untimely and, therefore the district court did not abuse its discretion in refusing to reopen the matter. See Scott v. Younger, 739 F.2d 1464, 1467 (9th Cir.1984) (untimely Rule 59(e) motion properly denied by district court).
In their August 27 motion for reconsideration, the prisoners also requested the district judge to reconsider his August 18 denial of their motion for contempt. While this aspect of their Rule 59(e) motion was timely, we do not

believe that the August 18 order was a "judgment" within the meaning of Rule 59(e). The August 18 order did not "end[ ] the litigation on the merits and leave[ ] nothing for the court to do but execute the judgment." Coopers & Lybrand, 437 U.S. at 467, 98 S.Ct. at 2457, quoting Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945) (Catlin). Nor is it an interlocutory order for which appeal is authorized under 28 U.S.C. § 1292 or Fed.R.Civ.P. 54(b). Thus, the issue of whether the district court abused its discretion when it refused to reconsider its August 18 order under the authority of Rule 59(e) is not before us.
For the foregoing reasons, we affirm the district court's denial of the prisoners' motions for contempt and reconsideration.
III
We turn now to the Board's cross-appeal challenging the required program for sex offenders and the failure to allow additional time to comply with prison population requirements.
A.
In Balla I, the district court ruled as a matter of law that Idaho Code § 20-223 required the Board to establish a treatment program for sex offenders. Balla I, 595 F.Supp. at 1578. The Board now challenges that ruling. In response, the prisoners first argue that it is now too late for the Board to appeal the district court's decision. The prisoners claim that the Balla I decision was final because it "end[ed] the litigation on the merits and [left] nothing for the court to do but execute the judgment." Coopers & Lybrand, 437 U.S. at 467, 98 S.Ct. at 2457, quoting Catlin, 324 U.S. at 233, 65 S.Ct. at 633. According to the prisoners, because the Balla I order was final on November 1, 1984, the Board had to appeal it within the time limits set by Federal Rule of Appellate Procedure 4.
The Balla I decision, while determining that the prisoners were entitled to relief, left the nature and extent of relief to be determined later. "An order adjudging liability but leaving the quantum of relief still to be determined has been a classic example of non-finality and non-appealability from the time of Chief Justice Marshall to our own." 468 Taylor, 288 F.2d at 602. Nor did Balla I settle all the issues as to *468 all the parties. See Coopers & Lybrand, 437 U.S. at 467, 98 S.Ct. at 2457. The overcrowding issue was not resolved until Balla II. The Balla I decision was therefore not a final judgment. Nor was the court's August 18, 1986, order, which closed to relitigation all issues except overcrowding, a final judgment. Only the court's March 25, 1987, opinion constituted a final judgment, since only then were all issues resolved. See Balla II.
Following Balla II, the Board filed a proper motion for reconsideration under Rule 59. As required, the motion was served within 10 days of Balla II. This timely motion suspended the deadline for filing a notice of appeal. Fed.R.App.P. 4(a)(4). On May 20, 1987, the district court issued an order granting in part and denying in part the Board's motion for reconsideration. The Board has timely appealed from Balla II after the filing of this order.
Our opinion does not foreclose litigants from seeking interlocutory appeals of injunctions under 28 U.S.C. § 1292 (a), or permissive interlocutory appeals under 28 U.S.C. § 1292(b). These options can be exercised before all issues as to all parties have been resolved. Nor are litigants foreclosed from seeking appeals from judgments properly certified under Federal Rule of Civil Procedure 54(b). But when no such appeal is taken from an interlocutory order, "the interlocutory order merges in the final judgment and may be challenged in an appeal from that judgment." Baldwin v. Redwood City, 540 F.2d 1360, 1364 (9th Cir.1976) (footnote omitted), cert. denied, 431 U.S. 913, 97 S.Ct. 2173, 53 L.Ed.2d 223 (1977).
Turning to the merits, we must now consider whether section 20-223 of the Idaho Code requires Idaho to establish a psychological treatment program for sex offenders. We review this legal question independently. McConney, 728 F.2d at 1201.
Section 20-223, Idaho's parole statute, provides in part:
(b) No person serving a sentence for rape, incest, committing a lewd act upon a child, crime against nature, or with an intent or an assault with intent to commit any of the said crimes or

whose history and conduct indicate to the commission that he is a sexually dangerous person, shall be released on parole except upon the examination and evaluation of one or more psychiatrists or psychologists to be selected by the commission and such evaluation shall be duly considered by the commission in making its parole determination. The commission may, in its discretion, likewise require a similar examination and evaluation for persons serving sentences for crimes other than those above enumerated.
* * *
(c) Before considering the parole of any prisoner, the commission shall afford the prisoner the opportunity to be interviewed. A parole shall be ordered only for the best interests of society when the commission reasonably believes that the prisoner no longer poses a threat to the safety of society, not as a reward of clemency and it shall not be considered to be a reduction of sentence or a pardon. A prisoner shall be placed on parole only when arrangements have been made for his employment or maintenance and care, and when the commission believes the prisoner is able and willing to fulfill the obligations of a law-abiding citizen.
Idaho Code § 20-223. The district court determined that under Ohlinger v. Watson, 652 F.2d 775 (9th Cir.1980) ( Ohlinger), Idaho was required to provide psychological treatment for sex offenders. Balla I, 595 F.Supp. at 1569, 1578. The district court's decision turned on the statute's purported rehabilitative purpose. Id. The Board contends that the district court misapplied Ohlinger because the Idaho statutory sentencing structure differs significantly from the Oregon scheme before our court in Ohlinger.
At the time Ohlinger was sentenced, Oregon had a separate sentencing scheme for "sex offenders." Oregon courts had discretion to sentence persons convicted of certain enumerated sex crimes either to (1) the determinate sentence for the specific offense, or (2) an indeterminate life sentence as a "sex offender." Ohlinger, 469 652 F.2d at 776-77 & n. 2. To invoke the sex *469 offender option, however, the court had to find that (1) the offense involved a child under 16 years of age, and (2) the defendant "had a mental or emotional disturbance, deficiency, or condition" which predisposed the defendant to the commission of various sex crimes and thus posed a threat to others. Id. at 776 n. 2. Because sex offenders sentenced to indeterminate life terms could be released only after being found psychologically healthy, they could serve lifetime sentences if their mental health did not improve. Id. at 778.
In Ohlinger, we narrowly held that sex offenders sentenced under Oregon's unique statutory scheme had a constitutional right to such individual treatment as would give each of them a realistic opportunity to be cured or to improve his or her mental condition. Id. at 778-79. Crucial to this holding was our conclusion that the defendants "were not given indeterminate life sentences merely because they committed criminal offenses, but also because they possessed `a mental disturbance, delinquency [sic] or condition predisposing' them to the commission of sex offenses." Id. at 777, quoting Or.Rev.Stat. § 137.111 (repealed 1971). Because Oregon had chosen "to incarcerate [sex offenders] on the basis of their mental illness," it "no longer ha[d] an interest in punishing appellants, but rather in attempting to rehabilitate them." Id. (emphasis added).
Stressing the statute's underlying rehabilitative rationale, we analogized the treatment of Oregon sex offenders to that of persons committed civilly for mental illness. Id. at 778 n. 8. In drawing this analogy, we stressed the substitution of indeterminate life sentences for the maximum determinate sentence under the Oregon scheme. Id. We concluded that persons sentenced under this sex offenders scheme were entitled to the constitutional minimum level of treatment required for sex offenders committed civilly. Id. at 777 n. 5.
Our decision in Ohlinger hinged upon factors which are absent here. First, incarceration of sex offenders in Idaho may not extend past the maximum term provided for each crime, although judges do possess considerable latitude in setting the sentence. Second, Idaho does not sentence sex offenders on the basis of mental conditions which predispose them to commit sex offenses. Rather, Idaho sex offenders are sentenced solely for the commission of crimes. See Ohlinger, 652 F.2d at 777. Put differently, Idaho's purpose in sentencing is punitive and not rehabilitative. State v. Gee, 107 Idaho 991, 695 P.2d 376, 379 (1985) (Gee) ("[T]he provisions of [Idaho Code] § 20-223 apply to Gee not because of his mental or physical status but because he committed one of the enumerated offenses, namely rape."). As the Idaho Supreme Court held in Gee, section 20-223 "does not

enhance a parolee's sentence or otherwise inflict punishment. Rather, section 20-223 bears a reasonable relationship to the proper state purpose of ensuring that prisoners released on parole will be likely to successfully serve the remainder of their sentences out of the physical custody of the Board of Corrections." Id. Thus, the "rehabilitative rationale" underlying the Oregon scheme is not equally applicable to Idaho Code § 20-223.
Idaho conducts psychological examinations of sex offenders for parole purposes only. Section 20-223(b) requires that a sex offender submit to such an examination before being considered for parole. Idaho Code § 20-223(b). The Parole Commission (Commission) may require a similar examination, however, for any non-sex offender prisoner. Id. The Commission is only required to "duly consider" the evaluation. Thus, section 20-223 does not establish any entitlement to parole. Gee, 695 P.2d at 379 ("[Idaho Code] § 20-223 does not dictate that the Board of Corrections deny parole to any individual nor does it require that the Board follow the psychiatrist's recommendation, if any."); Vittone v. State, 114 Idaho 618, 759 P.2d 909, 910-11 (Ct.App.1988); Izatt v. State, 104 Idaho 597, 661 P.2d 763, 765-66 (1983) (Izatt). In Idaho, parole is a matter of grace. Izatt, 661 P.2d at 766. Compare Board of Pardons v. Allen, 482 U.S. 369, 107 S.Ct. 2415, 2419-22, 96 L.Ed.2d 303 (1987) (Montana 470 parole statute which uses mandatory language to *470 create a presumption of release once certain conditions are met creates a liberty interest protectible under due process clause); Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 11-12, 99 S.Ct. 2100, 2105-06, 60 L.Ed.2d 668 (1979) (because it contains mandatory language, Nebraska parole statute creates "expectancy of release" which is a liberty interest implicating due process rights).
In Hoptowit v. Ray, 682 F.2d 1237 (9th Cir.1982) (Hoptowit), we discussed the applicability of Ohlinger to prisoners serving criminal sentences:
We have recently held that persons committed for mental incapacity have a constitutional right to adequate rehabilitative treatment. [Ohlinger, 652 F.2d at 778-79]. The rationale of Ohlinger does not extend to those serving criminal sentences. Indeed, Ohlinger supports the proposition that those serving criminal sentences have no constitutional right to rehabilitation. In Ohlinger, the prisoners "could be held indefinitely as a result of their mental illness, while those convicted and sentenced under the State [criminal law] need only serve the ... maximum term." Id. at 779. Incarceration for criminal offenses "is primarily for punitive purposes. Although rehabilitation may be desirable, it is not necessarily the primary function of such incarceration." Id. at 778.
Hoptowit, 682 F.2d at 1255 n. 8. We conclude that this language determines the outcome of this case. Since Idaho sex offenders are serving criminal sentences, the rationale of Ohlinger does not extend to them.
The prisoners argue, however, that almost all of Idaho's sex offenders are punishable by up to life imprisonment. In addition, the prisoners assert that "scores of the plaintiff class" have been sentenced to life imprisonment under these statutes. This argument lacks merit. The specific crimes listed in section 20-223(b) are: rape, Idaho Code § 18-6104; incest, Idaho Code § 18-6602; committing a lewd act upon a child, Idaho Code §§ 18-1506 & 18-1508; crime against nature, Idaho Code § 18-6605; and assault with intent to commit any of the foregoing, Idaho Code §§ 18-909, 18-910. Two of these five crimes 0907 incest and assault with intent to commit a predicate offense 0907 are punishable by not more than 10 years' confinement. See Idaho Code §§ 18-910, 18-6602. More importantly, the prisoners have pointed to no evidence in the record to support their assertion that a significant or disproportionate number of class members or Idaho sex offenders generally have received indeterminate life sentences.
Lastly, the prisoners argue that even if Ohlinger's reasoning does not require Idaho to establish a special care program for sex offenders, the absence of such a program for sex offenders violates the eighth amendment. This argument was not raised in the district court. The prisoners did raise a general eighth amendment challenge to medical and psychiatric care in the prison, and the district court ruled in the prisoners' favor on this claim, ordering the Board to implement a plan to improve those services. Because no eighth amendment challenge to the absence of a sex offender treatment program was made before the district court, we need not address that argument here.
We therefore reverse the district court's legal conclusion that under Ohlinger, section 20-223 requires Idaho to establish a special psychological treatment program for sex offenders.

B.
The Board also challenges the district court's refusal to extend its time to comply with a population cap in Unit 9. The Board challenged the deadline through a Rule 59(e) motion for reconsideration, which was granted in part and denied in part. The Board appeals from the denial of this motion. We review the denial of a proper motion for reconsideration for abuse of discretion. Coastal Transfer, 833 F.2d at 211.
Both parties mistakenly assume that our review is governed by the special abuse of discretion standard 471 articulated in Toussaint v. McCarthy, 801 F.2d 1080, *471 1087-89 (9th Cir.1986), cert. denied, 481 U.S. 1069,
107 S.Ct. 2462, 95 L.Ed.2d 871 (1987). In McCarthy, we held that in cases involving structural litigation, where "the scope of injunctive relief" is being challenged, id. at 1086-87, we must "scrutinize the injunction closely to make sure that the remedy protects the plaintiffs' constitutional rights and does not require more of state officials than is necessary to ensure their compliance with the constitution." Id. at 1089. Here, the Board appeals on this issue only from the denial of its Rule 59(e) motion for reconsideration. Both McCarthy and the only subsequent case to apply its standard, Gary H. v. Hegstrom, 831 F.2d 1430, 1432-33 (9th Cir.1987), involved direct appeals of permanent injunctions. Because of the difference in procedural posture in this case, our review is properly governed by Coastal Transfer.
The Board does not contest the holding that unconstitutional conditions will persist if Unit 9 remains double celled. It argues, however, that in light of its compliance with the district court's injunction elsewhere throughout the prison, it should be allowed to double cell the Unit 9 "close custody" inmates as long as their "basic needs" are met. We assume under the facts of this case that this would fall short of the minimum required by the Constitution, since the Board admits that continued double celling in Unit 9 would violate the eighth amendment. The Board claims that the district court's ordered remedy requires more than is possible, because the new facility for high-risk prisoners such as those presently double celled in Unit 9 is not yet complete. The Board points to its accelerated efforts to provide additional space, and cites May 1989 as the earliest date for completion.
We hold that the district judge did not abuse his discretion. The prison was designed to hold 495 prisoners. On January 7, 1987, the prison's population was 741. Technically, it may be said that the prison is 50% "overcrowded," but this fact has no constitutional significance standing alone. Toussaint v. Yockey, 722 F.2d 1490, 1492 (9th Cir.1984), citing Rhodes v. Chapman, 452 U.S. 337, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981) ( Rhodes). Only when overcrowding is combined with other factors such as violence or inadequate staffing does overcrowding rise to an eighth amendment violation. Hoptowit, 682 F.2d at 1246-49.
In Balla I, the district court did not base any of its findings of unconstitutionality on prison overcrowding, although even then there "seemed to be little question but that [the prison] [was] overcrowded." Balla I, 595 F.Supp. at 1573. The court observed that "overcrowding clearly brings on many problems, including idleness, frustration, stress, discomfort, edginess, and fear.... [and] it is one of the principal causes of the effect of violence, fights, stabbings, and of course, extreme management problems." Id. However, the court determined "that a real effort [was] being made to alleviate the overcrowding." Id. As the court later explained in Balla II:
In Balla [I], the court did not explicitly find, in terms of numbers of inmates, unconstitutional overcrowding at [the prison]. In fact, this court, based upon [the Board's] testimony heard in March of 1984, felt the obvious overcrowding at [the prison] would in all likelihood be alleviated by giving the Board of Corrections a little time to develop some of their announced plans.... Thus, the court in its original decision sidestepped the issue of overcrowding for another day.
Balla II, 656 F.Supp. at 1109. Almost a year after Balla I, however, the overcrowding and its concomitant problems remained. Consequently, the prisoners initiated further proceedings. At their behest, the court agreed to make "a determination regarding overcrowding at [the prison] as a specific condition of confinement." Id. at 1110.
The district court appointed an expert witness to assist in making this determination. Id. Applying the standards announced in Rhodes, 452 U.S. 337, 101 S.Ct. 2392, the expert recommended that the prison reduce its 472 population by 58 prisoners, from 741 to 683. The expert specifically *472 recommended that the population of

Unit 9, which houses inmates in close custody, be reduced from 101 prisoners to 78, and that five other living units be reduced in population as well. Regarding Unit 9, the expert concluded: "Because there is a strong potential for violent behavior among this classification of inmate [close custody], no more than one inmate should be housed in a cell."
In addition to receiving the expert's recommendation, the court held two hearings on the issue of overcrowding, one in 1985 and a second in 1987. Balla II, 656 F.Supp. at 1110. The district judge himself made a tour of the prison on February 12, 1987. Id. The district court in Balla II adopted virtually in full the expert's recommendations regarding population. Rendering its decision on March 25, 1987, the court gave the Board until July 1, 1987 (approximately 100 days) to reduce the inmate population in six of the prison's living units to certain specified levels, including a total decrease of 23 inmates in Unit 9. Id. at 1113-14, 1117, 1119-20.
On April 3, 1987, the Board filed a motion to alter or amend the judgment under Rule 59. It requested more time in which to reduce the population of three of these six units. This request was granted with respect to two of these units, but with respect to Unit 9, the request was granted only in part. The district court refused to allow the Board to maintain an admittedly unconstitutional level of overcrowding in Unit 9 for an additional two years. Therefore, the district court granted only a four-month extension, to November 1, 1987. Altogether, then, the district court granted the prison over seven months to comply with its original order eliminating double celling in Unit 9.
From the foregoing it is clear that the district judge did not abuse his discretion in denying the Board the full extension of time requested. Only after patiently exhausting other alternatives did the district court conclude that single celling in Unit 9 was required to protect the prisoners' constitutional right to personal safety. The district court afforded the Board an opportunity to raise Unit 9 to constitutional minima through means other than new construction 0907 for example, through circumscribing movement in certain tiers. See Balla I, 595 F.Supp. at 1579. After years of involvement, the district court has concluded that no arrangement which involves double celling Unit 9 can meet constitutional minima. It is undisputed that double celling in Unit 9 poses serious risks of violence and sexual attack to its inhabitants. Balla II, 656 F.Supp. at 1117; Balla I, 595 F.Supp. at 1573, 1579.
Moreover, the Board has known for years that double celling in Unit 9 leads to violence and sexual assaults, and yet it has permitted this situation to continue. See Balla I, 595 F.Supp. at 1579 ("[P]rison officials themselves have acknowledged the problems [of violence and sexual assaults] inherent in double-celling close custody inmates at [the prison]."). In ordering the Board to single-cell Unit 9, the district court stated: "Of particular concern to this court was the historical failure in the operation of [the prison] to meet constitutional minima in the housing of highsecurity and close custody inmates." Balla II, 656 F.Supp. at 1109 (emphasis added). Evidence of an historical failure to comply with constitutional standards is highly relevant in fashioning an effective remedy. Hutto v. Finney, 437 U.S. 678, 687, 98 S.Ct. 2565, 2571, 57 L.Ed.2d 522 (1978). The Board's inaction in the face of this obvious problem supported the district court's refusal to grant the full extension of time.
Nor does the presence of various factors weighing in the Board's favor alter our conclusion that the district judge did not abuse his discretion in denying the Board's motion for reconsideration. In evaluating these factors, we can be assisted by considering analogous case law. Although not controlling, cases denying Rule 60(b) motions to modify injunctions in structural litigation cases provide useful analysis.
The Board's good faith in accelerating construction of the new facility is significant. See Cody v. Hillard, 830 F.2d 473 912, 915 (8th Cir.1987) (en banc) (denial of prison *473 officials' Rule 60(b) motion reversed where officials acted
in good faith and prison conditions did not violate the Constitution), cert. denied, ___ U.S. ___, 108 S.Ct. 1078, 99 L.Ed.2d 237 (1988); see also Whitley v. Albers, 475 U.S. 312, 319, 106 S.Ct. 1078, 1084, 89 L.Ed.2d 251 (1986) ("It is obduracy and wantonness, not inadvertence or error in good faith, that characterize the conduct prohibited by the Cruel and Unusual Punishments Clause, whether that conduct occurs in connection with establishing conditions of confinement ... or restoring official control over a tumultuous cell block.") (emphasis added) (emphasized language dictum). Yet such good faith efforts do not cure the constitutional violations occurring for years. See Battle v. Anderson, 564 F.2d 388, 400-03 (10th Cir.1977) (Battle).
The Board argues, however, that compliance with the injunction's deadline will result in security problems harmful to inmates' personal safety. In ordering a remedy, courts must consider "the effect on legitimate security needs of

the prison." Hoptowit, 682 F.2d at 1247. The Board argues that single celling Unit 9 will increase the potential for violence, disruptive behavior, and injuries to inmates and staff, because "close custody" inmates, ordinarily housed in Unit 9, will have to be placed in single cells in Unit 11. Unit 11 presently houses "medium custody" inmates. Unlike Unit 9, it has no toilets in cells and lacks remote locking doors. While Unit 9 was designed for close custody inmates, and can be locked down in a disturbance, Unit 11 lacks a lockdown capability. While we are not unsympathetic to these potential risks, we do not believe that the district judge abused his discretion in determining that they do not justify the continued violation of eighth amendment rights of Unit 9 inmates. This is particularly true because these risks are partly the result of the Board's own inaction. See Battle, 564 F.2d at 403 (rejecting argument that potential risks involved in placing violent and passive inmates in close proximity to reduce overcrowding elsewhere required reversal of district court's injunction). We therefore hold that the district judge did not abuse his discretion in denying in part the Board's Rule 59(e) motion.
AFFIRMED IN PART; REVERSED IN PART.
Save trees - read court opinions online on Google Scholar.

 
 595 F.Supp. 1558 (1984)
Walter D. BALLA, et al., Plaintiffs, v.
IDAHO STATE BOARD OF CORRECTIONS, et al., Defendants. Walter D. BALLA, et al., Plaintiffs, v.
Donald ERICKSON, et al., Defendants. (Two cases).
Civ. Nos. 81-1165, 78-1045 and 1-76-75.
United States District Court, D. Idaho.
November 1, 1984.
155690 *1559 *1560 Walter D. Balla, pro se.
Dean Schwartzmiller, pro se.
Robert R. Gates, Deputy Atty. Gen., Boise, Idaho, for defendants.
1561 *1561 MEMORANDUM OPINION, FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER
RYAN, District Judge.
Introduction
Each of these actions was brought by Mr. Walter D. Balla, an inmate of the Idaho State Correctional Institution (ISCI), alleging constitutional deprivations taking place at ISCI. Each of these cases was previously consolidated by the Honorable Ray McNichols, District Judge, and a class of persons was certified under Rule 23 of the Federal Rules of Civil Procedure described as "all persons confined at the Idaho Correctional Institution, Main Site, located south of Boise, Idaho, as of May 13, 1981, together with all persons confined there between the period of May 13, 1981, and the entry of final judgment in this case."
Initially, this court had reservations about the ability of the class representative (Inmate Walter Balla) to fairly and adequately protect the interests of the class. By reason of these reservations, the court attempted to procure an attorney or attorneys to represent these pro se litigants. The court was not successful in obtaining attorney representation for the pro se litigants, and perhaps even if an attorney could have been found, it would have resulted in a significant delay in the ultimate resolution of these cases, which cases were crying to be heard and disposed of. The court thereupon, in February 1984, appointed Mr. Dean Schwartzmiller, an inmate at ISCI, as lead lay counsel. Mr. Balla and Mr. Schwartzmiller thereafter shared responsibilities for the presentation of the inmates' cases.
After reading the pleadings in these cases, the court determined that although the pleadings were very rambling and sometimes incoherent, they generally alleged eighth and fourteenth amendment deprivations along with numerous pendent state claims, together with prayers for relief of declaratory judgment, injunction and damages. In order to try these cases, the court was faced with a real management problem, to bring together and cause to be tried a sensible and coherent case where all parties could then have some sense of direction in order to put on their evidence in a somewhat orderly fashion.
After holding a pretrial hearing and status conference at the prison site, the court scheduled the trial to begin on March 5, 1984, and caused the trial to be bifurcated and to deal only and strictly with the requests for declaratory

and injunctive relief prayed for by the plaintiffs. The issue of damages, should it be necessary to reach their merits, will be tried separately.

The court ordered that it would not consider any pendent state claims asserted by the plaintiffs.

Further, pursuant to Rule 16(c)(1) of the Federal Rules of Civil Procedure, the court ordered that it would entertain evidence only upon plaintiffs' allegations of constitutional deprivations which relate to their eighth amendment claim of cruel and unusual punishment and their fourteenth amendment claim of denial of due process. Within the ambit of these two alleged constitutional deprivations, there appeared to be a number of disputed factual issues. Among the factually disputed issues relating to cruel and unusual punishment under the eighth amendment claim, the court set them forth in its pretrial order as follows:

(1) whether or not the prison is in fact overcrowded;

(2) whether or not the classification system presently in use is constitutionally defective because it fails to rehabilitate the inmates, debilitates the inmates, and subjects them to physical and sexual assault;

(3) whether or not the classification and disciplinary systems as implemented by the Board of Corrections are constitutionally impermissible;

(4) whether or not the medical care and/or the lack thereof results in deliberate indifference to the serious needs of the inmates; and

1562

(5) whether or not the food services are constitutionally inadequate as part of *1562 the general conditions of confinement.

The due process allegations under the Pretrial Order centered around three factually disputed issues, which are:

(1) whether or not there was a wholesale reclassification of the prison population without notice or an opportunity to be heard, with the attendant argument that such a wholesale reclassification gives rise to due process protections;

(2) whether or not due process rights are afforded and required at individual reclassification hearings; and

(3) whether or not due process of law has been afforded and is required at parole hearings.

The trial ended after thirteen days of testimony. The court established a briefing schedule for submission of posttrial briefs and memoranda. Those memoranda have been received and reviewed and studied by the court. Finally, on June 19, 1984, the court undertook an inspectional tour of ISCI. Included in the tour were the reception and diagnostic unit; the infirmary; the gymnasium, A-Block (medium custody); Housing Unit 9, including Tier C (protective custody) and Tier A (close custody); Housing Unit 7, including Tier A (death row and isolation cell) and Tier C (administrative segregation); Housing Unit 8, including Tier A (detention), Tier B (close custody), and Tier C (close custody); and Housing Unit 10, Tier C (medium custody).

There are three basic classifications of inmates at ISCI. Those classifications are medium custody, close custody, and maximum security. The major classifications represent a risk assessment undertaken by prison officials. Medium custody is composed of those individuals who are the least likely of any of the three categories to attempt an escape or to cause a disruption or violence. The classifications of close custody and maximum security each contain various sub-categories. Within the major classification of close custody, there are inmates in protective custody, detention, and what may be referred to for these purposes as "typical." Protective custody inmates are those isolated from the main yard population for their own safety. Protective custody inmates often have been the subject of homosexual rapes, or owe an unpayable debt to other inmates, and because of these situations have turned evidence about their situation over to prison authorities. Those persons in detention are those who have committed some transgression in violation of institutional rules and are in detention for a period of time as punishment for their violation. The "typical" close custody inmate is in close custody because he is an administrative risk as demonstrated by his prior record, propensity for escape, or his history of disciplinary reports

which indicate that he is unfit for activity unless it is closely monitored. Within maximum security there are two sub-categories: administrative segregation and death row. Those inmates in administrative segregation present an even greater threat to institutional security and possibility of flight than do those inmates in close custody.
This suit deals primarily with the main site of ISCI. There are a number of individuals in the minimum security facility located near the main site which is referred to as the "farm dorm." The conditions of confinement at the farm dorm are not properly before this court for determination at this time. However, there are aspects of these cases which specifically overlap with the evidence adduced at trial, and to that extent the minimum security facility is a portion of this litigation. For example, the health care at the main site is the only health care available at ISCI and as such, is used by both inmates at the main site and the farm dorm. Necessarily, the health care relates to the minimum security inmates at the farm dorm. Unless specifically referred to in this opinion, later in the Findings of Fact and/or Conclusions of Law the court speaks only to the main prison site south of Boise, Idaho.
Scope of Judicial Review
1563 This court believes that the scope of its judicial review has been well defined *1563 by the Ninth Circuit Court of Appeals. In Hoptowit v. Ray, 682 F.2d 1237 (9th Cir. 1982), Judge Clifford Wallace stated on behalf of the Ninth Circuit panel:
In entertaining a cause of action alleging Eighth Amendment violations in a state prison, federal courts must be cognizant of the limitations of federalism and the narrowness of the Eighth Amendment. Federal courts lack the power to interfere with decisions made by state prison officials, absent constitutional violations. Courts must recognize that the authority to make policy choices concerning prisons is not a proper judicial function. Bell v. Wolfish, 441 U.S. 520, 562, 99 S.Ct. 1861, 1886, 60 L.Ed.2d 447 (1979). Any needed prison reform is an executive and legislative responsibility. The function of a court is limited to determining whether a constitutional violation has occurred, Rhodes v. Chapman, 452 U.S. 337, 101 S.Ct. 2392, 2400-01, 69 L.Ed.2d 59 (1981), and to fashioning a remedy that does no more and no less than correct that particular constitutional violation. See Swann v. Charlotte-Mecklenburg Bd. of Educ., supra, 402 U.S. [1] at 16, 91 S.Ct. [1267] at 1276 [28 L.Ed.2d 554 (1971)].
The Eighth Amendment is not a basis for broad prison reform. It requires neither that prisons be comfortable nor that they provide every amenity that one might find desirable. Rhodes v. Chapman, supra, 101 S.Ct. at 2400; Wolfish v. Levi, 573 F.2d 118, 125 (2d Cir.1978), rev'd on other grounds sub nom., Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). Rather, the Eighth Amendment proscribes the "unnecessary and wanton infliction of pain," which includes those sanctions that are "so totally without penological justification that it results in the gratuitous infliction of suffering." Gregg v. Georgia, 428 U.S. 153, 173, 183, 96 S.Ct. 2909, 2925, 2929, 49 L.Ed.2d 859 (1976). See also Rhodes v. Chapman, supra, 101 S.Ct. at 2399. This includes not only physical torture, but any punishment incompatible with "the evolving standards of decency that mark the progress of a maturing society." Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 598, 2 L.Ed.2d 630 (1958). See also Estelle v. Gamble, 429 U.S. 97, 102, 97 S.Ct. 285, 290, 50 L.Ed.2d 251 (1976). In determining whether a challenged condition violates "evolving standards of decency," courts may consider opinions of experts and pertinent organizations. But these opinions will not ordinarily establish constitutional minima. What experts may consider desirable may well constitute appropriate goals to which the other branches may aspire but they do not usually establish those minimums below which the Constitution establishes a prohibition. See Rhodes v. Chapman, supra, 101 S.Ct. at 2400 n. 13. Indeed, they weigh less heavily in this determination than what the general public would consider decent. Id.
D. Analytical Framework.
In analyzing claims of Eighth Amendment violations, the courts must look at discrete areas of basic human needs. As we have recently held, "`[A]n institution's obligation under the eighth

amendment is at an end if it furnishes sentenced prisoners with adequate food, clothing, shelter, sanitation, medical care, and personal safety.'" Wright v. Rushen, 642 F.2d 1129, 1132-33 (9th Cir.1981) (Wright), quoting Wolfish v. Levi, supra, 573 F.2d at 125.

In assessing claims of Eighth Amendment violations, and equally importantly, in tailoring a proper remedy, we must analyze each claimed violation in light of these requirements. Courts may not find Eighth Amendment violations based on the "totality of conditions" at a prison. Wright, 642 F.2d at 1132.... There is no Eighth Amendment violation if each of these basic needs is separately met. If a challenged condition does not deprive inmates of one of the basic Eighth Amendment requirements, it is immune from Eighth Amendment attack. A number of conditions, each of which satisfy Eighth Amendment requirements, cannot in combination amount to an Eighth Amendment violation.

1564

*1564 As we have said, however, "[E]ach condition of confinement does not exist in isolation; the court must consider the effect of each condition in the context of the prison environment, especially when the ill-effects of particular conditions are exacerbated by other related conditions." Id. at 1133. This is no more than a recognition that a particular violation may be the result of several contributing factors. "But the court's principal focus must be on specific conditions of confinement. It may not use the totality of all conditions to justify federal intervention requiring remedies more extensive than are required to correct Eighth Amendment violations." Id. To find an Eighth Amendment violation, courts must identify specific conditions that fail to meet Eighth Amendment requirements. We cannot rely on a vague conclusion that the "totality of conditions" violates the Eighth Amendment.

Wright is also critical to the determination of an appropriate remedy. Arguably, under the "totality of conditions" approach, courts may be justified in ordering broad remedies to correct all the conditions that combine to create the "violation." Under our approach, only the specific conditions that violate the Constitution may be remedied, and the remedy may be only so much as is required to correct the specific violation. A remedy may go beyond this only when there is a record of past constitutional violations and violations of past court orders. See Hutto v. Finney, 437 U.S. 678, 687, 98 S.Ct. 2565, 2571, 57 L.Ed.2d 522 (1978).

In ordering a remedy, courts must consider the cost of compliance and the effect on legitimate security needs of the prison. Wright, 642 F.2d at 1134. Courts should consider bona fide steps that prison officials are taking to alleviate poor prison conditions. This is not to say that such steps necessarily obviate the need for a remedy. Rather, the court should defer to the policy choices made by prison officials and order a remedy consistent with the basic approach taken by prison officials, unless that approach itself is inconsistent with the Eighth Amendment. See Bell v. Wolfish, supra, 441 U.S. at 562, 99 S.Ct. at 1886.

Id. at 1246-47 (footnote omitted).

In the area of overcrowding and idleness, there was much testimony and complaints of debilitation and a cry for programs of rehabilitation. Rehabilitation and the returning of inmates to society as useful and responsible citizens is, of course, a laudable and correct and worthwhile goal. However, rehabilitation is not constitutionally required. Such commendable goals would certainly be encouraged by this court, but are better left to the Idaho State Legislature and executive policy. The problems at ISCI and of prisons in America are complex and intractable, and more to the point, they are not readily susceptible of resolution by decree. Most require expertise, comprehensive planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of state government. Courts are ill-equipped to deal with the increasing urgent problems of prison administration and reform. This court's recognition of that fact reflects no more than a healthy sense of realism.

FINDINGS OF FACT

Food
1. Prior to trial there was a disparity between the quantity and quality of food being served those prisoners in medium custody and those prisoners in either maximum security or close custody. Those inmates in medium custody were being served at Pendyne, the cafeteria facility. Those inmates in close custody and maximum security were being served on the tiers where their cells are located. Food portions for inmates in close and maximum were being meted out and placed on individual trays at the Pendyne facility, and then transported via an automated cart to the individual housing units. Those housing units are some distance away and an almost universal complaint was that if the food was meant to be served hot, it was either lukewarm or cold, and that if it 1565 was *1565 intended to be served cold or frozen, it was lukewarm or melted when it was served.
2. There was evidence that the quantity of food served to those inmates in close custody and maximum security was significantly less than that served to inmates in medium custody at Pendyne. This evidence was corroborated by defendants' own witness Agnes Foley, a registered dietitian for the Idaho Department of Health and Welfare. Ms. Foley conducted tests on representative samples from the main line at Pendyne and compared it with a portion destined for close custody. In analyzing the two different portions, Ms. Foley determined that the portion of food served at the main line of Pendyne, excluding the salad bar which she was unable to assess since there was no readily identifiable quantity, amounted to 2,812 calories. Defendants' Exhibit No. 332. On the other hand, the representative sample for those inmates in close custody or maximum security amounted to 1,606 calories. Defendants' Exhibit No. 332. In other words, defendants' own witness testified that persons in medium custody were receiving nearly half again as much food as those inmates in close custody or maximum security. The calculations of Ms. Foley increased to 3,475 calories for medium custody inmates and 2,297 calories for inmates in close custody or maximum security when planned beverages were included. It was Ms. Foley's conclusion that while there was a significant disparity between the caloric content of the food received by medium custody inmates and those in either close custody or maximum security, that both quantities were within the recommended dietary allowances of the American Dietetic Association.
3. Regardless of what the situation was prior to and during trial, the court has learned that prison officials have dramatically altered the food service to maximum security and close custody inmates in the intervening months between the conclusion of the trial and the writing of this opinion. Presently, the administration at ISCI has implemented a program whereby the foods destined for close custody and maximum security are transported in bulk to the individual housing units and served at that point. The result is that inmates in close custody and maximum security receive a better quality and larger quantity of food. As a result of the implementation of this method of dispensing food, the representative of the class, Mr. Balla, has informed the court that the problems associated with food have been alleviated.
4. There remain problems with specific diets of particular inmates. Inmates John McGonnigal and Donald Kerst, both of whom suffer from diabetes, testified that they had experienced difficulties in receiving appropriate diets. In Mr. McGonnigal's case, he was unable to procure enough food to supplement his caloric intake for his medical condition. In Mr. Kerst's instance, he was prescribed a high protein diet, limited to 1,800 calories, to be coordinated with his injections of insulin. In Mr. McGonnigal's case, he collapsed after going to Pendyne and receiving a juice which was artificially sweetened with saccharine. In Mr. Kerst's case, he is now legally blind, suffering from diabetic retinopathy, because of his inability to control his diabetic condition.
5. Inmate Kenneth Volker suffers from Crohn's Disease. As a result of that disease, he is supposed to limit his diet to low residue, low fat, low starch, and low grease food products. In an effort to accommodate Mr. Volker's diet, Physician's Assistant Stedfeldt authorized a double serving for Inmate Volker at the Pendyne cafeteria. After some three months on this "diet," Inmate Volker suffered a relapse which resulted in his hospitalization.
6. The court finds that the problems regarding the disparity between quality and quantity of food being served to inmates in medium custody and those in maximum security and close custody has been alleviated and is now moot. However, the officials at ISCI have been reluctant to accommodate inmates with regard to diets needed for specific health and dietary problems.

1566 *1566 Clothing
7. The clothing worn by inmates in medium custody and close custody was of good quality cotton and appeared adequate for the conditions in which it was being worn.
8. The clothing being worn by inmates in protective custody is lightweight cotton uniforms which were previously owned by Hughes Airwest Company. The multi-colored (yellow and blue) uniforms do an adequate job of setting those inmates in protective custody apart from other custody levels, but insofar as warmth is concerned, they are inadequate. These lightweight uniforms, many of which were ripped up the seams to approximately knee level, did not afford sufficient warmth for the temperature of the courtroom on the days of trial, much less would they provide adequate warmth in a prison environment. It was noted by the court during its visitation at ISCI, that the protective custody inmates, at least while confined to the unit, appeared to be wearing all manner of different clothing, including sweatsuits and other civilian apparel.
Health Care Delivery System
Medical Care:
9. In 1979, the Idaho Department of Corrections commissioned a study to develop a comprehensive master plan to analyze the existing facilities and develop a course of action for the future. The group commissioned to produce the master plan published their findings in April 1982. See Plaintiffs' Exibit No. 3A. With regard to the medical facility at ISCI, the commission had the following findings:
Inadequate Medical Facility
The current health care delivery system is not adequate according to a recently completed report by the Idaho Medical Association. The Psychiatric Unit of ISMF [Idaho Security Medical Facility] does not currently meet National Institute of Corrections, American Correctional Association and Idaho Health and Welfare Standards regarding: (1) physical standards on room size; (2) number of available beds; (3) psychiatric services; (4) number of therapy technicians; (5) occupational therapy services; and (6) number of fully equipped observational rooms.
Medical care does not meet American Correctional Association, National Institute of Corrections and Idaho Medical Association Standards regarding: (1) number of medical staff; (2) dental services; (3) bed space; and (4) support staff.
Idaho Department of Corrections, Master Plan, April 1982 at 51.
10. ISCI does not employ any full-time medical doctors. Medical doctors do, however, travel to the infirmary on a twice-weekly (Tuesday and Friday) basis for approximately four hours on each day.
11. The medical staff at ISCI consists of Mr. Hal Gaythwaite, medical services manager; Mr. Steven Stedfeldt, a licensed physician's assistant; and Mr. Doug Barlow, a registered nurse and licensed nurse practitioner. Medical services are provided in large part by these three individuals. These three examine patients, refer patients to physicians, diagnose illnesses, suture cuts, and cast broken limbs. The medical staff is only available sixteen hours per day, seven days per week. Accordingly, emergency medical care is unavailable one-third of the time. Director of Corrections Al Murphy testified that he is attempting to resolve this problem; however, as yet this inadequacy has not been alleviated.
12. Medical care is accessible only via a "kite" system. A "kite" is a medical request form submitted by an inmate which explains the problem being experienced by the inmate and which initiates medical review by the medical staff. See Plaintiff's Exhibit No. 172. The kite system leaves a great deal to be desired. Evidence was produced which indicated that kites had been submitted by inmates and never responded to by the medical staff. The American Correctional Association, in its standards for adult correctional institutions, deems it mandatory that

1567 "[w]ritten policy and procedure provide for unimpeded *1567 access to health care and for a system for processing complaints regarding health care." American Correctional Association Standards for Adult Correctional Institutions, 2d Ed. § 2-4300 at 79 (1981). A system which does not respond to written requests for medical attention cannot possibly be construed as affording access to nor being responsive to complaints about the health care system. Moreover, the kite system, even when working properly, can result in a significant delay between the time the inmate submits his kite and the time he is seen by a member of the medical staff.
13. Perhaps even more telling is the fact that access to the infirmary is impossible without an individual guard's permission. Plaintiffs demonstrated that the kite system, on occasion, breaks down entirely, thus preventing inmate access to the infirmary. The infirmary itself is locked at all times. Presumably this is for security reasons. The medical services director, Hal Gaythwaite, refused to defend that policy when testifying. Not only is the infirmary locked at all times, it is frequently impossible to gain admission. Shortly prior to trial, court staff toured the prison, and when the court toured the ISCI medical facility, no inmates were being cared for in the infirmary. While it may be that these two instances were rare occurrences, it certainly corroborates plaintiffs' allegations that admission to the infirmary is functionally deficient, cumbersome, or impossible. The infirmary itself seemed to be entirely adequate for the functions for which it is designed. Nonetheless, the court was left with the unmistakable impression that it is difficult, and cumbersome, for an inmate to gain access to this facility.
14. There are major problems existing at ISCI relating to medical care. There is no full-time medical doctor or doctors on staff to oversee and minister to the medical needs of in excess of eleven hundred inmates. (The medical facility is intended to provide interim medical care for not only the main yard, but those inmates at the farm dorm.) The medical staff, such as it is, is forced to provide medical care which it is neither trained nor licensed to provide. Moreover, this meager staff is only available sixteen hours per day, leaving the inmates at ISCI without any emergency medical care for a critical period of time. In addition, it is clear that certain inmates have been unable to procure an initial consultation with a member of the medical staff because of a breakdown in the kite system. Most importantly, there is no written procedure which provides guidance to the medical staff personnel or security staff in dealing with either emergency or day-to-day operations of the medical facility.
15. The medical delivery system at ISCI is very minimal and meager at best. There was evidence that after some time delay, serious medical problems were taken to Boise medical facilities and upon arrival, the inmate then received adequate medical attention. There was also evidence that follow-up medical attention, medical prescription, and dietary prescribed needs in numerous instances received deliberate indifference.
16. There was also uncontroverted evidence of inmates' ailments being misdiagnosed by the meager medical staff at ISCI, and there were instances of which serious delay resulted by reason of such misdiagnosed cases that resulted in delayed medical care and/or a resulting poor prognosis of the injury or ailment. In some instances, only by reason of an inmate's ability to contact his family or friends was outside pressure brought to bear on the institution. The institution was then forced to overcome its deliberate indifference and provide proper medical treatment.
17. There was little or no evidence submitted in this case on the question of the proper or adequate keeping of medical records. Considering that the plaintiff's case was presented by lay counsel, this is understandable. However, what few medical records are in evidence, although they are certainly not comprehensive or complete, they appear to leave a great deal to be desired.
1568 18. After reviewing the evidence relating to the medical care delivery system at *1568 ISCI, this court finds that it is marked by an absence of any organizational structure, plan or written procedures. There is inadequate instruction, supervision and review of the personnel putatively providing medical care. The medical delivery system at ISCI is a system that persistently and predictably fails to provide adequately for the legitimate medical needs of the prison population. This health delivery system at ISCI, for a number of years up to the present, has been handled with considerable deliberate indifference.
19. An inmate incarcerated at ISCI must of necessity rely on prison authorities to treat his medical needs; if the authorities fail to do so, those needs will not be met. There was considerable evidence in this case that by reason of the deliberate indifference and failure to deliver medical care, in many instances it produced unneeded, unnecessary and inexcusable torment, pain, suffering, and anxiety. In the less serious cases of denial of medical

care, it appeared to and did result in pain and suffering which this court, or anyone else for that matter, would suggest that it serves any penological purpose. The infliction of unnecessary suffering and the meeting of basic medical care is inconsistent with contemporary standards of decency. The defendant has a duty to care for and provide a medical delivery system to the inmate who cannot by reason of the deprivation of his liberty care for himself. This deliberate indifference to serious medical needs of prisoners constitutes an unnecessary and wanton infliction of pain proscribed by the eighth amendment. The indifference manifested by the medical delivery system with untrained, unlicensed and inadequate personnel, or by prison guards in intentionally denying or negligently delaying access to medical care, or intentionally or negligently interfering with the treatment once it has been prescribed, is not compatible with the standards of decency required of a maturing society.
Psychiatric Care:
20. From the evidence heard by this court, psychiatric care provided at ISCI is even far more deficient than the medical care delivery system. Psychiatric care at ISCI is almost nonexistent. While it is true that the Department of Corrections employs two full-time psychologists, the attitude of the Department with regard to psychiatric care can best be described as deliberately indifferent.
21. It appears from the evidence that little or no screening or testing occurs when an inmate enters the institution. No adequate attempt is made to identify mental problems or psychological maladies. The approach for diagnosing drug dependencies, alcohol problems, or other substance abuse related problems is haphazard. Apparently the chosen course of action is to prescribe psychotropic medication in lieu of psychiatric counseling. In the three-year period from 1981 to 1983, the prescription and attendant use of psychotropic medication has more than quintupled when considering the number of inmates actually taking psychotropic medication. A court requested memorandum was provided to the court subsequent to the completion of testimony. That memorandum documented an alarming increase in psychotropic medication. The figures in that memorandum are:

Average Monthly Population

1981 753

1982 849

1983 923

Average Percent of Inmates on Psychotropic Medications

1981 2%

1982 5%

1983 9%

In relative terms, the percentage of inmates receiving psychotropic medication has increased at an extraordinary rate of four and one-half times in just three years. When the absolute increase is considered (taking into account the fact that the prison population increased by approximately 13 percent in 1982 and 9 percent in 1983), the 1569 number of inmates taking psychotropic *1569 medication has increased approximately five and one-half times in the course of three years.

22. The abdication of responsibility for psychiatric care and counseling is manifested in a number of ways. Numerous young men testified to brutal physical beatings and violent gang rapes which were reported to authorities, which accomplished some minimal goals for the victim of perhaps a change in living quarters, being given inmate protection, or placed in protective custody. A cold indifference was apparent on the part of the Department of Corrections in providing to the victim any psychiatric counseling. There was further evidence of inmates who had attempted suicide who obviously were manifesting severe mental and emotional problems. Little or no psychiatric care or assistance was or is provided to these seriously ill people.

23. The Idaho State Legislature, in enacting Idaho Code § 20-223, precludes the release on parole of even a model prisoner serving a sentence for the crimes enumerated in that section, or whose history and conduct

indicate that such inmate is a sexually dangerous person except upon the examination and evaluation of one or more psychiatrists or psychologists. This statutory scheme requires indeterminate incarceration of sex offenders absent rehabilitation. Thus, having chosen to incarcerate inmates categorized as sexually dangerous persons because of their mental illness, the State of Idaho has determined that it no longer has an interest in punishing the inmate, but rather in attempting to rehabilitate such categorized inmate. This rehabilitative rationale is not only desirable, but it is constitutionally required. Ohlinger v. Watson, 652 F.2d 775 (9th Cir.1980). The Idaho Code § 20-223 inmates are perhaps not crying out for the best possible treatment, nor are they seeming to demand a guarantee to be cured of their mental incapacity or inadequacies. They are, however, entitled to a treatment program that will address their particular needs, with the reasonable objective of evaluation and rehabilitation, to have some history or reasonable basis worked up during their incarceration whereby a psychiatrist or psychologist could then give a reasonable evaluation or opinion to the parole commission indicating whether or not such sexually dangerous person is fit to return to society. Such constitutionally required treatment is not that which must be provided to the general prison population, but rather, that which must be provided to those committed under any of the categories set forth in Idaho Code § 20-223. Certainly due process requires that the nature and duration of commitment bears some reasonable relation to the purpose for which the individual is committed. In these cases, adequate and effective treatment is constitutionally required, for absent such treatment, a Section 20-223 categorized individual inmate could be held indefinitely.
Personal Safety
24. Another area of grave concern for this court is that of personal safety. Because the level of violence and, hence, personal safety depends largely on the various custody levels, the court will analyze each of the custody levels separately.
Medium Custody:
25. Medium custody is the least restrictive custody designation at the main site. Medium custody inmates are housed in A-Block, Housing Unit 10, and Housing Unit 11. Medium custody inmates are those inmates deemed less likely to escape, better able to deal with personal interaction in prison, and more capable of holding down a prison industries job than either those inmates in close custody or maximum security. Presently Housing Units 10 and 11 are double-bunked and double-housed. The cells are approximately 60 square feet each. While most of the units have two persons each, those inmates in medium enjoy a greater degree of flexibility than do those inmates in either close custody or administrative segregation. Inmates in medium custody are confined to their cells from 9:00 p.m. until 8:00 a.m. (although the doors are not locked and inmates continue to have access to 1570 restroom facilities), but at times other than this, inmates have freedom to roam the tier, which includes the *1570 hallway and day room. Moreover, many of those inmates in medium custody have a job of some sort which occupies a certain portion of their day. Those inmates in medium custody also have access to the yard areas which include the gymnasium and ball fields for approximately five and one-half hours each day from 1:00 p.m. until 3:30 p.m. and again from 6:00 p.m. until 9:00 p.m. Since most of the inmates in medium custody have jobs during the day, they are unable to utilize either the gymnasium or ball fields from 1:00 p.m. until 3:30 p.m.
26. While the degree of personal safety in medium custody Housing Units 10 and 11 is higher than that in close custody, testimony indicated that there had been a number of acts of violence, including stabbings, assaults on officers and inmates, a gang rape which occurred as a direct result of a guard's inadvertent placement of an inmate on the wrong tier as a result of instructions given him by other inmates, and acts of sexual slavery which were finally ended after a correctional specialist at the institution asked an inmate to afford protection for two of the inmates being assaulted. Currently, there are approximately one hundred forty inmates in each of Housing Units 10 and 11. Inmates in these units must face the distinct possibility of assaults and/or sexual rape at the hands of other inmates. There is one guard per shift for each housing unit.

Close Custody:
27. Close custody is the custody level between medium custody and maximum security. Those inmates in close custody represent a higher security risk of either escape or antisocial behavior than do those in medium custody and a lesser degree of those two possibilities than maximum security. Those inmates in close custody are relegated to that custody level because their sentence is such that they will not be released in the near future or because they have received disciplinary report(s) and are unable to conform their behavior to acceptable standards. Prior to trial, inmates in close custody were allowed to roam the tiers and day rooms for the better part of the day (from approximately 7:00 a.m. until 9:00 p.m.). This open tier policy, coupled with the makeup of close custody inmates, resulted in a high level of violence and, in the words of the director of the Department of Corrections, an extraordinarily high level of sexual assaults. Since the trial, corrections officials have attempted to alleviate the high level of violence in close custody. Their goal is to single-cell those inmates in close custody and to significantly curtail the open tier policy which resulted in such high levels of violence.
28. The present policy in close custody is likewise to house the inmates from 9:00 p.m. until 7:00 a.m. in their cells. At approximately 7:00 a.m., inmates in close custody are allowed out of their cells for breakfast. At approximately 9:00 a.m., the inmates have the option of either returning to their cells or spending an hour in the day room (the day room is approximately 24 feet by 33 feet). On the hour, prisoners have the option of moving back and forth between the day room and their cells, but once a ten-minute period on the hour is over, they must either be in their cells or in the day room. Mingling on the tier is allowed during the lunch and dinner breaks and for a two-hour period in the afternoon, but the open tier, which evidently engendered the dramatic levels of violence and sexual assault, is presently a thing of the past. Inmates in close custody are allowed to go to the gymnasium for a two-hour period twice weekly. Every other day they are allowed a two-hour period on the ball field, weather permitting.
Protective Custody
29. Protective custody is the classification level designed to segregate those inmates subject to sexual assault, or extortion, or who are unable to pay debts to inmates in the prison population at large, and who have provided that information to prison officials. Prisoners in protective custody are subject to the same limitations on mobility as those inmates in close custody, but do not enjoy the single-celling which is currently being implemented in close 1571 custody. In addition, those inmates in protective custody are only allowed one *1571 and one-half hours per week in the gymnasium. Consequently, those inmates in protective custody suffer under some of the most oppressive conditions at the prison apparently for no other reason than they are young and vulnerable and cannot protect themselves. Nor do they enjoy complete security in protective custody. At least two inmates have been raped in protective custody, and the court learned from touring the institution that inmates who are not supposed to be in protective custody sometimes achieve access nonetheless.
Maximum Security:
30. Maximum security is comprised of death row inmates and administrative segregation inmates. These two groups are housed in Housing Unit 7. Administrative segregation is composed of those individuals who are the most difficult to deal with from an institutional standpoint. Inmates in administrative segregation enjoy few of the privileges of inmates in either medium or close custody. Inmates in administrative segregation are only allowed outside their cells one hour per day. This hour can be spent in an exercise pen on the tiers of Unit 7, or if the weather permits, in an outside exercise enclosure. Inmates in administrative segregation are not allowed to be in the same cell or exercise area with another inmate. Notwithstanding this apparent isolation, acts of violence have occurred in administrative segregation.

Classification
31. Classification is another area that underwent radical changes during the prosecution of this trial. Prior to trial, few, if any, of the guidelines for or determinations by the classifications committee were in writing. All incoming inmates were placed in close custody, and depending upon their behavior, were moved or were left on that custody level. The result of this policy was the brutal gang rape of many young men at ISCI.
32. Prior to the policy of placing all inmates in close custody was a system which was referred to as a "fish" tier. A "fish," in prison parlance, is a young, vulnerable, unprotected inmate. The fish tier was comprised entirely of these young, vulnerable inmates. The fish tier evidently afforded a short period of personal safety for the younger inmates, but that safety was shortlived because once the tier was filled to capacity, the fish who had been on the tier the longest were forced out when a new fish arrived. It is difficult to determine which system is more barbarous 0907 that which placed the fish into close custody immediately, or that which gave them a brief period of respite before forcing them into the general population. At any rate, during the trial, the practice of placing fish into close custody at the earliest opportunity was modified by Warden Arvon Arave at a staff meeting. The minutes from that meeting read: "Any inmates from intake being transferred to the yard should go to 9 house [close custody] unless they are really a `fish.'" Minutes from Warden's Staff Meeting, March 12, 1984, Plaintiffs' Exhibit No. 164.
33. Presently the system of classification as written is more objective. This system has a primary foundation of risk assessment. In adopting this new system, the prison officials have attempted to quantify their classification procedures in an effort to inject predictability and guidelines, not only for the classification committee, but for the prisoners themselves. The only problem with the new initial classification system designed by prison officials is that it may not adequately protect those individuals subject to predatory sexual assaults.
Wholesale Reclassification of the Inmate Population in April 1981
34. In April 1981, prison administrators implemented an entirely new classification system. At that time, wholesale reclassification occurred. The classification system developed at that time was in specific response to a riot which occurred in 1980. Various studies were conducted which analyzed the causes of the riot and attempted to effect solutions. Neither notice nor opportunity to be heard was afforded to inmates subject to the wholesale 1572 reclassification. *1572 However, it should also be noted that the classification system has been radically altered since the time of the reclassification in 1981, and that as a result, the classification system presently employed at ISCI not only bears little resemblance to the previous classification, but also there are no remnants of the previous wholesale reclassification in existence. In the latter part of 1981, representatives of the inmates and prison administration entered into a settlement decree whereby the records relating to the wholesale reclassification were expunged from the inmates' institutional records and all of the inmates classified as close custody were reclassified to medium custody. See Plaintiffs' Exhibit No. 37.
Due Process Requirements for Parole Hearings
35. The requirements for due process at parole hearings are governed by the unique structure and language of each state's pertinent statute. See Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979), and Connecticut Board of Pardons v. Dumschat, 452 U.S. 458, 101 S.Ct. 2460, 69 L.Ed.2d 158 (1981). The Idaho Parole Board is governed by Idaho Code § 20-223 (Supp.1983). Idaho Code § 20-223 reads in pertinent part:
The commission shall have the power to establish rules, regulations, policies or procedures in compliance with chapter 52, title 67, Idaho Code, under which any prisoner, excepting any under sentence of death, may be allowed to go upon parole.
....

Before considering the parole of any prisoner, the commission shall afford the prisoner the opportunity to be interviewed. A parole shall be ordered only for the best interests of society, not as a reward of clemency and it shall not be considered to be a reduction of sentence or a pardon. A prisoner shall be placed on parole only when arrangements have been made for his employment or maintenance and care, and when the commission believes the prisoner is able and willing to fulfill the obligations of a law-abiding citizen. The commission may also by its rules, regulations, policies or procedures fix the times and conditions under which any application denied may be reconsidered.

36. Ralph Pierce, Executive Secretary of the Idaho Commission for Pardons and Paroles, testified at trial that the Idaho Commission for Pardons and Paroles does not comply with the requirements of the Idaho Administrative Procedures Act (Act). Idaho Code §§ 67-5201-218 (1980). However, Idaho Code § 67-5201(1) (Supp.1983) specifically excludes the "state board of corrections" from the statutory definition of an "agency" for purposes of the Act. Plaintiffs maintain, notwithstanding this specific exclusion, that the initial sentence of the parole statute [Idaho Code § 20-223 (Supp.1983) ] requires the Commission for Pardons and Paroles to follow the requirements of the Act.

37. Mr. Pierce also testified that the Commission for Pardons and Paroles does not provide good time credits to prisoners who are incarcerated pursuant to Idaho Code § 20-223 (Supp.1983). That statute further provides:

[N]o person serving a life sentence or serving a term of thirty (30) or more years shall be eligible for release on parole until he has served at least ten (10) years and no person serving a lesser sentence for any of the following crimes; homicide in any degree, treason, rape by force or threat of bodily harm, incest, crime against nature, committing a lewd act upon a child, robbery of any kind, kidnapping, burglary when armed with a dangerous weapon, or with [sic] an attempt or assault with intent to commit any of said crimes, or as an habitual offender, shall be eligible for release on parole until said person has served a period of five (5) years or one-third ( 1/3 ) of the sentence, whichever is the least.

Plaintiffs contend that Section 20-101A (1979) is not being applied by the Commission for Pardons and Paroles. Section 20-101A reads in pertinent part:

1573

*1573 Good conduct reduction of sentences. 0907 Each person convicted of an offense against the state and confined in a penal or correctional institution for a definite term other than for life, whose record of conduct shows that he has faithfully observed all the rules and has not been subject to punishment, is entitled to a deduction from the term of his sentence beginning with the day on which the sentence starts to run as follows:

(1) Five (5) days for each month, if the sentence is not less than six (6) months and not more than one (1) year.

(2) Six (6) days for each month, if the sentence is more than one (1) year and less than three (3) years.

(3) Seven (7) days for each month, if the sentence is not less than three (3) years and less than five (5) years.

(4) Eight (8) days for each month if the sentence is not less than five (5) years and less than ten (10) years.

(5) Ten (10) days for each month, if the sentence is ten (10) years or more.

Given the language of Idaho Code § 20-223 and § 20-101A, there is an obvious conflict between these two statutes. Idaho Code § 20-223 requires an inmate to serve a certain minimum sentence before being eligible for parole. Idaho Code § 20-101A, on the other hand, mandates that an inmate receive a good conduct reduction in his sentence irrespective of whatever sentence he is serving under Idaho Code § 20-223. Perhaps this statutory

conflict has not been brought into focus by the Idaho State Legislature. This is a matter for resolution by the State Legislature where it rightfully belongs. Such a policy matter is not within the province of this court.
Due Process Requirements for Disciplinary Hearings
38. At ISCI inmates charged with major rules infractions are routinely segregated prior to the disposition of the disciplinary hearing. As a result of this pre-hearing detention, the inmate has little opportunity to collect evidence which may be favorable to his position. Moreover, when inmates are assigned an inmate lay-representative, those representatives have only a few minutes within which to prepare for the representation of the accused.
39. Disciplinary hearing officers testified at trial and were conversant in the basic requirements of due process as set down by the United States Supreme Court in Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). While plaintiffs attempted to demonstrate that persons accused of disciplinary infractions were systematically denied the opportunity to present witnesses, this court is unable from the evidence presented to concur in plaintiffs' assessment. The evidence presented was simply insufficient to support such a far-reaching conclusion.
Overcrowding and Staffing
40. There seems to be little question but that ISCI is overcrowded. This overcrowding clearly brings on many problems, including idleness, frustration, stress, discomfort, edginess, and fear. This, of course, does not require much imagination to realize that it is one of the principal causes of the effect of violence, fights, stabbings, and of course, extreme management problems. It is easy to see that by reason of this overcrowding the management problems are compounded by a lack of staffing, or at least understaffing. This understaffing, along with the overcrowding, enhances the personal safety factor of not only the inmates, but the guards and staff as well.
41. Although the problem is certainly there and will predictably get worse, it appeared from the record that a real effort is being made to alleviate the overcrowding at this prison site. This court feels that the problem is wellrecognized. Where inmates and guards alike live in fear of one's life or where the inmates suffer neglect such as poor medical care, this not only unnecessarily inflicts pain, but it is bad penology. If prison exacerbates an inmate's bottled anger, society pays the price when, with freedom, that bottle is uncorked and the anger issues 1574 forth. However, a condition that makes little penological sense may not for that reason be unconstitutional. *1574 The eighth amendment does not require sound penology; rather, it proscribes the wanton infliction of pain. This court recognizes that while overcrowding itself is not a violation of the eighth amendment, that very overcrowding contributes to the effect of every deficiency in the prison operations. Overcrowding certainly leads to increased violence and it may dilute other constitutionally required services so that they fall below the minimum eighth amendment standards. For example, overcrowding may well reach a level at which the shelter of the inmates is unfit for human habitation. At some point, overcrowded population in such a confined setting itself could very well become an unnecessary or wanton infliction of pain. The task of this court is limited to enforcing constitutional standards and does not embrace setting policy choices or superintending prison administration.
42. To the extent that any Conclusions of Law are deemed to be Findings of Fact, they are incorporated into these Findings of Fact.
CONCLUSIONS OF LAW
1. To the extent that any Findings of Fact are deemed to be Conclusions of Law, they are incorporated into these Conclusions of Law.
2. At the outset, it should be reiterated that this court is reluctant to intercede in the operation of a state penal facility. That function is best left to the legislative and executive branches of the State of Idaho. However, "[t]here is no iron curtain drawn between the Constitution and the prisons of this country." Wolff v. McDonnell, 418 U.S. 539, 555-56, 94 S.Ct. 2963, 2974, 41 L.Ed.2d 935 (1974). The appropriate standard for this court in analyzing

conditions of confinement is set forth in Wright v. Rushen, 642 F.2d 1129 (9th Cir. 1981). In Wright, the Ninth Circuit held:
In analyzing a challenge to prison conditions based on the Eighth Amendment, a court should examine each challenged condition of confinement, such as the adequacy of the quarters, food, medical care, etc., and determine whether that condition is compatible with "the evolving standards of decency that mark the progress of a maturing society." Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 598, 2 L.Ed.2d 630 (1958); quoted in Estelle v. Gamble, 429 U.S. 97, 102, 97 S.Ct. 285, 290, 50 L.Ed.2d 251 (1976) .... Any condition of confinement which passes this test is immune from federal intervention. If no challenged condition fails to meet the test, the entire facility and its administration are immune from Eighth Amendment attack. Of course, each condition of confinement does not exist in isolation; the court must consider the effect of each condition in the context of the prison environment, especially when the ill-effects of particular conditions are exacerbated by other related conditions.... But the court's principal focus must be on specific conditions of confinement. It may not use the totality of all conditions to justify federal intervention requiring remedies more extensive than are required to correct Eighth Amendment violations.
Id. at 1133.
Food
3. The major complaint of the prisoners was that the quantity and quality of food being received by those inmates in close custody and maximum security was impermissibly disparate in comparison to food received by those inmates in medium custody. That problem has been rendered moot because prison administrators have dramatically altered the food services for inmates in close custody and maximum security. The court has been advised that the disparity in terms of quantity and quality has been alleviated.
4. There remains the issue of special diets. Plaintiffs demonstrated at trial that various inmates (Kenneth Volker, Donald Kerst, and John McGonnigal) were supposed to be receiving special diets, but inexplicably were not. Of the three, one is now blind due to his inability to control his diabetes; one spent an extended period of time in the 1575 hospital due to a relapse of Crohn's Disease; and the third suffered a *1575 diabetic seizure due to his drinking of a saccharin sweetened juice. While the court cannot say with absolute certainty that the lack of special diets caused these particular results, it was unrefuted that lack of special diets was a contributing factor to each of the incidents. As a matter of law, the evolving standards of decency that mark the progress of a maturing society require prison officials to afford inmates special diets if prescribed for them. Regardless of the cost involved, there is simply no penological justification for depriving inmates with serious medical problems of their duly prescribed diets.
Clothing
5. As previously mentioned, inmates in protective custody are clothed in lightweight cotton uniforms previously owned by Hughes Airwest Company. While the dramatic coloring of the uniforms enables guards to immediately distinguish those inmates in protective custody, the clothing is patently insufficient to protect those inmates from the cold in the winter months. Protective custody inmates must be afforded either insulated underwear to augment their inadequate clothing, or prison officials must supply them with clothing which is equal to that of those prisoners in medium custody.
Health Care Delivery System

Medical Care:
6. In Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), the United States Supreme Court held that:
[D]eliberate indifference to serious medical needs of prisoners constitutes the "unnecessary and wanton infliction of pain" ... proscribed by the Eighth Amendment. This is true whether the indifference is manifested by prison doctors in their response to the prisoner's needs or by prison guards in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed.
Id. at 104-105, 97 S.Ct. at 291 (citations and footnotes omitted). The Court in Estelle went on to hold that, "an inadvertent failure to provide adequate medical care cannot be said to constitute `an unnecessary and wanton infliction of pain' or to be `repugnant to the conscience of mankind.'" Id. at 105-106, 97 S.Ct. at 291-92.
7. Medical care at ISCI is clearly deficient in a number of aspects. First and foremost is the fact that there is no medical doctor primarily responsible for the delivery of medical services. Two physicians visiting ISCI for a total of eight hours per week is clearly inadequate not only from the standpoint that it is unlikely that inmates will be able to see a physician for their illnesses and injuries, but also from the organizational and administrative standpoint of the guidance that would be afforded by a full-time doctor. In the case of Ruiz v. Estelle, 503 F.Supp. 1265 (S.D. Tex.1980), Judge Justice found that the Texas legislature determined that American Correctional Association standards required nineteen full-time physicians for approximately seventeen thousand inmates. Id. at 1308. ISCI maintains the part-time equivalent of one-fifth full-time doctor for approximately eleven hundred inmates.
8. The lack of at least one full-time doctor results in a number of distinct problems. First, there is a lack of organization. Policies and procedures have not been reduced to writing. The American Correctional Association deems written policy and procedures for 24-hour emergency care and training to respond to health-related situations in a four-minute response time so important that it has designated these as "mandatory." American Correctional Association Standards for Adult Correctional Institutions, 2d Ed., §§ 2-4279 and 2-4285 at 71-72 (1981). Second, and more importantly, medical personnel are undertaking performance of functions which should rightfully only be undertaken by a doctor. This relegates inmates to treatment which is inadequate. Medical personnel end up providing treatment for which they are neither trained nor licensed to provide. This practice is deliberately indifferent to the serious medical needs of the inmates. "Access to medical staff has no meaning if 1576 the medical staff is not competent to deal with the prisoners' problems." Hoptowit v. *1576 Ray, 682 F.2d 1237, 1253 (9th Cir.1982). This also runs afoul of American Correctional Association mandatory standards. American Correctional Association Standards for Adult Correctional Institutions, 2d Ed., § 2-4286 at 72. Finally, a full-time doctor would provide needed authority for remedying the inadequate medical facility noted in paragraph 9 of the Findings of Fact. This court thus determines that at least the equivalent of one full-time physician is constitutionally required. It should be noted that this court has not and does not, in taking this action, constitutionalize the American Correctional Association standards. This court merely refers to those standards for guidance.
9. Not only is there no full-time physician, but 24-hour emergency service is also unavailable or, at best, inadequate at ISCI. This court concludes that the evolving standards of decency require that 24-hour emergency medical care be available. The prison population is presently well over a thousand and increasing. The likelihood of the need for emergency care on a 24-hour basis has passed from the stage of a remote possibility to that of a strong probability. Consequently, 24-hour emergency medical care is not only needed, but constitutionally required.
10. It was clear from the evidence presented that various inmates were denied any access to medical care because of the "kite" system. The standard of "deliberate indifference to serious medical needs" is met in this case because the defendants have effectively denied access to medical care. "Prison officials show deliberate indifference to serious medical needs if prisoners are unable to make their problems known to the medical staff." Hoptowit v. Ray, 682 F.2d 1237, 1253 (9th Cir.1982). The American Correctional Association also deems it

mandatory that inmates be allowed unimpeded access to health care. See American Correctional Association Standard § 2-4300 at 80.
11. While the court has no difficulty in finding that the "kite" system as administered results in the deliberate indifference of prison officials to the serious medical needs of inmates, fashioning a remedy is not as easy. The kite system may be effectual if implemented in an appropriate manner. Consequently, the court will allow defendants ninety (90) days from the date of this order to develop an effective plan and procedure, in writing, insuring that inmates will be afforded access to medical care.
12. Finally, this court is greatly concerned with the limited access to the medical infirmary at ISCI even under the best of conditions. Plaintiffs contended, and it was basically unrefuted, that access to the infirmary is extremely difficult at best or impossible at worst. The facility is locked on a 24-hour basis, and an inmate, even if suffering from a dire emergency, would have difficulty gaining admission. The result is that the infirmary is an ineffectual showplace. Once again, pointing out constitutional deprivations is easier than fashioning a remedy. One of the primary problems, of course, is that there is no full-time physician, or team of physicians, administering the medical delivery system at ISCI. It is essential and mandatory that the State Board of Corrections either hire on staff at least one full-time medical doctor or to contract for the equivalent thereof with a professional medical clinic or team of doctors to provide an adequate medical delivery system at ISCI. With this in mind, the court requires and orders that the State Board of Corrections submit a plan in writing within one hundred eighty (180) days from the date of this order which will cause the medical delivery system at ISCI to be properly staffed and organized to allow for the effective utilization of the infirmary and a follow-up on prescribed treatment. At this time, the court prefers not to order any specific methodology, but merely requires or suggests that the State Board of Corrections develop an adequate plan with adequate staff and personnel, either hired or contracted for, that will put into place a medical delivery system at ISCI that will meet constitutional standards.
Psychiatric Care:
1577 13. In Bowring v. Godwin, 551 F.2d 44 (4th Cir.1977), the Fourth Circuit *1577 found that there is "no underlying distinction between the right to medical care for physical ills and its psychological or its psychiatric counterpart. Modern science has rejected the notion that mental or emotional disturbances are the products of afflicted souls, hence beyond the purview of counseling, medication and therapy." Id. at 47. This court concurs in that assessment.
14. In Ruiz v. Estelle, 503 F.Supp. 1265 (S.D.Tex.1980), Judge Justice formulated six components of a minimally adequate mental health treatment program. Judge Justice formulated these essential components by reviewing judicial precedent in previous prison cases, considering expert testimony, and by applying principles of minimally adequate care as it applies to mental health. Id. at 1339. The six essential components established in Ruiz are:
First, there must be a systematic program for screening and evaluating inmates in order to identify those who require mental health treatment. See Pugh v. Locke, 406 F.Supp. [318] at 333 [(1976)]; Laaman v. Helgemoe, 437 F.Supp. [269] at 319, 324 [(1977)]; Barnes v. Government of Virgin Islands, 415 F.Supp. [1218] at 1235 [(1976)] Anderson v. Redman, 429 F.Supp. 1105, 1121 (D.Del.1977). Second, as was underscored in both Newman [Newman v. Alabama, 559 F.2d 283 (5th Cir.1977) ] and Bowring [Bowring v. Godwin, 551 F.2d 44 (4th Cir.1977) ], treatment must entail more than segregation and close supervision of the inmate patients. Third, treatment requires the participation of trained mental health professionals, who must be employed in sufficient numbers to identify and treat in an individualized manner those treatable inmates suffering from serious mental disorders. See Pugh v. Locke, 406 F.Supp. at 333; Laaman v. Helgemoe, 437 F.Supp. at 324. Fourth, accurate, complete, and confidential records of the mental health treatment process must be maintained. Fifth, prescription and administration of behavioraltering medications in dangerous amounts, by dangerous methods, or without appropriate supervision and periodic evaluation, is an unacceptable method of treatment. Sixth, a basic program for the identification, treatment and supervision of inmates with suicidal tendencies is a

necessary component of any mental health treatment program. See e.g., Collins v. Schoonfield, 344 F.Supp. [257] at 277 [(1972)].
Id. at 1339. This court finds the analysis in Ruiz persuasive with regard to minimally adequate psychiatric care and adopts the essential elements as Conclusions of Law. The psychological counseling at ISCI is deficient in every respect of the six components established in Ruiz.
15. ISCI must develop a systematic program whereby each inmate is evaluated in order to identify those in need of psychiatric treatment. Treatment must involve psychiatric and psychological counseling for those inmates in need of counseling. There must be at least the equivalent of one full-time psychiatrist to provide treatment to those inmates capable of deriving benefit and to establish written procedures whereby inmates are analyzed and their progress monitored. Wholesale prescription of psychotropic drugs is an unacceptable means of dealing with psychiatric disorders. This statement should not be read to prevent the use of psychotropic drugs, merely that the prescription of these drugs cannot supplant the necessity of psychiatric counseling. Finally, it is critical that a program for the identification, treatment, and supervision of inmates with suicidal tendencies and who have previously attempted suicide is essential. During the final two weeks of trial, there were three suicide attempts, one of which was successful. Psychiatric counseling of these inmates is of paramount importance.
16. It is also critical that those inmates who must undergo psychological or psychiatric examination prior to their parole hearings (see Idaho Code § 20-233 and discussion at paragraph 23 in the Findings of Fact) must receive 1578 psychological counseling if the nature and duration of commitment *1578 is to bear some reasonable relationship to the purpose for which the individual is committed. See Ohlinger v. Watson, 652 F.2d 775, 778 (9th Cir.1980). Psychiatric care at the present time is virtually nonexistent at ISCI. It represents a deliberate indifference to the serious medical needs of the inmates at ISCI. As an adjunct to the medical delivery system at ISCI, this court must require the Idaho State Board of Corrections to present to the court an adequate and satisfactory solution to administering the psychiatric needs of inmates at ISCI.
17. The State of Idaho through Section 20-223, Idaho Code, having chosen to incarcerate a class of inmates on the basis of being sex offenders, and other categories of mental illness, the State has thus determined that it no longer has an interest in punishing the inmate, but rather in attempting to rehabilitate him. The State's interest in indeterminate incarceration in these category offenses is to provide for the rehabilitation of a sex offender who has disclosed a tendency to be a menace to society. Such rehabilitation would appear to be regarded as compromising the quid pro quo for a longer confinement, but under different terms and conditions, than an inmate would undergo if combined under other offense statutes. The rehabilitative rationale is not only desirable, but it is constitutionally required. Ohlinger v. Watson, 652 F.2d 775 (9th Cir.1980). Robinson v. California, 370 U.S. 660, 666, 82 S.Ct. 1417, 1420, 8 L.Ed.2d 758 (1962), strongly suggests that the state may not justify an inmate's extended sentence on the basis of mental illness without affording appropriate treatment. See Ohlinger v. Watson, 652 F.2d 775, 777 (9th Cir.1980). Ohlinger further states:
Constitutionally adequate treatment is not that which must be provided to the general prison population, but that which must be provided to those committed for mental incapacity. "At the least, due process requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed."
....
Lack of funds, staff or facilities cannot justify the State's failure to provide appellants with that treatment necessary for rehabilitation.
Personal Safety
Medium Custody:
18. At the outset, it should be noted that "[p]rison officials have a duty to take reasonable steps to protect inmates from physical abuse." Hoptowit v. Ray, 682 F.2d 1237, 1250 (9th Cir.1982), citing with authority Ramos v. Lamm,

639 F.2d 559, 572 (10th Cir.1980), cert. denied, 450 U.S. 1041, 101 S.Ct. 1759, 68 L.Ed.2d 239 (1981). As previously noted, medium custody inmates represent the least risk from an institutional standpoint of any classification on the main yard. However, there has been a direct correlation between involuntary double-celling and the level of violence in medium custody. Gang rapes, assaults upon officers and inmates, and suicides are not unknown to medium custody. There are significant freedoms enjoyed by medium custody inmates which increase the likelihood of violence. While this court is unwilling to find that double-celling is unconstitutional per se, the conclusion is inescapable that double-celling dramatically decreases personal safety. While this court is unwilling to find double-celling impermissible, this court is willing to take the positive step of requiring a doubling of security in those housing units which are double-celled. "Courts may require prison officials to hire a sufficient number of guards to meet safety needs, depending on the number of prisoners and the structure of the prison. See Williams v. Edwards, 547 F.2d 1206, 1213 (5th Cir.1977)." Hoptowit v. Ray, 682 F.2d 1237, 1251 (9th Cir.1982). The evidence of young men being brutally raped and the officer in charge being either unwilling or unable to respond to that young man's cries for help is sufficient basis for this court to take such an unwelcome step. Moreover, evidence that correctional officers must use inmates to ensure the safety of other inmates is a 1579 clear indication that personal safety is precarious with present staffing. Virtually every witness *1579 at trial, whether an inmate or a member of the correctional staff, testified that the prison was understaffed. Since the trial was completed on this matter, the court has become aware that more than one hundred of the one hundred forty staff members at ISCI have signed a grievance petition which was presented to the director of corrections, pointing out that current staffing levels were inadequate and that there was a present danger and threat to the lives and/or injury of the guards due to understaffing. It is beyond cavil that if the guards are in fear of their own safety, the inmates at the institution are perhaps more justifiably afraid.
Close Custody:
19. Prior to trial, close custody was an extremely violent place to live. Virtually every young man assigned to that custody level was brutally raped. Guards and inmates alike were subject to physical assault. Subsequent to the trial, officials at ISCI implemented a plan whereby the open tier policy was significantly curtailed and the inmate population reduced. The goal of prison administrators is to single-cell those inmates in close custody. In comparing ISCI with the Southern Ohio Correctional Facility (SOCF), the prison facility scrutinized by the United States Supreme Court in Rhodes v. Chapman, 452 U.S. 337, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981), there are a number of similarities. The size of cells (60 square feet at ISCI, 63 square feet at SOCF); hours on tier (at ISCI inmates are incarcerated from 9:00 p.m. until 7:00 a.m. and can move from cell to day room during a 10-minute period on the hour; inmates at SOCF were incarcerated under a similar plan); yet a major difference between ISCI and SOCF is the level of violence, especially sexual assaults. The Director of Corrections himself testified that while he did not think that ISCI was an especially violent institution, he did find that the level of sexual assaults was extraordinarily high.
20. Prison officials at ISCI have been attempting to reduce the violence in close custody by single-celling inmates and limiting the openness of the tier. Were it not for the high level of violence at ISCI, this court would be constrained by the decision of the Supreme Court in Rhodes v. Chapman, 452 U.S. 337, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981). However, this court finds that the two situations are distinguishable because of the high level of violence at ISCI and because the prison officials themselves have acknowledged the problems inherent in double-celling close custody inmates at ISCI. Substantial evidence was introduced demonstrating that doublecelling of close custody inmates resulted in the infliction of unnecessary and wanton pain, and was grossly disproportionate to the severity of crimes warranting imprisonment. See id. at 348. It is undisputed that the policy of placing every incoming inmate to the penitentiary in close custody resulted in the brutal rape of virtually every young man assigned to close custody. This indiscriminate policy was and is constitutionally impermissible. However, prior to the beginning of this trial and subsequent to the taking of testimony, the court is faced with an entirely different situation. The authorities at ISCI are making a commendable effort to eliminate double-celling in the close custody units in Houses 8 and 9. Movement on the tier has been significantly circumscribed and the level of violence has been greatly reduced. As presently programmed and maintained, this court is unable to find that close custody at ISCI is constitutionally impermissible in the way that it is now being administered. Hopefully, the Director of Corrections, the Warden at ISCI and the State Board of Corrections will be able to continue this

program, and ultimately where an inmate is kept in close custody for most of the 24-hour day, he would not have to be double-celled. In Hutto v. Finney, 437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978), the Supreme Court noted, "state and local authorities have primary responsibility for curing constitutional violations." Id. at 687, n. 9, 98 S.Ct. at 2572, n. 9. In this case, prison officials have attempted to remedy the unconstitutional conditions. This 1580 court is bound to consider "bona fide steps that *1580 prison officials are taking to alleviate poor prison conditions." Hoptowit v. Ray, 682 F.2d at 1247. As a result, this court concludes that close custody, as it presently exists, does not violate prisoner's constitutional rights.
Protective Custody:
21. Protective custody is in many respects the worst of the classifications at ISCI. For the "reprehensible" crime of "snitching" on a fellow inmate, inmates in protective custody look forward to double-celling, the same significantly limited tier movement as those inmates in close custody, and a mere one and one-half hours in the gymnasium per week.
22. In placing an inmate in protective custody, prison officials are making a determination that a particular inmate is vulnerable and in need of protection. Unfortunately, due to evidence of rapes having occurred within protective custody and prison officials' admissions that prisoners have made their way into protective custody for no justifiable reason, prison officials are failing in their effort to protect the inmates in protective custody from predatory attacks. This court is bound to "consider the effect of each condition in the context of the prison environment ...." Wright v. Rushen, 642 F.2d at 1133. This court concludes that the evolving standards of decency are violated by the protective custody classification as it is presently being administered. However, the court has become aware that under the present Director of Corrections, a solution, or solutions, is being sought to alleviate the oppressive conditions of those inmates held in protective custody. To this end, the defendants shall file a written report with the court, allowing for adequate response by the plaintiffs, within one hundred eighty (180) days of the date of this order.
Maximum Security:
23. While there have been isolated incidents of violence in administrative segregation, these acts of violence cannot be attributed to the prison administrators. Inmates in administrative segregation are completely isolated from interaction with other inmates, at least within the officials' abilities. Consequently, the court finds that the operation of the administrative segregation unit, Housing Unit 7, is in compliance with the requirements of the eighth amendment.
Classification
24. As previously mentioned, the prison officials at ISCI have developed a new system of classification and reclassification which utilizes, to the extent possible, objective criteria. The only deficiency in the classification and reclassification system noted by this court is that it does not adequately protect those younger individuals likely to be subject to predatory sexual assaults. This court concurs with the conclusion in Doe v. Lally, 467 F.Supp. 1339 (1979), that "a fairly clearcut profile of sexual assault victims in prisons can be made, [and] the state should make every effort to identify likely victims of homosexual assaults early in the initial classification process." Id. at 1357. Other than the fact that the classification system as presently written does not adequately take into account the protection of those younger inmates likely to be subject to sexual assault, the classification system as written is constitutionally adequate.
Wholesale Reclassification of the Inmate Population in April 1981
25. Reclassification does not necessarily give rise to the procedural protections of the due process clause. "As long as the conditions or degree of confinement to which the prisoner is subjected is within the sentence imposed upon him and is not otherwise violative of the Constitution, the Due Process Clause does not in itself subject an

inmate's treatment by prison authorities to judicial oversight." Montayne v. Haymes, 427 U.S. 236, 242, 96 S.Ct. 2543, 2547, 49 L.Ed.2d 466 (1976). However, in Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983), the United States Supreme Court found that a state can create a protected liberty interest giving rise to 1581 protection of the due process *1581 clause, if the requirements are mandatory. Plaintiffs maintain that the cases of Crawford v. Dermitt, 104 Idaho 473, 660 P.2d 938 (1983), and Wright v. Dermitt, 104 Idaho 475, 660 P.2d 940 (1983), created a protected liberty interest and that the wholesale reclassification violated the rights to due process enjoyed by the inmates.
The cases relied on by plaintiffs are inapplicable for two reasons. In the first place, both Wright and Crawford dealt with inmates being reclassified to administrative segregation (maximum security). Plaintiffs complain that "[a]ll of the prisoners at the ISCI who were placed into the adverse conditions of confinement in Close Custody in April, 1981 were denied any due process of law prior thereto." (emphasis added) Plaintiffs' Post-Trial Memorandum at 59. Plaintiffs maintain that these cases apply to all adverse classification hearings; however, where the liberty interest is created as a result of a state's common law, this court is reluctant to give cases a broader reading than that which the Idaho Supreme Court gives them. In addition, both Wright and Crawford were decided by the Idaho Supreme Court in 1983, almost two years after the challenged reclassification. Thus, at the time the reclassification was instituted, the law of Idaho giving rise to the protections of due process had not been established. Consequently, the plaintiffs' reliance on Wright and Crawford is unwarranted given the limited scope of these cases and because they did not establish any due process protections until after the time of the alleged deprivations.
Due Process Requirements for Parole Hearings
26. In Izatt v. State, 104 Idaho 597, 661 P.2d 763 (1983), the Idaho Supreme Court ruled that the predecessor of Idaho Code § 20-223 (Supp.1983) [Idaho Code § 20-223 (1979)] provided only a possibility of parole, and that as a result, it did not give rise to due process protections. In Izatt, the supreme court held:
The Idaho statute governing parole is I.C. § 20-223 [Idaho Code § 20-223 (1979)]. In contrast to the Nebraska statute at issue in Greenholtz [Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979)], I.C. § 20-223 does not set forth detailed conditions and qualifications which once met entitle an inmate to an expectation of parole. I.C. § 20-223 merely sets forth necessary conditions which must be established before parole can be granted, thereby creating only a possibility of parole.
Id. at 600, 661 P.2d at 766 (footnote omitted). Plaintiffs argue that the amendment of Idaho Code § 20-223 (Supp.1983) to include the language "shall have the power to establish rules, regulations, policies or procedures in compliance with chapter 52, title 67, Idaho Code," gives rise to an expectation that necessitates the utilization of the procedures set out in the Idaho Administrative Procedures Act.
27. This court is unpersuaded that the amendment of § 20-223 establishes any entitlement which gives rise to the necessity of employing due process considerations in parole decisions. The operative language of Section 20-223 which relates to parole indicates that parole may be granted at the discretion of the Commission. The statute construed in Greenholtz reads: "Whenever the Board of Parole considers the release of a committed offender who is eligible for parole, it shall order his release unless ...." Neb.Rev.Stat. § 83-1, 114(1) (1976) (emphasis added). In finding that the Nebraska statute created a protectible expectation of parole and concomitantly, a liberty interest giving rise to due process protections, the Court was careful to note that "we emphasize that this statute has unique structure and language and thus whether any other state statute provides a protectible entitlement must be decided on a case-by-case basis." Greenholtz v. Nebraska Penal Inmates, 442 U.S. at 12, 99 S.Ct. at 2106.
28. This court is of the opinion that the correct interpretation of Idaho Code § 20-223 falls within the holding of the 1582 Supreme Court in Connecticut Board of Pardons v. Dumschat, 452 U.S. 458, 101 S.Ct. 2460, 69 *1582 L.Ed.2d
158 (1981). In Dumschat, the Court found that, "[t]he Connecticut commutation statute, having no definitions, no criteria, and no mandated `shalls,' creates no analogous duty or constitutional entitlement." Id. at 466, 101 S.Ct. at 2465. This court reaches this conclusion notwithstanding the amendment of Section 20-223 which inserted a

reference to the Administrative Procedures Act (Act), Idaho Code §§ 67-5201-18. The amendment of Section 20-223 simply gives the Commission the power to promulgate rules and regulations in compliance with the Act. It does not mandate that the procedural rights established in that Act be utilized in parole hearings. Moreover, the definitional statement of the Act specifically excludes the Board of Corrections from the requirements of the Act. Idaho Code § 67-5201(1). Absent a clear showing that Section 20-223 mandates the use of the procedural requirements set out in the Act and given the fact that the granting of parole is purely discretionary, this court is unpersuaded that a legitimate expectation has been created by the enactment of Section 20-223 and, consequently, finds that the argument of plaintiffs fails.
29. At trial, Ralph Pierce, Executive Secretary of the Idaho Commission of Pardon and Paroles, testified that notwithstanding Idaho Code § 20-101A, prisoners within the statutory construction of Idaho Code § 20-223 were required to serve a full one-third of their sentence or five years, whichever is less, prior to parole consideration. Thus, those inmates serving sentences within the ambit of Idaho Code § 20-223 do not receive any credits for good time until serving one-third of their sentence or five years. This court is aware that this issue is presently being litigated in the Idaho state district courts and because the issue is beyond the scope of issues set out in the pretrial order, this court will refrain from ruling on this particular issue.
Due Process Requirements for Disciplinary Hearings
30. In Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), the United States Supreme Court set out the substantive due process requirements which must be met at inmate disciplinary hearings. The process due an inmate accused of a disciplinary infraction requires (1) that he receive advance written notice of the claimed violation; (2) that he receive a written statement of the fact findings as to the evidence relied upon and reasons for the disciplinary action; (3) that he be allowed to call witnesses and present documentary evidence in his defense when permitting him to do so will not be unduly hazardous to institutional safety or correctional goals; (4) where he is illiterate or where the complexity of the issues makes it unlikely that he will be able to collect and present the evidence necessary for an adequate comprehension, he should be free to seek aid of his fellow inmates; or if that is forbidden, to have adequate substitute aid; and (5) that he receive a fair hearing. Id. at 563-70, 94 S.Ct. at 2978-81. Given the fact that inmates are routinely segregated prior to a disciplinary hearing, and that inmate representatives are not apprised of the charges or allowed to prepare an adequate defense in a matter of minutes, this court finds that the fourth requirement of Wolff v. McDonnell is not being met. The administrators at ISCI need not allow an inmate accused of a disciplinary infraction the run of the prison to prepare an adequate defense; however, if the administration is bent on this policy, it must afford that inmate a surrogate to adequately prepare his defense. When an inmate is segregated prior to his disciplinary hearing and his lay representative learns of the inmate's predictament a few minutes before the hearing is to be held, that inmate's right to due process is infringed. Due process requires that the inmate or his lay representative be given adequate time in which to prepare a defense. While the court is unwilling to specify a minimum time which may be required in all cases, the practice of affording the inmate or his representative only a few minutes before the hearing is not sufficient to satisfy the due process clause of the fourteenth amendment.
1583 31. Plaintiffs also assert that inmates are systematically denied witnesses at disciplinary *1583 hearings. Were this the case, this court would have no difficulty in declaring such action as violation of due process. See Bartholomew v. Watson, 665 F.2d 915 (9th Cir.1982). "The right to call witnesses is basic to a fair hearing. A blanket proscription against the calling of certain types of witnesses in all cases involving institutional security is an overreaction which violates minimal due process." Id. at 918. However, this court is unpersuaded that a blanket proscription against calling witnesses exists at ISCI. From the evidence presented, it appeared that disciplinary hearing officers determined whether or not witnesses should be called on a case-by-case basis.
ORDER
Based on the foregoing Findings of Fact and Conclusions of Law, and the court being fully advised in the premises,
IT IS HEREBY ORDERED:

1. That a special dietary program shall be developed which takes into account the nutritional needs of the medically infirm. In cases where a physician prescribed a special dietary program for an inmate, the Institution shall provide the necessary food required by the special diet;
2. That inmates housed in protective custody shall be afforded either insulated underwear to augment their inadequate clothing, or they shall be supplied with alternative clothing which is equal to that of those prisoners in medium custody;
3. That 24-hour emergency medical care shall be made available to the inmates at ISCI. In addition, the prison administration shall develop a system in writing which allows inmates unimpeded access to medical care. The administration shall have ninety (90) days from the date of this order in which to develop the above-referenced system. As part of these changes, the administration shall cause to be hired, or contracted for, the equivalent of at least one full-time physician to minister to the medical needs of the inmates;
4. That the State Board of Corrections shall submit a plan in writing within one hundred eighty (180) days from the date of this order which will cause the medical delivery system at ISCI to be properly staffed and organized to allow for the effective utilization of the infirmary;
5. That the State Board of Corrections shall submit a plan in writing within one hundred eighty (180) days from the date of this order which will establish a psychiatric care program for the inmates as required by Conclusion of Law Nos. 14 through 17 herein;
6. That if the prison administration determines to double-cell inmates in medium custody, the administration shall then be required to employ twice the security personnel on those medium security tiers where the double-celling takes place;
7. That the State Board of Corrections shall file a written report within one hundred eighty (180) days of the date of this order as required by Conclusion of Law No. 22;
8. That an initial inmate classification and reclassification system shall be established which will identify and protect younger individuals who are likely to be subject to predatory sexual assaults. Once those inmates are identified, precautions shall be taken to avoid placing those inmates in jeopardy of sexual assault; and
9. That the prison administration shall develop a procedure to use prior to inmate disciplinary hearings which will provide the protections required by due process considerations as outlined in Conclusion of Law No. 30.
Save trees - read court opinions online on Google Scholar.