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TJ Angstman
Wyatt B. Johnson
ANGSTMAN JOHNSON 3649 Lakeharbor Lane Boise, Idaho 83703 Telephone: (208) 384-8588 Facsimile: (208) 853-0117 Johnson ISB: 5858 Angstman ISB: 5738

Nikki Smith 3649 Lakeharbor Lane Boise, Idaho 83703 Telephone: (208) 384-8588 Facsimile: (208) 853-0117 Smith ISB: 9030

Attorneys for Omar Castillon, Dusty Knight, Justin Peterson, Leon Russell, Christopher Jordan, Jacob Judd, Michael Ford-Bridges, Raymond Bryant.

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF IDAHO

OMAR CASTILLON, DUSTY KNIGHT, JUSTIN PETERSON, LEON RUSSELL, CHRISTOPHER JORDAN, JACOB JUDD, MICHAEL FORD-BRIDGES, AND RAYMOND BRYANT,

Case No
COMPLAINT FOR DAMAGES, AND FOR DECLARATORY AND INJUNCTIVE RELIEF

Plaintiffs,

vs.

CORRECTIONS CORPORATION OF AMERICA, Inc.

Defendant.

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EXECUTIVE SUMMARY 1. Corrections Corporation of America, Inc. (hereinafter “CCA”) is the nations largest owner and operator of partnership correction and detention facilities and one of the largest prison operators in the United States, behind only the federal government and three states. CCA currently operates 67 facilities, including 47 company-owned facilities, with a total design capacity of approximately 92,000 beds in 20 states and the District of Columbia. 2. CCA has an easily proven policy and persistent pattern of misconduct occurring in the CCA operated prison in Kuna, Idaho, known as the Idaho Correctional Center (hereinafter “ICC”). This persistent pattern of misconduct described evidences a policy within CCA prisons which creates a partnership between CCA and certain prison gangs. Functionally, this partnership rewards prison gangs with a powerful position within (and consequently outside of) the prison and allows CCA to enhance its profitability. 3. Violent acts committed by the prison gangs are used by CCA as an inexpensive device to gain control over the inmate population. T his method of control depends upon t he infliction and prospective fear of cruel and unusual punishment, such as the attempted murder of the Plaintiffs which occurred in this case (hereinafter the “Attempted Murders”). The use of prison gangs rather than CCA salaried agents to engage in coercive violence such as the Attempted Murders gives CCA plausible deniability and at the same time enables it to reduce staffing expenditures for prison guards—therefore increasing corporate profitability. This persistent pattern of misconduct continues in violation of a settlement agreement negotiated in the District of Idaho and is grounds to hold CCA liable for deprivation of the civil rights of the Plaintiffs.
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4. CCA’s use of violent prison gangs to inflict cruel and unusual punishment is more than a persistent pattern of misconduct. This partnership between CCA and the gangs is official CCA policy or custom wherein CCA employs gang negotiators to advise gang leadership about CCA objectives and concerns and to hear, consider, and address matters of concern to the gang leadership. As referenced in the attached documents, it is the policy of CCA to avoid reporting crimes occurring within CCA facilities to local law enforcement so gang members will continue to further the objectives of CCA, facing no fear of prosecution for their involvement. It appears that this use of prison gangs as an instrumentality to inflict cruel and unusual punishment has been a longstanding practice or custom within prisons run by CCA, and as such it has become standard operating procedure within all CCA prisons.
5. The practice of using gang violence as a corporate cost savings measure is beyond reprehensible. Not only does it destroy the possibility that the Plaintiffs and other similarly situated inmates will have an opportunity to be rehabilitated, it creates a powerful gang hierarchy in the community inside and OUTSIDE the prison. In fact, Idaho now has the highest gang membership ratio of any state in America! This image is from the FBI’s 2011 G ang Assessment. An obvious and foreseeable side effect of CCA’s policy of empowering and rewarding gangs in its prisons is that prison gangs can recruit inside prison and flourish outside of prison once gang members have served their sentences—wreaking havoc in our
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community. Evidence in this case may show that this outcome is by design since CCA will have “repeat customers” from former inmates when they are arrested for gang activity after being released from prison.
6. CCA’s inmates are faced with a lose/lose choice when they arrive in a CCA prison. T his is detailed in the attached interview of Norma Rodriguez, Unit Manager, the policymaker at ICC responsible for moving the Plaintiffs into the pod where they were attacked, Ms. Rodriguez says, at page 8, “The minute you start isolating your pods the offenders are running your pods. That is how it is now….” See Exhibit A. If inmates have no g ang affiliation, they will be recruited by prison gangs. Those that do not join one gang (or another) will be attacked. The net result is that many inmates without gang affiliation will, eventually, join a gang in prison as a matter of self preservation. These gang members are obligated to “pay back” the protection they receive in prison by “doing work” for the gang, both in prison and after they are released.
7. The State of Idaho (the “State”) is obviously and justifiably concerned about CCA’s policies that enhance gang power bases in prison. See the Serious Incident Report Exhibit B and the August 28, 2008 Randy Blades letter to Phillip Valdez, Warden, attaching the Higgins Report1 (the “Blades Letter and Higgins Report”). About six months before the Plaintiffs were attacked CCA entered into a s ettlement of claims related to a similar incident. See Exhibit C, the attached Settlement Agreement from Kelly et al. v. CCA, et al. Case 1:11CV-00185-EJL. CCA agreed, in that settlement agreement, to protect prisoners, like the
1 Plaintiffs’ counsel initially intended to attach the Blades letter and Higgins Report to this Complaint. CCA has asked that counsel for Plaintiffs not attach copies of these documents to this Complaint. The Blades letter attaching the Higgins Report is already published online by journalists so attaching it is not necessary. A true and correct copy can be found here: https://www.prisonlegalnews.org/includes/_public/_publications/prison%20brutality/idaho_doc_analysis_of_violenc e_at_idaho_corr_ctr_2008.pdf
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Plaintiffs, from gang violence. C CA failed, miserably, to follow the requirements of that settlement. Moreover, the State has issued Standard Operating Procedures (“SOP”) for CCA to follow in running the prison which prohibits CCA from giving gangs this power base. According to the May 21, 2012 IDOC Serious Incident Review Report (SIR) See Exhibit B, CCA is in violation of several SOP and this condition appears to have persisted for several years given the fact that similar concerns were noted in the Blades Letter and Higgins Report, the Kelly settlement agreement, and the SIR. A dditionally, Ms. Rodriguez’s interview clearly establishes the policy to segregate and empower the gangs existed before she went to work there.
8. America’s communities are being sacrificed for corporate profits for CCA’s shareholders. While mixing the gangs up in prison may require more guards in each prison, and thus a reduction in CCA profits, such is completely appropriate. If CCA cannot make a profit without empowering gangs, CCA is obtaining its profits without properly accounting for the cost of its policies to society. In other words, certain inmates who could otherwise be rehabilitated in prison turn to a life of crime due to the gang affiliation that is required for safety in a CCA-run prison. Moreover, a strong gang presence in our communities reduces property values, increases law enforcement costs, and risks innocent lives of guards, police, and innocent hardworking members of our society (like those who will be called upon to serve on our jury should this case proceed to trial).
9. While the cost to deflate the gangs’ control of the ICC prison may be high, CCA certainly has sufficient wealth and income to provide for the security and safety of those inmates entrusted to their care. Unfortunately, CCA has incentivized its corporate officers to place profits ahead of inmate safety and the well-being of the communities where CCA operates. CCA was celebrating its profitability with analysts on a conference call on May 3, 2012, and at that
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time issued a “forward looking statement” where CCA predicted profits between $153,153,000

and $161,161,000 for the full year of 2012. Just two days later the Attempted Murders occurred

and were dismissed by CCA in the press as a minor incident. The enclosed video of the

Attempted Murders is clear evidence that this was more than a minor incident and could easily

have resulted in the death of some or all of the Plaintiffs.

10. As of October 22, 2012 , CCA’s market capitalization was approximately $3.3

billion. D uring the calendar year 2012, it is anticipated CCA will distribute $80MM to its

shareholders in dividends. In 2011, CCA’s six most highly compensated executives made more

than $12MM:

Damon T. Hininger/President and Chief Executive Officer $3,696,798

Richard P. Seiter/Special Assistant to the CEO

$1,845,566

John D. Ferguson/Chairman of the Board and Fmr CEO $1,734,793

Todd J. Mullenger/Executive Vice President and CFO

$1,835,048

Anthony L. Grande/EVP and Chief Development Officer $1,735,039

Brian D. Collins/EVP and Chief Human Resources Officer $1,505,146

11. CCA’s corporate conscience has been brutally obscured by the enormous profits,

dividends and compensation it receives. CCA is aware and courts have recognized that for-profit

prisons inherently risk violation of constitutional rights if violation of such rights would be

profitable:

The court in Manis v. Corrections Corp. of America, 859 F.Supp. 302 (1994) said that “[a] private party that performs a government function for a fee” does not face the dilemma of a public officer who might run afoul of the Constitution in seeking to serve the public. Corporate officers are hired to serve the corporation and its shareholders, who were chiefly interested in advancing their financial standing. “Especially when a private corporation is hired to operate a prison, there is an obvious temptation to skimp on civil rights whenever it would help to maximize shareholders’ profits… In such circumstances, the threat of incurring money damages might provide the only incentive for a p rivate corporation and its employees to respect the Constitution.”

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12. The attached videos2 and pictures See Exhibit D, demonstrate that the
Plaintiffs have suffered serious and substantial injuries, since they were stabbed while in CCA’s custody in an attempted mass murder. T his attempted mass murder was a d irect result of a policy dictated by CCA that empowers gangs and reduces the number of guards. The attached DVD shows video and pictures of the Attempted Murders as well as the knives and other weapons that were used (such as the photos pictured above). Plaintiffs hope resolution of this case will prevent similar incidents and protect our communities from gangs. As the court recognized in Manis, an award of punitive damages sufficient to punish AND DETER the harmful policies in the future is necessary. Since CCA is so profitable, the best and only way to have a deterrent effect is for the jury to make a punitive award that is large enough to impact what might be distributed to shareholders in future years. Then, and only then, will the
2 Videos and other evidence is also available at www.angstman.com/cca/.
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shareholders take action to demand the board of directors replace management whose policies led to a reduction in corporate dividends.
13. While the Plaintiffs do not specify any particular amount of punitive damages that would be sufficient to have the deterrent purpose envisioned by Congress and the courts in fashioning this remedy, based on the information presently available the number will need to be substantially more than the compensation paid to the executives named in this complaint.
JURISDICTION AND VENUE 14. This action arises under the Eighth and Fourteenth Amendments to the U.S. Constitution and 42 U .S.C. §1983. Jurisdiction exists pursuant to 28 U.S.C. §§1331 a nd 1343(a)(3) and (4). Venue is properly found in this District pursuant to 28 U.S.C. §1391(b), in that all Plaintiffs reside, and Plaintiffs’ claims arose, within the District.
PARTIES 15. Plaintiffs Omar Castillon, Dusty Knight, Justin Peterson, Leon Russell, Christopher Jordan, Jacob Judd, Michael Ford-Bridges, and Raymond Bryant are adult citizens of the United States and are prisoners incarcerated under the jurisdiction of the Idaho Department of Corrections. All Plaintiffs were incarcerated at the Idaho Correctional Center (ICC) in Kuna, Idaho, on May 5, 2012, and are presently in custody of the Idaho Department of Corrections in the state of Idaho. 16. Raymond Bryant is 36 years old. In the Attempted Murders, Mr. Bryant sustained one stab wound to his right temple requiring stitches, one stab wound on the back of his head requiring stitches, one stab wound in his left cheek requiring stitches, one stab wound on his throat requiring stitches, one stab wound by his left ear requiring stitches, one stab wound on his chest, and one stab wound on his left elbow requiring stitches.
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17. Christopher Jordan is 36 years old. In the Attempted Murders,Christopher Jordan was stabbed on t he top his head and retained a black eye. Mr. Jordan was then thrown into solitary confinement (hereinafter “the hole”) and received no medical attention until May 7, 2012.
18. Plaintiff Dusty Knight is 30 years old. During the Attempted Murders, Mr. Knight was stabbed eighteen (18) times in his head, face, and hands and he required stitches in his head, face, and hand. M r. Knight is currently experiencing dizzy spells and migraine headaches. He requested medical attention for migraine headaches and loss of vision, but has received no examination by an eye specialist, nor have any x-rays or outside evaluations been performed.
19. Justin Peterson is 26 years old. During the Attempted Murders, Mr. Peterson sustained one stab wound in the back of his head, one stab wound in the back of his neck, two stab wounds on his left arm, one stab wound under his armpit in his ribs, and one stab wound in his upper thigh.
20. Jacob Judd is currently 24 years old. During the Attempted Murders, Mr. Judd was stabbed once on the top of his head, once in the back, once in his armpit, once in the hand, and was poked in the eye. Mr. Judd became incontinent during the Attempted Murders from fear and still experiences nightmares. Mr. Judd experienced a loss of vision for a week after this incident. His vision continues to be problematic.
21. Plaintiff Michael Bridges is 24 years old. During the Attempted Murders, Mr. Bridges was stabbed five times in his face, chest, shoulder, ribs, and head, requiring stitches in his head and cheek.
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22. Leon Russell is 38 years old. During the Attempted Murders, Mr. Russell sustained one stab wound in his right temple by his eye, one stab wound on his lower cheek, one stab wound under his right eye requiring stitches, and one stab wound on the back of his neck requiring stitches.
23. Omar Castillon is 28 years old. During the Attempted Murders, Mr. Castillon’s head was slammed against the wall and he was maced.
24. Defendant Corrections Corporation of America (CCA) is a for-profit business incorporated under the laws of Maryland. A s part of its enterprises, CCA operates the private prison, ICC.
25. ICC was constructed on state-owned land in Kuna, Idaho, with public tax funds. ICC is operated under the jurisdiction of the IDOC. IDOC entered into a contract with CCA under which CCA is paid to manage and operate ICC on a day-to-day basis.
STATEMENT OF FACTS A. General Allegations
26. The Eighth Amendment to the Constitution prohibits the imposition of “cruel and unusual punishments.” It follows that prisons have a duty “to protect prisoners from violence at the hands of other prisoners.” Farmer v. Brennan, 511 U .S. 825, 833 ( 1994). In other words, people are sent to prison as punishment, not for punishment. “Being violently assaulted in prison is simply not part of the penalty that criminal offenders pay for their offenses against society.” Farmer, 511 U.S. at 834 (internal citation omitted). Government officials “are not free to let the state of nature take its course” in America’s prisons. Farmer, at 833.
27. The Supreme Court and the Ninth Circuit have made it clear that prisons violate the Eighth Amendment rights of prisoners both when they undertake an act that places a prisoner at substantial risk of serious harm and when they fail to act to abate such a risk. “ Thus, COMPLAINT FOR DAMAGES, AND FOR DECLARATORY AND INJUNCTIVE RELIEFPAGE 10

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violations of the Eighth Amendment may occur as ‘a result of either a prison official's act or omission.’ Farmer [v. Brennan], 511 U.S. [825], 834 [1994].” Clem v. Lomeli, 566 F.3d 1177, 1181 (9th Cir. 2009) (emphasis supplied in Clem).
28. A jury may assess punitive damages if the defendant is either (a) motivated by evil intent; or (b) acts with recklessness or callous indifference toward the federally protected rights of others. See Smith v. Wade, 461 U.S. 30, 55 (1983).
29. In its contract with the Idaho Department of Corrections (“IDOC”), CCA agreed that “at all times which inmates are in [CCA] custody, [CCA] shall provide security and control of inmates . . . [and] [CCA] shall develop and implement safety . . . procedures.”
30. CCA, pursuant to its own policy and practice, houses inmates who claim the same gang affiliation together in the same cellblock, which is arranged so that they all may have lunch, recreation time, and other time outside of their cells together. The cells are side by side, so that the gang members can talk to one another even if they are confined to their cell. The gangs refer to this housing arrangement as having their own “walk.”
31. CCA, pursuant to its own policy and practice, allow gangs to request a “walk” of their own, and then houses them and their affiliates together.
32. Housing inmates from the same gang together in a “walk” allows the offenders to control the unit and allows them to increase their power base.
33. Housing inmates from the same gang together in a walk violates IDOC policies and procedures which CCA is supposed to follow.
34. CCA knows that placing prisoners that are the target of violent gangs within the gang’s walk is substantially certain to result in a violent assault against the target by the gang.
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Even if a prisoner is not targeted by the gangs for violence, they will likely be targeted for recruitment into the gang and assaulted if they refuse.
35. CCA has historically placed prisoners that it k new were the target of violent gangs within the gang’s walk, resulting in violence against those prisoners.
36. CCA has historically failed or refused to remove prisoners from dangerous situations.
37. CCA has historically placed prisoners in situations in which they needed to fight. 38. CCA has historically used inadequate staff to prevent or promptly stop violence against prisoners. 39. In August 2008, CCA received the results of an IDOC investigation that concluded that increased violence and decreased prisoner safety at the ICC was due to, among other things, gang members operating openly at the ICC with little fear of being held accountable. 40. On or about April 27, 2011, CCA received the Amended Class Action Complaint for Declaratory and Injunctive Relief in Kelly v. CCA, Case 1:11-cv-00185, United States District Court, District of Idaho (the “Class Action Complaint”). 41. The Class Action Complaint alleged, among other things, that CCA:
a. Frequently placed vulnerable prisoners with predators; b. Failed to protect prisoners who request and need protection from violence; c. Turned a “blind eye” to violence at ICC; d. Failed to adequately investigate attacks, therefore making it unable to prevent
attacks from recurring;
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e. Refused to discipline guards whose action or omissions precipitated prisoner violence; and
f. ICC is overcrowded, understaffed, inadequately supervised, and the guards are inadequately trained.
42. On September 16, 2011, CCA settled the Class Action See Exhibit C by agreeing, among other things:
a. That “CCA will immediately place inmates who claim to be at risk of physical assault from other inmates into appropriate housing, as determined by staff, during investigation of the claim” (para. 5);
b. That “CCA will make housing assignments based on all factors the facility deems appropriate for the safety of the inmates, consistent with IDOC SOP” (para. 9); and
c. That CCA would institute training for its correctional officers including: “policies and procedures; inmate rights including protection from assaults; emergency plans/incident management; institutional safety; supervision of inmates; inmate manipulation; inmate management; inmate accountability; direct supervision; special needs offenders; and security threat groups3” (para. 11).
43. The District Court ordered dismissal of the Class Action based upon the stipulation. See Exhibit E.
44. Following the dismissal of the Class Action, receipt of the Blades Letter and Higgins Report, CCA continued to follow its policy and practice of housing inmates from the same gangs in the same “walks.”
45. Following the dismissal of the Class Action, CCA has continued with a policy and practice which includes gang leadership in prison management decisions.
3 “Security threat group” is a term commonly used by CCA for prison gangs.
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46. In accord with this policy and practice, CCA consults with gang leadership in regard to moves of gang members within the prison.
47. In accord with this policy and practice, CCA will not hold gang members accountable for misconduct, because the gang will make the control of the prison more difficult or even dangerous for CCA employees and staff.
48. CCA’s policies and practices of housing members of the same gangs together, consulting with gang leadership regarding prisoner moves, and refusing to hold gang members accountable for misconduct, has resulted in gang members gaining more control and authority within the prison.
49. CCA has identified a number of gangs operating within the facility, known by ICC as “security threat groups” (“STG”). CCA is aware that members of some gangs will assault members of other gangs due to the level of dislike between gangs. CCA is also aware that some gangs prey upon certain groups of general population prisoners, including informants (generally known in the prison as “rats” or “snitches”) and sex offenders.
50. CCA has identified the Aryan Knights, a violent white supremacist gang, as a STG at ICC.
51. CCA has identified the Severely Violent Criminals, a violent gang, as a STG at ICC. Prior to May 5, 2012, CCA granted the Severely Violent Criminals and the Aryan Knights their own “walk” at ICC.
52. Prior to May 5, 2012, C CA knew that the Aryan Knights and Severely Violent Criminals targeted the Plaintiffs in this suit for attack.
53. Prior to May 5, 2012, the Plaintiffs and others told CCA that the Plaintiffs would be in physical danger from the Aryan Knights and Severely Violent Criminals if they were
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housed in the Aryan Knight and Severely Violent Criminal controlled “walk.” The Plaintiffs asked to not be placed in the Aryan Knight and Severely Violent Criminal controlled “walk.”
54. Prior to May 5, 2012, t he Plaintiffs’ complaints were brought to the attention of the CCA official with final policymaking authority, by office or delegation. P ursuant to the direction of such official, the targeted prisoners were not placed in appropriate housing during investigation of the claims. R ather, on May 5, 2012, C CA transferred the Plaintiffs into the Aryan Knight and Severely Violent Criminal controlled “walk,” despite the protests and objections of the Plaintiffs.
55. On or about May 4, 2012, while they were moving the Plaintiffs into the “walk” controlled by the Aryan Knights and Severely Violent Criminals gangs, CCA officers heard threats of violence yelled at the Plaintiffs.
56. Within twenty-four hours of being placed in the unit, on May 5, 2012, the Aryan Knights and Severely Violent Criminals joined forces, armed with shanks, razors, and other weapons, to attack the Plaintiffs as depicted in the attached video. See Exhibit D.
57. On May 5, 2012, the Aryan Knights and Severely Violent Criminal were let out of their cells for recreation, separately from the Plaintiffs. Six of the Aryan Knight and Severely Violent Criminal gang members hid in a closet which was supposed to be kept locked. After the Aryan Knights and Severely Violent Criminals were supposed to be gone, the Plaintiffs were let out for recreation. They were immediately attacked by the hiding Aryan Knights and Severely Violent Criminals.
58. Each of the Plaintiffs was stabbed, except Mr. Omar, some as many as eighteen times. The victims suffered physical and emotional injuries requiring stitches and medical
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attention, and some suffer ongoing medical issues resulting from the location of their stab wounds.
59. CCA would have avoided the Attempted Murders if CCA had taken adequate precautions to protect the Plaintiffs such as desegregating gangs and employing sufficient guards.
60. The actions and omissions by CCA are part of a persistent pattern of misconduct of CCA, occurring either pursuant to CCA policy, or as a product of CCA’s deliberate indifference to the federally protected rights of the ICC prisoners.
61. The actions and omissions by CCA are a longstanding practice or custom that constitutes the standard operating procedure of CCA.
62. The actions and omissions by CCA were pursuant to policies established by the CCA decision-making official who was a final policymaking authority whose edicts or acts may fairly be said to represent official policy in the area of decision for CCA, or by a CCA official who was delegated final policymaking authority.
63. The actions and omissions by CCA were ratified by the CCA decision-making official who was a final policymaking authority whose edicts or acts may fairly be said to represent official policy in the area of decision for CCA, or by a CCA official who was delegated final policymaking authority.
64. CCA’s actions and omissions have occurred with recklessness or callous indifference toward the federally protected rights of the prisoners at ICC.
65. This persistent pattern of misconduct appears to go beyond the specific plaintiffs in this case, demonstrating an apparent policy within CCA prisons to create a partnership between CCA and the leadership of prison gangs. Functionally, such a partnership would reward
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prison gang leadership with power and control over their “walk” for influencing subordinate gang members to engage in violence against members of the prison population. This violence is used as a device to gain control over the inmate population through the infliction and prospective fear of cruel and unusual punishment, such as the Attempted Murders. The use of prison gangs rather than CCA salaried agents to engage in coercive violence such as the Attempted Murders would give CCA plausible deniability and enable it to reduce staffing expenditures for prison guards and therefore increase profitability.
66. Prisoners placed in a gang-controlled “walk” are at risk if they do not join the gang, pay extortionate protection payments “rent” or “work” for the gang (attacking others if commanded to). This system also has the consequence of creating new gangs as unaffiliated prisoners come together in groups for the purpose of protect themselves from existing gangs. In this type of system, gang membership is increased and gang loyalty is necessary.
67. The apparent partnership between CCA and the leadership of prison gangs increases the threat of harm to inmates within the CCA prisons, as well as the surrounding community upon the eventual release of the individuals forced to engage in gangster lifestyle as a means of survival. B. CCA’s Deliberate, Reckless and Callous Indifference
68. Plaintiffs incorporate all prior paragraphs of this Complaint, and the attachments hereto and further allege as follows:
69. CCA’s policy of housing members of violent gangs together cedes power to the gangs in prison. CCA’s policymakers are aware that this makes the prisons more dangerous, but since the gangs enforce their own code of conduct, CCA is able to reduce staffing and increase profitability.
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70. CCA is deliberately, recklessly, and callously indifferent to prisoner health and safety. C CA refuses to provide funds for, and Warden Wengler refuses to hire and train, a sufficient number of correctional officers. It is impossible for ICC to provide prisoners with adequate protection from assault—or to timely intervene when an assault has commenced—with as few guards as ICC has on its staff, especially since the gangs have been given so much power by assigning them to their own “walks” where attacks such as the Attempted Murders can be planned out in advance. P olicymakers within the prison such as Unit Supervisor Rodriguez recognize that the gangs are “running the pods” and that rectifying that situation will require substantially more guards and a prolonged show of force to take control of the gang situation. CCA refuses to alter its gang housing policies due to the expense involved despite the fact that they know that inmates and guards are likely to be injured by gang members.
71. CCA fails to require or ensure that prisoner assaults will be adequately investigated in order to determine what steps should be taken to prevent future assaults, and to determine whether misconduct or malfeasance by a guard caused or contributed to the assault.
72. CCA fails to ensure that guards are properly trained to prevent violence. Consequently, CCA deliberately places prisoners in housing units knowing they are likely to be assaulted and refuses to remove prisoners from housing after threatened attacks.
73. ICC remains a violent facility despite awareness of excessive violence dating back from at least 2008.
74. ICC’s in-house medical unit and media relations employees minimize the extent of prisoner injuries. For instance, CCA released the following after the Attempted Murders:
“Thirteen inmates were involved in a fight at Idaho's private prison. Idaho Correctional Center says more than a dozen inmates were injured in a fight over the weekend. ICC says all injuries were minor and inmates were treated on
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site. It was described as an isolated dispute among inmates. The area was locked down.” 75. ICC has a practice of refusing to refer for prosecution the perpetrators of prisoner assaults, except in rare situations. 76. ICC generally operates at or above its operating capacity. As noted in the 2010 Legislative Report, ICC’s population in November 2009 w as 100.2% (2,021 prisoners) of its operating capacity of 2,016 prisoners. T his predicament, although profitable for ICC, is dangerous to prisoners. For instance, having a small number of empty beds makes it difficult to quickly move prisoners away from a dangerous environment. 77. The failures described above continue to this day, placing all prisoners of ICC at unnecessary and substantial risk of being assaulted by other prisoners. These failures and wrongful acts are motivated by evil motive and intent. In other words, the Plaintiffs contend their rights have been sacrificed intentionally so that CCA may make an unfair profit by skimping on i nmate (and guard) safety precautions as the court recognized in Manis v. Corrections Corp. of America, discussed above.
JURY DEMAND 78. A JURY TRIAL IS REQUESTED ON ALL CLAIMS SO TRIABLE.
FIRST CLAIM FOR RELIEF 79. Plaintiffs repeat and re-allege each of the allegations set forth in the preceding paragraphs as if set forth in full herein. 80. Based on the facts set forth above, Plaintiffs Raymond Bryant, Michael Bridges, Jacob Judd, Christopher Jordan, Dusty Knight, Omar Castillon, Justin Peterson, and Leon Russell assert that Corrections Corporation of America, Inc., enacted and pursued or acquiesced in the policies and practices set forth above, and engaged in the acts described above, which
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resulted in a violation of rights secured to them by the Eighth and Fourteenth Amendments to the U.S. Constitution. P laintiffs seek injunctive, compensatory and punitive damages against the Defendant pursuant to 42 U.S.C § 1983.
PRAYER FOR RELIEF WHEREFORE Plaintiffs respectfully pray that this Honorable Court will: 81. Grant Plaintiffs, pursuant to 42 U .S.C. § 1983 , compensatory damages against defendant Corrections Corporation of American, Inc., in an amount as the proof will show at trial. 82. Grant Plaintiffs, pursuant to 42 U .S.C. § 19 83, punitive damages against defendant Corrections Corporation of American, Inc., in the amount sufficient, to punish and discourage CCA and other similarly situated persons and entities from engaging in this type of reprehensible conduct in the future. 83. Grant such additional and further relief, including injunctive relief and an award of attorney’s fees and costs, as the Court may deem proper under the circumstances. DATED this 9th day of November, 2012.
ANGSTMAN JOHNSON
/s/ T.J. Angstman________________ T. J. Angstman Attorneys for the Plaintiffs
COMPLAINT FOR DAMAGES, AND FOR DECLARATORY AND INJUNCTIVE RELIEFPAGE 20

 
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TJ Angstman
Wyatt B. Johnson
ANGSTMAN JOHNSON 3649 Lakeharbor Lane Boise, Idaho 83703 Telephone: (208) 384-8588 Facsimile: (208) 853-0117 Johnson ISB: 5858 Angstman ISB: 5738

Nikki Smith 3649 Lakeharbor Lane Boise, Idaho 83703 Telephone: (208) 384-8588 Facsimile: (208) 853-0117 Smith ISB: 9030

Attorneys for Omar Castillon, Dusty Knight, Justin Peterson, Leon Russell, Christopher Jordan, Jacob Judd, Michael Ford-Bridges, Raymond Bryant.

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF IDAHO

OMAR CASTILLON, DUSTY KNIGHT, JUSTIN PETERSON, LEON RUSSELL, CHRISTOPHER JORDAN, JACOB JUDD, MICHAEL FORD-BRIDGES, AND RAYMOND BRYANT,

Case No 1:12-CV-559-EJL
FIRST AMENDED COMPLAINT FOR DAMAGES, AND FOR DECLARATORY AND INJUNCTIVE RELIEF

Plaintiffs,

vs.

CORRECTIONS CORPORATION OF AMERICA, Inc.

Defendant.

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EXECUTIVE SUMMARY 1. Corrections Corporation of America, Inc. (hereinafter “CCA”) is the nations largest owner and operator of partnership correction and detention facilities and one of the largest prison operators in the United States, behind only the federal government and three states. CCA currently operates 67 facilities, including 47 company-owned facilities, with a total design capacity of approximately 92,000 beds in 20 states and the District of Columbia. 2. CCA has an easily proven policy and persistent pattern of misconduct occurring in the CCA operated prison in Kuna, Idaho, known as the Idaho Correctional Center (hereinafter “ICC”). This persistent pattern of misconduct described evidences a policy within CCA prisons which creates a partnership between CCA and certain prison gangs. Functionally, this partnership rewards prison gangs with a powerful position within (and consequently outside of) the prison and allows CCA to enhance its profitability. 3. Violent acts committed by the prison gangs are used by CCA as an inexpensive device to gain control over the inmate population. T his method of control depends upon t he infliction and prospective fear of cruel and unusual punishment, such as the attempted murder of the Plaintiffs which occurred in this case (hereinafter the “Attempted Murders”). The use of prison gangs rather than CCA salaried agents to engage in coercive violence such as the Attempted Murders gives CCA plausible deniability and at the same time enables it to reduce staffing expenditures for prison guards—therefore increasing corporate profitability. This persistent pattern of misconduct continues in violation of a settlement agreement negotiated in the District of Idaho and is grounds to hold CCA liable for deprivation of the civil rights of the Plaintiffs.
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4. CCA’s use of violent prison gangs to inflict cruel and unusual punishment is more than a persistent pattern of misconduct. This partnership between CCA and the gangs is official CCA policy or custom wherein CCA employs gang negotiators to advise gang leadership about CCA objectives and concerns and to hear, consider, and address matters of concern to the gang leadership. As referenced in the attached documents, it is the policy of CCA to avoid reporting crimes occurring within CCA facilities to local law enforcement so gang members will continue to further the objectives of CCA, facing no fear of prosecution for their involvement. It appears that this use of prison gangs as an instrumentality to inflict cruel and unusual punishment has been a longstanding practice or custom within prisons run by CCA, and as such it has become standard operating procedure within all CCA prisons.
5. The practice of using gang violence as a corporate cost savings measure is beyond reprehensible. Not only does it destroy the possibility that the Plaintiffs and other similarly situated inmates will have an opportunity to be rehabilitated, it creates a powerful gang hierarchy in the community inside and OUTSIDE the prison. In fact, Idaho now has the highest gang membership ratio of any state in America! This image is from the FBI’s 2011 G ang Assessment. An obvious and foreseeable side effect of CCA’s policy of empowering and rewarding gangs in its prisons is that prison gangs can recruit inside prison and flourish outside of prison once gang members have served their sentences—wreaking havoc in our
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community. Evidence in this case may show that this outcome is by design since CCA will have “repeat customers” from former inmates when they are arrested for gang activity after being released from prison.
6. CCA’s inmates are faced with a lose/lose choice when they arrive in a CCA prison. T his is detailed in the attached interview of Norma Rodriguez, Unit Manager, the policymaker at ICC responsible for moving the Plaintiffs into the pod where they were attacked, Ms. Rodriguez says, at page 8, “The minute you start isolating your pods the offenders are running your pods. That is how it is now….” See Exhibit A. If inmates have no g ang affiliation, they will be recruited by prison gangs. Those that do not join one gang (or another) will be attacked. The net result is that many inmates without gang affiliation will, eventually, join a gang in prison as a matter of self preservation. These gang members are obligated to “pay back” the protection they receive in prison by “doing work” for the gang, both in prison and after they are released.
7. The State of Idaho (the “State”) is obviously and justifiably concerned about CCA’s policies that enhance gang power bases in prison. See the Serious Incident Report Exhibit B and the August 28, 2008 Randy Blades letter to Phillip Valdez, Warden, attaching the Higgins Report1 (the “Blades Letter and Higgins Report”). About six months before the Plaintiffs were attacked CCA entered into a s ettlement of claims related to a similar incident. See Exhibit C, the attached Settlement Agreement from Kelly et al. v. CCA, et al. Case 1:11CV-00185-EJL. CCA agreed, in that settlement agreement, to protect prisoners, like the
1 Plaintiffs’ counsel initially intended to attach the Blades letter and Higgins Report to this Complaint. CCA has asked that counsel for Plaintiffs not attach copies of these documents to this Complaint. The Blades letter attaching the Higgins Report is already published online by journalists so attaching it is not necessary. A true and correct copy can be found here: https://www.prisonlegalnews.org/includes/_public/_publications/prison%20brutality/idaho_doc_analysis_of_violenc e_at_idaho_corr_ctr_2008.pdf
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Plaintiffs, from gang violence. C CA failed, miserably, to follow the requirements of that settlement. Moreover, the State has issued Standard Operating Procedures (“SOP”) for CCA to follow in running the prison which prohibits CCA from giving gangs this power base. According to the May 21, 2012 IDOC Serious Incident Review Report (SIR) See Exhibit B, CCA is in violation of several SOP and this condition appears to have persisted for several years given the fact that similar concerns were noted in the Blades Letter and Higgins Report, the Kelly settlement agreement, and the SIR. A dditionally, Ms. Rodriguez’s interview clearly establishes the policy to segregate and empower the gangs existed before she went to work there.
8. America’s communities are being sacrificed for corporate profits for CCA’s shareholders. While mixing the gangs up in prison may require more guards in each prison, and thus a reduction in CCA profits, such is completely appropriate. If CCA cannot make a profit without empowering gangs, CCA is obtaining its profits without properly accounting for the cost of its policies to society. In other words, certain inmates who could otherwise be rehabilitated in prison turn to a life of crime due to the gang affiliation that is required for safety in a CCA-run prison. Moreover, a strong gang presence in our communities reduces property values, increases law enforcement costs, and risks innocent lives of guards, police, and innocent hardworking members of our society (like those who will be called upon to serve on our jury should this case proceed to trial).
9. While the cost to deflate the gangs’ control of the ICC prison may be high, CCA certainly has sufficient wealth and income to provide for the security and safety of those inmates entrusted to their care. Unfortunately, CCA has incentivized its corporate officers to place profits ahead of inmate safety and the well-being of the communities where CCA operates. CCA was celebrating its profitability with analysts on a conference call on May 3, 2012, and at that
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time issued a “forward looking statement” where CCA predicted profits between $153,153,000

and $161,161,000 for the full year of 2012. Just two days later the Attempted Murders occurred

and were dismissed by CCA in the press as a minor incident. The enclosed video of the

Attempted Murders is clear evidence that this was more than a minor incident and could easily

have resulted in the death of some or all of the Plaintiffs.

10. As of October 22, 2012 , CCA’s market capitalization was approximately $3.3

billion. D uring the calendar year 2012, it is anticipated CCA will distribute $80MM to its

shareholders in dividends. In 2011, CCA’s six most highly compensated executives made more

than $12MM:

Damon T. Hininger/President and Chief Executive Officer $3,696,798

Richard P. Seiter/Special Assistant to the CEO

$1,845,566

John D. Ferguson/Chairman of the Board and Fmr CEO $1,734,793

Todd J. Mullenger/Executive Vice President and CFO

$1,835,048

Anthony L. Grande/EVP and Chief Development Officer $1,735,039

Brian D. Collins/EVP and Chief Human Resources Officer $1,505,146

11. CCA’s corporate conscience has been brutally obscured by the enormous profits,

dividends and compensation it receives. CCA is aware and courts have recognized that for-profit

prisons inherently risk violation of constitutional rights if violation of such rights would be

profitable:

The court in Manis v. Corrections Corp. of America, 859 F.Supp. 302 (1994) said that “[a] private party that performs a government function for a fee” does not face the dilemma of a public officer who might run afoul of the Constitution in seeking to serve the public. Corporate officers are hired to serve the corporation and its shareholders, who were chiefly interested in advancing their financial standing. “Especially when a private corporation is hired to operate a prison, there is an obvious temptation to skimp on civil rights whenever it would help to maximize shareholders’ profits… In such circumstances, the threat of incurring money damages might provide the only incentive for a p rivate corporation and its employees to respect the Constitution.”

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12. The attached videos2 and pictures See Exhibit D, demonstrate that the
Plaintiffs have suffered serious and substantial injuries, since they were stabbed while in CCA’s custody in an attempted mass murder. T his attempted mass murder was a d irect result of a policy dictated by CCA that empowers gangs and reduces the number of guards. The attached DVD shows video and pictures of the Attempted Murders as well as the knives and other weapons that were used (such as the photos pictured above). Plaintiffs hope resolution of this case will prevent similar incidents and protect our communities from gangs. As the court recognized in Manis, an award of punitive damages sufficient to punish AND DETER the harmful policies in the future is necessary. Since CCA is so profitable, the best and only way to have a deterrent effect is for the jury to make a punitive award that is large enough to impact what might be distributed to shareholders in future years. Then, and only then, will the
2 Videos and other evidence is also available at www.angstman.com/cca/.
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shareholders take action to demand the board of directors replace management whose policies led to a reduction in corporate dividends.
13. While the Plaintiffs do not specify any particular amount of punitive damages that would be sufficient to have the deterrent purpose envisioned by Congress and the courts in fashioning this remedy, based on the information presently available the number will need to be substantially more than the compensation paid to the executives named in this complaint.
JURISDICTION AND VENUE 14. This action arises under the Eighth and Fourteenth Amendments to the U.S. Constitution and 42 U .S.C. §1983. Jurisdiction exists pursuant to 28 U.S.C. §§1331 a nd 1343(a)(3) and (4). Venue is properly found in this District pursuant to 28 U.S.C. §1391(b), in that all Plaintiffs reside, and Plaintiffs’ claims arose, within the District.
PARTIES 15. Plaintiffs Omar Castillon, Dusty Knight, Justin Peterson, Leon Russell, Christopher Jordan, Jacob Judd, Michael Ford-Bridges, and Raymond Bryant are adult citizens of the United States and are prisoners incarcerated under the jurisdiction of the Idaho Department of Corrections. All Plaintiffs were incarcerated at the Idaho Correctional Center (ICC) in Kuna, Idaho, on May 5, 2012, and are presently in custody of the Idaho Department of Corrections in the state of Idaho. 16. Raymond Bryant is 36 years old. In the Attempted Murders, Mr. Bryant sustained one stab wound to his right temple requiring stitches, one stab wound on the back of his head requiring stitches, one stab wound in his left cheek requiring stitches, one stab wound on his throat requiring stitches, one stab wound by his left ear requiring stitches, one stab wound on his chest, and one stab wound on his left elbow requiring stitches.
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17. Christopher Jordan is 36 years old. In the Attempted Murders, Christopher Jordan was stabbed on t he top his head and retained a black eye. Mr. Jordan was then thrown into solitary confinement (hereinafter “the hole”) and received no medical attention until May 7, 2012.
18. Plaintiff Dusty Knight is 30 years old. During the Attempted Murders, Mr. Knight was stabbed eighteen (18) times in his head, face, and hands and he required stitches in his head, face, and hand. M r. Knight is currently experiencing dizzy spells and migraine headaches. He requested medical attention for migraine headaches and loss of vision, but has received no examination by an eye specialist, nor have any x-rays or outside evaluations been performed.
19. Justin Peterson is 26 years old. During the Attempted Murders, Mr. Peterson sustained one stab wound in the back of his head, one stab wound in the back of his neck, two stab wounds on his left arm, one stab wound under his armpit in his ribs, and one stab wound in his upper thigh.
20. Jacob Judd is currently 24 years old. During the Attempted Murders, Mr. Judd was stabbed once on the top of his head, once in the back, once in his armpit, once in the hand, and was poked in the eye. Mr. Judd became incontinent during the Attempted Murders from fear and still experiences nightmares. Mr. Judd experienced a loss of vision for a week after this incident. His vision continues to be problematic.
21. Plaintiff Michael Bridges is 24 years old. During the Attempted Murders, Mr. Bridges was stabbed five times in his face, chest, shoulder, ribs, and head, requiring stitches in his head and cheek.
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22. Leon Russell is 38 years old. During the Attempted Murders, Mr. Russell sustained one stab wound in his right temple by his eye, one stab wound on his lower cheek, one stab wound under his right eye requiring stitches, and one stab wound on the back of his neck requiring stitches.
23. Omar Castillon is 28 years old. During the Attempted Murders, Mr. Castillon’s head was slammed against the wall and he was maced.
24. Defendant Corrections Corporation of America (CCA) is a for-profit business incorporated under the laws of Maryland. As part of its enterprises, CCA operates the private prison, ICC.
25. ICC was constructed on state-owned land in Kuna, Idaho, with public tax funds. ICC is operated under the jurisdiction of the IDOC. IDOC entered into a contract with CCA under which CCA is paid to manage and operate ICC on a day-to-day basis.
STATEMENT OF FACTS A. General Allegations
26. The Eighth Amendment to the Constitution prohibits the imposition of “cruel and unusual punishments.” It follows that prisons have a duty “to protect prisoners from violence at the hands of other prisoners.” Farmer v. Brennan, 511 U .S. 825, 833 ( 1994). In other words, people are sent to prison as punishment, not for punishment. “Being violently assaulted in prison is simply not part of the penalty that criminal offenders pay for their offenses against society.” Farmer, 511 U.S. at 834 (internal citation omitted). Government officials “are not free to let the state of nature take its course” in America’s prisons. Farmer, at 833.
27. The Supreme Court and the Ninth Circuit have made it clear that prisons violate the Eighth Amendment rights of prisoners both when they undertake an act that places a prisoner at substantial risk of serious harm and when they fail to act to abate such a risk. “ Thus, FIRST AMENDED COMPLAINT FOR DAMAGES, AND FOR DECLARATORY AND INJUNCTIVE RELIEF- PAGE 10

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violations of the Eighth Amendment may occur as ‘a result of either a prison official's act or omission.’ Farmer [v. Brennan], 511 U.S. [825], 834 [1994].” Clem v. Lomeli, 566 F.3d 1177, 1181 (9th Cir. 2009) (emphasis supplied in Clem).
28. A jury may assess punitive damages if the defendant is either (a) motivated by evil intent; or (b) acts with recklessness or callous indifference toward the federally protected rights of others. See Smith v. Wade, 461 U.S. 30, 55 (1983).
29. In its contract with the Idaho Department of Corrections (“IDOC”), CCA agreed that “at all times which inmates are in [CCA] custody, [CCA] shall provide security and control of inmates . . . [and] [CCA] shall develop and implement safety . . . procedures.”
30. CCA, pursuant to its own policy and practice, houses inmates who claim the same gang affiliation together in the same cellblock, which is arranged so that they all may have lunch, recreation time, and other time outside of their cells together. The cells are side by side, so that the gang members can talk to one another even if they are confined to their cell. The gangs refer to this housing arrangement as having their own “walk.”
31. CCA, pursuant to its own policy and practice, allow gangs to request a “walk” of their own, and then houses them and their affiliates together.
32. Housing inmates from the same gang together in a “walk” allows the offenders to control the unit and allows them to increase their power base.
33. Housing inmates from the same gang together in a walk violates IDOC policies and procedures which CCA is supposed to follow.
34. CCA knows that placing prisoners that are the target of violent gangs within the gang’s walk is substantially certain to result in a violent assault against the target by the gang.
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Even if a prisoner is not targeted by the gangs for violence, they will likely be targeted for recruitment into the gang and assaulted if they refuse.
35. CCA has historically placed prisoners that it k new were the target of violent gangs within the gang’s walk, resulting in violence against those prisoners.
36. CCA has historically failed or refused to remove prisoners from dangerous situations.
37. CCA has historically placed prisoners in situations in which they needed to fight. 38. CCA has historically used inadequate staff to prevent or promptly stop violence against prisoners. 39. In August 2008, CCA received the results of an IDOC investigation that concluded that increased violence and decreased prisoner safety at the ICC was due to, among other things, gang members operating openly at the ICC with little fear of being held accountable. 40. On or about April 27, 2011, CCA received the Amended Class Action Complaint for Declaratory and Injunctive Relief in Kelly v. CCA, Case 1:11-cv-00185, United States District Court, District of Idaho (the “Class Action Complaint”). 41. The Class Action Complaint alleged, among other things, that CCA:
a. Frequently placed vulnerable prisoners with predators; b. Failed to protect prisoners who request and need protection from violence; c. Turned a “blind eye” to violence at ICC; d. Failed to adequately investigate attacks, therefore making it unable to prevent
attacks from recurring;
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e. Refused to discipline guards whose action or omissions precipitated prisoner violence; and
f. ICC is overcrowded, understaffed, inadequately supervised, and the guards are inadequately trained.
42. On September 16, 2011, CCA settled the Class Action See Exhibit C by agreeing, among other things:
a. That “CCA will immediately place inmates who claim to be at risk of physical assault from other inmates into appropriate housing, as determined by staff, during investigation of the claim” (para. 5);
b. That “CCA will make housing assignments based on all factors the facility deems appropriate for the safety of the inmates, consistent with IDOC SOP” (para. 9); and
c. That CCA would institute training for its correctional officers including: “policies and procedures; inmate rights including protection from assaults; emergency plans/incident management; institutional safety; supervision of inmates; inmate manipulation; inmate management; inmate accountability; direct supervision; special needs offenders; and security threat groups3” (para. 11).
43. The District Court ordered dismissal of the Class Action based upon the stipulation. See Exhibit E.
44. Following the dismissal of the Class Action, receipt of the Blades Letter and Higgins Report, CCA continued to follow its policy and practice of housing inmates from the same gangs in the same “walks.”
45. Following the dismissal of the Class Action, CCA has continued with a policy and practice which includes gang leadership in prison management decisions.
3 “Security threat group” is a term commonly used by CCA for prison gangs.
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46. In accord with this policy and practice, CCA consults with gang leadership in regard to moves of gang members within the prison.
47. In accord with this policy and practice, CCA will not hold gang members accountable for misconduct, because the gang will make the control of the prison more difficult or even dangerous for CCA employees and staff.
48. CCA’s policies and practices of housing members of the same gangs together, consulting with gang leadership regarding prisoner moves, and refusing to hold gang members accountable for misconduct, has resulted in gang members gaining more control and authority within the prison.
49. CCA has identified a number of gangs operating within the facility, known by ICC as “security threat groups” (“STG”). CCA is aware that members of some gangs will assault members of other gangs due to the level of dislike between gangs. CCA is also aware that some gangs prey upon certain groups of general population prisoners, including informants (generally known in the prison as “rats” or “snitches”) and sex offenders.
50. CCA has identified the Aryan Knights, a violent white supremacist gang, as a STG at ICC.
51. CCA has identified the Severely Violent Criminals, a violent gang, as a STG at ICC. Prior to May 5, 2012, CCA granted the Severely Violent Criminals and the Aryan Knights their own “walk” at ICC.
52. Prior to May 5, 2012, C CA knew that the Aryan Knights and Severely Violent Criminals targeted the Plaintiffs in this suit for attack.
53. Prior to May 5, 2012, the Plaintiffs and others told CCA that the Plaintiffs would be in physical danger from the Aryan Knights and Severely Violent Criminals if they were
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housed in the Aryan Knight and Severely Violent Criminal controlled “walk.” The Plaintiffs asked to not be placed in the Aryan Knight and Severely Violent Criminal controlled “walk.”
54. Prior to May 5, 2012, t he Plaintiffs’ complaints were brought to the attention of the CCA official with final policymaking authority, by office or delegation. P ursuant to the direction of such official, the targeted prisoners were not placed in appropriate housing during investigation of the claims. R ather, on May 5, 2012, C CA transferred the Plaintiffs into the Aryan Knight and Severely Violent Criminal controlled “walk,” despite the protests and objections of the Plaintiffs.
55. On or about May 4, 2012, while they were moving the Plaintiffs into the “walk” controlled by the Aryan Knights and Severely Violent Criminals gangs, CCA officers heard threats of violence yelled at the Plaintiffs.
56. Within twenty-four hours of being placed in the unit, on May 5, 2012, the Aryan Knights and Severely Violent Criminals joined forces, armed with shanks, razors, and other weapons, to attack the Plaintiffs as depicted in the attached video. See Exhibit D.
57. On May 5, 2012, the Aryan Knights and Severely Violent Criminal were let out of their cells for recreation, separately from the Plaintiffs. Six of the Aryan Knight and Severely Violent Criminal gang members hid in a closet which was supposed to be kept locked. After the Aryan Knights and Severely Violent Criminals were supposed to be gone, the Plaintiffs were let out for recreation. They were immediately attacked by the hiding Aryan Knights and Severely Violent Criminals.
58. Each of the Plaintiffs was stabbed, except Mr. Omar, some as many as eighteen times. The victims suffered physical and emotional injuries requiring stitches and medical
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attention, and some suffer ongoing medical issues resulting from the location of their stab wounds.
59. CCA would have avoided the Attempted Murders if CCA had taken adequate precautions to protect the Plaintiffs such as desegregating gangs and employing sufficient guards.
60. The actions and omissions by CCA are part of a persistent pattern of misconduct of CCA, occurring either pursuant to CCA policy, or as a product of CCA’s deliberate indifference to the federally protected rights of the ICC prisoners.
61. The actions and omissions by CCA are a longstanding practice or custom that constitutes the standard operating procedure of CCA.
62. The actions and omissions by CCA were pursuant to policies established by the CCA decision-making official who was a final policymaking authority whose edicts or acts may fairly be said to represent official policy in the area of decision for CCA, or by a CCA official who was delegated final policymaking authority.
63. The actions and omissions by CCA were ratified by the CCA decision-making official who was a final policymaking authority whose edicts or acts may fairly be said to represent official policy in the area of decision for CCA, or by a CCA official who was delegated final policymaking authority.
64. CCA’s actions and omissions have occurred with recklessness or callous indifference toward the federally protected rights of the prisoners at ICC.
65. This persistent pattern of misconduct appears to go beyond the specific plaintiffs in this case, demonstrating an apparent policy within CCA prisons to create a partnership between CCA and the leadership of prison gangs. Functionally, such a partnership would reward
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prison gang leadership with power and control over their “walk” for influencing subordinate gang members to engage in violence against members of the prison population. This violence is used as a device to gain control over the inmate population through the infliction and prospective fear of cruel and unusual punishment, such as the Attempted Murders. The use of prison gangs rather than CCA salaried agents to engage in coercive violence such as the Attempted Murders would give CCA plausible deniability and enable it to reduce staffing expenditures for prison guards and therefore increase profitability.
66. Prisoners placed in a gang-controlled “walk” are at risk if they do not join the gang, pay extortionate protection payments “rent” or “work” for the gang (attacking others if commanded to). This system also has the consequence of creating new gangs as unaffiliated prisoners come together in groups for the purpose of protect themselves from existing gangs. In this type of system, gang membership is increased and gang loyalty is necessary.
67. The apparent partnership between CCA and the leadership of prison gangs increases the threat of harm to inmates within the CCA prisons, as well as the surrounding community upon the eventual release of the individuals forced to engage in gangster lifestyle as a means of survival. B. CCA’s Deliberate, Reckless and Callous Indifference
68. Plaintiffs incorporate all prior paragraphs of this Complaint, and the attachments hereto and further allege as follows:
69. CCA’s policy of housing members of violent gangs together cedes power to the gangs in prison. CCA’s policymakers are aware that this makes the prisons more dangerous, but since the gangs enforce their own code of conduct, CCA is able to reduce staffing and increase profitability.
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70. CCA is deliberately, recklessly, and callously indifferent to prisoner health and safety. C CA refuses to provide funds for, and Warden Wengler refuses to hire and train, a sufficient number of correctional officers. In fact CCA policy makers such as Warden Wengler, Assistant Warden Kessler and Unit Supervisor Rodriguez, enforce a policy that can be established by long running custom and practice of reporting to the state of Idaho that contractually required shifts are being worked by what are referred to as “Ghost Workers” by current and former CCA employees. During the Attempted Murders, employees were being placed on t he shift schedule who were not present within the building or who were actually working in other areas and in some cases were no longer employees of CCA. This was being done to fraudulently show the State of Idaho that ICC was fully staffed when in fact it was not and to hide culpability for the injuries suffered by the Plaintiffs.
71. Sometimes the Ghost Worker scheme would work as follows: G uard shifts are broken up into two 12 hour shifts per day. Toward the end of a guard’s shift a supervisor would inform one or more guards that they were required to work mandatory overtime at the end of their 12 hour shift. This would enable the supervisor to report that this guard worked the next 12 hour shift on the shift schedule to the State of Idaho. Almost immediately after the overtime shift began, but sometimes as long as 4 hours later, the guard(s) working overtime would be sent home, but the shift schedule would be maintained, showing the shift was fully staffed. Frequently the same guard was scheduled to work the next 12 hour shift as well, leading to a situation where the same guard is listed on the shift schedule during consecutive 36 or even 48 hour periods. This abusive treatment of guards leaves many members of the CCA guard roster completely exhausted and unable to perform their duties at optimum levels and contributed to the injuries suffered by Plaintiffs herein. The Ghost Worker scheme also involves utilizing guards
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who have injuries and medical restrictions that prohibit them from performing their duties within the confinement areas. CCA would still have these guards report to duty, list them on the shift schedule, and assign them to work in other areas like the mailroom where they cannot actually protect other guards or inmates in the event of an assault. CCA engages in this Ghost Worker scheme in order to make an unfair profit from its contract with the State of Idaho at the expense of guards, society, and the inmates within their facilities. It is cheaper to hire and train less guards and pay a few hours of overtime then to hire and train a proper number of guards and pay them for the appropriate number of hours.
72. It is impossible for ICC to provide prisoners with adequate protection from assault—or to timely intervene when an assault has commenced—with as few guards as ICC has on its staff, especially since the gangs have been given so much power by assigning them to their own “walks” where attacks such as the Attempted Murders can be planned out in advance. Policymakers within the prison such as Warden Wengler, Assistant Warden Kessler and Unit Supervisor Rodriguez recognize that the gangs are “running the pods” and that rectifying that situation will require substantially more guards and a prolonged show of force to take control of the gang situation. CCA refuses to alter its gang housing policies due to the expense involved despite the fact that they know that inmates and guards are likely to be injured by gang members. In fact, although Assistant Warden Kessler knew an assault like the Attempted Murders was likely, he approved the move of the Plaintiffs on May 4, 2012, w ith the full knowledge of that the SVC and AK gangs, pursuant to longstanding CCA custom and practice, had their own “walk” in the same pod.
FIRST AMENDED COMPLAINT FOR DAMAGES, AND FOR DECLARATORY AND INJUNCTIVE RELIEF- PAGE 19

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73. CCA fails to require or ensure that prisoner assaults will be adequately investigated in order to determine what steps should be taken to prevent future assaults, and to determine whether misconduct or malfeasance by a guard caused or contributed to the assault.
74. CCA fails to ensure that guards are properly trained to prevent violence. Consequently, CCA deliberately places prisoners in housing units knowing they are likely to be assaulted and refuses to remove prisoners from housing after threatened attacks.
75. ICC remains a v iolent facility despite awareness of excessive violence dating back from at least 2008.
76. ICC’s in-house medical unit and media relations employees minimize the extent of prisoner injuries. For instance, CCA released the following after the Attempted Murders:
“Thirteen inmates were involved in a fight at Idaho's private prison. Idaho Correctional Center says more than a dozen inmates were injured in a fight over the weekend. ICC says all injuries were minor and inmates were treated on site. It was described as an isolated dispute among inmates. The area was locked down.” 77. ICC has a practice of refusing to refer for prosecution the perpetrators of prisoner assaults, except in rare situations. 78. ICC generally operates at or above its operating capacity. As noted in the 2010 Legislative Report, ICC’s population in November 2009 w as 100.2% (2,021 prisoners) of its operating capacity of 2,016 prisoners. T his predicament, although profitable for ICC, is dangerous to prisoners. For instance, having a small number of empty beds makes it difficult to quickly move prisoners away from a dangerous environment. 79. The failures described above continue to this day, placing all prisoners of ICC at unnecessary and substantial risk of being assaulted by other prisoners. These failures and wrongful acts are motivated by evil motive and intent. In other words, the Plaintiffs contend
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Case 1:12-cv-00559-EJL Document 14 Filed 01/18/13 Page 21 of 22
their rights have been sacrificed intentionally so that CCA may make an unfair profit by skimping on i nmate (and guard) safety precautions as the court recognized in Manis v. Corrections Corp. of America, discussed above.
JURY DEMAND 80. A JURY TRIAL IS REQUESTED ON ALL CLAIMS SO TRIABLE.
FIRST CLAIM FOR RELIEF 81. Plaintiffs repeat and re-allege each of the allegations set forth in the preceding paragraphs as if set forth in full herein. 82. Based on the facts set forth above, Plaintiffs Raymond Bryant, Michael Bridges, Jacob Judd, Christopher Jordan, Dusty Knight, Omar Castillon, Justin Peterson, and Leon Russell assert that Corrections Corporation of America, Inc., enacted and pursued or acquiesced in the policies and practices set forth above, and engaged in the acts described above, which resulted in a violation of rights secured to them by the Eighth and Fourteenth Amendments to the U.S. Constitution. P laintiffs seek injunctive, compensatory and punitive damages against the Defendant pursuant to 42 U.S.C § 1983.
PRAYER FOR RELIEF WHEREFORE Plaintiffs respectfully pray that this Honorable Court will: 83. Grant Plaintiffs, pursuant to 42 U .S.C. § 1983 , compensatory damages against defendant Corrections Corporation of American, Inc., in an amount as the proof will show at trial. 84. Grant Plaintiffs, pursuant to 42 U .S.C. § 19 83, punitive damages against defendant Corrections Corporation of American, Inc., in the amount sufficient, to punish and discourage CCA and other similarly situated persons and entities from engaging in this type of reprehensible conduct in the future. FIRST AMENDED COMPLAINT FOR DAMAGES, AND FOR DECLARATORY AND INJUNCTIVE RELIEF- PAGE 21

Case 1:12-cv-00559-EJL Document 14 Filed 01/18/13 Page 22 of 22 85. Grant such additional and further relief, including injunctive relief and an award of attorney’s fees and costs, as the Court may deem proper under the circumstances. DATED this 18th day of January, 2013.
ANGSTMAN JOHNSON /s/ T.J. Angstman________________ T. J. Angstman Attorneys for the Plaintiffs
FIRST AMENDED COMPLAINT FOR DAMAGES, AND FOR DECLARATORY AND INJUNCTIVE RELIEF- PAGE 22

 
 Case 1:12-cv-00559-EJL Document 44 Filed 04/19/13 Page 1 of 3

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

OMAR CASTILLON, DUSTY KNIGHT, JUSTIN KEITH PETERSON, LEON RUSSELL, CHRISTOPHER S. JORDAN, JACOB JUDD, MICHAEL FORD-BRIDGES, and RAYMOND BRYANT,
Plaintiffs,
vs.
CORRECTIONS CORPORATION OF AMERICA, INC.,
Defendant.

Case No. 1:12-CV-00559-EJL ORDER

Pending before the Court are Defendant’s Motion to Stay Discovery (Dkt. 20) and Motion for Protective Order. (Dkt. 23.) Plaintiffs oppose both Motions. (Dkt. 21, 39.) Defendant has filed a Motion to Dismiss the Amended Complaint based, in part, on failure to exhaust administrative remedies. (Dkt. 19.) In the District of Idaho, the Court regularly employs case management procedures specific to pro se prisoner cases, and those procedures are often extended to counseled prisoner cases.1 One of those procedures

1 See In re Arizona, 528 F.3d 652, 657 (9th Cir. 2008) (“Federal Rule of Civil Procedure 16 vests the district court with early control over cases ‘toward a process of judicial management that embraces the entire pretrial phase, especially motions and discovery.’” (citing Fed. R. Civ. P. 16 advisory committee's
ORDER - 1

Case 1:12-cv-00559-EJL Document 44 Filed 04/19/13 Page 2 of 3
is to stay discovery pending the outcome of a motion to dismiss for failure to exhaust administrative remedies, because a conclusion that a prisoner has failed to exhaust his remedies requires the complaint to be dismissed without prejudice. See Woodford v. Ngo, 548 U.S. 81, 88 (2006) (proper exhaustion under 42 U.S.C. § 1997e(a) is required, meaning that a prisoner must complete the administrative review process as a precondition to bringing suit in federal court).
Where the complaint may be dismissed as a result of failure to exhaust, it makes abundant sense to stay discovery on the merits of the claims to avoid unnecessary expenditures of time and money on discovery.2 While that same reasoning can apply to a case where complete dismissal is sought on other grounds, such as qualified immunity, the Court declines to stay discovery in this case on the record before it, for the following reasons.
First, even if the claims of the six inmates whose exhaustion status is at issue in the Motion to Dismiss are dismissed, the exhaustion argument in the Motion to Dismiss does not encompass the claims of two of the inmates whose exhaustion status is not at issue. Second, this case involves a jointly-filed, jointly-pursued Amended Complaint, where it is alleged that all claimants were injured in the same incident by the same perpetrators caused by the same acts and omissions of Defendant; these commonalities
note, 1983 Amendment)). 2 Other federal district courts do likewise. See, e.g., Manning v. Masters, 2012 WL 1431359 (D.
Nev. 2012); Bey v. Hedgepeth, 2010 WL 3034494 (E.D. Cal. 2010). ORDER - 2

Case 1:12-cv-00559-EJL Document 44 Filed 04/19/13 Page 3 of 3
suggest that discovery will not be substantially narrowed by dismissal of one or more of the six claimants at issue in the Motion to Dismiss. Third, even if the claims of the six inmates are dismissed, the inmates remain eyewitnesses.
While saving a client the effort and expenditures of discovery is a worthy goal, it is not likely to be realized in this case. Accordingly, the Motion to Stay Discovery and the Motion for a Protective Order will be denied, and the parties’ time to respond to any pending discovery will be extended to accommodate this Order.
ORDER IT IS ORDERED: 1. Defendant’s Motion to Stay Discovery (Dkt. 20) is DENIED. 2. Defendant’s Motion for a Protective Order (Dkt. 23) is DENIED. 3. The parties shall have 30 days after entry of this Order in which to respond
to any outstanding discovery requests. DATED: April 19, 2013
Honorable Edward J. Lodge U. S. District Judge
ORDER - 3

 
 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

OMAR CASTILLON, DUSTY KNIGHT, JUSTIN KEITH PETERSON, LEON RUSSELL, CHRISTOPHER S. JORDAN, JACOB JUDD, MICHAEL FORD-BRIDGES, and RAYMOND BRYANT,
Plaintiffs,
vs.
CORRECTIONS CORPORATION OF AMERICA, INC.,
Defendant.

Case No. 1:12-cv-00559-EJL
MEMORANDUM DECISION AND ORDER

Pending before the Court are (1) Defendant’s Motion to Dismiss (Dkt. 19), and (2) Plaintiffs’ Motion to Seal exhibits to Plaintiffs’ counsel’s declaration filed in response to Defendant’s Motion to Dismiss (Dkt. 35). The Court finds that the parties have adequately stated the facts and legal arguments in their briefs and that the decisional process would not be significantly aided by oral argument. In the interest of avoiding delay, the Court will decide this matter on the written motions, briefs, and record without oral argument. D. Idaho L. Civ. R. 7.1.
For the reasons set forth below, the Court will grant Plaintiff’s Motion to Seal and grant in part and deny in part Defendant’s Motion to Dismiss.
MEMORANDUM DECISION AND ORDER - 1

BACKGROUND Plaintiffs are prisoners in the custody of the Idaho Department of Correction (“IDOC”) and at all relevant times were incarcerated at Idaho Correctional Center (“ICC”), a private prison operated by Defendant Corrections Corporation of America under contract with the IDOC. (First Amended Complaint (“FAC”), Dkt. 14, ¶15.) On May 4, 2012, Plaintiffs were moved into a housing unit of ICC known as F-pod or Pod F1. Plaintiffs claim they were afraid to move because the pod was heavily populated by members of two gangs, the Aryan Knights and the Severely Violent Criminals. (Id. ¶¶4955.) According to Plaintiffs, Defendant has a policy of housing individuals with the same gang affiliation in the same housing unit, which creates a gang-controlled “walk.” (Id. ¶¶30-34.) Plaintiffs also claim that Defendant intentionally uses prison gang members to control other inmates, “includes gang leadership in prison management decisions,” and “refus[es] to hold gang members accountable for misconduct,” all in an effort to increase its profit margin. (Id. ¶¶45-48.) Gang members on the walk almost immediately began threatening Plaintiffs within earshot of correctional officers. The day after Plaintiffs were moved to F-pod, six members of the Aryan Knights and the Severely Violent Criminals did not return to their cells after they were let out for recreation. Instead, they hid in a closet that should have been locked. The guards then let Plaintiffs out for recreation without first ensuring that all of the other inmates were back in their cells. (Id. ¶57.) When Plaintiffs were walking toward the recreation area, the six gang members
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came out of the closet and savagely attacked Plaintiffs with various homemade weapons. The attackers seriously injured all eight Plaintiffs, one of whom was stabbed 18 times. (Id. ¶¶16-23.)
Plaintiffs brought the instant action, alleging that Defendant violated their Eighth Amendment right to be free from cruel and unusual punishment by failing to protect them from the attack. Plaintiffs assert that F-pod presented a known and substantial risk of serious harm to Plaintiffs, but that Defendant was deliberately indifferent to that risk.
PLAINTIFFS’ MOTION TO SEAL Plaintiffs have filed a Motion to Seal exhibits attached to Plaintiffs’ counsel’s declaration submitted in response to Defendant’s Motion to Dismiss. Because Defendant has taken the position in the past that the documents are privileged, Plaintiffs request that they be sealed at this stage of the proceedings even though Plaintiffs’ ultimate position is that the documents are not privileged. Defendant has not opposed the motion, and the documents appear to raise confidentiality concerns. For these reasons, the Court will grant Plaintiffs’ Motion to Seal at this time.
DEFENDANT’S MOTION TO DISMISS Defendant makes two arguments in support of its Motion to Dismiss. It contends that (1) the entire case must be dismissed because the FAC fails to state a claim upon which relief may be granted, and (2) the claims of six of the eight Plaintiffs must be dismissed because those Plaintiffs failed to exhaust their administrative remedies. A. Motion to Dismiss for Failure to State a Claim for Relief
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Federal Rule of Civil Procedure 8(a)(2) requires “a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks and alteration omitted). Although a complaint attacked by a motion to dismiss for failure to state a claim “does not need detailed factual allegations,” it must set forth “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id.
To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” Id. at 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). This “plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. “Where a complaint pleads facts that are merely consistent with a defendant’s liability, it stops short of the line between possibility and plausibility of entitlement to relief.” Id. (internal quotation marks and alteration omitted).
The Supreme Court has identified two working principles that underlie this dismissal standard. “First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Id. “Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than
MEMORANDUM DECISION AND ORDER - 4

conclusions.” Id. at 678-79. Second, only a complaint that states a plausible claim for relief survives a motion to dismiss. Id. at 679. “Determining whether a complaint states a plausible claim for relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id.
Plaintiffs bring their claims under 42 U.S.C. § 1983, the civil rights statute. To state a valid claim under § 1983, a plaintiff must allege a violation of rights protected by the Constitution or created by federal statute proximately caused by the conduct of a person acting under color of state law. Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). Where, as here, an inmate claims that a private prison has violated the inmate’s constitutional rights, the plaintiff must meet the test articulated in Monell v. Department of Social Services, 436 U.S. 658, 691-94 (1978). See Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1138-39 (9th Cir. 2012) (applying Monell to private entities performing state functions).
Under Monell, a plaintiff must show the following: (1) the plaintiff was deprived of a constitutional right; (2) the defendant had a policy or custom; (3) the policy or custom amounted to deliberate indifference to the plaintiff’s constitutional right; and (4) the policy or custom was the moving force behind the constitutional violation. Mabe v. San Bernardino Cnty., 237 F.3d 1101, 1110-11 (9th Cir. 2001). An unwritten policy or custom must be so “persistent and widespread” that it constitutes a “permanent and well settled” practice. Monell, 436 U.S. at 691 (internal quotation marks omitted). “Liability for improper custom may not be predicated on isolated or sporadic incidents; it must be
MEMORANDUM DECISION AND ORDER - 5

founded upon practices of sufficient duration, frequency and consistency that the conduct has become a traditional method of carrying out policy.” Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996).
In arguing that Plaintiffs have failed to state a claim for relief, Defendant correctly notes that the FAC is peppered with sensationalistic allegations. Although the Court has concluded that these allegations need not be stricken, it has disregarded the hyperbole and looked to the underlying factual allegations in considering Defendant’s Motion to Dismiss.
1. Existence of Policy or Custom Defendant argues that the FAC does not plausibly allege that Defendant has an unconstitutional policy or custom as required by Monell. Specifically, Defendant challenges Plaintiffs’ assertion that Defendant has a policy of housing members of a gang along the same walk and of “consulting with gang members when making housing decisions.” (Memo. in Supp. of Mot. to Dismiss, Dkt. 19-1, at 9.) The Court agrees that Plaintiffs’ allegations do not plausibly support an inference that Defendant has an ongoing “partnership” with prison gangs at ICC or “includes gang leadership in prison management decisions.” (FAC ¶¶4, 45.) Plaintiffs offer no specific factual allegations supporting such a conclusion. However, the Court concludes that Plaintiffs have sufficiently stated a plausible Monell claim by alleging that Defendant maintained a policy or custom of (1) participating in a “ghost worker” scheme resulting in fewer correctional officers and thus contributing to danger in the prison, and (2) housing
MEMORANDUM DECISION AND ORDER - 6

prison gang members together in the same housing unit. With respect to the so-called ghost worker scheme, Plaintiffs allege that prison
management regularly reports to the IDOC that guards work shifts, including overtime shifts, when those guards are not actually working. (Id. ¶71.) Thus, the records submitted to IDOC show that each shift is fully staffed, when in reality fewer guards are available to help prevent violence among inmates. Plaintiffs also allege that Defendant has a policy of using guards with “injuries and medical restrictions that prohibit them from performing their duties within the confinement areas.” (Id.)
Defendant argues that the FAC “fail[s] to describe any widespread pattern of constitutional violations involving inmate-on-inmate assaults that would indicate a need for more or different training by CCA, or that any prior assaults resulted from an inadequate number of correctional staff on duty.” (Memo. in Supp. of Mot. to Dismiss at 15.) A claim for failure to train should generally, except in “a narrow range of circumstances,” allege a pattern of violations sufficient to place the defendant on notice of the need to train its employees. Connick v. Thompson, 131 S. Ct. 1350, 1361 (2011) (internal quotation marks omitted).
But here, the allegations are not simply that Defendant provided poor training or did not provide enough training. Rather, Plaintiffs claim that Defendant instituted a fraudulent policy that would obviously result in fewer guards on duty than reported. And with fewer guards to patrol the prison, inmates were in more danger than they would have been had the prison been fully staffed. The FAC’s allegations raise a plausible inference
MEMORANDUM DECISION AND ORDER - 7

that Defendant was aware of a substantial risk of serious harm to its inmates as a result of its ghost worker scheme. See Farmer v. Brennan, 511 U.S. 825, 833 (1994) (“Nor may a prison official escape liability for deliberate indifference by showing that, while he was aware of an obvious, substantial risk to inmate safety, he did not know that the complainant was especially likely to be assaulted by the specific prisoner who eventually committed the assault.”).
With respect to their claim that Defendant improperly houses gang members in the same unit, Plaintiffs state,
CCA, pursuant to its own policy and practice, houses inmates who claim the same gang affiliation together in the same cellblock, which is arranged so that they all may have lunch, recreation time, and other time outside of their cells together. The cells are side by side, so that the gang members can talk to one another even if they are confined to their cell. (Id. ¶30.) Plaintiffs also allege that the IDOC investigated Defendant in 2008 and concluded that “increased violence and decreased prisoner safety at the ICC was due to, among other things, gang members operating openly at the ICC with little fear of being held accountable.” (Id. ¶39.) Although Defendant contends that Plaintiffs’ attack in May 2012 is too far removed from the IDOC’s 2008 investigation, the allegation that gang members were still being housed on the same walk at the time of the attack raises a plausible inference that CCA had not resolved the problems identified by the IDOC years earlier. As Plaintiffs point out, the congregated gang members have time to engage in any number of nefarious
MEMORANDUM DECISION AND ORDER - 8

activities, including planning attacks on other inmates—which is precisely what the Aryan Knights and the Severely Violent Criminals did when they conspired to hide in a closet and to attack Plaintiffs with various shanks and shivs. The FAC plausibly alleges that Defendant was aware that its policies increased the risk of violence in gang walks yet refused to change that policy.
2. Policymaking Authority “Under Monell, municipalities are subject to damages under § 1983 in three situations: when the plaintiff was injured pursuant to an expressly adopted official policy, a long-standing practice or custom, or the decision of a final policymaker.” Ellins v. City of Sierra Madre, 710 F.3d 1049, 1066 (9th Cir. 2013) (internal quotation marks omitted). Defendant relies on Clouthier v. County of Contra Costa, 591 F.3d 1232 (9th Cir. 2010), in arguing that the decision to move Plaintiffs into the same pod as the gang members who attacked them “cannot be imputed to CCA as a corporate policy” because the official who approved the move was not a final policymaker and because the housing decision was discretionary. (Memo. in Supp. of Mot. to Dismiss at 13.) In Clouthier, which was before the Ninth Circuit on appeal from summary judgment, the plaintiffs argued that the county was liable for a jail official’s decision not to discipline jail employees. Clouthier, 591 F.3d at 1253. However, the plaintiffs did not offer any evidence that the official was a policymaker “or, even if he were, that he made a conscious, affirmative choice to approve [the employees’] actions and adopt them as official policy.” Id. The court noted that “to hold cities liable under section 1983
MEMORANDUM DECISION AND ORDER - 9

whenever policymakers fail to overrule the unconstitutional discretionary acts of subordinates would simply smuggle respondeat superior liability into section 1983 law creating an end run around Monell.” Id. (internal quotation marks and alterations omitted).
Clouthier is inapposite for two reasons. First, Plaintiffs are not required to come forward with evidence at the motion to dismiss stage, just allegations plausibly suggesting that Defendant is liable for Plaintiffs’ injuries—which Plaintiffs have done. Second, Plaintiffs do not base their claims solely on their allegation that a final policymaker approved the decision to move them into the gang-controlled walk. They also assert that their constitutional rights were violated pursuant to “an expressly adopted official policy [or] a long-standing practice or custom” of housing members of a gang together in the same walk, which made that housing unit particularly dangerous. Ellins, 710 F.3d at 1066. As the Court has already determined, the FAC sufficiently alleges the existence of such a policy or custom.
3. Causation Defendant also contends that Plaintiffs have failed to adequately allege that a policy or custom was the moving force behind the alleged violation of Plaintiffs’ constitutional rights. It argues that “[t]he housing transfer of the eight Plaintiffs to the F Pod that occurred May 4th did not cause the May 5th assaults to occur—the assaults occurred because the assailants hid from correctional officer view.” (Memo. in Supp. of Mot. to Dismiss at 17.)
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Defendant appears to suggest that however dangerous the pod might have been, the attackers’ independent actions constituted a superseding cause eliminating any § 1983 claim. This argument illustrates a fundamental misunderstanding of § 1983 and Eighth Amendment jurisprudence. Claims that a prison policy amounts to deliberate indifference “to the threat of serious harm or injury” by one prisoner against another are cognizable under § 1983. Berg v. Kincheloe, 794 F.2d 457, 459 (9th Cir. 1986). “Having incarcerated persons with demonstrated proclivities for antisocial criminal, and often violent, conduct, having stripped them of virtually every means of self-protection and foreclosed their access to outside aid, the government and its officials are not free to let the state of nature take its course.” Farmer, 511 U.S. at 833 (internal quotation marks, citation, and alterations omitted).
Plaintiffs’ theory is that Defendant created a substantial risk of serious harm by instituting and maintaining a policy or custom of placing too few guards on duty and of housing prison gang members in the same area, despite a known risk of increased violence as a result of those policies. The FAC sufficiently states Eighth Amendment policy claims under Monell. B. Motion to Dismiss for Failure to Exhaust
Pursuant to the Prison Litigation Reform Act of 1995 (“PLRA”), Pub. L. No. 104134, 110 Stat. 1321, as amended, 42 U.S.C. § 1997e, et seq., a prisoner is required to exhaust all of his administrative remedies within the prison system before he can bring a
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civil rights lawsuit challenging the conditions of his confinement. 42 U.S.C. § 1997e(a). “Proper” exhaustion of administrative remedies is required, meaning that the prisoner must comply “with [the prison’s] deadlines and other critical procedural rules because no adjudicative system can function effectively without imposing some orderly structure on the course of its proceedings.” Woodford v. Ngo, 548 U.S. 81, 90-91 (2006).
“There is no question that exhaustion is mandatory under the PLRA and that unexhausted claims cannot be brought in court.” Jones v. Bock, 549 U.S. 199, 211 (2007). The exhaustion requirement is based on the important policy concern that prison officials should have “an opportunity to resolve disputes concerning the exercise of their responsibilities before being haled into court.” Id. at 204.
Failure to exhaust is an affirmative defense that is “subject to an unenumerated Rule 12(b) motion rather than a motion for summary judgment.” Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). In deciding a motion to dismiss for lack of exhaustion, the Court “may look beyond the pleadings and decide disputed issues of fact.” Id. at 1120. If a prisoner has failed to exhaust his administrative remedies, the appropriate remedy is dismissal without prejudice. Id.
The defendant bears the burden of proving failure to exhaust. See Brown v. Valoff, 422 F.3d 926, 936 (9th Cir. 2005). If the defendant does so, “the burden shifts to the plaintiff to show that the administrative remedies were unavailable.” Albino v. Baca, 697 F.3d 1023, 1031 (9th Cir. 2012). Confusing or contradictory information given to a
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prisoner “informs [the] determination of whether relief was, as a practical matter, ‘available.’” Brown, 422 F.3d at 937.
Administrative remedies will be deemed unavailable and exhaustion excused if an inmate shows that the required procedural steps were “not known and unknowable with reasonable effort.” Albino, 697 F.3d at 1037. A complaint will not be dismissed for failure to exhaust if the prison improperly processed an inmate’s grievance, if prison officials misinformed an inmate regarding grievance procedures, or if jail staff took any other “affirmative actions” that interfered with an inmate’s efforts to exhaust. Id. at 1034, 1039. It is not enough that the prisoner was subjectively unaware of proper grievance procedures; that lack of awareness must be “objectively reasonable.” Id. at 1038.
Defendant acknowledges that Plaintiffs Knight and Jordan fully exhausted their claims through the prison grievance process, but argues that the remaining six Plaintiffs did not.
1. ICC Grievance Procedure ICC follows IDOC’s inmate grievance process, which consists of three stages. First, any inmate with a concern is required to seek an informal resolution by filling out an Offender Concern Form, addressed to the staff person “most capable of responding to and, if appropriate, resolving the issue.” (Purcell Decl., Dkt. 19-2, at ¶11.) If the issue cannot be resolved informally through the use of a concern form, the inmate must then file a grievance form. (Id. at ¶12.) A grievance form must be filed no later than 30 days after the incident giving rise to the grievance. (Id.)
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When submitting a grievance, the inmate must attach a copy of the concern form, showing the inmate’s attempt to settle the issue informally. Grievances must contain “specific information including the nature of the complaint, dates, places, and names” and must be signed by the inmate. The inmate can only raise one issue per grievance. The staff member “most capable of responding to and, if appropriate, resolving the issue” must answer any properly completed grievance. (Id. at ¶13.) After a “reviewing authority, who is usually a deputy warden,” reviews the staff member’s response, the inmate is notified of the disposition of the grievance. (Id.)
If the decision on an inmate’s grievance is not satisfactory to the inmate, the inmate may appeal that decision within 14 days of receiving the response to the grievance. (Id. at ¶14.) The “appellate authority,” usually the head of the prison, must issue his or her decision on the appeal within 16 days. (Id. at ¶15.) Not until the completion of all three of these steps—concern form, grievance form, and grievance appeal—is the grievance process exhausted. (Id. at ¶16.)
Defendant has met its “very low” burden to show failure to exhaust by submitting evidence establishing that “(1) a grievance procedure existed and (2) [the six Plaintiffs] did not exhaust the grievance procedure.” Albino, 697 F.3d at 1032. After having their initial grievances returned without action for failure to comply with applicable rules, Plaintiffs Russell, Judd, Bryant, and Ford-Bridges properly submitted concern forms and grievances regarding the attack and therefore completed the first two steps of the
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grievance process. (Id. at ¶¶27, 33, 38, and 48; Atts. I, M, P, and U.) In responding to these Plaintiffs’ grievances, which requested compensation for the inmates’ injuries, Chief of Unit Management Tracy Koosman stated, “Compensation is not done through the Grievance procedure. If you would like to pursue this, you can do so utilizing outside sources.” (Id., Atts. I, M, P, and U.) Assistant Warden Kessler acted as the “reviewing authority” on these grievances and stated, “Concur with first response.” (Id.) None of these Plaintiffs appealed the denial of their grievances.
Plaintiff Peterson also properly submitted a concern form and grievance about the attack. Before responding to the grievance, Koosman met with Peterson, who stated that he now felt safe where he was. (Id., Att. F.) Kessler agreed with this resolution of the grievance, and no further action was taken. Neither Koosman nor Kessler mentioned anything about the compensation Plaintiff requested in his grievance. (Id.) Peterson did not appeal the grievance and therefore completed only the first two steps of the process.
Plaintiff Castillon submitted a grievance form regarding the attack but did not attach a copy of a concern form. Thus, the grievance was returned to him without being processed, and Castillon completed, at most, only the first step of ICC’s grievance procedure. (Id. at ¶44; Att. T.)
The question now becomes whether Plaintiffs Russell, Judd, Bryant, Ford-Bridges, Peterson, and Castillon can prove that further administrative remedies were effectively unavailable because of the actions of prison officials.
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2. Plaintiffs Russell, Judd, Bryant, and Ford-Bridges
The Court concludes that Plaintiffs Russell, Judd, Bryant, and Ford-Bridges
complied with the PLRA’s exhaustion requirement because, although they did not appeal
their grievances through the third level of the grievance procedure, that third level of
review was effectively unavailable to them.
Koosman told the inmates, “If you would like to pursue [compensation], you can
do so utilizing outside sources.” Whether or not Koosman intended to give permission to
Plaintiffs Russell, Judd, Bryant, and Ford-Bridges to dispense with any further
exhaustion, that is certainly how it appeared. The Court finds Koosman’s statement, along
with Kessler’s approval of it, essentially informed Russell, Judd, Bryant, and Ford-
Bridges that no further administrative remedies were available.
Defendant argues that the several grievances filed by these four Plaintiffs after
they received Koosman’s response about “outside sources” shows that they were not
misled into believing they had done all they could do within the prison grievance system.
(Reply in Supp. of Mot. to Dismiss, Dkt. 42, at 5-6.) The facts arguably suggest
otherwise.
Defendant’s Reply in Support of the Motion to Dismiss states:
Inmate Russell—after being informed early June, 2012 that his second grievance was denied and that compensation was “not done” through the grievance process, failed to appeal but had no problem filing two subsequent grievances on June 11th and 27th grieving the same incident and asking for compensation. If Mr. Russell was “misled” about available remedies, why would he continue to file grievances seeking
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compensation but fail to appeal to the warden?
Plaintiff Judd likewise did not appeal to the Warden from AW Kessler’s June 4th denial of relief, but he did find the time on June 11th to file a separate concern form to AW Kessler seeking compensation and asking why he was moved to a different tier . . . .
Plaintiff Bryant similarly received a “no compensation” denial from Koosman/Kessler in response to his May 30th grievance, but thereafter filed no fewer than three separate grievances (June 6th, June 11th and October 16th) seeking compensation but failing to appeal to the Warden from his May 30th grievance. Plaintiff Bridges also filed separate grievances on June 8th, June 11th, and two on October 19th, seeking compensation after Koosman/Kessler informed him that compensation was “not done” via grievances.
(Id.) (internal citations omitted).
However, this representation of Plaintiffs’ grievance activities is belied by the
declaration of ICC’s grievance coordinator and the exhibits attached thereto. Koosman
responded to each grievance with the “outside sources” statement, but Plaintiffs did not
receive that response until Kessler approved it. (Purcell Decl. ¶13.) In each case, the
inmates received these responses on June 18, 2012. (Id., Atts. I, M, P, and U.) Thus,
Russell submitted his separate June 11th grievance before he received the
Koosman/Kessler response to his earlier grievance on June 18th, not after. (Id., Att. I.)
Judd also submitted an additional grievance regarding the incident, but at the time he had
not yet received the Koosman/Kessler response to his previous grievance. (Id., Att. M.)
Bryant only filed one grievance after he received the “outside sources” response, not three
as Defendant claims. (Id., Att. P.) And Ford-Bridges submitted two grievances—not
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four—after he received the response. (Id., Att. U.) Defendant does not explain how it was unreasonable for any Plaintiff to submit an additional grievance when he had not yet received a response to the first grievance.
True, three Plaintiffs (Russell, Bryant, and Ford-Bridges) filed at least one other grievance after learning from Koosman and Kessler that compensation could be sought through outside sources. The Court disagrees, however, that these later grievances show that these Plaintiffs were not misled. It would be unreasonable to expect them to have known precisely how to exhaust in this particular situation, given the information provided by Koosman and Kessler and the confusing nature of the grievance system and required forms.
The grievance policy requires that an inmate address a concern form to “the appropriate staff member.” (Id., Att. C.) As pointed out by several Plaintiffs, this instruction led them to send multiple concern forms regarding the attack to different staff members in an attempt to ensure that the right person received it. (Judd Decl., Dkt. 32, ¶5; Bryant Decl., Dkt. 29, ¶8; Ford-Bridges Decl., Dkt. 30, ¶5.) Therefore, Plaintiffs had multiple concern forms they believed they had to grieve. The policy does not inform an inmate what to do if he believes that more than one staff member is “appropriate” and able to address his concerns. (See Purcell Decl., Att. C.) Given the lack of clarity in the grievance policy, it is understandable why Plaintiffs continued to submit grievances after they received their responses from Koosman and Kessler.
In addition, the policy calls for a single form for both a grievance and an appeal
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and includes a sample Grievance/Appeal Form. There are two separate sections of this form, one to be used if the inmate is submitting an initial grievance, and another to be used if the inmate is appealing an adverse response to a grievance. (Id., Att. C.) But Russell, Judd, Bryant, and Ford-Bridges each obtained from prison staff and submitted at least one Grievance/Appeal Form that does not match this sample. (Id., Atts. H, M, O, & U.) This outdated form contains just one section, and requires that the inmate check a box—a Grievance Box or an Appeal Box—depending on which procedure the inmate wishes to invoke.
Finally, in support of its Motion to Dismiss, Defendant submitted a grievance policy approved on April 23, 2012, less than two weeks before Plaintiffs were attacked. (Id. ¶6; Att. C.) But the documents showing that Plaintiffs received a copy of the Inmate Handbook, which contains the grievance policy, are all dated before April 23, 2012, and appear to involve a different grievance policy. (Id., Att. B.) To be clear, the Court does not mean to imply that it is Defendant’s burden to show that the inmates were aware of the grievance procedure in place. See Albino, 697 F.3d at 1032 (defendant’s initial burden is simply to show that a grievance process existed and the plaintiff did not follow it). But this oddity is yet another fact contributing to the Court’s conclusion that Plaintiffs Russell, Judd, Bryant, and Ford-Bridges have sufficiently proved that based on the actions of prison staff, it was objectively reasonable for them to believe that they had exhausted all available administrative remedies.
Koosman’s statements that compensation was “not done” through the prison’s
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grievance process and that the inmates could pursue their compensation claims “utilizing outside sources,” along with Kessler’s approval of those statements, were reasonably interpreted by these four Plaintiffs as a waiver of the grievance appeal requirement and as permission to sue, an interpretation that was further supported by the multiple irregularities in the ICC grievance process that occurred here. Koosman and Kessler essentially told these inmates, “We can’t help you, so you can go to court now.” They affirmatively, though most likely inadvertently, interfered with these four inmates’ attempts to exhaust.1 See Nuñez v. Duncan, 591 F.3d 1217, 1225-26 (9th Cir. 2010).
The Court concludes that in the unique circumstances of this case, the grievance appeal procedure was not available to Plaintiffs Russell, Judd, Bryant, or Ford-Bridges. Therefore, they may proceed on their civil rights claims notwithstanding their failure to fully exhaust administrative remedies.
3. Plaintiffs Peterson and Castillon Unlike Plaintiffs Russell, Judd, Bryant, and Ford-Bridges, Plaintiff Peterson was not told that outside sources could be used to pursue compensation for his injuries. Peterson argues that he should nonetheless be excused from appealing the denial of his grievance because he was Plaintiff Judd’s cellmate, read Judd’s response from Koosman, and therefore learned of Koosman’s “outside sources” statement second-hand. (Peterson
1 The Court finds unpersuasive Defendant’s argument that because Plaintiff Jordan appealed his grievance denial despite also receiving an “outside sources” response from Koosman and Kessler, the appeal procedure was also available to Plaintiffs Russell, Judd, Bryant, and Ford-Bridges. That one Plaintiff interpreted the response differently does not render the other four Plaintiffs’ interpretation unreasonable.
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Decl., Dkt. 34, ¶13.) Having seen Judd’s grievance response from Kessler—which appeared to allow
litigation without further exhaustion—Peterson believed that he didn’t have to appeal his grievance denial either. But the Ninth Circuit does not recognize an inmate’s subjective belief that administrative remedies are unavailable as grounds to excuse exhaustion under the PLRA. Rather, Peterson must show that Defendant affirmatively interfered in his efforts to exhaust or that he took reasonable steps to discover the proper grievance procedures yet was unsuccessful. See Albino, 697 F.3d at 1033 (“Because Albino has not shown (1) that jail staff affirmatively interfered with his ability to exhaust administrative remedies or (2) that the remedies were unknowable, he has not met his burden of showing that the jail grievance procedure was ‘unavailable.’”). Prison staff did not inform Peterson that he was allowed to use outside sources to pursue his compensation claim as they did with other Plaintiffs, and Peterson took no steps to determine whether Koosman’s and Kessler’s statement to Judd applied to his own claims. Therefore, Peterson has failed to show that the grievance appeal procedure was unavailable to him, and Koosman’s and Kessler’s statements to other Plaintiffs do not excuse Peterson’s failure to exhaust.
As noted above, Plaintiff Castillon submitted a grievance form regarding the attack but did not attach a copy of a concern form. When the grievance was returned to him without being processed because of the deficiency, Castillon did nothing to remedy the error or otherwise complete the grievance procedure. (Id. at ¶44; Att. T.)
Plaintiffs Peterson and Castillon argue that they should be excused from
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exhaustion on the ground that Plaintiffs Jordan and Knight exhausted their § 1983 claims on behalf of all Plaintiffs. In Chandler v. Crosby, 379 F.3d 1278, 1282-83 (11th Cir. 2004), a certified class of death-row inmates claimed that high temperatures in their cells constituted cruel and unusual punishment. The Eleventh Circuit determined that because at least one class member “exhausted his administrative remedies with respect to each claim raised by the class,” the entire class satisfied the exhaustion requirement through a theory of “vicarious exhaustion.” Id. at 1287 (internal quotation marks omitted).
Even if vicarious exhaustion is sometimes permissible, it most certainly does not apply in this case, which is not a class action. Each individual Plaintiff was required to exhaust. 42 U.S.C. § 1997e (“No action shall be brought . . . by a prisoner . . . until such administrative remedies as are available are exhausted.” (emphasis added)). Peterson and Castillon failed to do so. Therefore, their claims will be dismissed without prejudice.
ORDER IT IS ORDERED:
1. Defendant’s Motion to Dismiss (Dkt. 19) is GRANTED IN PART and DENIED IN PART. All claims asserted by Plaintiffs Peterson and Castillon are DISMISSED without prejudice.
2. Plaintiff’s Motion to Seal (Dkt. 35) is GRANTED. The Exhibits to Mr. Angstman’s Affidavit in Response to Defendant’s Motion to Dismiss (Dkt. 36) is hereby ordered SEALED.
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SO ORDERED.

DATED: June 4, 2013
Honorable Edward J. Lodge U. S. District Judge

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 Case 1:12-cv-00559-DVB Document 231 Filed 12/03/15 Page 1 of 71

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

OMAR CASTILLON, DUSTY KNIGHT, JUSTIN PETERSON, LEON RUSSELL, CHRISTOPHER JORDAN, JACOB JUDD, MICHAEL FORDBRIDGES, AND RAYMOND BRYANT,
Plaintiffs,
v.
CORRECTIONS CORPORATION OF AMERICA, INC.,
Defendant.

Case No. 1:12-cv-00559-EJL-CWD REPORT AND RECOMMENDATION

INTRODUCTION Plaintiffs bring this civil rights action against Corrections Corporation of America, Inc. (CCA), alleging one count for violation of their Eighth Amendment rights prohibiting the imposition of cruel and unusual punishment, and the corresponding duty of the prison to protect prisoners from violence at the hands of other prisoners. The lawsuit arises out of a tragic inmate gang attack on Plaintiffs that occurred on May 5, 2012, at the Idaho Correctional Center.
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Plaintiffs assert liability under the standards articulated in Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658 (1978). CCA’s position is the undisputed facts do not establish CCA had a deliberately indifferent custom or policy that was the moving force behind a violation of Plaintiffs’ constitutional rights. See Stover v. CCA, No. 1:12– cv–00393–EJL, 2015 WL 874288 at *9 (D. Idaho Feb. 27, 2015) (citing Mabe v. San Bernardino Cnty., 237 F.3d 1101, 1110 (9th Cir. 2001)); Monell, 436 U.S. at 690-94.
Currently pending before the Court is CCA’s motion for summary judgment, (Dkt. 166), and three evidentiary motions. Plaintiffs move to strike the affidavit of W. Ken Katsaris (Dkt. 161), and the affidavit of Kevin Myers (Dkt. 189), while CCA moves to exclude the testimony of Plaintiffs’ experts John Hepburn and Pam Sonnen (Dkt. 165).
The Court conducted a hearing on August 27, 2015, and at its conclusion, took the motions under advisement. Having carefully considered the record, the parties’ arguments, and otherwise being fully advised, the Court enters the following report and recommendation with respect to CCA’s motion for summary judgment, and an order regarding the evidentiary motions as they relate to the pending summary judgment motion.
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FACTS 1. General Background
Plaintiffs1 Dusty Knight, Leon Russell, Christopher Jordan, Jacob Judd, Michael Ford-Bridges, and Raymond Bryant are prisoners in the custody of the Idaho Department of Correction (“IDOC”) and at all relevant times were incarcerated at the Idaho Correctional Center (“ICC”), a private prison which, at the time of the attack, was operated by Defendant CCA under contract with IDOC. First Am. Compl. (Dkt. 14, ¶ 15.)2 On May 4, 2012, Plaintiffs were moved into a housing unit at ICC known as F-pod or Pod F1, in the DEF Unit. According to the complaint, Plaintiffs claim they were afraid to move because the pod was heavily populated by members of two gangs, the Aryan Knights and the Severely Violent Criminals. (Id. ¶¶ 49- 55.)
Plaintiffs allege CCA has a policy of housing individuals with the same gang affiliation in the same housing unit, which creates a gang-controlled “walk.” (Id. ¶¶ 3034.) Plaintiffs claim also that CCA intentionally uses prison gang members to control other inmates, “includes gang leadership in prison management decisions,” and “refus[es] to hold gang members accountable for misconduct,” all in an effort to increase its profit margin and reduce staff. (Id. ¶¶ 45-48; 70.)
Plaintiffs’ complaint alleges also that CCA employed a “ghost worker” scheme, and did not fill shifts or fully staff posts. (Id. ¶¶ 70-71.) Mandatory overtime due to understaffing allegedly left correctional officers exhausted and unable to perform their
1 Plaintiffs Omar Castillon and Justin Peterson were dismissed from this action on June 4, 2013. (Dkt. 54.) 2 Further references to the First Amended Complaint will simply refer to the complaint.
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duties at optimum levels. Id. Plaintiffs seek injunctive relief, and compensatory and punitive damages against CCA. (Id. ¶ 82.)
Plaintiffs’ allegations therefore center upon CCA’s alleged policy of housing members of a gang along the same walk, and of deliberately understaffing the prison. The Court, in response to CCA’s motion to dismiss, concluded Plaintiffs stated a Monell claim by alleging CCA maintained a policy or custom of (1) participating in a “ghost worker” scheme resulting in fewer correctional officers and thus contributing to danger in the prison, and (2) housing prison gang members together in the same housing unit. Mem. Dec. and Ord. at 6-7 (Dkt. 54.) Against that backdrop, the Court finds the following facts material and undisputed for purposes of determining the motion for summary judgment.3 2. Applicable Policies
Upon arriving at an IDOC prison, inmates are assigned a custody level and IDOC determines the inmate’s housing facility based upon his classification as minimum custody, medium custody, or close custody. Aff. of Myers ¶ 164 (Dkt. 169 at 5-6.) Close custody facilities are designed to house high risk inmates, either because they have escaped or have displayed dangerous behavior while incarcerated. Id. ¶ 17 (Dkt. 169 at 6.) An offender classified as “close custody” does not live in the general population within the prison, but is instead confined within a secure perimeter and under 24 hour
3 The following facts are undisputed unless otherwise indicated. When the facts are disputed, they are taken in the light most favorable to Plaintiffs, the nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (recognizing the district court’s obligation to construe the record in the light most favorable to the nonmoving party on motion for summary judgment). 4 Paragraphs 16 – 23 of the Affidavit of Kevin Myers are not subject to Plaintiffs’ motion to strike.
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staff supervision. Id. ¶ 18 (Dkt. 169 at 6.) Movement of close custody offenders within the institution is limited. Id.
ICC is divided into 31 housing units equipped to house medium and close custody offenders, and was the only facility within the IDOC system that had a dedicated unit for offenders classified as close custody – the DEF Unit. Id. ¶ 19 (Dkt. 169 at 6.) The DEF Unit opened in July of 2009, and was specifically designed for close custody inmates that had been transferred to ICC from Idaho’s Maximum Security Institution. Id. ¶ 19 (Dkt. 169 at 6.) The DEF Unit housed a high percentage of Security Threat Groups (STGs), which are defined as “a group of two or more offenders who have been determined to be acting in concert so as to pose a significant threat to the safety, security, and orderly operation of any Idaho Department of Correction” facility. Id. ¶ 20 (Dkt. 169 at 6-7.)
ICC had several policies governing close custody inmates, including the design and operation of the DEF Unit itself. The DEF Unit has six pods, or tiers—Delta 1, Delta 2, Echo 1, Echo 2, Fox 1 and Fox 2. SOF ¶ 31; Anderson testimony, Tr. at 342 (Dkt. 1672 at 4.) Each tier, or pod, was divided into fourths, and a specific gang, grouped together in a “walk,” was housed in each one of these areas. Higgins Tr. at 28 (Dkt. 159-2 at 4.) For example, the Aryan Knights would occupy one walk, the Severely Violent Criminals another, and the Norteños yet another walk. Higgins Tr. at 28 (Dkt. 159-2 at 4.) Sixteen inmates were housed together in a walk. Aff. of Sharp ¶ 8 (Dkt. 183-1 at 9.)
With regard to operations, ICC’s STG housing policy, approved by Chief of Operations Kevin Kempf, indicates that while suspected members of specific STGs will
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not be allowed to concentrate in any housing unit or correctional facility, “in close custody…managers may be forced to have a higher concentration of STG members but the basic management strategy of keeping them disbursed can still be followed.” SOP 504.02.01.002 at 4 (Dkt. 170-3 at 5.) STGs were to be kept “off balance by frequently moving the known leaders of the various affiliations.” Id. This could be accomplished by changing housing units, changing facilities, or housing gang leaders in another state where they had little or no power. Id. Other management alternatives included placement of STG leaders involved in violent behavior in long-term administrative segregation when needed to disrupt STG activity. Id. The policy indicated also that STG members’ behavior should be “closely monitored,” and tracking should be accomplished by keeping track of STG housing assignments within the facility; participating in facility move decisions to prevent suspected STG members from concentrating in any one housing unit; generating a population report by STG affiliation; generating an STG conflict report; conducting monthly random inspections of cells of STG members to look for STG paraphernalia; and, closely monitoring offenders for STG involvement. Id. at 5-6.
ICC policy 10-103, dated July 1, 2009, and approved by Warden Phillip Valdez, provided for additional operational management of close custody inmates. SOF 12; Ex. 22d (Dkt. 170-4 at 3.) Inmates housed in the close custody unit received one hour of exercise per day, five days per week, outside their cells. SOF 14; Ex. 22d (Dkt. 170-4 at 3.) Close custody inmates also were given one hour per day of dayroom time to shower, clean their cells, or attend to other personal business. SOF ¶ 15; Aff. of Myers ¶ 28 (Dkt. 169 at 15.) Inmates were secured in their cells before meals were served. Ex. 22d (Dkt.
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170-4 at 4.) And inmates from different housing pods, or walks, were not allowed to recreate together. SOF ¶ 14; Aff. of Myers ¶ 27 (Dkt. 169 at 8.) In other words, only one group of inmates assigned to a particular walk was allowed out of their cells together for the same recreation or dayroom break. SOF ¶ 18; Rodriguez Depo. at 53-53, 76-77 (Dkt. 168-5.) All of these operational policies ensured that close custody inmates in the DEF Unit were confined to their cells 22 hours per day Monday – Friday, and 24 hours per day on weekends. SOF ¶ 15; Aff. of Myers ¶ 29 (Dkt. 169 at 9.) Although confined, inmates occupying the same walk could hear each other and talk to each other through the doors. Rodriguez Depo. at 77 (Dkt. 168-5 at 12.)
ICC Post Order 106, approved by Warden Tim Wengler on September 11, 2011, and applicable to close custody correctional officers (DEF Unit), indicated that, at the end of a shift, officers were not to leave their post for any reason unless properly relieved by an assigned officer or the Shift Supervisor. Ex. 22f ¶ IV (Dkt. 170-6 at 6.) The same policy includes dayroom procedures and movement procedures. To release an inmate from his cell for dayroom access, the officer must be posted at the door to the inmate’s cell, contact pod control via radio, and be visually recognized by the pod control officer prior to opening the door. Ex. 22f ¶3.F (Dkt. 170-6 at 3.) The inmate then has five minutes to obtain property from his cell that he wishes to take into the dayroom. Id. The officer must search the dayroom prior to allowing another group of inmates into the dayroom area. Id. Officers must monitor all movement in and out of cells during movement time. Ex. 22f ¶ III.E (Dkt. 170-6 at 3.) Every tier has a floor officer posted at all times when inmates are in the dayroom to ensure no unusual and/or unauthorized
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activities are taking place, and the officer must personally observe all inmates on the assigned tier. Ex. 22f ¶ III.B (Dkt. 170-6 at 3.)
Post Order PO-00, effective October 12, 2009, and approved by the director of security, the Chief Corrections Officer, and Warden Tim Wengler, required correctional officers to conduct informal counts to verify all inmates are present or accounted for. Ex. 22e (Dkt. 170-5 at 5.) Inmates outside of their cells must have their ID badges visible, so they may be checked and identified. Id. (Dkt. 170-5 at 12.) According to ICC PO-100, which policy was approved by Warden Tim Wengler, the Housing Unit Pod Control officer is responsible for controlling access in and out of the housing unit by visual and verbal identification of individuals entering or leaving any security door, and asking individuals to identify themselves via their ID badge. Ex. 22g (Dkt. 170-7 at 3.) The Pod Control Officer is required also to verify all inmates being released from the unit. Id. (Dkt. 170-7 at 3.)
3. The Decision to Move Plaintiffs on May 4, 2012 Unit Manager Norma Rodriguez was the housing unit manager for DEF Unit. SOF
¶ 20; Rodriguez Depo. at 53 (Dkt. 168-5 at 3.) Rodriguez had been the DEF Unit Manager since June of 2011, and she reported to Chief of Unit Manager Koozman, who in turn reported to Warden Kessler. (Dkt. 1-1 at 1, 2.)5 Rodriguez was responsible for all moves that took place into a housing unit, and ensured inmates’ safety prior to moving them into an area. Id. at 60 (Dkt. 168-5 at 6.) Although Rodriguez was not the warden
5 Plaintiffs cite to the Interview Summary of Norma Rodriguez, which interview occurred on May 25, 2012, in paragraph 48 of their statement of disputed facts.
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and did not have a level of authority commensurate with the warden, Rodriguez was
allegedly regarded as “the mini warden” over the unit. (Dkt. 188-2 at 52.) However,
Rodriguez’s level of authority “doesn’t extend and allow [her] to do things, all the things
a warden can do.” Id.6 Once the decision to move inmates was made, the unit manager
presented the move sheet to Warden Kessler for review and approval. (Dkt. 188-2 at 29.)
Kessler had not ever had a unit manager tell him that a move was unacceptable, because
if the unit manager “was not good with the move, they would not present the move sheet
to him for review.” Id. See also Pls.’ Stmt. of Disputed Facts ¶ 54. (Dkt. 188—1 at 17.)7
When Rodriguez considered inmate moves to DEF Unit, compatibility of
offenders was an issue. Offenders in DEF
actually live 22 to 23 hours together, and it’s very difficult to live with someone for that period of time. So it was very important to us that they could get along with one another, because they are cellmates. So any offender that was being looked at getting moved would receive an interview by one of the staff, sometimes to include me, so we could ensure everybody’s safety. At any point in time when an offender said no, they didn’t feel safe, we would not move them. If they felt it was all right, they would get moved.
6 Rodriguez was asked, “Now, your level of authority though doesn’t extend and allow you to do things, all the things a warden can do; right?” Rodriguez answered, “Correct.” 7 Officer Skogsberg in his affidavit states that “Rodriguez and Assistant Warden Kessler, had knowledge of the acute danger posed to the Plaintiffs by moving them into the F1 tier because several correctional officers, including myself, reported this.” Skogsberg Aff. ¶ 13 (Dkt. 188-2 at 8.) In all of the reams of material submitted, this is the only statement that suggests Kessler had some sort of vague knowledge of some unidentified danger posed to Plaintiffs if they moved to F1 Pod. However, there is no other evidence in the record regarding what Skogsberg reported, what type of danger Plaintiffs might be exposed to, when he informed Kessler or Rodriguez, and no other documentation in the written case notes, deposition testimony, or other records that Skosberg reported such information. Instead, Plaintiffs in their statement of facts cite to Kessler’s actual deposition testimony, which makes no reference to receiving a report from anyone of any danger posed to Plaintiffs as a result of the move. The Court therefore does not consider Skogsberg’s vague reference to a report of some unspecified nature to be a material fact.
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Rodriguez Depo. at 61 (Dkt. 168-5 at 7.)8
Unit Manager Rodriguez was concerned that intake inmates, or new arrivals, were
being housed in F1 Pod and that they might be recruited into a STG or prison gang, or
become subject to extortion by such gang members; she therefore wanted to put new
inmates in F1 Pod who were not vulnerable to that type of pressure from other inmates.
SOF ¶ 19; Rodriguez Depo. at 53-54, 70 (Dkt. 168-5 at 3-4, 8.) At the time of the May 4,
2012 move, there were inmates already in the F1 Pod, assigned to a different walk or tier,
who were members of STGs such as the Aryan Knights (“AK”), Severely Violent
Criminals (“SVC”), or Sureños. SOF ¶ 19; Rodriguez Depo. at 54-55 (Dkt. 168-5 at 4-5.)
The various factors Rodriguez considered before making the decision to move Plaintiffs and other inmates into F1 Pod on May 4th included:
[W]hether they had any enemies, how well they all got along with one another. These offenders were out in general population at one point. And some of the staff that I worked with at that point had known some of them from out in general population. So I received recommendations from case management teams, sergeants, or whomever it may be, I received information and the names from them, any safety issues…Safety issues, whether they get along well with other people on that walk that they are going to be on with. Enemies, again, if they have enemies amongst themselves….anybody that I was putting on the specific walk that I had emptied. I had emptied so many cells, so everybody that I was putting in that walk I wanted to ensure that they all got along fine, there was no safety issues amongst them, they had no previous history amongst themselves. Ex. 13, Rodriguez Depo. at 81-82 (Dkt. 168-5 at 13-14.)9
8 Plaintiffs “partially dispute” paragraph 17 of the SOF, which references this portion of Rodriguez’s deposition that is quoted verbatim here. However, Plaintiffs’ dispute is with how the Plaintiffs’ move was handled, not with Rodriguez’s general statement about how she conducted moves in general. Plaintiffs do not dispute the statement of fact that they were interviewed prior to the move.
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Rodriguez typically did not ask or interview offenders already in the pod about safety issues. Ex. 13 Rodriguez Depo. at 82-83 (Dkt. 168-5 at 14-15.) However, IDOC’s serious incident review report, prepared May 21, 2012, indicates “the Unit Manager and some of the other unit supervisors were consulting suspected leaders of STG groups, in essence getting their approval before making moves.” (Dkt. 14-5 at 3.) The report does not indicate the name of the interviewer or the persons who reported that information, or whether such a consultation occurred prior to moving Plaintiffs. The report further indicates Rodriguez had been using STG leadership counsel in regards to moves of STG offenders, and she “admitted that she talked to a leader of the YFS in regards to making moves.” (Dkt. 14-6 at 2.) According to Rodriguez, however, the makeup of the pod was a concern. For example, if the inmate to be moved has “an enemy in AK or SVC or Sureño, anybody that was on there. If they had anybody that maybe they had a history with, maybe a fight in the past that lived on that unit, it was always a concern. But if the offender says: No, we have no problems, we are going to be fine, we are separated, then you make the move.” Ex. 13 Rodriguez Depo. at 82 (Dkt. 168-5 at 14.)
At a Team Case Management meeting on May 3, 2012, Unit Manager Rodriguez raised the topic of transitioning a group of inmates into the recently vacated “C Walk” (upper tier) of the F1 Pod. SOF ¶ 20; Rodriguez Depo. at 73-74 (Dkt. 168-5 at 9-10.) The
9 Plaintiffs cite the deposition testimony of Rodriguez to support their assertion Rodriguez had a requirement that anyone in F-1 pod “must get along with the Aryan Nights.” See Pls.’ Statement of Disputed Facts ¶ 48, citing to Aff. of Angstman Ex. 6 at 59-60 (Dkt. 188-2 at 48). However, review of the record indicates that the question was asked on page 59, and page 60 of Rodriguez’s deposition containing the answer to the question is not in the record. Plaintiffs cite also to the DOC’s interview summary of Rodriguez after the incident to support their assertion that Rodriguez knew if she put a non-affiliated offender into the DEF Unit with the STG clusters, they would be attacked. Response at 5 (Dkt. 188 at 5.) However, review of the interview summary at Dkt. 1-1, 1-2, and 1-3 does not support such a statement.
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record for the meeting states in relevant part: “Still working on transitioning offenders into F-1. Would like to have a group of offenders that get along well with one another without concern that AK or SVC will either force or manipulate them into turning SVC or AK. The offender group that hangs with Nune[s] appears to be pretty strong and a good choice for transitioning into F-1…Payton agrees that moving STG offenders around helps deter their criminal activity. Lt. Watkins agrees that YFS and associates would be a better idea than Intake. Officer Niecko reports offenders previously discussed for move are wanting to go to F-1. Will get final decision on Friday.” Ex. 16, 5/03/2012 Team Case Management Record (Dkt. 168-8 at 2); Ex. 13, Rodriguez Depo. at 83 (Dkt. 168-5 at 15).10
Case notes written by Case Manager Moore indicate all eight Plaintiffs were interviewed prior to the May 4, 2012, move to the F1 Pod C-Walk from 8:50 am until 9:26 am on May 4, 2012. Ex. 14, Moore’s C-Notes (Dkt. 168-8 at 2.) The interviews were conducted by Case Manager Moore, Case Manager Cavigliano, and Correctional Counselor Carrick, and the notes indicate “Offender * along with associates and affiliates of the YFS agreed to move believing that a walk of their own would benefit them as well as the facility. The Offender’s [sic] had been requesting a walk where they could be housed together therefore, when F1 C-walk was emptied out we took the opportunity to put a plan in place moving them in.” Id.
10 Plaintiffs indicate there were numerous concerns about Plaintiffs’ safety, which concerns were allegedly voiced before the move. However, the case management meeting notes belie those assertions, and the evidence Plaintiffs rely upon to make that characterization occurred after the May 5, 2012, assault. See SOF ¶54, referenced in SOF ¶17, and discussion at page 15-17, infra..
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Rodriguez felt it was positive that Plaintiffs all were friends and got along together, and that they were strong enough as a group that they would not be turned AK or SVC. Ex. 13 Rodriguez Depo. at 83 (Dkt. 168-5 at 15.)
Plaintiff Ford-Bridges did not tell anyone, including ICC staff, that he had a problem with the AK, and only told his group members that “it’s not a good idea to do that [to move to F-1].” Ford-Bridges Depo. at 41-42 (Dkt. 167-7 at 3-4.)
The Movement Sheet prepared on May 3, 2012, shows the inmates moved to the C-Walk, F-1 Pod came from other housing units, namely the D1, E2 and F2 pods. Ex. 17A & B, Movement Sheet (5/3/12) (Dkt. 168-9, 168-10.) Plaintiffs Bryant and Russell originally expressed concerns about the move and Case Manager Moore wrote “cancel” on the Movement Sheet next to their names. Ex. 17C (Dkt. 168-11.) Upon learning their inmate friends were making the move to F-1 and they would be housed on the same tier or walk, Bryant and Russell agreed to the move, and the Movement Sheet reflects this change of mind with the word “good” written next to their names. Id.
Plaintiff Bryant testified that he and other members of the YFS and their associates had been “trying to get our own – own walk” back in March of 2012, and he agreed to the move to F-1 on May 4th once he found out that all his friends were moving to the same tier. Ex. 15, Bryant Depo. at 53-54, 61-63 (Dkt. 168-7 at 5-6, 7-10.) Plaintiff Bryant did not care for the Aryan Knights (AKs) or skinheads because “they like gays,” and he had several fights with AK inmates in the 1990’s while incarcerated at a different facility. Bryant Depo. at 59-60 (Dkt. 168-7 at 7-8.) But, Bryant never reported to anybody at IDOC that he needed to be housed separately from AKs. Bryant Depo. at 54,
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60 (Dkt. 168-7 at 6, 8.) According to Bryant, he asked if some of the AKs in F1 he was familiar with from the 1990s had been moved out prior to May 4, 2012, and he was assured they had been moved and that the “guys on the right side [of the upper tier] were okay. They weren’t going to do anything….later I said, well, is everybody else going? And, I guess, you know, it was one of those things that---so I went. I went with all my friends,” who included Jordan, Bridges, Judd, Peterson, Nunez, and Castillon. Bryant Depo. at 60-62 (Dkt. 168-7 at 8-10.)
Plaintiff Russell had submitted a concern form on May 3, 2012, about being moved to F1, indicating: “I have issues with people meaning SVC, AK, skinheads, I can tell you right now if [I’m] moved from F2 to F1 there is going to be a problem, so at that being said I feel comfortable where [I’m] at.” Ex. 18 (Dkt. 168-12.) The concern form recorded staff’s May 3, 2012 response to Russell’s concern: “Deleted off move sheet. Move will not happen.” Id. The following day (May 4th), Russell’s concern form reflected the following: “Carrick advised offender…now interested…placed back on move sheet on…5-4-12.” Id. Russell testified he submitted the concern form “just to be on the safe side, you know. Write a concern to make sure---let them know that there could be a problem in the situation, you know,” but “there was no threats or nothing, no.” Ex. 9 Russell Depo. at 61, 61 (Dkt. 168-1 at 8, 9.) Russell had previously asked to be together with other members of the YFS. Russell Depo. at 58 (Dkt. 168-1 at 6.)
Aside from the concern form, Russell believes he talked to either Officer Kessler or Officer Carrick about not wanting to move. Russell Depo. at 59 (Dkt. 168-1 at 6.) But, on May 4, 2012, Russell agreed to the move to F-1 Pod and did not say anything on that
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day about not wanting to move. Russell Depo. at 60 (Dkt. 168-1 at 7.) When Russell was told he and his friends would have their own walk, he said, “‘That sounds good sure.’ That’s--- that’s prior to me putting in the concern form, too,” and he explained he put in the concern form “just for my safety.” Russell Depo. at 60-61 (Dkt. 168-1 at 7-8.)
Plaintiffs contend “none of the plaintiffs felt comfortable with the move into the F1 Pod,” but cite to Grievance Forms Plaintiffs submitted after the incident as support for that assertion. See Pls.’ Statement of Disputed Facts ¶ 17 (Dkt. 188-1) (citing Dkt. 143-3 – 143-8). For example, Bryant submitted a grievance form on May 30, 2012, “believing his rights were violated…I told the staff to make shure [sic] that the check the showers clostests [sic] and laundry carts’s [sic]. The next day I got in a big fight and stabbed there on F1 5 times.” Bryant Grievance Form (Dkt. 143-3.) Ford-Bridges’ grievance form, submitted on May 25, 2012, simply states: “I was attacked as a result of Ms. Rodriguez moving me.” (Dkt. 143-4.) Ford-Bridges’ second grievance form, submitted on June 1, 2012, indicated the problem was he was stabbed because he was moved, and “was never asked personally if I felt comfortable moving over to F-1.” (Dkt. 143-4.)
Jordan’s Grievance form, submitted on May 31, 2012, indicates his rights were violated because he was moved “on a teir [sic] with known enemies, AK & SVC. It is in my file that I can not [sic] be on a teir [sic] or in an area where AK/SVC can come after me….I was stabbed [and] staff were told not to due [sic] this move.” (Dkt. 143-5.) Judd’s Grievance form, submitted May 25, 2012, indicates simply: “U/M Rodriguez moved me and I was attacked as a result of the move.” (Dkt. 143-6.) Knight’s form, dated May 29, 2012, indicates he was “attacked & stabbed 18 times as a result of my being moved from
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D1 to F1 and never once being asked if I felt safe moving to F1.” (Dkt. 143-7.) Finally, Russell’s form, submitted May 24, 2012, indicates, “I feel that my rights have been violated, you guys should have better judgement.” (Dkt. 143-7.) A handwritten Grievance/Appeal form dated May 23, 2012, adds that “you guys…shouldn’t put me in harms [sic] way.” (Dkt. 143-8.)
Plaintiffs cite Rodriguez’s interview summary as additional support for their assertion that Rodriguez spoke to offender Núñez, who “didn’t really like the move, he thought that it might create some issues because of safety issues.” (Dkt. 188-1 citing 14-2 at 1-2.) However, the entirety of the interview summary states:
She talked to offender Nunez. At first he said that he really didn’t like the move, he thought that it might create some issues because of safety issues with them but with the process and if everyone did their job there shouldn’t be any problem because all of the walks are separated. He made mention that sometimes you have corrupt staff. She wanted to know what he meant. He did not want to say but said sometimes people make mistakes. She told him that if he was not comfortable, all she was looking for was a list of people that they hang around with and people that they have a strong enough bond. IDOC Interview Summary (Dkt. 14-2 at 1-2.) (emphasis added). Although Plaintiffs rely upon Núñez’s statement to Rodriguez as support for their assertion that Plaintiffs did not want to move, Plaintiffs contradict themselves later by stating that Núñez is not a plaintiff in this case and cannot speak for Plaintiffs. Pls.’ Statement of Disputed Facts ¶ 18 (Dkt. 188-1.) Skogsberg’s affidavit indicates that, “prior to the Plaintiffs’ move into the F1 Pod within the DEF Unit, it was common knowledge among the staff that the Aryan Knights (AKs) and the Severely Violent Criminals (SVCs) would try to attack the Plaintiffs if
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they were moved into the F1 pod. I personally spoke to a fellow correctional officer and advised against this move.” Aff. of Skogsberg ¶ 12 (Dkt. 188-2 at 7.) Skogsberg does not identify who he talked to, instead indicating that Rodriguez and Kessler “had knowledge of the acute danger posed to the Plaintiffs by moving them into the F1 tier because several correctional officers, including myself, reported this.” Id. ¶ 13 (Dkt. 188-2 at 8.) Skogsberg does not indicate which correctional officers reported this knowledge, to whom, or when, nor is there any evidence in the record either Rodriguez or Kessler received such reports. See Note 7, supra.
The only other officer to indicate a concern was, allegedly, Carrick. He indicates he “told Unit Manager Rodriguez that moving the Plaintiffs to F-1 was risky,” not because of known threats, but because “the power could go out causing the inmates to be intermixed; somebody could hide in a closet like before; or the frequent door pop problem could allow the AKs or SVCs to attack the Plaintiffs.” Aff. of Carrick ¶ 17 (Dkt. 143-15 at 5.)
Counselor Moore was interviewed after the May 5, 2012 incident, and according to Plaintiffs’ characterization, she expressed concerns about the move. IDOC Interview Summary (Dkt. 188-2 at 21.) But, the full text of the interview summary indicates that:
When asked if she knew there were problems between the YFS and AK she answered “yes and no.” She knew that she did not want to mix them. In her mind she thought they were on their own walk, they should be fine. If policy and procedure are followed they should be fine. “Ya there’s tensions but we’re not mixing them.” They all wanted to be on the same walk. They are younger kids and they just all wanted to be together. So she thought “Why not, we need a use for those beds.” …There were a couple off [sic] offenders that told staff that they did not get along with the AK but she explained that they would not be on their walk. She believes there was peer
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pressure amongst their own guys because there were a couple who said if they are going they are all going. So when she talked to them they stated they were going. A couple of them were really excited because they had been asking to get together because they were all spread around.
Interview Summary with Moore (Dkt. 188-2 at 21.) (emphasis added).
Skogsberg, the DEF Unit floor officer on May 5, 2012, indicated he was aware
there was a move sheet, but did not notice anything unusual when he first got to F1 on
first shift, and heard no type of interaction, such as threats or arguments, among inmates.
Skogsberg Tr. at 295 (Dkt. 167-3 at 4.)
4. Staffing and the Events of May 5, 2012
There is some dispute over the minimum staff requirements in the DEF Unit. On
Thursday, August 8, 2013, Judge David O. Carter held a show cause hearing in Kelly v. Wengler. (Dkt. 167-5.)11 According to Timothy Higgins, an IDOC corrections officer at
ICC, the Kelly Settlement Agreement and the contract between IDOC and ICC specified
the minimum staffing for the close custody unit (DEF Pod) requried a pod control officer
and four floor officers. Tr. at 479 (Dkt. 167- at 13.) In response to questions about the
assault in F-Pod on May 5, 2012, Officer Higgins testified that the mandatory staffing
according to the contract with IDOC was one pod control officer in close custody and four floor officers.12 Tr. at 507 (Dkt. 167-5 at 20.) See also Aff. of Myers ¶¶ 30 – 33, 36
11 The Kelly v. Wengler Settlement Agreement was entered in or about September of 2011, and it required ICC to maintain minimum staffing levels. CCA was to comply with the staffing pattern pursuant to CCA’s contract with IDOC, and increase the staffing pattern to include a minimum of three additional correctional officers to be utilized at the discretion of the Warden (called the Warden’s Crew) to enhance the overall security of the facility. Kelly Settlement Agreement ¶ 4 (Dkt. 14-9 at 1.) 12 Plaintiffs attempt to create a factual dispute with Carrick’s affidavit, wherein he was of the opinion that the DEF Unit was “massively short staffed on May 5, 2012,” and was supposed to have 1 pod control officer, 2 sergeants, 4 floor officers, 1 foyer officer, 1 case manager, and 2 recreation officers. Aff. of Carrick ¶8 (Dkt. 143-15). However,
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(Dkt. 169 at 9-10) (indicating that Exhibits 22h, 22i, 22j, which comprise the contract between CCA and IDOC, set forth the contractual staffing pattern).13 Officer Higgins testified during Kelly that, “[a]t the time of the incident, what we had was a unit sergeant, a pod control officer, a foyer facility officer, four floor officers and two recreation officers that were present.” Tr. at 507-508 (Dkt. 167-5 at 20.)
According to Garth Carrick and Jerry Sharp, who were physically present in DEF Unit at the time of the May 5, 2012 assault, there was one pod-control officer (Clayton), four floor officers (Nordio, Carrick, Skogsberg and Trana), and two recreational officers (Rodriguez and Anderson) on DEF Unit that day, totaling seven individuals who were present at the time the attack commenced. Carrick Decl. ¶ 12 Bates CCA_OC47542 (Dkt. 165-6 at 4); Sharp Aff. ¶ 20 (Dkt. 183-1 at 13.) Jerry Sharp indicated he was working also in the DEF Unit that day. However, although he was working in the DEF Unit, Sharp
Carrick cites no document supporting this assumption, and Higgins, as does Myers, refers to the IDOC contract with CCA, which explicitly specifies to the contrary. 13 Paragraphs 30 – 33 and 36 of the Myers affidavit are not subject to the Plaintiffs’ motion to strike. Myers summarizes what the contract requires, and Plaintiffs do not object to this characterization.
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was covering a floor post instead of performing his duties as a Sergeant. Sharp Aff. ¶ 16 (Dkt. 183-1 at 12.)14
Sharp is of the opinion that the DEF Unit was understaffed on May 5, 2012,
because he had to cover a DEF floor post instead of performing his duties as a Sergeant,
and therefore could not properly supervise the DEF Unit and ensure the floor officers
within the unit were following post orders. Sharp Aff. ¶ 16 (Dkt. 183-1 at 12.) Sharp
believed also that the placement of Officer Nordio, who typically worked in General
Population, created an added risk because Nordio was unfamiliar with DEF procedures.
Id. ¶ 17 (Dkt. 183-1 at 12.) Sharp claims that a correctional counselor post should have
been filled to assist with inmate concerns, such as passing out candy bars for the Cinco de
Mayo holiday treat, and to have allowed the floor officers to concentrate on their duties.
Id. ¶ 22 (Dkt. 183-1 at 18.)
The events precipitating the assault began with Sharp leaving his post. Sharp and
Case Manager Worthington were responsible for the special Cinco De Mayo meal for all
of the inmates, and realized during inventory there were not enough candy bars for all
inmates. Sharp Aff. ¶ 19 (Dkt. 183-1 at 12.) Sharp realized also that his radio battery had
14 Plaintiffs dispute the number of “contractually mandated” positions to be filled in the DEF Unit, and cite various different documents, including the Unit Plan and the shift roster, to dispute that CCA did not meet contractual mandates required by the IDOC. However, Plaintiffs do not dispute or object to the Myers affidavit, which summarizes what was contractually required. See note 13, supra. Plaintiffs contend the Unit Plan requires two sergeants to be posted in the DEF Unit in addition to four floor officers, one pod control officer, one foyer officer, and two recreational officers. However, according to the testimony of Higgins, Carrick and Sharp, there is no dispute that seven individuals were actually present within the DEF Unit at the time of the attack, and an eighth officer, Sergeant Sharp, had stepped away from his post at the time the attack broke out. There is therefore no dispute that, at the very least, seven people were working within the DEF Unit at the time of the attack, and eight individuals were working in the DEF Unit that day. It is unclear who or where the Foyer Facility Officer was, as neither Plaintiffs nor CCA have identified the individual actually filling that post on May 5, 2012. However, according to the incident report interview of Norma Rodriguez, Worthington filled Foyer Officer post. App. A (Dkt. 14-1 at 2.) Rodriguez’s testimony is consistent with Sharp’s account that he and Worthington were responsible for the inmates’ Cinco de Mayo treats that day.
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died. Id. To provide coverage of his floor post, Sharp asked Foyer Officer Carrick to fill in on the floor post so that Sharp could leave the DEF Unit to get more candy bars and a new battery for his radio at Master Control. Sharp Aff. ¶ 19 (Dkt. 183-1 at 12-13.) This left seven people in posted positions at the time Sharp left the unit. Sharp Aff. ¶ 20 (Dkt. 183-1 at 13.)15 Plaintiffs do not dispute that, when Sharp left the DEF Unit, seven people (Clayton, Trana, Skogsberg, Carrick, Nordio, Rodriguez and Anderson) were posted in the DEF Unit. Id. ¶ 20 (Dkt. 183-1 at 13.) See also Myers Aff. ¶¶ 37-39 (Dkt. 169 at 1011.) (reviewing time detail reports at Ex. 22 M, (Dkt 199-9) and confirming the officers on duty during first shift May 5, 2012). Rodriguez indicated, however, that when Sharp stepped out, Foyer Officer Worthington took over the floor. (Dkt. 1-1 at 2; App. A, Dkt. 14-1 at 2.)
Skogsberg was the floor, or “dayroom,” officer posted at F1 Pod on May 5, 2012. Skogsberg Depo. at 294-296 (Dkt. 167-3 at 3-4.) When Skogsberg arrived at F1 Pod at approximately 11:30 a.m. on May 5, 2012, he released the inmates from D-Walk for recreation. Skogsberg Depo. at 296 (Dkt. 167-3 at 4.) At the time Skogsberg released DWalk to go to recreation, Officer Anderson was stationed in the recreation yard. Skogsberg Depo. at 300 (Dkt. 167-3 at 5.) During the release of D-Walk, Skogsberg was distracted by an inmate on the lower tier of the Pod, allowing six Delta walk inmates the opportunity to hide in the janitor closet on the upper tier of the Pod. Ex. 1 Video (Dkt.
15 It is not clear from the record when Sharp left the unit, but there is no dispute he was not present at the time of the attack.
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167-1)16; Skogsberg Depo. at 299 (Dkt. 167-3 at 5.) Shortly after that, Officer Skogsberg performed a security check on the upper floor of the Pod, checking each cell door and the janitor closet door, which was locked. Ex. 1 Video (Dkt. 167-1); Skogsberg Depo. at 301 (Dkt. 167-3 at 5.) Skogsberg did not, however, open the closet door.
After the cell door check, Skogsberg proceeded downstairs to the lower floor of the Pod, and checked the rest of the doors to make sure they were secured Skogsberg Depo. at 296-97 (Dkt. 167-3 at 4.) Skogsberg indicated that, if inmates were not going out to the rec yard, they were supposed to remain in their cells, and Skogsberg would secure all the cell doors. Id. Officer Skogsberg then went back upstairs, and radioed in to Pod Control open Charlie walk for their day room access for the next hour. Skogsberg Depo. at 301 (Dkt. 167-3 at 5.) The doors were released, and the inmates from Charlie walk proceeded to the dayroom in the Pod. Id. Officer Skogsberg was distracted then by an inmate who wanted toilet paper. Skogsberg Depo. at 302 (Dkt. 167-3 at 5.) According to Skogsberg, that inmate was part of the Delta Walk inmates’ plan. Id.
About six or seven minutes after the inmates from Charlie walk were let out of their cells into the dayroom, at approximately 11:54 a.m., the six inmates from Delta walk ran out of the janitor closet on the upper floor and charged down the upper walkway towards the eight Charlie walk inmates, using homemade weapons and their fists to attack the Charlie walk inmates. SOF ¶ 1; Ex. 1 Video (Dkt. 167-1); Skogsberg Depo. at 306 (Dkt. 167-3 at 6.) Plaintiffs Bryant, Russell, Judd, Peterson and Castillon were
16 At the hearing, the parties explained that the Pod Control Officer monitors the surveillance cameras, but that there are numerous monitors such that the officer is not focused on any particular monitor at any given time.
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attacked along the upper tier outside of cell door numbers 203, 204, and 205 (the C, or Charlie, walk), and later, a few of the attackers ran down the stairs to the dayroom area and assaulted Plaintiff Ford-Bridges in the dayroom. SOF ¶ 2; Ex 1 Video (Dkt. 167-1).
Officer Skogsberg, who was walking around the Pod just prior to the attack, was the first officer to intervene, radioing a “Code Blue,” issuing verbal orders to the inmates, and deploying chemical spray approximately 10 to 17 seconds after the attack began. SOF ¶ 4. Sergeant Carrick arrived on the upper tier approximately 36 to 52 seconds later, and began assisting Skogsberg. Officers Sharp and Anderson arrived later, assisting with the break-up of the attack that had begun on the lower floor in the dayroom. SOF ¶ 4; Ex. 1 Video (Dkt. 167-1); Anderson Tr. at 348 (Dkt. 167-2 at 6.) Sixteen inmates were involved in the attack on May 5, 2012, and the incident was under control in approximately one and one-half minutes. SOF ¶ 3 (undisputed); SOF ¶ 44; Ex. 23 at 16 (Dkt. 169-14 at 16.)17
According to Officer Jacob Mills, who was on duty during second shift on the night before the attack on May 4, 2012, Offender Campos accessed the janitor’s closet on the upper floor of the F1 Pod, tampered with the janitor closet lock, and communicated with the Delta walk inmates. Aff. of Mills ¶ 20 (Dkt. 143-9 at 3.) Mills contends the DEF Unit did not have sufficient staff to supervise offenders during the second shift on May 4, 2012, and only three floor officers were posted during that period. Aff. of Mills ¶ 21
17 Plaintiffs dispute paragraph 44 of CCA’s SOF. However, the objections Plaintiffs raise to the introduction of Exhibit 23, which is the report prepared for Judge David Carter by Tad Leach, the independent monitor in Kelly, do not dispute the physical evidence discussed above from the video surveillance of the attack indicating the length of time it took to subdue the inmates, (See SOF Ex. 1, Dkt. 167-1, filed under seal and SOF ¶ 3), nor the number of individuals involved, which are plainly seen on the video footage of the attack.
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(Dkt. 143-9 at 4.) Anderson testified the janitor’s closet was where cleaning supplies were kept, and it was “supposed to be secured. We tended to leave it open because they continued to get in and need to flush out the chemicals…we only left it open with the janitor when the tier was secure,” and it “could only be opened by key.” Anderson Tr. at 371-73 (Dkt. 167-2 at 12.) See also Disciplinary Offense Report (Dkt. 124 at 4) (Carrick identified Campos tampering with the janitor closet door upon reviewing prior video footage).
On June 14, 2011, a similar attack had occurred. During thatincident, a group of Norteño inmates hid in the janitor closet in DEF Pod, and avoided detection of the staff, who believed the Norteño had been re-secured in their cells. Higgins Tr. (Dkt. 188-2 at 73.) When the next walk of inmates was released out into the housing unit, the Norteño inmates sprung from the inside of the janitor closet and attacked the Gangster Disciple inmates with their fists. Higgins Tr. (Dkt. 188-2 at 74.) According to the incident investigation report, dated June 24, 2011, Officer Yehle, the officer posted on the pod, “failed to check all the doors” on the pod to ensure they were secure before letting the next group of inmates out of their cells. (Dkt. 188-2 at 81.) Yehle failed also to check the door to the janitors’ closet, which “is supposed to be secured at all times and checked between quads.” Id. Had Yehle checked the doors, the investigator’s concluded, Yehle would have discovered the Norteños hiding in the closet and the incident would have been avoided. Id.
An investigation ensued after the May 5, 2012 incident as well. According to the IDOC Serious Incident Review Report, several operating procedures (SOPs) were not
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followed. Specifically, SOP 504.02.01.002, STG Management, was not followed, because offenders documented as STGs were housed together in quadrants of the tier. (Dkt. 14-5 at 3.) Second, SOP 317.02.01.001 regarding searches was not followed, as searches were not conducted on offenders leaving their cells. Id. Finally, Post Order ICC PO-00 was not followed, because the recreation officer did not conduct an informal count of the offenders as they left the tier after their recreation movement, which would have alerted him that six offenders were unaccounted for, and the officer on the floor did not look in the windows of the cells to verify the inmates had remained in them. Id.
Norma Rodriguez was interviewed also after the incident. (Dkt. 1-1, 1-2, and 1-3.) During the interview, she explained that the floor officers should have counted the offenders exiting the pod for recreation, checked the doors of the offenders just released, and opened the closet and looked inside. (Dkt. 1-1 at 2.) After the June 14, 2011, incident, Rodriguez indicated new procedures were written, officers were trained, and the policy was “signed off by Assistant Warden Kessler,” and incorporated into post orders. Id. at 2. Rodriguez admitted that the gangs, of which there was a higher population in DEF Pod, “claim[ed] they run the pods.” (Dkt. 188-2 at 49.) The AK were the most influential. Id. at 51. Rodriguez explained also that it was difficult to enforce rules in the DEF Unit, because the offenders would act up by flooding their cells or ignoring staff directives to uncover their cell door windows. (Dkt. 188-2 at 53-54.)18
18 Rodriguez explained that, if officers enforced the rule about not blocking cell windows, the inmates would probably “start flooding their cells,” because they “just don’t want the staff to run their unit.” As a result, staff “try to play it safe so that they “don’t have escalated incidents.”
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However, Warden Wengler indicated the numbers of window covering incidents were decreasing. (Dkt. 188-2 at 61.) And, Rodriguez had been “get[ing] them [the officers] to enforce the rules,” as well as writing up offenders breaking rules using the disciplinary process, prior to the May 5th incident. (Dkt. 1-3 at 1.) But, Rodriguez explained that if the officers are not holding offenders accountable, and she had to visit the pod to take care of something, like a rule infraction, offenders will disrespect the officer’s authority. (Dkt. 1-3 at 2.) Rodriguez stated during her interview that “the fact that the staff were allowed to become complacent and allowed to ignore certain rules was an eye opener to her,” and she required staff and inmates to be held accountable. (Dkt. 14 at 1.)19
DISCUSSION 1. Evidentiary Motions
A. Plaintiffs’ Motion to Strike Expert Witness Ken Katsaris (Dkt. 161) Plaintiffs filed their motion to strike on September 4, 2014, prior to CCA filing its motion for summary judgment on September 15, 2014. Plaintiffs claim Katsaris should be precluded from testifying at trial because: (a) Katsaris relied upon the 2008-2013 Inmate Assault/Battery statistic report from the Kelly independent monitor, which report CCA produced on August 26, 2014; and (b) Katsaris’s unsworn affidavit fails to meet the requirements of Fed. R. Civ. P. 26(a)(2)(B) because it contains opinions that are not supported by any scientific method or analysis of factual data. Rather, Plaintiffs explain
19 It is not clear from the interview summary what time frame Rodriguez is referring to. It appears she is referring to when she first began working on the DEF Unit.
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Katsaris’s affidavit is replete with “oath helper” statements, which are statements asserted but not proven by scientific methodology. In response, CCA argues Plaintiffs’ conclusory arguments conflate two separate concepts: admissibility and the weight to be given by the jury to Katsaris’s opinion. CCA contends Katsaris’s opinions are admissible under Fed. R. Evid. 703, and that the issues Plaintiffs raise may be addressed through crossexamination.
The Court previously addressed the timeliness of discovery related to the Kelly independent monitor reports, finding them timely submitted within the context of this case. See Mem. Decision and Ord. (Dkt. 217.) Plaintiffs’ claim of untimeliness is therefore without merit.
Nonetheless, Plaintiffs’ motion appears to be premature. CCA did not rely upon Katsaris’s expert opinions in support of its motion for summary judgment. There is no reference to Katsaris’s opinions in CCA’s statement of facts submitted in support of its motion for summary judgment. Accordingly, the motion is not relevant for purposes of deciding CCA’s motion for summary judgment, and is premature.
B. Plaintiff’s Motion to Strike Affidavit of Kevin Myers (Dkt. 189) Kevin Myers has been a Corrections Corporation of America (“CCA”) employee for 24 years and currently serves as Managing Director of Operations (Division V), a position he has held since 2005. Ex. 22 at ¶ 2.1 (Dkt. 169.) From April 2010 to July 2014, Myers was responsible for the overall supervision and management of CCA facility operations in Idaho, including the facility formerly known as the Idaho Correctional Center (“ICC”) in Kuna, Idaho. Id. In this supervisory role, Myers was familiar with
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CCA’s contract with the Idaho Department of Corrections, IDOC’s monitoring of ICC via its Contract Beds Unit (fka Virtual Prison Program), the classification of offenders by IDOC and restrictions on close custody offenders, the operations and security procedures at ICC, and levels of staffing at the prison facility pursuant to both the IDOC contract and CCA’s internal, budgeted staffing requirements. Id. at ¶¶ 2-8, 16-41.
Plaintiffs argue that the Affidavit of Kevin Myers, which CCA submitted in support of its motion for summary judgment, fails to satisfy Fed. R. Civ. P. 56(e). Specifically, Plaintiffs argue paragraphs 9-15, 24, 34, 41, and 42-61 and all related attachments should be stricken. The Court will address each paragraph in turn.
(1) Paragraphs 9-15 and Attachment A While operated by CCA, ICC achieved American Correctional Association (ACA) accreditation, which Plaintiffs do not dispute. Myers then explains what the ACA is, how it establishes whether a prison meets ACA standards, and the auditing process ICC would go through. Plaintiffs object on the grounds that Myers has not set forth personal knowledge of these statements. The Court finds that, other than the ACA accreditation itself, Myers’s additional statements concerning the process ICC undertook to receive ACA accreditation are not relevant for the purposes of resolving CCA’s motion for summary judgment.
(2) Paragraph 24 Mr. Myers explains correctional staff at ICC, including staff assigned to theDEF Unit, received five weeks of pre-service training at the IDOC Correctional Officer Basic Academy, and he describes what that training entails. Plaintiffs argue Myers fails to
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establish personal knowledge that ICC staff actually received the training. The Court finds, due to Myers’s supervisory role, he is qualified to testify concerning the training staff would have received during the course of normal and customary operations. Nonetheless, for purposes of the motion for summary judgment, staff training is not relevant. Plaintiffs did not raise a failure to train issue in their complaint.
(3) Paragraph 34 Myers indicates CCA provided a Utility/Foyer officer in DEF Unit, and two recreation officers to DEF Unit, posts that were not contractually mandated but were staffed in accordance with CCA’s budgeted staffing pattern. Plaintiffs contend this paragraph is contradictory and misstates the documents Mr. Myers reviewed. However, the undisputed evidence indicates that the staff on duty on May 5, 2012, consisted of two recreation officers (Rodriguez and Anderson) and a foyer officer (Worthington) working during first shift. The Plaintiffs’ objection is overruled to the extent that the actual undisputed facts indicate two recreation officers and a foyer officer were working during first shift on May 5, 2012.
(4) Paragraph 41 Myers identifies the staff and personnel present during the May 5, 2012 attack in F1 Pod. Plaintiffs contend Myers lacks personal knowledge of the actual employees present, and relied upon unreliable shift rosters. However, according to the undisputed facts discussed above, there is no dispute who was present that day. Sharp, Anderson, Carrick, Nordio, Trana, Worthington, Skogsberg, Clayton, and Rodriguez were
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confirmed by persons actually working that day as being present during first shift in F1 Pod. Plaintiffs’ objection is overruled.
(5) Paragraphs 42-61 In these paragraphs, Myers recounts the IDOC’s analysis, beginning in August of 2008, and continuing each year through 2012, of inmate-on-inmate violence at ICC. Myers explains that the analysis compared violence rates at ICC and ISCI, and concludes that the claims of rampant violence at ICC are false. Plaintiffs contend these paragraphs constitute undisclosed expert opinion not based upon personal knowledge, and even if admissible, the violence statistics comparing ICC to IDOC’s facilities are not relevant. The Court agrees. The violence statistics reflecting the prison as a whole are not relevant, because the DEF Unit, the unit at issue here, houses close custody inmates on lock down 22 out of 24 hours each weekday (23 on weekends). An entirely different set of concerns would arise with respect to the inmates housed in DEF Unit, given the unit is reserved for housing violent inmates in a secure environment rather than in the general population. Further, the comparison between ICC and ISCI is not relevant for purposes of resolving the motion for summary judgment. Despite the above findings, the Court did not find it necessary to rely upon any of the objectionable paragraphs to resolve CCA’s motion for summary judgment. The Court further finds the violence statistics are not relevant because of the nature of the attack and because the attack occurred in the close custody unit. Neither Plaintiffs nor CCA have presented to the Court any violence statistics concentrating solely upon incidents occurring in the DEF Unit since its opening in 2009.
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C. CCA’s Motion to Exclude the Testimony of John R. Hepburn and Pam Sonnen (Dkt. 165)
CCA has moved pursuant to Fed. R. Evid. 104, 403, 702, 703, and 704, and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), to exclude the testimony of Plaintiffs’ corrections expert John R. Hepburn, Ph.D., in its entirety; and the opinions of Plaintiffs’ second corrections expert, Pam Sonnen, in part, to the extent they relate to understaffing at ICC as a root cause of the May 5, 2012, incident. Plaintiffs retained John Hepburn, a professor of criminology and criminal justice at Arizona State University, and Pam Sonnen, former Chief of Prisons within the Idaho Department of Correction, as expert witnesses to testify regarding Plaintiffs’ claims and the correctional practices at ICC at the time of the May 5, 2012 incident. Their expert reports are nearly identical in subject matter, as both opine on issues of staffing, correctional officer qualifications, surveillance and rule enforcement, housing assignments, and gang suppression. Sonnen and Hepburn are of the opinion that CCA’s prison was “unsafe,” and discuss the understaffing that occurred in general.
CCA’s motion to exclude the testimony of Sonnen and Hepburn does not appear relevant to resolving the motion for summary judgment, because Plaintiffs have not relied upon the expert witness testimony or the affidavits of Sonnen and Hepburn in their response to CCA’s motion for summary judgment. Further, CCA has cited to the actual evidence indicating the staff present on May 5, 2012.
As discussed below, the Court finds neither Sonnen’s nor Hepburn’s opinions carry any weight in the context of the motion before the Court. Accordingly, the Court
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will not, for purposes of the motion for summary judgment, exclude their testimony. Rather, the Court will discuss the conclusions in the reports in context in the body of the Court’s report to explain why the expert testimony is of little value. 2. Summary Judgment
A. Standard of Review A party is entitled to summary judgment as a matter of law if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show there is no genuine issue as to any material fact” and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Bahn v. NME Hosp's, Inc., 929 F.2d 1404, 1409 (9th Cir. 1991). One of the principal purposes of the summary judgment “is to isolate and dispose of factually unsupported claims . . . .” Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). It is “not a disfavored procedural shortcut,” but is instead the “principal tool[ ] by which factually insufficient claims or defenses [can] be isolated and prevented from going to trial with the attendant unwarranted consumption of public and private resources.” Id. at 327. “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). There must be a genuine dispute as to a material fact – a fact “that may affect the outcome of the case.” Id. at 248. Further, the parties must direct the Court to the portions of the record that support their claims. “Judges are not like pigs, hunting for truffles buried in briefs” or the record. U.S. v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991).
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The Court must view the evidence in the light most favorable to the nonmoving party, and is not to make credibility findings. Anderson, 477 U.S. at 255; Bell v. Cameron Meadows Land Co., 669 F.2d 1278, 1284 (9th Cir. 1982). Direct testimony of the nonmovant must be believed, however implausible. See Leslie v. Grupo ICA, 198 F.3d 1152, 1159 (9th Cir. 1999). On the other hand, the Court is not required to adopt unreasonable inferences from circumstantial evidence. See McLaughlin v. Liu, 849 F.2d 1205, 1208 (9th Cir. 1988). Where different ultimate inferences may be drawn, summary judgment is inappropriate. Sankovich v. Insurance Co. of North America, 638 F.2d 136, 140 (9th Cir. 1981).
The moving party bears the initial burden of proof. This burden is met through identifying those portions of the record which demonstrate the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the initial burden is satisfied, the burden shifts to the opponent to demonstrate through the production of probative evidence that there remains an issue of fact to be tried. Id. The facts on which the opponent relies must be admissible at trial, although they need not be presented in admissible form for the purposes of opposing the summary judgment motion. Id.
Deference to the non-moving party does have some limit. The non-moving party “must set forth specific facts showing that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e) (emphasis added). Where “the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.” Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
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The “mere existence of a scintilla of evidence in support of the plaintiff's position would be insufficient.” Anderson v. Liberty Lobby Inc., 477 U.S. 242, 252 (1986). If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted. Id. at 248. However, trial courts should act with caution in granting summary judgment, and may deny summary judgment “in a case where there is reason to believe that the better course would be to proceed to a full trial.” Anderson, 477 U.S. at 255.
B. Plaintiffs’ Eighth Amendment Claim Plaintiffs bring their claim under 42 U.S.C. § 1983, the civil rights statute, which provides in relevant part: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . . subjects, or causes to be subjected, any citizen of the United States . . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. 42 U.S.C. § 1983. “Section 1983 is not itself a source of substantive rights, but merely provides a method for vindicating federal rights elsewhere conferred.” Albright v. Oliver, 510 U.S. 266, 271 (1994) (quotation and internal marks omitted). To state a valid claim under § 1983, a plaintiff must allege a violation of rights protected by the Constitution or created by federal statute proximately caused by the conduct of a person acting under color of state law. Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). In cases claiming an Eighth Amendment violation “based on a failure to prevent harm,” the first, objective component is met if the inmate shows that “he is incarcerated under conditions posing a substantial risk of serious harm.” Clouthier v. County of
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Contra Costa, 591 F.3d 1232, 1242 (9th Cir. 2010) (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)). The second component, punitive intent, is met if the claimant shows that the detention facility official's “state of mind is one of ‘deliberate indifference’ to inmate health or safety.” Id. This is a subjective test, in that “the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Id. “[A]n official’s failure to alleviate a significant risk that he should have perceived but did not, while no cause for commendation, cannot under our cases be condemned as the infliction of punishment.” Id.; see also Gibson v. County of Washoe, 290 F.3d 1175, 1188 (9th Cir. 2002) (“If a person should have been aware of the risk, but was not, then the person has not violated the Eighth Amendment, no matter how severe the risk.”).
Where, as here, inmates claim that a private prison has violated the inmates’ constitutional rights, the plaintiffs must meet the test articulated in Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691–94 (1978). See also Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1138–39 (9th Cir. 2012) (applying Monell to private entities performing state functions). Monell requires plaintiffs to show that the action causing the plaintiffs’ injuries was made pursuant “to official municipal policy of some nature.” Monell, 436 U.S. at 690.
To meet this test, Plaintiffs must go beyond the respondeat superior theory of liability and demonstrate the alleged constitutional deprivation was the product of a policy or custom of the local governmental unit, because municipal liability must rest on the action of the municipality, not the actions of the employees of the municipality. See
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Connick v. Thompson, 131 S.Ct. 1350, 1359 (2011).20 The United States Supreme Court has emphasized that, “[w]here a plaintiff claims that the municipality . . . has caused an employee to [violate a plaintiff’s constitutional rights], rigorous standards of culpability and causation must be applied to ensure that the municipality is not held liable solely for the actions of its employee.” Bd. of Cnty. Comm’rs v. Brown, 520 U.S. 397, 405 (1997). Thus, “a plaintiff seeking to impose liability on a municipality under § 1983” is required “to identify a municipal ‘policy’ or ‘custom’ that caused the plaintiff’s injury.” Hunter v. Cnty. of Sacramento, 652 F.3d 1225, 1232-33 (9th Cir. 2011) (citations and quotation marks omitted). In other words, the policy must have directly contributed to the infliction of the assault upon Plaintiffs and their resulting injuries. Palmer v. Marion County, 327 F.3d 588, 594 (7th Cir. 2003). CCA cannot be held liable under a theory of respondeat superior. See Hayes v. CCA, 2012 WL 4481212 *8 n.9; *18 (D. Idaho Sept. 12, 2012) (“All United States Courts of Appeal addressing this issue have determined that the Monell rule applies to bar respondeat superior liability where defendants are private entities performing state functions,” and CCA “cannot be held liable under a theory of respondeat superior.”).
There are three ways a section 1983 plaintiff may establish municipal liability. Rosenbaum v. City & Cnty. of San Francisco, 484 F.3d 1142, 1155 (9th Cir. 2007). First, the plaintiff may prove that a city employee committed the alleged constitutional violation pursuant to a formal governmental policy or a longstanding practice or custom
20 For purposes of the analysis and for readability, the Court refers to the generally accepted test applicable to municipalities. However, under Tsao, Monell applies to private entities performing state functions. Thus, where the term municipality is used, the Court intends for the reference to apply to CCA.
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“which constitutes the standard operating procedure of the local governmental entity.” Gillette v. Delmore, 979 F.2d 1342, 1346 (9th Cir. 1992). Second, the plaintiff may establish that the individual who committed the constitutional tort was an official “with final policy-making authority” and that the challenged action itself thus constituted an act of official government policy. Id. (citing Pembaur v. City of Cincinnati, 475 U.S. 469, 480-80 (1986)). And finally, the plaintiff may prove that an official with final policymaking authority ratified a subordinate’s unconstitutional decision or action and the basis for it. Id. at 1346-67 (citing City of St. Louis v. Praprotnik, 485 U.S. 112, 123-24 (1988)). The case law makes clear, however, that the unconstitutional discretionary actions of municipal employees generally are not chargeable to the municipality under Section 1983. Id. at 1347.
Under the first theory, there are two types of official municipal policies: “those that result in the municipality itself violating someone’s constitutional rights or instructing its employees to do so, and those that result, through omission, in municipal responsibility ‘for a constitutional violation committed by one of its employees, even though the municipality’s policies were facially constitutional, the municipality did not direct the employee to take the unconstitutional action, and the municipality did not have the state of mind required to prove the underlying violation.’” Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1143(9th Cir. Cir 2012). The United States Court of Appeals for the Ninth Circuit refers to the two types of policies as policies of action or inaction. Tsao, 698 F.3d at 1143.
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A policy of action focuses on the municipality’s policy statement, or decision officially adopted and promulgated by the municipality, which affirmatively directs its employee to commit a constitutional violation. Tsao, 698 F.3d at 1144. For instance, a county policy that directs employees to place aggressive and passive homosexuals in the same jail cell would be in violation of the passive homosexual’s right to personal security. Gibson v. County of Washoe, Nev., 290 F.3d 1175, 1185-86 (9th Cir. 2002).
A policy of omission, in contrast, may be based on a failure to implement procedural safeguards to prevent constitutional violations. Tsao, 698 F.3d at 1143. See also Long v. Cnty. of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); Oviatt v. Pearce, 954 F.2d 1470, 1474 (9th Cir. 1992) (“[A] local governmental body may be liable if it has a policy of inaction and such inaction amounts to a failure to protect constitutional rights.”). A plaintiff can allege that, through its omissions, the municipality is responsible for a constitutional violation committed by one of its employees, even though the municipality’s policies were facially constitutional, the municipality did not direct the employee to take the unconstitutional action, and the municipality did not have the state of mind required to prove the underlying violation. Gibson, 290 F.3d at 1186 (citing City of Canton v. Harris, 489 U.S. 378, 387–89 (1989)). However, because Monell held that a municipality may not be held liable under a theory of respondeat superior, a plaintiff must show that the municipality’s deliberate indifference led to its omission and that the omission caused the employee to commit the constitutional violation. Id.
To prove deliberate indifference, the plaintiff must show that the municipality was on actual or constructive notice that its omission would likely result in a constitutional
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violation. Id. in other words, to prove the policy caused the violation, the plaintiff must show “that the [municipality] could have prevented the violation with an appropriate policy.’” Tsao, 698 F.3d at 1143. Compared to the more direct route to municipal liability based upon a policy of action, “much more difficult problems of proof” are presented in a case where a city employee acting under a constitutionally valid policy violated someone’s rights. Gibson, 290 F.3d at 1186.
Holding municipalities liable in the absence of a formal governmental policy (a Monell claim based upon an omission) appears interchangeable with cases finding liability based upon a custom or practice. In cases discussing custom or practice, a plaintiff may establish a “longstanding practice or custom which constitutes the standard operating procedure of the local governmental entity.” Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996). “[A]n act performed pursuant to a ‘custom’ that has not been formally approved by an appropriate decision maker may fairly subject a municipality to liability on the theory that the relevant practice is so widespread as to have the force of law.” Brown, 520 U.S. at 404 (citing Monell, 436 U.S. at 690-91); Thomas v. Baca, 514 F.Supp.2d 1201, 1206 (C.D. Cal. 2007).
The custom must be the “moving force” behind a plaintiff’s constitutional injuries, which requires the plaintiff to establish that the custom is “closely related to the ultimate injury,” and that the injury “would have been avoided had proper policies been implemented.” Thomas, 514 F.Supp.2d at 1206 (quoting Long v. County of L.A., 442 F.3d 1178, 1190 (9th Cir. 2006)). Even so, liability for an allegedly improper custom may not be predicated upon isolated or sporadic events; rather, “it must be founded upon practices
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of sufficient duration, frequency and consistency that the conduct has become a traditional method of carrying out policy.” Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996).
Under the second theory, municipal liability may be imposed for a single decision by a municipal policy maker under appropriate circumstances. Pembaur, 475 U.S. at 480. In such a case, a single decision by a policy-maker constitutes an act of official government policy. Id. However, not every decision by a municipal officer automatically subjects the municipality to section 1983 liability. Id. at 481. Municipal liability attaches only where the decisionmaker possesses final authority to establish municipal policy with respect to the action ordered. Id. “The fact that a particular official—even a policymaking official—has discretion in the exercise of particular functions does not, without more, give rise to municipal liability based on an exercise of that discretion. The official must also be responsible for establishing final government policy respecting such activity before the municipality can be held liable.” Id. at 481-83.
“[W]whether a particular official has ‘final policymaking authority’ is a question of state law.” Praprotnik, 485 U.S. at 123. And, it is the Court’s responsibility to identify those officials whose decisions represent the official policy of the local governmental unit. Jett v. Dallas Indep. School Dist., 491 U.S. 701, 737 (1989). Thus, municipal liability under Section 1983 attaches only if a deliberate choice to follow a course of action from among various alternatives is exercised by the official or officials responsible for establishing final policy with respect to the subject matter in question. Pembaur, 475 U.S. at 483 (finding municipal liability attached when the county prosecutor made a
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decision and directed the officers to forcibly enter the petitioner’s clinic, causing a violation of petitioner’s Fourth Amendment rights).21
Finally, under the ratification doctrine, a single decision by a municipal policy maker that ratifies unconstitutional conduct may be sufficient to trigger municipal liability under Section 1983. Praprotnick, 485 U.S. at 127. Here, it does not appear Plaintiffs argue the ratification theory. Rather, they contend the policies adopted by CCA regarding staffing and gang clustering, or the decision of a policy maker with regard to implementation of the gang clustering policy, caused the constitutional deprivations at issue. Accordingly, the staffing and housing policies will be examined in turn under the above standards.
(1) Staffing Knowledge of prison under-staffing and a decision not to increase the number of guards on duty may amount to deliberate indifference to the safety and well-being of prison inmates, in violation of the Eighth Amendment. See Edwards v. Gilbert, 867 F.2d 1271 (11th Cir. 1989). Understaffing of correctional officers increases the risk of inmate on inmate violence. Miles v. Wilkinson, 2013 WL 55922412 (W.D. La. 2013). To prevail, Plaintiffs must prove CCA had a policy of deliberate indifference to the risk of understaffing and that this policy caused their injuries. Greason v. Kemp, 891 F.2d 829, 838 11th Cir. 1990). When understaffing appears to have contributed to a violation of an
21 However, contrast the example where county employment policy set by a board or commission is carried out by the Sheriff, who exercises discretion to hire and fire employees. In that example, only the board or commission could set employment policy. But the act of the Sheriff, who may exercise his or her discretion in an unconstitutional manner, would not subject the board to liability under Monell if the policy set by the board was otherwise constitutional. Pembaur, 475 U.S. at 483 n.12.
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inmate’s Eighth Amendment rights, a causal link exists between that violation and the prison’s policy if officials are aware of the staffing problem but fail to take corrective action. See Greason v. Kemp, 891 F.2d 829, 837 n.18 (11th Cir. 1990). But, evidence of understaffing, without more, is not proof of official policy. Anderson v. City of Atlanta, 778 F.2d 678, 687 (11th Cir. 1985).
Generally, prison staffing is understood in concert with overcrowding, and a corresponding increase in inmate violence. For example, if there is an increase in population without a corresponding increase in staff, “it is inevitable that some violence will occur because there are too few officers to observe and protect too many inmates.” Capps v. Atiyey, 559 F. Supp. 894, 904 (D. Or. 1983). Courts generally look at the level of violence, and whether it is high enough to warrant an inference that the state (or here, CCA) is deliberately indifferent to inmate safety when understaffing is an issue. Capps, 559 F. Supp. at 904. See also Balla v. Idaho State Bd. Of Corrections, 595 F. Supp. 1558, 1573 (D. Idaho 1984) (finding understaffing along with overcrowding one of the principal causes of violence at ISCI).
Plaintiffs first state their lawsuit has never hinged upon whether the DEF Unit was actually understaffed on May 5, 2012, and seek to rely upon the pervasive understaffing within ICC in the years leading up to the May 5, 2012 attack, which was resolved by virtue of the Kelly settlement. Pls.’s Response to Def.’s Mot. to Exclude (Dkt. 183 at 13.) Plaintiffs argue CCA was on notice of widespread staffing problems as evidenced by the Kelly settlement, which ultimately led to a finding of contempt on September 16, 2013, when staffing levels failed to meet the settlement requirements adopted in Kelly. Kelly v.
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Wengler, No. 1:11-cv-185-EJL, Dkt. 76 (D. Idaho Sept. 16, 2013).22 Further, Plaintiffs
contend that the 2010 nickname of ICC as the “gladiator school” placed CCA upon notice
that violence related to staffing levels was an issue at the prison.
However, even assuming these facts against the backdrop of Kelly, which conditions existed in 2010, 2011, and the first half of 2012,23 Plaintiffs fail to explain
how the actual staffing pattern on May 5, 2012, in the DEF Unit caused Plaintiffs’
injuries, other than speculating that more staff or a different makeup of staff would have
prevented it. Additionally, although there is statistical evidence in the record about the
level of violence occurring at ICC during those years, Plaintiffs argued, and the Court
agreed, that the statistical evidence introduced via the affidavit of Kevin Myers was
irrelevant. The violence statistics analyzed the prison as a whole, and compared the level
of violence at ICC to ISCI, an entirely different environment than the one existing at ICC.
Further, there was no statistical analysis concentrating on the DEF Unit itself, which is a
close custody unit having completely different conditions than ICC’s general population.
Thus, reliance upon the violence statistics which were prepared and reviewed in the
context of Kelly is unpersuasive here.
22 In light of the oversight provided by Judge Carter in Kelly, and the sanctions imposed, it is difficult for the Court to understand why Plaintiffs would be entitled to injunctive relief here regarding staffing issues. It would appear that Judge Carter in the context of Kelly would be the appropriate venue to address understaffing concerns. 23 For instance, Plaintiffs cite to Kevin Myers’s admission that in July of 2010, almost two years prior to the incident here, CCA was aware that excessive overtime was an issue. Myers Depo. at 42 (Dkt. 188-2 at 70.) Plaintiffs cite also to Shane Jepsen’s testimony that, during 2008 – 2013, there was insufficient staff in general, but Mr. Jepsen does not testify specifically as to staffing requirements in the DEF Unit. Jepsen Aff. ¶¶ 5, 13, (Dkt. 143-16 at 2) (indicating that “in general” it was common in 2010, 2011 and 2012 that 17 positions could not be filled, but failing to identify which positions and where; indicating that in 2010 and 2011, IDOC contract monitors “expressed concern” about the level of staffing, but failing to set forth specific facts.). And finally, Plaintiffs refer to an email between Kevin Myers and Mr. Conry wherein Mr. Myers requested an “additional 15-20 full time staff members” for ICC, and that the DEF Unit needed more staff. Myers testified, however, that this email was sent in May of 2010, two years prior to the incident here. Myers Depo. at 30 (Dkt. 188-2 at 69.) The temporal disconnect and lack of specifics renders proof of causation impossible.
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Furthermore, Plaintiffs’ use of the understaffing findings in Kelly in an apparent attempt to establish a necessary element of their own claims is questionable. Burningham v. CCA, No. 1:13-cv-443-EJL-REB, slip op. at 18 n.9 (D. Idaho Aug. 18, 2015) (explaining plaintiff’s use of another case to establish his Eighth Amendment failure to protect claim was improper and insufficient to create a triable issue of fact, which is centered on how the alleged violence caused him personal injury and harm.). This is especially apparent when the Court examines the allegations in Kelly and compares them to the allegations in this matter, and reviews the timing of events.
The Kelly complaint, filed on February 21, 2011, focused on the violence occurring at ICC during the five years prior to the filing of the complaint in 2011. The allegations concerned the level of violence in the west and north wings of the prison, where the general population was housed. The complaint alleged that CCA staffed the North Wing, which housed 250 inmates, with two guards and the West Wing, which housed 350 inmates, with two guards. In contrast, the DEF Pod houses close custody inmates on lock down twenty-two out of twenty-four hours each weekday.
Next, the settlement in Kelly was reached on September 20, 2011. In contrast, the DEF Pod did not begin operations until 2009, and the attack against Plaintiffs occurred on May 5, 2012, after the Kelly settlement had been approved and the Court began monitoring conditions at ICC in an attempt to rectify the violence. Thus, the comparison is not only factually distinct, there is a temporal disconnect between the violence that existed prior to the filing of the Kelly complaint and the attack that occurred here. Plaintiffs’ reliance upon Kelly and its findings regarding violence in the general
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population is therefore improper and insufficient to create a triable issue of fact in this matter.
Next, Plaintiffs’ expert testimony24 related to staffing is extremely weak. “Assuming without deciding that expert testimony could provide an adequate factual basis to meet the Farmer standards of deliberate indifference,” the Court finds it inadequate. Giron v. CCA, 14 F.Supp.2d 1252, 1258 (D. N.M. 1998). Pam Sonnen’s expert report contains several assumptions regarding staffing at ICC. (Dkt. 165-4). First, she makes the assumption that the DEF Unit is “required to have eight staff” in the housing unit, but that on the day of the incident, the unit was down “two staff,” because the Sergeants (Sharp and Carrick) took “floor” positions instead of their usual sergeant positions.25 Second, Sonnen is of the opinion that “in the years leading up to the incident,” there were “frequent periods of understaffing,” which lead to a “breakdown of institutional control.”
In Sonnen’s opinion, “inconsistent staffing” patterns allow inmates to plan and execute violence because they may exploit the situation. Sonnen makes the assumption that, in a “properly managed prison there are an adequate number of trained staff,” who enforce prison rules. Sonnen concludes that the “persistent understaffing” and resultant “lack of institutional control” in the years leading up to the May 5, 2012 attack created a situation that invited violence, and CCA’s failure to correct the institutional problems
24 Although CCA has raised numerous objections to the Court’s consideration of Sonnen’s and Hepburn’s reports, the Court will not expressly address them. The expert testimony, relied upon by Plaintiffs, is inadequate to create a genuine issue of material fact. 25 Her conclusory statement directly contradicts the facts, as explained below, that there were eight staff present in DEF Unit during first shift, and upon Sharp’s departure to acquire candy bars, seven remained at the time of the incident.
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was deliberate. Similarly, Hepburn concludes staff turnover, and the loss of experienced staff, resulted in the loss of staff’s ability to maintain security and control of the prison.
Sonnen’s and Hepburn’s conclusory statements that inconsistent staffing patterns, staff turnover, and periods of understaffing, which would not be present in a “properly managed” prison, do not meet the “heavy burden” of establishing that CCA knew of and disregarded a substantial risk of serious harm to inmate health or safety under the facts here. Giron, 14 F.Supp.2d at 1258-59. See also Clouthier v. County of Contra Costa, 591 F.3d 1232, 1252 (9th Cir. 2010) (finding expert’s conclusory assertions about the failure of staff to communicate effectively insufficient to avoid summary judgment).
Plaintiffs next attempt to characterize the staff present on May 5, 2012, as inadequate under various contractual theories. However, even if the DEF Unit was theoretically consistently understaffed as a contractual matter, Plaintiffs fail to explain how a breach of contract unequivocally constitutes a constitutional violation. Plaintiffs’ disagreement with CCA’s contractual staffing requirements is insufficient to meet their burden of creating a genuine issue of material fact as to whether CCA was deliberately indifferent to Plaintiffs’ constitutional rights. Batista v. Columbia County, 2013 WL 5675214 *5 (D. Or. Oct. 17, 2013).
Further, Plaintiffs’ contractual theory utterly fails to pass muster under the facts. Plaintiffs do not dispute that the minimum staffing requirements required by the IDOC’s contract with CCA included one pod control officer and four floor officers. Yet, CCA had more staff than required during first shift on May 5, 2012. The facts establish that eight staff members were on duty in F1 Pod the day of the attack, and at the precise time of the
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attack, seven staff members were present due to the absence of Sergeant Sharp, who left the Pod for Master Control to obtain more candy bars. Plaintiffs have failed to articulate how CCA’s alleged policy of understaffing, when CCA on the day of the attack had more officers than the one pod control and four floor officers contractually required, caused the injuries of which they now complain. See Batista, 2013 WL 5675214 * 5 (denying summary judgment on a Monell understaffing claim when the evidence indicated that, at the time of the attack, the jail’s staffing and inmate supervision exceeded minimum standards set forth under jail policy).
Plaintiffs then segue into the alleged understaffing on the day prior to the attack, May 4, 2012, which under Plaintiffs’ theory, allowed an inmate to rig the lock on the janitor closet door. Plaintiffs argue that Campos, the inmate who rigged the door, was “unsupervised,” suggesting staffing should be a 1:1 ratio for all inmates to be “supervised.” The Constitution does not require “supervision” of that nature. But, assuming the DEF Unit was understaffed on May 4, 2012, Plaintiffs cannot overcome the uncontroverted facts of May 5, 2012. The abundance of staff on May 5, 2012, more than alleviates the prior day’s alleged understaffing that somehow allowed Campos to rig the closet door.
Further, the type of attack at issue here undermines Plaintiffs’ theory. Six inmates let out for recreation, part of a sixteen inmate walk, were able to hide in the janitor’s closet in plain view of the surveillance cameras after Officer Skogsberg was distracted. The video surveillance shows Officer Skogsberg just prior to the attack checking the janitor closet door, but failing to actually open it. Officer Skogsberg also did not check
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whether any inmates from Delta walk actually remained in their cells. The recreation officer failed to count the inmates who left the dayroom for recreation. Then, Skogsberg let the Charlie walk inmates out for dayroom time.
Plaintiffs’ injuries result from these critical errors rather than from understaffing, and Plaintiffs have not differentiated their claim of understaffing from the above incidents of correctional officers not performing their jobs correctly. CCA cannot be held liable for isolated acts of negligence or misconduct. Anderson v. City of Atlanta, 778 F.2d 678, 685 (11th Cir. 1985). Plaintiffs offer nothing more than conjecture on the part of prison employees, such as Higgins, Carrick, and Sharp, who complain they were unable to perform their duties because the DEF Unit was “understaffed,” needed more staff to be safe, and there should have been another person to help hand out candy bars that day.26 But, despite their complaints that, because of understaffing, officers could not perform their required duties, the video surveillance footage depicts Skogsberg actually performing the required door and cell checks, albeit inadequately, with enough time to check the closet door and the cell doors before the Charlie walk inmates were released from their cells. Put simply, there is a disconnect between what actually occurred and the understaffing claims.
26 For instance, Plaintiffs argue that the strain on the employees of ICC as a result of lack of staff caused a decrease in job performance and an inability to enforce rules, such as prohibiting inmates from covering their cell windows. SOF ¶ 55 (Dkt. 188-1 at 17.) However, Warden Wengler testified that the officers working in DEF had adequate time and resources to address problems with inmates covering their windows prior to May of 2012, because the number of incidents was decreasing. Wengler Depo. at 230 (Dkt. 188-2 at 61.) Further, Rodriguez testified she was attempting to reverse the trend of officers not enforcing the rules, and officers should have been opening the janitor closet door, not just checking to see if it was locked.
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And finally, Plaintiffs argue the attack that occurred eleven months earlier evidences their claim of understaffing. However, Plaintiffs do not rely upon any policy other than their claim that the prison as a whole was understaffed to explain why such an incident occurred again. Plaintiffs contend that understaffing meant officers lacked sufficient time to complete their duties, such as counting prisoners, or checking cells. But the video surveillance just prior to the attack belies their assertion. Officer Skogsberg had sufficient time to check the janitor closet door and the cells from which the Delta walk inmates exited prior to giving the signal for the release of the Charlie walk inmates. Anderson is posted at the recreation door to allow the Delta walk inmates to exit the pod, and fails to notice that six out of sixteen inmates are missing. Thus, although similar to a prior incident, the May 5, 2012 attack appears to be an isolated incident (albeit a second one) that takes advantage of Officer Skogsberg’s negligence that day in allowing himself to be distracted twice by two inmates, failing to check the janitor closet door adequately by opening it, and Anderson’s failure to account for six of sixteen inmates let out for recreation.
Having ten officers, or even twenty officers, within F1-Pod would not have reversed the critical errors by the two officers responsible for the movement of the sixteen Delta walk inmates for recreation on the morning of May 5, 2012. Nor would the persistent understaffing that Plaintiffs claim existed in the years leading up to the May 5, 2012 attack have changed or altered the mistakes made by the officers responsible for prisoner movement on May 5, 2012. And finally, a generalized claim of understaffing, the prison being unsafe, or that guards were scared to be posted in DEF Unit, does not
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alter the undisputed fact that seven (possibly eight, depending upon where Worthington was stationed) officers were posted in F1 Pod at the time of the attack, and those eight officers were responsible for only sixteen inmates released from their cells. See Doe v. Sullivan County, Tennessee, 956 F.2d 545, 550 (6th Cir. 1992) (declining to conclude that evidence presented of overcrowding, the need for more jailers, and the lack of security checks conducted every thirty minutes caused the assault upon plaintiff; “more is required than plaintiff’s naked assertion that the assault would not have occurred but for the offensive conditions,” and upholding district court’s determination that there was no causal relationship between injuries and alleged overcrowding); Cotta v. County of Kings, 2015 WL 106362 *22 (E.D. Cal. Jan. 7, 2015) (reviewing jail’s staffing policy at time of attack, and finding no evidence that the need to remedy the staffing policy was “so obvious” and the policy so inadequate so as to result in the violation of constitutional rights); Miles v. Wilkinson, 2013 WL 5592412 (W.D. La. 2013) (failure to provide evidence of a policy of understaffing, coupled with failure to prove that the prison was not properly staffed on the day of the attack, was fatal to the plaintiff’s eighth amendment failure to protect claim); Gachett v. Rogers, 2009 WL 2905609 *8-9 (M.D. Ala. Sept. 4, 2009) (“occasional isolated attacks by one prisoner on another may not constitute cruel and unusual punishment”); compare Anderson v. Wilkerson, 2009 WL 774451 4 (W.D. La. Mar. 24, 2009) (denying summary judgment on plaintiff’s understaffing claim where, on the night of the attack, two correctional officers were in charge of eight tiers of inmates housed in dormitories consisting of 352 inmates).
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Even if the Court assumes all of Plaintiffs’ allegations are true, Plaintiffs have not described the “kind of obvious and horrible conditions from which inferences can lead to inescapable liability” given the attack involved an isolated incident of violence in a close custody unit. See Giron v. CCA, 14 F.Supp.2d 1252, 1258 (D. N.M. 1998) (granting summary judgment to defendant when prison inmate alleged her assault was caused by understaffing in the segregation unit of the prison). The conditions complained of in a generalized sense, that the prison was understaffed and officers could not do their jobs, do not equate to a policy, and “simply do not compare with the level of dangerousness contained in the caselaw that has been found to mandate liability.” Giron, 14 F.Supp.2d at 1258 (citing Hutto v. Finey, 437 U.S. 678 (1978), reh. den. 1979 (prison conditions included extreme overcrowding, rampant violence, insufficient food and unsanitary conditions.)).
Plaintiffs’ conclusory statements that more staff, additional sergeants, or other types of officers, such as counselors, should have been present to thwart the attack, do not create a material issue of fact to defeat summary judgment. From the record, it is plain CCA maintained an overall 2:1 ratio of prisoners to staff in F1 Pod on the day of the attack. On a more granular level, two officers were responsible for the movement of sixteen inmates who were otherwise locked in their cells. The Court cannot conclude that a different configuration of staff, whether it be more Sergeants or less floor officers, the presence of yet more staff, or some other permutation of staff, of which CCA should have been aware, constituted an objectively inhumane prison condition that was the moving force, or cause, of the May 5 attack.
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(2) Gang Clustering There is no dispute that prison gangs or groups of friendly inmates, like the Plaintiffs, were grouped together in their own walks within the DEF Unit, and the practice of the housing manager, Norma Rodriguez, to house friendly gang members or friendly inmates together was likely occurring in contravention of established prison policy regarding STGs. However, even assuming CCA knew of this practice in contravention of its written policies, Plaintiffs have failed to address how the housing practice itself caused Plaintiffs’ injuries, or to distinguish persuasive authority from other courts holding that a policy of grouping gangs together is not a per se Eighth Amendment violation. Plaintiffs’ theory of gang clustering suffers also from a lack of clarity. Although Plaintiffs allude to different theories upon which their gang clustering claim is based, their submission in opposition to CCA’s motion for summary judgment fails to address in a succinct way the three distinct methods upon which a Section 1983 plaintiff may establish municipal liability. Accordingly, the Court will analyze each theory separately.
(a) Formal Policy Whether a municipality’s policies violate an individual’s rights “does not hinge on whether County policymakers knew that the County’s policies would pose a substantial risk of serious harm to [the plaintiff] in particular. As long as a jury can infer that the policymakers knew that their policy … would pose a risk to someone in [the plaintiff’s] situation,” summary judgment should not be granted to the municipality. Gibson, 390 F.3d at 1191. Thus, what Rodriguez knew about Plaintiffs’ gang affiliation,
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or their individual histories with the AKs in F1 Pod, is not relevant to the Court’s determination under a formal policy theory.27 Instead, Plaintiffs must show the policy itself constitutes deliberate indifference, not Rodriguez’s determination that Plaintiffs were specifically at risk if they moved to F1 Pod. Stover, 2015 WL 874288 at *9-10 (considering housing policy issue with respect to CCA’s liability, and the failure to protect claims against defendants Wengler and Kerr as to their subjective knowledge, separately). Accordingly, the minutia of Rodriguez’s decision to move Plaintiffs to F1 Pod is not relevant under this theory. See Farmer, 511 U.S. at 843-44 (“it does not matter…whether a prisoner faces an excessive risk…for reasons personal to him or because all prisoners in his situation face such a risk” and when prison officials know of rampant inmate rape and do nothing about it, “it would obviously be irrelevant to liability that the officials could not guess beforehand precisely who would attack whom.”).
Stover v. CCA, 2015 WL 874288 *9 (D. Idaho Feb. 27, 2015), illustrates the application of the rule, and explains why Rodriguez’s particularized knowledge about Plaintiffs’ gang affiliation is irrelevant under the official policy theory. In Stover, the Court considered whether CCA’s policy of housing all sex offenders together in the same unit constituted deliberate indifference when a male-to-female transgender prisoner was placed in an open dorm setting pursuant to such policy with 58 other male sex offenders. Stover, 2015 WL 874288 at *9. The Court considered separately the failure to protect claims asserted against individual defendants Wengler and Kerr.28 The question about the
27 This is because Plaintiffs have not sued any individuals, as explained later in the Court’s Report. 28 Plaintiffs here do not assert claims against any individually named defendants.
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constitutional infirmity of the policy was not related to Wengler’s and Kerr’s actual knowledge, such as the letters plaintiff had written to Wengler that did not give Wengler or Kerr any specific information about threats directed at plaintiff by other inmates. In other words, the particularized knowledge that the plaintiff imparted, or in that case failed to impart, to Wengler and Kerr was not relevant to the policy based inquiry.
Instead, the plaintiff’s claim was viewed through the lens of the policy Wengler and Kerr implemented, which required all sex offenders to be housed together in the same unit. Id. at *10. Wengler and Kerr were both aware that the plaintiff was a transgender prisoner, and she was housed in an open dorm with up to 58 other male sex offenders. Id. The Court considered only those facts, which related to the housing policy itself and not to any particularized knowledge about the plaintiff actually being threatened by others in the dormitory.
The Court concluded the evidence in Stover established that, by virtue of the policy itself and a transgender female’s feminine characteristics among a group of male sex offenders, a jury could reasonably conclude that Wengler and Kerr subjectively drew the inference that the plaintiff faced a substantial risk of serious harm at the hand of the other sex offenders, yet Wengler and Kerr deliberately disregarded that risk. Id. at *10. The Court concluded disputed and genuine issues of fact existed as to whether subjecting a male-to-female transgender prisoner to such a policy amounted to deliberate indifference to the safety of the transgender prisoner, and that a jury could reasonably conclude that the housing policy itself was the moving force behind the alleged violation of the plaintiff’s constitutional rights. Id. at *9.
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Here, Plaintiffs must show that the practice of allowing inmates to choose “walks” and of grouping friendly gang members together in gang controlled walks in DEF Unit was the moving force behind the alleged violation of Plaintiffs’ constitutional rights. Plaintiffs must prove that a jury could reasonably conclude ICC’s practice of housing friendly gang members or groups of inmates together in DEF Unit amounted to deliberate indifference and was the moving force behind Plaintiffs’ injuries. See Id. at *9.
Plaintiffs’ gang clustering theory, as set forth in their brief, centers around the high concentration of SVC and AK gang members housed in DEF Unit, and the integration of non-affiliated offenders into DEF Unit who refused to associate with the SVC or AK gangs. According to Plaintiffs’ theory, the gang clustering occurring in the DEF Unit meant there was a risk to non-affiliated members housed in the Unit, because they might be recruited or attacked if they refused to associate with the SVC or AK gang members.
There are several legal impediments to Plaintiffs’ theory. Persuasive authority exists that a jury cannot reasonably conclude Rodriguez’s practice of allowing inmates to be grouped together amounts to deliberate indifference. Plaintiff’s first argument appears centered around allowing inmates to choose their bunk mates, because such a practice creates gang clustering in the DEF Unit. But, in a case involving an explicit policy allowing inmates to choose their bunk assignments, the Court of Appeals for the Seventh Circuit in Washington v. LaPorte County Sheriff’s Dept., 306 F.3d 515, 518 (7th Cir. 2002), found the assertion of the plaintiff’s claim did not satisfy the subjective nature of a deliberate indifference inquiry under Farmer v. Brennan, 511 U.S. 825 (1994). In LaPorte, the plaintiff alleged that allowing inmates to choose their own bunks created a
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high probability of inmate-on-inmate assault. The court explained Farmer requires “actual knowledge of the risk,” a subjective inquiry, showing that prison guards were aware of a substantial risk that the plaintiff might be harmed as a result of implementation of the policy. Washington, 306 F.3d at 518. The court held the jail policy allowing inmates to choose their bunk mates did not present such an obvious risk such that actual knowledge on the part of prison officials could be inferred. Washington, 306 F.3d at 519.
Similarly, in Cotta v. County of Kings, 79 F.Supp.3d 1148 (E.D. Cal. 2015), the court considered a claim brought against the county and county jail officials alleging inadequate safety at the jail violated the inmate’s constitutional rights when he was killed by his cellmate. There, prison officials housed the decedent and his co-defendant together in a cell. The decedent had made multiple requests to be housed with his co-defendant, and both inmates made it clear to jail officials they were friends and wanted to be housed together. Prison officials reviewed the inmates’ files, and lacking any knowledge that there had been any altercations between the two, the officials made the move. Although jail policy generally discouraged co-defendants from being housed together, neither did it prohibit housing co-defendants together. Later, one bunk mate testified against his codefendant at trial, and between their conviction and sentencing, the testifying defendant was killed by his bunkmate and co-defendant.
Plaintiff alleged the jail lacked a policy to affirmatively gather evidence and information concerning co-defendants’ legal proceedings that may bear on the jail’s decision to house co-defendants together, and the jail lacked a policy to ensure
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communication of such information to housing authorities. The court in Cotta held that the housing of co-defendants together did not per se constitute deliberate indifference to inmates’ security. 79 F.Supp.3d at 1174. The court further found there was no evidence, such as a general history of violence among co-defendants housed together at the jail, to place the county on notice that lack of a policy requiring jail officials to proactively gather evidence concerning co-defendants’ legal proceedings presented a risk so obvious that ignoring it amounted to deliberate indifference. Id.
Based upon LaPorte and Cotta, the risk of injury posed by allowing inmates to choose their housing assignments is not such an obvious risk that prison officials here should have recognized the harm posed by implementation of such a practice.
The next theory Plaintiffs advance is that Rodriguez’s practice of housing inmates in DEF Unit resulted in placing non-affiliated offenders into DEF Unit with STG clusters, or gangs. However, such a policy was expressly considered by the United States Court of Appeals for the Ninth Circuit, and the plaintiff’s constitutional claims rejected. In an unpublished Ninth Circuit case, the court had occasion to consider whether a formal housing policy that segregated gangs from each other violated the Eighth Amendment. Nesbit v. Dept. of Public Safety, 283 Fed. Appx. 531, 2008 WL 2490440 (9th Cir. 2008). There, the plaintiff alleged the Halawa Correctional Facility’s housing policy violated his Fourteenth Amendment right to equal protection by segregating rival gangs from each other but affording no separation to unaffiliated inmates.
The court in Nesbit held prison officials could rationally believe housing segregated prison gangs with unaffiliated inmates would be an effective way to reduce
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gang-related violence. 283 Fed. Appx. at 534. As to the Eight Amendment claim, the court held plaintiff failed to demonstrate the housing policy itself amounted to deliberate indifference, because nothing indicated unaffiliated inmates were at a significantly greater risk of assault when housed with separated gang members. 283 Fed. Appx. at 534. The court therefore held summary judgment was properly granted as to the named defendants. Id.
Similarly, in Labatad v. CCA, 714 F.3d 1155, 1160 (9th Cir. 2013), the Ninth Circuit discussed the plaintiff’s claims that actions taken by correctional officials at the Saguaro Correctional Center violated his Eighth Amendment rights when he was assaulted by a member of a rival prison gang, with whom he was temporarily assigned to share a cell. Plaintiff sued CCA and various other employees of the prison, challenging both the decision to house him in the same cell with a rival gang member, and the general policy that allowed rival gang members to be housed together. There, the prison did not have a policy of separating rival gang members in cell assignments. Instead, gang affiliation was but one factor in the case-by-case evaluations used to make cell assignments. The plaintiff sought to change CCA policies to require separation of inmates by gang affiliation, exactly what Plaintiffs suggest here is improper.
The Ninth Circuit upheld the district court’s conclusion that the prison’s policy permitting members of different gangs to be housed together was not itself an Eighth Amendment violation. Labatad, 714 F.3d at 1160. If the prison was required to separate gang members by gang affiliation, “among other problems, ‘[t]he number of gang members housed…and the high representation of certain gangs would place an
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unmanageable burden on prison administrators were they required to separate inmates by gangs.’” Id. (quoting Mayoral v. Sheahan, 245 F.3d 934, 939 (7th Cir. 2001)). See also Ellington v. E.S. Alameida, 2010 WL 2650632 *14 (E.D. Cal. July 1, 2010) (holding “plaintiff has failed to present evidence or cite any authority establishing that housing a non-affiliated inmate in the same cell as a gang-affiliated inmate will inherently present ‘a substantial risk’ that the non-affiliated inmate will be physically assaulted or harmed…Without more, plaintiff’s conclusory assertions regarding the ‘substantial danger’ of housing gang-affiliated and non-affiliated inmates in a cell together do not satisfy the objective component of Farmer.”). The court addressed separately whether individual prison officials were deliberately indifferent to a substantial risk that the plaintiff would be assaulted if housed in the same cell. Labatad, 714 F.3d at 1161.
Considering Nesbit and Labatad as persuasive authority, the Court here cannot conclude that housing gang members and non-affiliated groups together in the DEF Unit the way Rodriguez did—into groups separated into 16-inmate walks—inherently presented a substantial risk that a non-affiliated inmate would be physically assaulted or harmed as a consequence of the practice itself. This is true given the physical layout and control over inmates in the DEF Unit—groups of 16 inmates were separated by walks and not allowed to intermingle either during their dayroom or recreation time, in contrast to the inmates in Labatad, who actually shared a cell. The physical layout and movement pattern of inmates housed in the DEF Unit was such that inmate assaults of the nature experienced by Plaintiffs would be all but impossible, unless someone hid in the closet or the shower. Further, because of the nature of the attack, Plaintiffs’ housing policy
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argument is inappropriately premised upon two instances of gang versus gang violence where inmates from one walk took advantage of a correctional officer’s mistake, and hid in a closet to attack another set of inmates. It cannot be said that Rodriguez’s practice of separating rival gang members into walks caused the harm to Plaintiffs.
Rodriguez’s practice of housing gang members on a separate walk within the DEF Unit does not amount to deliberate indifference, because there was nothing inherent in the practice that indicated one walk of friendly inmates housed together was at any greater risk because another walk of inmates with a different gang affiliation was also housed on another, secured walk within the DEF Unit. Rodriguez’s practice actually accounted for the risk of housing targeted inmates with members of a vengeful prison gang, and separated them by housing them on secured walks where there was to be no interaction between the walks. Plaintiffs point only to their own assault, and that eleven months earlier, a similar attack occurred in the DEF Unit. But these facts do not demonstrate anything more than two isolated incidents of inmate-on-inmate violence in the context of the DEF Unit, which housed a higher percentage of STGs and gang members in close custody.29 Thus, although the assault that occurred is tragic, it cannot reasonably be said that Rodriguez’s practice was the cause, or moving force, behind the assault.
The Court has been careful to characterize Rodriguez’s decision to place Plaintiffs in the DEF Unit on their own walk as a practice she employed, because CCA actually had
29 Plaintiffs presented no violence statistics pertinent to DEF Unit, and objected to the violence statistics offered by CCA as irrelevant.
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a written policy requiring STGs to be disbursed throughout the prison. In other words, CCA had a contrary, written policy directing staff to disburse suspected members of specific STGs and not concentrate them in any housing unit, although the written policy gave some leeway to close custody units where one would expect a higher percentage of STGs.30 Thus, if Plaintiffs argue Rodriguez’s practice was deficient because gangs should have been disbursed, Plaintiffs essentially argue CCA could have prevented the violation if Rodriguez had followed written CCA policy. However, if Plaintiffs advance that argument, liability is premised upon Rodriguez’s negligent failure to follow policy—a respondeat superior argument—which is not tenable. Connick v. Thompson, 131 S.Ct. 1350, 1359 (2011) (municipal liability must rest on the action of the municipality, not the actions of the employees of the municipality).
Perhaps not realizing the nuances of the policy argument Plaintiffs advanced, Plaintiffs explained at the hearing that Rodriguez’s actual decision to place Plaintiffs in the DEF Unit was deficient. In other words, Plaintiffs explained they were not asserting either CCA’s written policy, or Rodriguez’s contrary practice to group offenders together by gang affiliation, were per se violations of the Eighth Amendment. Rather, Plaintiffs argued Rodriguez knew it was dangerous to place anyone, including Plaintiffs, in the DEF Unit because of the high concentration of AKs and SVCs housed there and the general environment the AKs and SVCs were fostering at the time.
30 At the hearing, Plaintiffs stressed that Rodriguez was not following written CCA policy, because it was a violation of ICC policy to cluster gangs, and instead asserted Rodriguez had implemented her own practice of clustering gangs in DEF Unit.
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IDOC’s summary of Rodriguez’s interview shortly after the May 5, 2012 assault supports the inference that Rodriguez had particularized knowledge the AKs and SVCs were actively recruiting on the tier, and it was imperative to place a group of inmates on the tier that would not turn AK, SVC, or Sureño. (Dkt. 1-2 at 1.) Once the YFS Plaintiffs were identified as “solid,” meaning they would not be subject to gang recruitment, Rodriguez went through the process of re-housing them by meeting with the team responsible for implementing inmate moves. At that point, Rodriguez’s particularized knowledge becomes important, as do the grievance forms, interviews with inmates, and what staff allegedly did or did not know about the specific risk to Plaintiffs posed by the AKs and SVC gang members housed in DEF Unit.
The inherent, fatal problem with Plaintiffs’ argument is Plaintiffs did not sue Rodriguez or any other decision maker, including Assistant Warden Kessler, individually. And, Plaintiffs argue that, by not following applicable ICC written policies, Rodriguez and others knowingly placed Plaintiffs in harm’s way. Plaintiffs’ argument unambiguously rests upon a respondeat superior theory of liability. The argument and the facts advanced to support it improperly focus upon Rodriguez’s individual decision to place Plaintiffs in the DEF Unit, which is not a policy-based claim against CCA either as framed or as argued. See Burningham v. CCA, No. 1:13–CV–00443–EJL–REB, 2015 WL 5460601 (D. Idaho Sept. 10, 2015) (granting CCA’s motion for summary judgment when the crux of the plaintiff’s claim was ICC staff members did not do what they were
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supposed to do, and failed to follow policy; plaintiff’s failure to sue the individual defendants was similarly fatal).31
The Court’s decision in Hayes v. CCA, No. 1:09–cv–00122–BLW, 2012 WL 4481212 (D. Idaho Sept. 28, 2012), illustrates how a plaintiff may be successful against individual tortfeasors, but have his or her claims dismissed against the entity. In Hayes, Plaintiff sued CCA, as well as its employees, for failure to protect him from harm under the Eighth Amendment. Plaintiff alleged that ICC housing pods ABC and JKL within the prison had notorious reputations for assaults against inmates convicted of sex crimes, and having committed a sex crime, plaintiff was improperly housed in A and K Pods. Plaintiff established he was threatened four times in a seven-month period when he was housed in the so-called “Gladiator Pods,” and reported those incidents in writing, yet ICC staff denied the plaintiff’s request for protective custody. The Court found genuine issues of material fact existed to preclude the individual defendants involved in deciding the plaintiff’s housing placement from obtaining summary judgment. 2012 WL 4481212 at *16.
But, as against CCA, the Court held the plaintiff failed to establish causation because, despite the potential liability of the individual defendants, CCA could not be held liable under a theory of respondeat superior. Id. at *18. Because the plaintiff had not sufficiently alleged CCA executed an official policy or unofficial custom which inflicted
31 Interestingly, in Burningham, plaintiff made allegations similar to the ones Plaintiffs allege here---that CCA had allowed and fostered a reputation in its operation of ICC allowing prisoner-on-prisoner violence; it was known as the Gladiator School; and that CCA’s unwritten standards and practices had become so widespread and persistent as to constitute a policy or custom. 2015 WL 5460601 at *11. Even considering the plaintiff’s allegations constituted a “policy”, the Court found Plaintiff’s general arguments concerning an alleged policy or custom at CCA that fostered his injuries to be “conclusory and, therefore, lacking.” Id. at *12.
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the injury of which the plaintiff complained, CCA was entitled to summary judgment. Id. The Court rejected the plaintiff’s allegation that ICC staff were failing to “protect the health and safety of offenders by their policies and procedures and are only feeding one class of offenders to the wolves in their den as if they were raw meat.” Id.
Here, too, Plaintiffs rely upon the characterization of ICC as the Gladiator School, and assert gangs were running the tier in F1-Pod. Plaintiffs argue vehemently that the decision to place them on F1-Pod was not safe. But, such allegations, directed at the individual decision-makers, do not establish CCA’s liability. Plaintiffs advance the argument that, had Rodriguez followed CCA’s actual, written policies, this incident would not have occurred. Plaintiffs’ argument is not a policy based argument, and CCA cannot be held liable for the actions of the individuals involved in Plaintiffs’ housing placement.
(b) Policy Maker Although not fleshed out, Plaintiffs assert the decision to place Plaintiffs in F1 Pod was an act by an official with policymaking authority. Pls.’ Response at 7. (Dkt. 188.) However, the only fact Plaintiffs have to support their assertion is Rodriguez’s statement that her position as housing unit manager operated as a “mini warden” over her unit. SOF ¶ 48. Plaintiffs assert numerous facts to buttress their argument, such as the knowledge Rodriguez had prior to the move imparted by Carrick, the dangerous conditions presented by the AK’s and SVC gangs housed in DEF Unit, and gang recruitment activity. Even assuming all of these facts as true, Plaintiffs have not established, as a matter of law, Rodriguez’s policymaking authority. Pembaur requires the policymaker to have
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final authority to establish municipal policy with respect to the action ordered. Mere exercise of discretion carrying out a particular function does not, however, give rise to municipal liability.
There is no evidence in the record Rodriguez possessed policy making authority, either under state law, or by virtue of CCA’s own internal operating procedures. The policies applicable at ICC and contained in the record indicate their approval and adoption by one or more of the following individuals: Warden Tim Wengler; Kevin Kempf, Chief of Operations; Warden Valdez; the Chief Corrections Officer; and the Director of Security. According to the record before the Court, Rodriguez had no authority to establish official policy, even if she personally felt she had some level of authority to do so. Rodriguez confirmed she could not do all the things a warden can do, meaning she could not establish official policy. Under Pembaur, there is simply no evidence to support a conclusion Rodriguez was responsible for establishing policy, or that she was formally delegated policy making authority by the Warden or another CCA official. The existence of written policies adopted by others supports the Court’s finding. Thus, the most that can be said was Rodriguez possessed discretion to house inmates and implement decisions to move them among different housing units in the prison.
Furthermore, examining the decision Rodriguez implemented on a more granular level indicates she did not exercise her authority to place Plaintiffs in F1 Pod in a vacuum. Her customary course of action required her to consult with members of a team and other staff. For instance, Rodriguez on May 3, 2012, participated in a Team Case Management meeting wherein several team members in addition to Rodriguez met to
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Case 1:12-cv-00559-DVB Document 231 Filed 12/03/15 Page 66 of 71
discuss transitioning a group of offenders into F1 Pod. According to the meeting notes, Payton, Lieutenant Watkins, Officer Niecko, Rodriguez, and Moore were members of the team who met to discuss the move. Additionally, on May 4, 2012, Moore, Cavigliano, and Carrick (the same Carrick who allegedly voiced concerns to Rodriguez about the “dangerousness” of the move), interviewed the prospective group of offenders moving to F1 Pod to inquire about any concerns they had with other inmates housed there, or the move in general.
None of the offenders within Plaintiffs’ group expressed concrete concerns about the move prior to May 5, 2012. Plaintiffs’ attempt to infer that CCA had advanced knowledge Plaintiffs did not feel comfortable with the move is misplaced, because every single concern form Plaintiffs refer to in their statement of disputed facts at paragraph 17 to support their assertion was submitted after May 5, 2012. Prior to the move, only Plaintiff Russell submitted a written concern form, which expressed vague concerns about “issues with people meaning SVC, AK,” but he did not identify any specific threats he had received during his incarceration at ICC. Russell simply submitted the written concern form prophylactically, “just for my safety.” Upon receipt of the concern form, Russell was “deleted off move sheet.”
Similarly, Bryant verbally expressed vague concerns, and he, too, was “cancelled” off the move sheet. Later on May 4, 2012, when all Plaintiffs learned they would be getting a walk of their own together, which they had wanted for some time and which desire had been expressed to prison staff, all Plaintiffs agreed to the move. Thus, despite unsubstantiated assertions by prison staff cited by Plaintiffs, the record is devoid of a
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Case 1:12-cv-00559-DVB Document 231 Filed 12/03/15 Page 67 of 71
single Plaintiff actually opposed to the move. Indeed, during the first shift on May 5, 2012, Skogsberg noticed nothing unusual—no threats, arguments, or any type of interaction indicative of a safety issue.
Although Plaintiffs criticize Rodriguez for consulting Nunez, another inmate, about the move, Plaintiffs similarly mischaracterize the interview summary. Nunez at first indicated that he “really didn’t like the move,” voicing vague and unspecific safety issues, but qualified the statement, that “if everyone did their job there shouldn’t be any problem because all of the walks were separated.” In other words, because sixteen offenders were grouped together in a walk, and were locked down for 22 hours each day, kept separated at all times from other groups of offenders (such as the AKs, SVCs, and Surenos), and did not recreate or use the dayroom with other groups of offenders, there should be no problem. Counselor Moore buttressed this statement, as she, too, indicated so long as Plaintiffs were not mixed with the AKs, “they should be fine. If policy and procedure are followed they should be fine.”
The record therefore refutes the assertion Rodriguez was a policymaker. There is no evidence Rodriguez had final policy making authority. Plaintiffs’ contention to the contrary, and the evidence submitted in support of their assertion that prison officials “knew the move was dangerous” for one reason or another, misconstrues the theory of municipal liability. Plaintiffs essentially argue that Rodriguez, by authorizing the move of Plaintiffs to F1 Pod, made a policy decision to place Plaintiffs in harm’s way. Yet, Rodriguez’s decision as to how to manage the inmate population, and to place groups of inmates in F1 Pod, involved her professional judgment and discretion, not policy making
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Case 1:12-cv-00559-DVB Document 231 Filed 12/03/15 Page 68 of 71
authority related to the overall safety of prisoners. Her decision thus does not trigger liability under Section 1983, and Plaintiffs have not established Rodriguez, or any other participant in the decision to move Plaintiffs to F1 Pod, were final policy makers.
(c) Ratification Plaintiffs did not argue a policy maker ratified Rodriguez’s decision to move Plaintiffs. For the sake of completeness, however, the Court briefly addresses the issue. For the ratification theory to apply, Plaintiffs must establish Rodriguez’s decision to move Plaintiffs constituted a constitutional tort—that her policy-making actions resulted in deliberate indifference to Plaintiffs’ safety. Assuming the truth of that assertion, there is no evidence in the record the Warden, or anyone else with authority within CCA, affirmatively approved of and endorsed Rodriguez’s decision to move Plaintiffs to F1 Pod. Rodriguez reported to Koozman, who in turn reported to Kessler. Kessler reviewed move sheets presented by the unit manager. However, Kessler indicated his authority in that regard was simply to acquiesce in the decision by the unit manager, because he knew the unit manager would not present the move sheet if “everybody wasn’t good with the move.” (Dkt. 188-2 at 29.) Mere acquiescence, however, in the decision to move Plaintiffs to F1 Pod merely amounts to inaction that fails to establish ratification under Pembaur and Praprotnik. Gillette v. Delmore, 979 F.2d 1342, 1348 (9th Cir. 1992). After the May 5, 2012 attack, an investigation ensued. Ratification of a constitutional violation after the fact can support municipal liability. Tubar v. Clift, No.
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C05-1154-JCC, 2008 WL 5142932 (W.D. Wash. Dec. 5, 2008) (finding police chief’s exoneration of an officer’s use of deadly force could expose the city to liability under the ratification doctrine). Here, however, IDOC’s serious incident review report, prepared May 21, 2012, expressly found Rodriguez had not followed SOP 504.02.01.002, regarding management of STGs within ICC. In light of the disapproval of Rodriguez’s actions, there is no evidence of ratification upon which to base municipal liability.
CONCLUSION The Court does not minimize the assault, the individual actions and missteps that took place, or CCA’s responsibility to ensure ICC met constitutional standards. However, the test is whether a reasonable jury could conclude CCA was aware that its staffing policy, or its housing policy or the practice or custom employed presented a substantial risk of serious harm to inmates housed in the DEF Unit. The Court concludes no reasonable jury, on this record, could so conclude, and therefore recommends CCA’s motion for summary judgment be granted. As the ancillary evidentiary motions filed by both CCA and Plaintiffs were not material to the Court’s recommendation, the Court will order they be denied as moot. Further, Plaintiffs filed a motion for sanctions requesting an adverse inference jury instruction based upon CCA’s alleged spoliation of evidence. (Dkt. 224.) Given the Court’s recommendation, it too, will be denied as moot.
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Case 1:12-cv-00559-DVB Document 231 Filed 12/03/15 Page 70 of 71 RECOMMENDATION
NOW THEREFORE IT IS HEREBY RECOMMENDED: 1) Defendant’s Motion for Summary Judgment (Dkt. 166) be GRANTED. Written objections to this Report and Recommendation must be filed within fourteen (14) days pursuant to 28 U.S.C. § 636(b)(1) and Dist. Idaho L. Rule 72.1(b), or as a result of failing to do so, that party may waive the right to raise factual and/or legal objections to the United States Court of Appeals for the Ninth Circuit.
DATED: December 3, 2015 _________________________ Honorable Candy W. Dale United States Magistrate Judge
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ORDER Consistent with the Report and Recommendation recommending Defendant’s Motion for Summary Judgment be granted, IT IS HEREBY ORDERED: 1) Plaintiffs’ Motion to Strike Expert Witness (Dkt. 161) is DENIED as MOOT. 2) Defendants’ Motion to Exclude the Testimony of John R. Hepburn and Pam Sonnen (Dkt. 165) is DENIED as MOOT. 3) Plaintiffs’ Motion to Strike the Affidavit of Kevin Myers (Dkt. 189) is DENIED as MOOT. 4) Plaintiffs’ Motion for Sanctions Based Upon Spoliation of Evidence (Dkt. 224) is DENIED as MOOT, as it requests sanctions in the form of an adverse jury instruction.
DATED: December 3, 2015 _________________________ Honorable Candy W. Dale United States Magistrate Judge
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 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

OMAR CASTILLON, DUSTY KNIGHT, JUSTIN PETERSON, LEON RUSSELL, CHRISTOHPER JORDAN, JACOB JUDD, MICHAEL FORDBRIDGES, AND RAYMOND BRYANT,
Plaintiffs,
v.
CORRECTIONS CORPORATION OF AMERICA, INC.,
Defendant.

Case No. 1:12-CV-00559-EJL
ORDER ON REPORT AND RECOMMENDATION

On December 3, 2015, United States Magistrate Judge Candy W. Dale (“Judge Dale”) issued a Report and Recommendation (“Report”), recommending Defendant’s Motion for Summary Judgment be granted (Dkt. 231). Plaintiffs filed objections to the Report (Dkt. 233), and Defendant responded (Dkt. 235). The Court has considered the parties’ contentions and adopts in part and rejects in part the Report’s findings.
1

STANDARD OF REVIEW1 Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court may accept, reject, or modify, in whole or in part, the findings and recommendations made by the Magistrate Judge. Where the parties object to a report and recommendation, this Court shall make a de novo determination of those portions of the report to which objection is made. Id. Where, however, no objections are made, arguments to the contrary are waived. Id.; see also Fed. R. Civ. Proc. 72. “When no timely objection is filed, the Court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.” Advisory Committee Notes to Fed. R. Civ. Proc. 72 (citing Campbell v. United States Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974)). The Court has reviewed the entire Report and the record in this matter and finds no clear error on the face of the record. In this case, only Plaintiffs filed objections to the Report. The Court has conducted a de novo review of the portions of the Report to which Plaintiffs object and finds as follows.
BACKGROUND This case involves a brutal inmate gang attack that occurred on May 5, 2012, at the Idaho Correctional Center (“ICC”). Plaintiffs Dusty Knight, Leon Russell, Christopher Jordan, Jacob Judd, Michael Ford-Bridges, and Raymond Bryant
1 Plaintiffs do not object to the summary judgment standard of review cited in the Report. The Court incorporates by reference and adopts the Report’s standard of review with respect to summary judgment. (Dkt. 231, pp. 32-34.)
2

(“Plaintiffs”) are prisoners in the custody of the Idaho Department of Correction (“IDOC”). At all relevant times, Plaintiffs were incarcerated at the ICC, a private prison which, at the time of the attack, was operated by Defendant Corrections Corporation of America, Inc. (“CCA” or “Defendant”), under contract with IDOC. 2
On May 4, 2012, Plaintiffs were moved into a housing unit at ICC known as F-pod or Pod F1, in the DEF unit. The DEF unit is the only unit within the IDOC system that is dedicated for offenders classified as close custody. (Dkt. 169, p. 6.) Close custody facilities are designed to house high risk inmates, either because they have escaped, have a serious institutional disciplinary history, or have displayed dangerous behavior while incarcerated. (Id., pp. 5-6.) The DEF unit houses a high percentage of Security Threat Groups (“STGs”), defined as “a group of two or more offenders who have been determined to be acting in concert so as to pose a significant threat to the safety, security, and orderly operation of any [IDOC] facility.” (Id., pp. 6-7.)
An offender classified as “close custody” does not live within the general population of the prison, but is instead confined within a secure perimeter and under 24 hour staff supervision. (Id., p. 6.) Movement of close custody offenders in the institution is limited. Specifically, close custody offenders are only allowed out of their cells for one hour of exercise, five days per week, and one hour per day of dayroom time, five
2 CCA operated ICC for approximately fourteen years, from 2000 to June 2014. (Dkt. 169, p. 3.) In July 2014, IDOC assumed operations of ICC and renamed it the Idaho State Correctional Center. Id.
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days per week. (Id., p. 8.) Close custody inmates thus spend 22 hours per day in their cells during the week, and 24 hours on weekends.
The DEF unit had six pods, or tiers—Delta 1, Delta 2, Echo 1, Echo 2, Fox 1 and Fox 2. (Dkt. 167, ¶ 31.) Each tier, or pod, was divided into fourths, and a specific gang, grouped together in a “walk” was housed in each of these areas. (Dkt. 159-2, p. 4.) For example, the Aryan Knights would occupy one walk, the Severely Violent Criminals another, the Sureños another, and the Norteños yet another walk. Inmates from different walks were not allowed to recreate together. (Dkt. 169, p. 8.) In other words, only one group of inmates assigned to a particular walk was allowed out of their cells together for the same recreation or dayroom break. (Dkt. 167, ¶ 14.)
Given the high percentage of STGs within the DEF unit, moving new arrivals into the unit posed difficulties. For instance, DEF Unit Manager Norma Rodriguez was concerned that moving new individuals into the F1 pod might cause such individuals to be recruited into a STG, or become subject to extortion by gang members. (Dkt. 168-5, pp. 3-4, 8.) Rodriguez thus wanted to put new inmates in the F1 pod who were not vulnerable to that type of pressure from other inmates. (Id.) At the time Rodriguez moved Plaintiffs into F1, there were already inmates living in the F1 pod, assigned to a different walk, who were members of STGs such as the Aryan Knights, Severely Violent Criminals (“SVC”), and Sureños. (Id., pp. 4-5.) Rodriguez thought Plaintiffs were good
4

candidates to move into F1 because they were all friends who believed a walk of their own would benefit them as well as the facility.3 (Dkt. 168-8, p. 2.)
On May 5, 2012, the day after they were moved into the F1 pod, Plaintiffs were attacked when six members of the Aryan Knights did not return to their cells after they were let out for recreation. Instead, the gang members hid in a janitor’s closet that should have been locked, and then burst out of the closet and attacked Plaintiffs with homemade weapons and their fists when Plaintiffs were subsequently released for their recreation. The attackers seriously injured all of the Plaintiffs, one of whom was stabbed 18 times.
Plaintiffs allege CCA had deliberate policies of understaffing and of housing individuals within the same gang affiliation together, and claim both of these policies caused the May 5, 2012 attack. CCA filed a Motion for Summary Judgment arguing the undisputed facts do not establish it had a deliberately indifferent custom or policy that was the moving force behind a violation of Plaintiffs’ constitutional rights. After considering CCA’s motion and conducting a hearing, Judge Dale issued the instant Report recommending summary judgment be granted in favor of CCA. (Dkt. 231.)
The factual background of this matter is meticulously detailed in the Report and is not objected to by the parties. 4 As such, the Report’s recitation of the general
3 Although the intricacies of the move and Plaintiffs’ feelings about it are detailed in the Report, such facts are not relevant to Plaintiffs’ objections and are not further recounted here.
4 While Plaintiffs do not object to the general factual background provided in the Report, they do object to several of the Report’s conclusions regarding such facts. Where relevant, the Court will highlight and discuss such objections.
5

background of this case (Dkt. 231, pp. 1-26) is incorporated by reference and hereby
adopted.
DISCUSSION
Plaintiffs object to the Report on two general grounds: (1) that it “fundamentally
misconstrues Eighth Amendment jurisprudence and ignores the Law of the Case
Doctrine”; (2) that the record demonstrates Plaintiffs have proven all four elements of a claim under Monell v. Dep’t of Soc. Services, 436 U.S. 658 (1978).5 (Dkt. 233, pp. 2-3.)
The Court will address Plaintiffs’ objections in turn. Before doing so, a review of the
appropriate legal framework for Plaintiffs’ claim is necessary.
Plaintiffs bring their claim under 42 U.S.C. § 1983, the civil rights statute, which
provides, in pertinent part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage of any State . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges or immunities secured by the Constitution and laws, shall be liable to the party injured[.]
42 U.S.C. § 1983.
“Section 1983 does not create any substantive rights, but is instead a vehicle by
which plaintiffs can bring federal constitutional and statutory challenges to actions by
5 Plaintiffs initially categorize four major challenges to the Report: (1) that it misconstrues Eighth Amendment jurisprudence and ignores the Law of the Case Doctrine; (2) that it contains numerous mistakes of fact; (3) that it fails to take into account eye-witness testimony of understaffing on May 4 and May 5, 2012; and (4) that it fails to construe the evidence in the light most favorable to Plaintiffs. (Dkt. 233, pp. 2-3.) Because Plaintiffs’ second, third, and fourth challenges each involve their ability to successfully establish a § 1983 claim, the Court will consider them together.
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state and local officials.” Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006) (citing Cholla Ready Mix, Inc. v. Civish, 382 F.3d 969, 978 (9th Cir. 2004)). “The purpose of § 1983 is to deter state actors from using the badge of their authority to deprive individuals of their federally guaranteed rights.” Id. (citation omitted). To state a valid claim under § 1983, a plaintiff must allege a violation of rights protected by the Constitution or created by federal statute proximately caused by the conduct of a person acting under color of state law. Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991).
Plaintiffs here allege an Eighth Amendment violation based on a failure to prevent harm. The Eighth Amendment prohibition against “cruel and unusual punishment” imposes duties on prison officials to “take reasonable measures to guarantee the safety of inmates.” Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quoting Hudson v. Palmer, 468 U.S. 517, 526-27 (1984)). In particular, “‘prison officials have a duty . . . to protect prisoners from violence at the hands of other prisoners.’” Id. at 833 (quoting CortesQuinones v. Jimenez-Nettleship, 842 F.2d 556, 558 (1st Cir. 1988)). While prison conditions may be “restrictive and even harsh. . . gratuitously allowing the beating or rape of one prisoner by another serves no legitimate penological objective, any more than it squares with evolving standards of decency.” Farmer at 833 (internal quotation marks, bracket and citations omitted). Put simply, being violently assaulted in prison is not “‘part of the penalty that criminal offenders pay for their offenses against society.’” Id. (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)).
However, not every injury suffered by one prisoner at the hands of another translates into constitutional liability for prison officials responsible for a victim’s safety.
7

Id. at 834. For an inmate to succeed on a claim based on a failure to prevent harm, he must show (1) that he was incarcerated under conditions posing a substantial risk of serious harm; and (2) that the prison official was “deliberately indifferent” to inmate health or safety. Id. The first element of the test is objective. Clouthier v. Cnty. of Contra Costa, 591 F.3d 1232, 1242 (9th Cir. 2010) (quoting Farmer, 511 U.S. at 834). The second element, deliberate indifference, is a subjective test in that “the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Farmer, 511 U.S. at 837. “[A]n official’s failure to alleviate a significant risk that he should have perceived but did not, while no cause for commendation, cannot under our cases be condemned as the infliction of punishment.” Id. at 838. Thus, if a “person should have been aware of the risk, but was not, then the person has not violated the Eighth Amendment, no matter how severe the risk.” Gibson v. Cnty. of Washoe, Nev., 290 F.3d 1175, 1188 (9th Cir. 2002) (citation omitted). “But if a person is aware of a substantial risk of serious harm, a person may be liable for neglecting a prisoner’s . . . needs on the basis of either his action or his inaction.” Id. (citing Farmer, 511 U.S. at 842).
Where, as here, an inmate claims a private prison has violated the inmate’s constitutional rights, the plaintiff must also meet the test articulated in Monell v. Dep’t of Soc. Services, 436 U.S. 658, 691-94 (1978). See also Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1138-39 (9th Cir. 2012) (applying Monell to private entities performing state functions). Under Monell, a municipality is subject to liability under § 1983 if it is alleged “to have caused a constitutional tort through ‘a policy, statement, ordinance,
8

regulation, or decision officially adopted and promulgated by that body’s officers.’” City of St. Louis v. Praprotnik. 485 U.S. 112, 121 (1988) (quoting Monell, 436 U.S. at 690). To meet this test, Plaintiffs must go beyond the respondeat superior theory of liability and demonstrate the alleged constitutional deprivation was the product of a policy or custom of the local governmental unit, because municipal liability must rest on the action of the municipality, and not on the actions of the employees of the municipality.6 See Connick v. Thompson, 536 U.S. 51, 60 (2011). The Supreme Court has emphasized that “[w]here a plaintiff claims that the municipality . . . has caused an employee to [violate a plaintiff’s constitutional rights], rigorous standards of culpability and causation must be applied to ensure that the municipality is not held liable solely for the actions of its employee.” Bd. of Cnty. Comm’rs v. Brown, 520 U.S. 397, 405 (1997).
“Official municipal policy includes the decisions of a government’s lawmakers, the acts of its policymaking officials, and practices so persistent and widespread as to practically have the force of law.” Connick, 536 U.S. at 61. Absent a formal governmental policy, a plaintiff must show a “longstanding practice or custom which constitutes the standard operating procedure of the local governmental entity.” Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996). “[A]n act performed pursuant to a ‘custom’ that has not been formally approved by an appropriate decisionmaker may fairly subject a
6 Like the Report, the Court here refers to the generally accepted test for municipalities or “local governmental entities” for purposes of the analysis and readability. Although CCA is not a municipality, Monell applies to it as a private entity performing state functions. Tsao, 698 F.3d at 1138. Thus, where the term municipality is used, the Court intends for the reference to apply to CCA.
9

municipality to liability on the theory that the relevant practice is so widespread as to have the force of law.” Brown, 520 U.S. at 404 (citing Monell, 436 U.S. at 690-91.) In addition, a policy of inaction may be a municipal policy within the meaning of Monell. Oviatt v. Pearce, 954 F.2d 1470, 1474 (9th Cir. 1992) (“[A] local governmental body may be liable if it has a policy of inaction and such inaction amounts to a failure to protect constitutional rights.”). However, liability of an allegedly improper custom or policy may not be predicated upon isolated or sporadic events; rather, “it must be founded upon practices of sufficient duration, frequency and consistency that the conduct has become a traditional method of carrying out policy.” Trevino, 99 F.3d at 918 (citations omitted).
In sum, the requisite elements of a § 1983 policy-based claim against a municipality are the following: (1) the plaintiff was deprived of a constitutional right7; (2) the defendant had a policy or custom; (3) the policy or custom amounted to deliberate indifference to the plaintiff’s constitutional right; and (4) the policy or custom was the moving force behind the constitutional violation. Mabe v. San Bernadino Cnty., 237 F.3d 1101, 1110-11 (9th Cir. 2001) (citing Van Ort v. Estate of Stanewich, 92 F.3d 831, 835
7 The first element incorporates the test for an Eighth Amendment failure to prevent harm claim. In other words, in order to show they were deprived of their constitutional right against cruel and unusual punishment, Plaintiffs must show (1) that they were incarcerated under conditions posing a substantial risk of serious harm (the “objective” element); and (2) that prison officials were deliberately indifferent to a substantial risk of serious harm (the “subjective” element). Farmer, 511 U.S. at 834.
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(9th Cir. 1996)). With this framework in mind, the Court turns to Plaintiffs’ objections to the Report.
1. Eighth Amendment Jurisprudence and Law of the Case Plaintiffs first fault the Report for purportedly ignoring this Court’s decision denying Defendant’s Motion to Dismiss at an earlier stage of this proceeding. (Dkt. 233, pp. 5-8.) Shortly after Plaintiffs filed their First Amended Complaint (Dkt. 14) in 2013, Defendant filed a Motion to Dismiss for Failure to State a Claim and Failure to Exhaust Administrative Remedies.8 (Dkt. 19.) In denying Defendant’s Motion to Dismiss for Failure to State a Claim, this Court held Plaintiffs had sufficiently stated a plausible Monell claim by alleging that Defendant maintained a policy or custom of (1) participating in a “ghost worker” scheme resulting in fewer correctional officers and thus contributing to danger in the prison, and (2) housing prison gang members together in the same unit. (Dkt. 54, pp. 6-7.) In so holding, this Court cited Farmer for the proposition that a prison official may not ignore a threat of violence even if he does not perceive it as likely. (Dkt. 54, p. 8) (citing Farmer, 511 U.S. at 833) (“Nor may a prison official escape liability for deliberate indifference by showing that, while he was aware of an obvious, substantial risk to inmate safety, he did not know that the claimant was especially likely to be
8 Although the exhaustion element of Defendant’s Motion to Dismiss was successful with respect to former Plaintiffs Omar Castillon and Justin Peterson, it is not relevant to either the Report or Plaintiffs’ objections and will not be further discussed here.
11

assaulted by a specific prisoner who eventually committed the assault.”). This Court also concluded evidence of a longstanding custom may be introduced to support Plaintiffs’ claim, including evidence of understaffing and gang clustering dating back to 2008, noting: “Although Defendant contends that Plaintiffs’ attack in May 2012 is too far removed from the IDOC’s 2008 investigation, the allegation that gang members were still being housed on the same walk at the time of the attack raises a plausible inference that CCA had not resolved the problems identified by the IDOC years earlier.” (Dkt. 54, p. 8.) This Court also held the attackers’ actions should not be construed as a superseding cause, and the allegations that CCA had been indifferent to the mere threat of violence can constitute a proper Monell claim, stating:
Defendant appears to suggest that however dangerous the pod might have been, the attackers’ independent actions constituted a superseding cause eliminating any § 1983 claim. This argument illustrates a fundamental misunderstanding of § 1983 jurisprudence. Claims that a prison policy amounts to deliberate indifference ‘to the threat of serious harm of injury’ by one prisoner against another are cognizable under § 1983. (Dkt. 54, p. 11) (quoting Berg v. Kincheloe, 794 F.2d 457, 459 (9th Cir. 1986)). Plaintiffs criticize the Report for purportedly departing from the aforementioned analysis and holding, “[p]laintiffs fail to explain how the actual staffing pattern on May 5, 2012, in the DEF unit caused Plaintiff’s injuries[.]” (Dkt 231, p. 43.) Plaintiffs argue the “threat” of serious harm or injury is enough to claim an Eighth Amendment violation under Farmer and this Court’s order denying Defendant’s Motion to Dismiss, and that they thus need not explain how the staffing pattern on the date of their attack caused their injuries. (Dkt. 233, p. 6.) As such, Plaintiffs claim the Report violates the “law of the
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case” doctrine, which provides a “court is generally precluded from reconsidering an issue that has already been decided by the same court, or a higher court in the identical case.” Rebel Oil Co., Inc. v. Atlantic Richfield Co., 146 F.3d 1088, 1093 (9th Cir. 1998) (internal quotation marks and citation omitted).
Plaintiffs’ argument is unavailing. First, the law of the case doctrine does not apply where, as here, two different standards of review apply to the relevant Court orders. See, e.g., Stagl v. Delta Airlines, Inc., 117 F.3d 76, 80 (2d Cir. 1997) (law of the case does not apply where the procedural posture changes the nature of the issue). Specifically, at the motion to dismiss stage, the parties had yet to present evidence and this Court was confined to the allegations in Plaintiffs’ complaint. The issue before this Court at the motion to dismiss stage was solely whether Plaintiffs’ complaint, accepted as true, contained sufficient factual matter to “state a claim for relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). By contrast, at the summary judgment stage, Judge Dale was charged with applying the law to the facts and evidence to determine whether Plaintiffs established a genuine issue of material fact sufficient to withstand summary judgment. In finding the facts and evidence failed to establish a genuine dispute of material fact, Judge Dale did not contradict this Court’s holding with respect to Plaintiffs’ ability to satisfy the lesser standard required for stating a plausible claim at the pleading stage.
Second, the Report did not depart from this Court’s recitation of the law with respect to a successful § 1983 claim. The Report’s explanation of the law is consistent with, but more detailed than, this Court’s analysis of the law in the order denying the
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Motion to Dismiss. Both this Court and Judge Dale highlighted that a successful Monell claim requires a plaintiff to prove “the policy or custom is a moving force behind the constitutional violation.” (Compare Dkt. 54, pp. 5-6 with Dkt. 231, pp. 39, 41-42, 46-49, 55.) Although this Court held Plaintiffs’ theory that Defendant created a substantial risk of serious harm by instituting and maintaining a policy or custom of placing too few guards on duty and of housing prison gang members in the same area was plausible, Judge Dale determined the evidence did not establish such alleged policies were the moving force behind Plaintiffs’ injury. Although, as will be further discussed, this Court disagrees with some of Judge Dale’s factual findings regarding causation, the Report’s legal analysis is consistent with both this Court’s decision denying the Motion to Dismiss and with cases interpreting the Monell causation element. See, e.g., Mabe, 237 F.3d at 1110-11; Thomas v. Baca, 514 F.Supp.2d 1201, 1206 (C.D. Cal. 2007) (noting that the custom must be the “moving force” behind a plaintiff’s constitutional injuries, which requires the plaintiff to establish that the custom is “closely related to the ultimate injury,” and that the injury “would have been avoided had proper policies been implemented.”); Long v. Cnty. of Los Angeles, 442 F.3d 1178, 1190 (9th Cir. 2006).
Similarly, Plaintiffs claim the Report contradicts itself because it holds both that the “first objective component of an Eighth Amendment violation is met if the inmate shows that ‘he is incarcerated under conditions posing a substantial risk of serious harm…” and that “Plaintiffs fail to explain how the actual staffing pattern on May 5, 2012 in the DEF unit caused Plaintiffs’ injuries….” (Dkt. 233, p. 6) (internal brackets, quotation marks and emphasis omitted) (citing Dkt. 231, pp. 34, 43.) Plaintiffs posit,
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“[i]f the Plaintiffs only need to demonstrate conditions posing a substantial risk of serious
harm, then the Plaintiffs do not need to explain how the staffing pattern on a particular
date caused their injuries. The ‘threat’ of serious harm or injury is enough to claim an
Eighth Amendment violation.” (Id.) In making this argument, Plaintiffs conflate the test
for an Eighth Amendment violation with that of a successful Monell claim. To establish
liability under Monell, a causal link between the alleged constitutional violation and the
policy or custom is necessary. City of Canton v. Harris, 489 U.S. 378, 385 (1989) (“our
first inquiry in any case alleging municipal liability under § 1983 is the question whether
there is a direct causal link between a municipal policy or custom and the alleged
constitutional deprivation.”). The Report did not err in so holding.
Finally, Plaintiffs challenge the Report’s reliance on Clouthier v. Cnty. of Contra
Costa, 591 F.3d 1232 (9th Cir. 2010) when this Court determined Clouthier was
inapposite in deciding the Motion to Dismiss. As Defendant notes, Plaintiffs misconstrue
this Court’s order, which simply found Clouthier—an appeal from summary judgment—
immaterial at the motion to dismiss stage. (Dkt. 235, pp. 3-4.) Clouthier remains good law for purposes of summary judgment and the Report.9
9 In the Order denying Defendant’s Motion to Dismiss, this Court also distinguished Clouthier because “Plaintiffs do not base their claims solely on their allegation that a final policymaker approved the decision to move them into the gangcontrolled walk. They also assert that their constitutional rights were violated pursuant to ‘an expressly adopted official policy [or] a long-standing practice or custom’ of housing members of a gang together in the same walk, which made that housing unit particularly dangerous.” (Dkt. 54, p. 10) (citing Ellins v. City of Sierra Madre, 710 F.3d 1049, 1066 (9th Cir. 2013)). However, as will be further discussed, infra, given the evidence considered by Judge Dale and Plaintiffs’ inability on summary judgment to distinguish (Continued)
15

2. Plaintiffs’ Ability to Meet Four Elements of the Monell Test Plaintiffs claim Defendant’s alleged policies of understaffing and clustering gang members together both satisfy the four-prong Monell test used to evaluate Plaintiff’s Eighth Amendment claims. The Court finds genuine issues of disputed material fact preclude summary judgment with respect to Plaintiffs’ understaffing claim, but agrees with the Report’s grant of summary judgment with respect to the gang clustering claim. a. Understaffing Knowledge of prison understaffing and a decision not to increase the number of guards on duty may amount to deliberate indifference to the safety and well-being of prison inmates, in violation of the Eighth Amendment. Edwards v. Gilbert, 867 F.2d 1271, 1277 (11th Cir. 1989); Anderson v. City of Atlanta, 778 F.2d 678, 685 (11th Cir. 1985). Understaffing of correctional officers increases the risk of inmate on inmate violence. Miles v. Wilkinson, 2013 WL 5592412, at *5 (W.D. La. 2013). To prevail, Plaintiffs must prove Defendant had a policy of deliberate indifference to the risk of understaffing and that this policy caused their injuries. Greason v. Kemp, 891 F.2d 829, 838 (11th Cir. 1990). When understaffing appears to have contributed to a violation of an inmate’s Eighth Amendment rights, a causal link exists between that violation and the
persuasive authority finding gang clustering does not establish a per se Eighth Amendment violation, the Court agrees with the Report’s holding with respect to Plaintiffs’ gang clustering theory, and finds summary judgment was appropriate with respect to this claim.
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prison’s policy if officials are aware of the staffing problem but fail to take corrective action. Id. at 837 n. 18.
As the Report noted, prison staffing is generally understood in concert with overcrowding, and a corresponding increase in inmate violence. (Dkt. 231, p. 42.) For example, if there is an increase in population without a corresponding increase in staff, “it is inevitable that some violence will occur because there are too few officers to observe and protect too many inmates.” Capps v. Atiyeh, 559 F.Supp. 894, 904 (D. Or. 1983). The State is “deliberately indifferent to inmate safety if it crowds more inmates into an institution than it can adequately supervise.” Id. at 903. Courts generally look at the level of violence, and whether it is high enough to warrant an inference that the state, or here, CCA, is deliberately indifferent to inmate safety when understaffing is an issue. Id. at 904; Balla v. Idaho State Bd. of Corrections, 595 F.Supp. 1558, 1578 (D. Idaho 1984) (finding understaffing and overcrowding to be one of the principal causes of violence at the Idaho State Correctional Institution).
Plaintiffs contend CCA had a policy of understaffing that amounted to deliberate indifference to their constitutional rights, and that this policy or custom was the moving force behind the violent attack on May 5, 2012. To establish a deliberately indifferent policy of understaffing, Plaintiffs highlight a settlement agreement entered into in Kelly et al v. Wengleret al, 1:11-cv-00185-EJL, in September of 2011. Plaintiffs in the Kelly case alleged constitutional violations at ICC because of high levels of inmate-on-inmate violence, inadequate staffing and training, inadequate investigation of assaults, and various other defaults. Among other things, the Kelly Settlement Agreement (hereinafter
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“Kelly Agreement”) required ICC to maintain minimum staffing levels. CCA was to comply with the staffing pattern pursuant to CCA’s contract with IDOC, and increase the staffing pattern to include a minimum of three additional correctional officers to be utilized at the discretion of the Warden to enhance the overall security of the facility. (Dkt. 14-9, p. 1.)
Two years after the Kelly Agreement was entered into, Judge David O. Carter10 held a show cause hearing to determine whether CCA had breached it. The show cause hearing was held after CCA issued a press release, on April 11, 2013, announcing that it had “concluded an extensive internal investigation” and found there were “some inaccuracies” in staffing records over a seven-month period. (Kelly v. Wengler, 1:11-cv185-EJL, Dkt. 76, p. 3.) Specifically, CCA determined there were approximately 4,800 hours from April through October 2012 where records indicated a correctional officer was staffing a security post but the post was actually vacant. (Id.)
After conducting the contempt hearing, Judge Carter held CCA and ICC Warden Timothy Wengler in civil contempt and breach of the Kelly Agreement. (Id., p. 23.) In so holding, Judge Carter made a number of findings regarding understaffing at ICC, including that CCA and Warden Wengler had “ample” notice of several signs of staffing shortages during the period of time between the September 2011 Kelly Agreement and
10 Judge Carter sits in Idaho by special designation and the Kelly case was referred to him for the purpose of conducting a settlement conference. (1:11-cv-185-EJL, Dkt. 16.) By virtue of the Kelly Agreement, Judge Carter was given authority to resolve disputes about compliance with the Agreement in his capacity as a federal district court judge.
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2013 show cause hearing. (Id., p. 10.) For instance, Warden Wengler testified at the contempt hearing that using supervisors and case managers as floor officers—a practice flagged in the Kelly Agreement as “unacceptable”—had to be done two to three times per week following the settlement.11 (Id.) Judge Carter found CCA “regularly fell short of their obligation to staff positions that are mandatory under their contract with [IDOC].” (Id., p. 2.)
Further, Judge Carter noted the 4,800 missing hour tally CCA reported only reflected an examination of night shift records, and not numbers from any review of the day shift. (Id., p. 7.) According to testimony from CCA’s assistant general counsel during the contempt hearing, hundreds of additional undocumented hours were found during day shifts within the seven month period. (Id., p. 11.) Judge Carter also recounted testimony from two former ICC employees stating mandatory posts were regularly unmanned, and that such violations were frequently raised to supervisors, including to ICC Assistant Warden Thomas Kessler. For example, former ICC corrections supervisor Annette Mullen, who worked at times in the DEF unit, “testified credibly that she saw regular, glaring absences in 2012, and complained frequently to her superiors to try to fix the problem.” (Id., p. 12.) Mullen testified that she went up the chain of command when submitting her complaints, including to assistant warden
11 Using supervisors and case managers as floor officers posed a security problem because the former were not trained as correctional officers and were more likely to have a social work background and education. (Id., at 8, n. 7.) Case managers were also likely to have other duties that would distract them from following security protocol. (Id. at 8); see also 1:12-cv-00559-EJL, Dkt. 188-2, ¶ 8.)
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Kesller. (Id.) Mullen stated staffing shortages were common knowledge at the prison. (Id.)
Judge Carter also highlighted evidence establishing “[f]acility senior management, including the Warden and Assistant Wardens, were aware of acute personnel shortages in the spring, summer and fall of 2012.” (Id., p. 15.) When questioned during the show cause hearing whether he met the expectations of his job when it came to filling mandatory staffing posts, Warden Wengler responded, “to the extent of going back and checking more often on the people that were responsible for it, no.”12 (Id.) Plaintiffs suggest Judge Carter’s order finding CCA in contempt of the Kelly Agreement is evidence of a policy of understaffing the Report failed to credit. (Dkt. 233, p. 9.)
The Report determined Plaintiffs’ reliance on Kelly and its findings was improper and insufficient to create a triable issue of fact. (Dkt. 231, pp. 44-45.) Judge Dale held the evidence in Kelly was unpersuasive both because it involved violence in the North and West wings of ICC, as opposed to the close-security DEF unit, and because it focused on violence occurring at ICC during the five years prior to the filing of the Kelly complaint in February 2011. Judge Dale explained:
[T]he settlement in Kelly was reached on September 20, 2011. In contrast, the DEF pod did not begin operations until 2009, and the attack on Plaintiffs occurred on May 5, 2012, after the Kelly [Agreement] had been approved and the Court began monitoring conditions at ICC in an attempt to rectify the violence. Thus, the comparison is not only factually distinct, there is a temporal disconnect
12 In other portions of his testimony, Warden Wengler admitted that he bore a portion of the responsibility for staffing shortages. (Id., p. 15, n. 21.)
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between the violence that existed prior to the filing of the Kelly complaint and the attack that occurred here. (Id.) Although the Court agrees the evidence used to support understaffing in the Kelly complaint is questionable given the timing of the complaint and generality of allegations involving ICC as a whole, rather than the DEF unit, it finds the evidence highlighted by Judge Carter in his Order finding CCA and Warden Wengler in civil contempt of the Kelly Agreement creates a triable issue of fact in this matter. Significantly, the evidence of massive understaffing CCA itself reported in April 2013 involved the specific time period of the attack on Plaintiffs. Between April and October of 2012, CCA identified nearly 4,800 unmanned hours at ICC during night shifts alone. As will be further discussed, Plaintiffs allege their attack was possible because an offender was left unsupervised during the night shift on May 4, 2012. Due to insufficient staff on May 4, 2012, Plaintiffs allege Offender Campos was able to rig the janitor’s closet door and then communicate with the aggressors. (Dkt. 233, p. 13.) There is no temporal disconnect between the violence that existed at the time of Judge Carter’s contempt order and the attack that occurred in this case. The Report also faults Plaintiffs for relying on violence statistics used by plaintiffs in Kelly, noting such statistics are unpersuasive here because they involved the prison as a whole, and did not concentrate on the DEF unit itself, a close custody unit with completely different conditions than ICC’s general population. (Dkt. 231, p. 43.) However, Plaintiffs cite evidence in the record suggesting DEF had a history of being
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twice as violent as the rest of the prison. (Dkt. 188-1, ¶ 40.) In February 2012, CCA’s violence goal was to reduce violence in the DEF unit to 44.1 violent incidents per year, almost 300% higher than any other unit. (Id.; see also Dkt. 190, p. 46.)13 The Report’s conclusion that there is no statistical analysis concentrating on violence in the DEF unit itself does not address such evidence. (Dkt. 233, p. 43.) There is also testimony from multiple witnesses in this case regarding prolific violence and inability to enforce rules within the DEF unit. (See, e.g., Dkt. 188-2, Ex. 1, ¶¶ 8-10, 19-20, 25-26; Ex. 2, ¶8; Ex. 5, p. 41; Ex. 6, pp. 53-54.)
Evidence from the Kelly contempt proceedings involves the specific time period and, in some cases, unit, of Plaintiffs’ assault and is relevant to Plaintiffs’ understaffing claim. In light of Judge Carter’s finding of pervasive understaffing in the years following
13 This citation is to notes from an ICC February 1, 2012 Weekly Captain/Unit Management Meeting. ICC had monthly meetings with all managerial staff, including unit managers, the warden, assistant wardens, and managers of other departments in the facility. (Dkt. 188-2, pp. 44-45.) In the February 2012 notes, unit managers are encourage to share the following violent incident per year goal numbers with their staff:
BC unit/goal 9.9 JKL unit/goal 17.81 DEF unit/goal 44.1 GHI unit/goal 5.85 PIE unit/goal 3.6 M-R unit/goal 12.6 S-X unit/goal 17.55 (Dkt. 190, p. 46.)
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the Kelly settlement, especially during the specific time period of the instant attack, the
Court cannot agree with the Report’s conclusion that understaffing at ICC was resolved
by virtue of the Kelly settlement. (Dkt. 231, p. 42.) In addition, Plaintiffs do not rely
entirely on the Kelly evidence to support their claim that CCA had a pervasive policy of
understaffing.
In support of their understaffing claim, Plaintiffs also cite sworn testimony from
ICC’s former Chief of Security Shane Jepsen (“Jepsen”). (Dkt. 233, p. 9) (citing Dkt.
143-16.) Jepsen worked at the ICC facility from 2008 to 2013. (Dkt. 143-16, ¶ 2.)
Jepsen stated that throughout 2010, 2011 and 2012, there was a constant staffing shortage
at ICC, and that it was common that as many as 17 positions on a daily schedule could
not be filled in advance due to an insufficient number of employees. (Id., ¶¶ 5-6.) Jepsen
noted:
Around May 2012, it became widely known at ICC that the administration had difficulties in staffing positions when the staffing schedule came out one week in advance due to the number of vacancies on the staffing roster. This was widely known because ICC/CCA had to institute mandatory overtime…. Daily requests to work overtime often turned into directives given at the last minute, frequently with the threat that refusing to work overtime would result in a Problem Solving Notice (PSN), which was essentially a disciplinary action for staff. Warden Wengler and Assistant Warden Kessler even instituted an overtime policy requiring that staff trained for security posts, but were not assigned to a housing unit, to give up one of their two days off each week to work overtime. The overtime policy was very unpopular with staff…. Typically correctional officers were being required to work 16 hour shifts rather than the 12 hours they were scheduled.
(Id., ¶¶ 11-12.)
Jepsen also testified that he informed CCA Managing Director Kevin Myers and
Warden Wengler in September 2011 that there were not enough staff to fill the gaps in
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shift rosters that occurred daily at the ICC facility. Jespsen stated Myers responded that he had “heard enough about staffing issues,” and that Jepsen should just “deal with it” because staffing would not be increased. (Id., ¶ 33.)
The Report addressed Jepsen’s testimony, but concluded it was insufficient to create a triable issue of material fact because Jepsen did not testify as to the specific staffing of the DEF unit. (Dkt. 231, p. 43 n. 23) (noting Jepsen indicated that “in general” it was common in 2010, 2011, and 2012 that 17 positions could not be filled, but failed to identify which positions and where, and that Jepsen indicated that in 2010 and 2011 IDOC contract monitors “expressed concern” about the level of staffing, but failed to set forth specific facts.) However, Jepsen’s testimony is also corroborated by various employees who specifically worked in the DEF unit during the time of the attack. In addition, the Report does not address Jepsen’s claim that he repeatedly advised Wengler and CCA’s Managing Director Kevin Myers that there were not enough staff to fill daily gaps in shift rosters at ICC, and that he was told that staffing would not be increased despite such gaps. (Dkt. 143-16, ¶ 33.) Although not alone sufficient to create a triable issue of fact, the Court finds Jepsen’s testimony supports Plaintiffs’ claim of a policy of understaffing at ICC.
Jerry Sharp served as Shift Sergeant in the DEF unit from September of 2011 until his termination in January of 2014. (Dkt. 183-1, p. 9, ¶ 6.) Sharp submitted a sworn affidavit stating during his time as Shift Sergeant in DEF, his detail “was consistently understaffed to the point where staff were not properly supervised and often had to take unnecessary risks in order to do their job properly.” (Id., ¶ 7.) Sharp indicated he
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informed Assistant Warden Kessler on multiple occasions between September of 2011 and June of 2012 that not enough staff was being allocated to DEF to properly fill that unit’s posts. (Id., p. 11, ¶ 13.) Like Jepsen, Sharp states he was advised to just do what he could with the resources he had. (Id.)
In addition, DEF Pod Control Officer Jacob Mills submitted sworn testimony affirming CCA frequently used “ghost officers” to cover shift vacancies within the facility. (Dkt. 143-9, ¶ 9.) Mills stated the term “officer ghost” and “ghost officer” were used by CCA employees to refer to a post that was unoccupied due to a shift vacancy, and that, on numerous occasions throughout his employment, CCA employees informed him that “officer ghost” had been assigned to watch the crash gates within the facility or to cover other vacancies. (Id., ¶¶ 10-12.)
Similarly, Sergeant Garth Carrick, the first responder when the May 5, 2012 attack occurred, submitted an affidavit stating it was “common occurrence during 2010, 2011 and 2012” for multiple posts to be left vacant in the prison and specifically in the DEF unit. (Dkt. 143-15, ¶¶ 11, 16.) Carrick stated this “regular understaffing required the security staff that was present to abandon important security protocol just to keep up with the schedule. Essentially many of the ICC employees were required to do the work of two or more people.” (Id., ¶ 16.) Like Jepsen and Mills, Carrick stated understaffing was common knowledge amongst administrative staff, including Warden Wengler, and that he was just told to make it work when he reported understaffing. (Id., ¶¶ 20, 21.)
Correctional officer Dustyn Skogsberg, the only officer present in the F1 pod when Plaintiffs were attacked, submitted an affidavit stating, “[t]he correctional officers I
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worked with did the best they could with the resources they had, but these resources were
simply insufficient. The correctional officers were typically very tired because of
mandatory overtime. I made these problems known to my supervisors, but no changes
were made in the level of staffing.” (Dkt. 188-2, Ex. 1, ¶ 10). Skogsberg further
testified:
I often worked nights on DEF and the prison was always understaffed after 9:30 pm (and often earlier) making it difficult to supervise offenders working as janitors. Correctional officers were often extremely tired due to the mandatory overtime meaning that the posts that were ‘manned’ were not always manned by correctional officers that were alert and prepared for the risks that existed in a prison environment.
Although I frequently worked the night shift within the DEF unit, I never observed a cell search conducted during the night shift. The DEF Unit would typically have four and sometimes fewer officers on duty during the night shift. This low number of staff scheduled to work the DEF night shift would make it impossible to conduct a proper cell search at night. This was exacerbated by the fact that many other posts within the prison were left vacant at night. For instance the utility posts were often vacant. Correctional officers within DEF would be called off the unit to man the crash gates within the prison if a movement of inmates was taking place. During these times, there was nobody to relieve me from my post, so even fewer correctional officers were present much of the time. Similar vacancies were caused by lunch or bathroom breaks, also without any relief for correctional officers who left posts for these reasons. This also occurred during day shifts.
(Dkt. 188-2, Ex. 2, ¶¶ 22-23.)
Finally, Plaintiffs also argued on summary judgment that an identical attack which
occurred eleven months earlier in the DEF unit evidenced a policy of understaffing and
deliberate indifference on the part of prison officials. Specifically, on June 14, 2011, a
group of Norteño gang members hid in the janitor closet in DEF pod and avoided
detection by staff, who believed the Norteños had been re-secured in their cells. (Dkt.
188-2, Ex. 11, p. 73.) When the next walk of inmates was released out into the housing
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unit, the Norteño inmates sprung from inside the janitor’s closet and attacked “Gangster Disciple” inmates with their fists. (Id., p. 74.)
In conjunction with the evidence of pervasive understaffing at the time of the attack and of Warden Wengler and Assistant Warden Kessler’s knowledge of such understaffing cited in the Kelly contempt hearing, and throughout the record in this case, as well as officials’ refusal to correct the problem despite: (1) repeated complaints by staff; (2) violence within the DEF unit; and (3) the June 14, 2011 attack, the Court finds Plaintiffs have established an Eighth Amendment violation for purposes of summary judgment with respect to their understaffing claim. The evidence is sufficient to find Plaintiffs were incarcerated under conditions imposing a substantial risk of harm, and that Defendant was both objectively and subjectively aware of this risk but chose not to alleviate understaffing.
The evidence is also sufficient to create a triable issue with respect to municipal liability, as a policy of omission may be based on a failure to implement procedural safeguards to prevent constitutional violations. Oviatt v. Pearce, 954 F.2d 1470, 1474 (citing City of Canton v. Harris, 489 U.S. 378, 396 (1989)). In Canton, the Court recognized “a high degree of fault on the part of city officials” is required “before an omission that is not itself unconstitutional can support liability as a municipal policy under Monell.” 489 U.S. at 396. However, the Court determined when a § 1983 plaintiff “can establish that the facts available to city policymakers put them on actual or constructive notice that the particular omission is substantially certain to result in the violation of the constitutional rights of their citizens, the dictates of Monell are satisfied.”
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Id. For it is only then that it “can be said that the municipality has made “‘a deliberate
choice to follow a course of action…among various alternatives.’” 14 Id. (quoting
Pembaur v. Cincinnati, 475 U.S. 469, 483-484 (1986)). CCA’s persistent understaffing,
its awareness that such policy was insufficient to protect inmates due to repeated
warnings by various employees, violence within the DEF unit, and a similar inmate
attack mere months before the attack on Plaintiffs, its contractual agreement to change its
policies in Kelly, and CCA’s blatant failure to address the problem despite such
circumstances, establishes for purposes of summary judgment that CCA had a policy of
deliberate indifference to the safety and well-being of prison inmates, in violation of the
Eight Amendment. In sum, the Court finds Plaintiffs submitted sufficient evidence to
withstand summary judgment on the first through third elements of a Monell claim.15
14 Plaintiffs claim subjective knowledge is not necessary to establish an Eighth Amendment violation, and argue Canton holds only actual or constructive notice is required. (Dkt. 233, p. 7.) As the Court in Farmer was careful to highlight, Canton’s test for deliberate indifference involved whether a municipality can be subject to Monell liability based on a policy of omission, such as failure to train. 511 U.S. at 840 (citing Canton, 489 U.S. at 390). As the Farmer Court held, “Canton’s objective standard, however, is not an appropriate test for determining the liability of prison officials under the Eighth Amendment…. Section 1983, which merely provides a cause of action, ‘contains no state-of-mind requirement independent of that necessary to state a violation of the underlying constitutional right.’” Id. at 841. While the “deliberate indifference” required to establish an Eighth Amendment violation is both objective and subjective, the “deliberate indifference” required to establish municipal liability requires only actual or constructive knowledge. Id.
15 Plaintiffs also suggest a letter from the State of Idaho put CCA on notice of understaffing at ICC in 2010. (Dkt. 233, p. 9) (citing Dkt. 110-5). Specifically, a security staffing assessment was conducted at ICC to determine contract compliance. (Dkt. 110-5, p. 1.) The assessment reviewed daily schedules between June and August 2010, and revealed repeated instances where officers were posted to multiple posts at the (Continued)
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1. Causation After considering Plaintiffs’ evidence of understaffing, the Report holds, even crediting such evidence, “Plaintiffs fail to explain how the actual staffing pattern on May 5, 2012 in the DEF unit caused Plaintiffs’ injuries, other than speculating that more staff or a different makeup of staff would have prevented it.” (Dkt. 231, p. 43.) Critically, despite the evidence of frequent understaffing in DEF, the facts established the unit had more officers than contractually required during the May 5, 2012 attack on Plaintiffs. (Id., pp. 46-47.) According to IDOC Deputy Warden Tim Higgins, the contract between IDOC and ICC specified the minimum staffing for the DEF pod required a pod control officer and four floor officers. Eight staff members were on duty in the DEF unit the day of the attack, and at the precise time of the attack, seven staff members were present. (Dkt. 231, pp. 46-47.) In light of such staffing, the Report concluded, “Plaintiffs have failed to articulate how CCA’s alleged policy of understaffing, when CCA on the day of the attack had more officers than the one pod control and four floor officers contractually required, caused the injuries of which they now complain.” (Id., p. 47) (citing Batista v. Columbia Cnty., 2013 WL 5675214, *5 (D. Or. 2013) (denying summary judgment on a
same time, demonstrating mandatory security staff requirements were not fulfilled. The assessment also revealed eleven instances where a post in the DEF pod was not filled during the night shift. (Id., p. 2.) Although the Report does not specifically address this letter, the Court finds, like the evidence filed in support of the Kelly complaint (as opposed to the evidence in support of the Kelly contempt order) that evidence of understaffing in 2010 is too far removed from Plaintiffs’ claim to establish a genuine issue of material fact.
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Monell understaffing claim when the evidence indicated that, at time of attack, the jail’s staffing exceeded minimum standards set forth under jail policy).
Plaintiffs dispute several of the Report’s factual findings with respect to the number of staff on duty at the time of the attack, and also contend the contractually mandated minimum number of staff was insufficient to protect Plaintiffs’ constitutional rights given the pervasively dangerous conditions in the DEF unit. (Dkt. 233, pp. 10-11, 14-15.) The Court need not address such arguments because it finds there is sufficient evidence to withstand summary judgment on Plaintiffs’ claim that understaffing on May 4, 2012 was the moving force behind the attack.
Plaintiffs allege understaffing on the day prior to the attack, May 4, 2012, allowed an inmate to rig the lock on the janitor closet door. The Report discounts this theory, stating, “Plaintiffs argue that Campos, the inmate who rigged the door, was ‘unsupervised,’ suggesting staffing should be a 1:1 ratio for all inmates to be ‘supervised.’ The Constitution does not require ‘supervision’ of that nature.” (Dkt. 231, p. 47.) However, as Plaintiffs respond, IDOC mandated a “Direct Supervision” model, which required that when an inmate was out of his cell, a correctional officer must be in the same room as the inmate. (Dkt. 233, p. 13.) Plaintiffs offer eyewitness testimony to support their claim that understaffing the night before the attack prevented the direct supervision of Offender Campos, thus allowing him to rig the janitor’s closet.
For instance, Sergeant Carrick viewed footage from the F1 pod the night of May 4, 2012 and created a Disciplinary Offense Report for Offender Campos for rigging the
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janitor closet door.16 (Dkt. 124, p. 4.) Upon viewing such footage, Carrick noted Campos could be seen rigging the door and then communicating with the aggressors the night before the attack, and concluded Campos’ actions were “designed to support and enable the violent actions the next day.” (Id.) Carrick also stated Campos was “a verified member of the STG group Sureños, which has a long documented history of working with the Aryan Knights.” (Id.)
Officer Mills, who was posted to work Pod Control within the DEF unit on the night of May 4, 2012, stated he had to leave his post in DEF Pod Control throughout his shift to cover other DEF posts. (Dkt. 143-9, ¶ 14.) Mills confirmed, “neither I, nor any other officers on duty during the second shift on May 4, 2012, directly supervised Offender Campos when he accessed the janitor’s closet on the F1 pod.” (Id., ¶ 20.) Mills also stated, “I recall DEF did not have enough staff to provide uninterrupted and direct supervision of offenders during the second shift on May 4, 2012. DEF only had enough staff to conduct the watch tours, but not enough staff to supervise the housing units. The three floor officers posted within DEF during the second shift on May 4, 2012 could not adequately provide enough supervision of the unit.” (Id., ¶ 21.) A reasonable juror could conclude the lack of staffing on the night of May 4, 2012 was the “moving force” behind Plaintiffs’ attack. The testimony of Carrick and Mills regarding the lack of supervision the night of May 4, 2012, particularly when coupled with all of the evidence of frequent
16 CCA did not preserve this video footage after determining it was not relevant to an investigation.
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understaffing in the DEF unit in May of 2012, especially during the night shift, is sufficient to establish causation at the summary judgment stage.
The Report ultimately concluded that, even if the DEF unit was understaffed on May 4, 2012, the “abundance of staff on May 5, 2012, more than alleviates the prior day’s alleged understaffing that somehow allowed Campos to rig the closet door.” (Dkt. 231, p. 47.) The Report makes this finding because the video surveillance from the day of the attack purportedly shows the officers on duty in the F1 pod at the time of the attack negligently fulfilling their duties. Specifically, Skogsberg checked the cell doors from which the aggressors exited, as well as the janitor’s closet door, to ensure they were locked before allowing Plaintiffs out of their cells. However, Skogsberg failed to actually open the doors to ensure all of the Delta walk inmates (the Aryan Knight attackers) had exited the building before signaling the release of the Charlie walk inmates (Plaintiffs). In addition, Officer Blake Anderson, who was supervising the Delta walk inmates while they were outside in the recreation yard, failed to notice that six of the sixteen Delta walk inmates were missing. (Dkt. 231, pp. 48-49.) The Report concluded no amount of officers would “have reversed the critical errors made by the two officers responsible for the movement of the sixteen Delta walk inmates on the morning of May 5, 2012. Nor would the persistent understaffing that Plaintiffs claim existed in the years leading up to the May 5, 2012 attack have changed or altered the mistakes made by the officers responsible for prisoner movement on May 5, 2012.” (Id., p. 49.)
The Court respectfully disagrees given the evidence Plaintiffs have submitted of understaffing on May 4, 2012, when Offender Campos rigged the janitor’s closet door.
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Such evidence is at least sufficient to create a genuine issue of material fact. A reasonable juror could find Campos’ ability to rig the door due to a policy of understaffing—which allowed the Delta walk inmates to hide on May 5, 2012—was the moving force behind Plaintiffs’ attack, regardless of any supposed negligence on behalf of Officers Skogsberg and Anderson.17 In ruling on summary judgment motions, all inferences must be drawn in the light most favorable to the nonmoving party. Anderson v. Liberty Lobby, 477 U.S. 242, 253 (1986). As the Ninth Circuit has held, if a rational trier of fact might resolve the issue in favor of the nonmoving party, summary judgment must be denied. T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 631 (9th Cir. 1987). Absent Offender Campos’ closet rigging on May 4, 2012, a reasonable juror could conclude the assailants would not have been able to attack Plaintiffs on the morning of May 5, 2012. The Court accordingly rejects the Report’s recommendation with respect to Plaintiffs’ understaffing claim, and denies CCA’s motion for summary judgment on this claim.
b. Gang clustering There is no dispute that prison gangs or group of friendly inmates, like the Plaintiffs, were grouped together in their own walks within the DEF Unit. However, the Report held Plaintiffs failed to address how the housing practice itself caused their
17 The Court notes there is evidence in the record to suggest Anderson and Skogsberg were not negligent, but simply unable to perform all of their required duties due to persistent understaffing. (See, e.g., Dkts. 143-9; 143-15; 143-16; 188-2, Exhibit 1; 188-2, Exhibit 2.)
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injuries, and also failed to distinguish persuasive authority of courts holding a policy of grouping gangs together is not a per se Eighth Amendment violation. (Dkt. 231, p. 52.) The Report also held Plaintiffs’ theory of gang clustering suffered from a lack of clarity, as, on summary judgment, Plaintiffs failed to address the succinct theory upon which they rested their claim for municipal liability. (Id.) The Report accordingly addressed each potential source of municipal liability: formal policy, policy maker, and ratification. (Id., pp. 52-69.) The Report ultimately concluded Plaintiffs failed to establish municipal liability under any of the aforementioned avenues.
In their objections, Plaintiffs claim CCA had a longstanding custom of clustering gangs dating back to 2008, and that such custom explicitly violated IDOC’s policy of dispersing gang members. (Dkt. 233, pp. 9, 16-19.) Plaintiffs note CCA’s managing director knew about the gang clustering as early as 2010. Plaintiffs point to a number of statements from CCA employees regarding the apparent “common knowledge” amongst staff that the Aryan Knights would try to attack Plaintiffs if they were moved into the F1 pod, as well as to a prison-wide survey which purportedly put CCA officials on notice of the impending danger faced by Plaintiffs as a result of their move into DEF. (Id., pp. 12, 19.) Plaintiffs also fault the Report for finding gang clustering was implemented by housing manager Norma Rodriguez, and instead claim the “record in fact demonstrates that gang clustering was implemented before Rodriguez became the Unit Manager for DEF.” (Id., p. 17.)
The aforementioned objections are each directed to the Report’s finding with respect to the second through fourth elements of the Monell test for municipal liability.
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However, Plaintiffs fail to address the first, crucial element of both Monell and of the Report’s holding: Plaintiffs failed to establish a policy of gang clustering resulted in a violation of their Eighth Amendment rights. (Dkt. 231, pp. 52, 55, 57-60.) As the Report held, Plaintiffs’ theory fails under several cases finding various housing policies, including policies of allowing inmates to choose their cell mates, of segregating gang members, or of allowing non-affiliated inmates to be housed with gang members, do not amount to deliberate indifference under the Eighth Amendment.
In Washington v. LaPorte County Sheriff’s Dept., 306 F.3d 515, 518 (7th Cir. 2002), the Seventh Circuit found an explicit policy allowing inmates to choose their cell mates did not satisfy the subjective nature of the deliberate indifference inquiry required under Farmer, 511 U.S. 825. In LaPorte, 306 F.3d at 518, the plaintiff alleged allowing inmates to choose their cell mates created a high probability of inmate-on-inmate assault. The LaPorte court explained Farmer requires “actual knowledge of the risk,” showing that prison guards were subjectively aware of a substantial risk that inmates might be harmed as a result of implementation of the policy. Id. The court held jail policy allowing inmates to choose their cell mates did not present such an obvious risk such that actual knowledge on the part of prison officials could be inferred. Id. at 519.
Similarly, in Cotta v. County of Kings, 79 F.Supp.3d 1148 (E.D. Cal. 2015), the court considered a claim involving a prisoner who was murdered when he was housed together with his co-defendant in a cell. Although jail policy generally discouraged codefendants from being housed together, neither did it prohibit housing co-defendants together. Plaintiff alleged the jail lacked a policy to affirmatively gather evidence and
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information concerning co-defendants’ legal proceedings that may bear on the decision to house co-defendants together, and the jail lacked a policy to ensure communication of such information to housing authorities. The Cotta court held housing co-defendants together did not in and of itself constitute deliberate indifference to inmates’ security. Id. at 1174. Based on LaPorte and Cotta, the risk of injury posed by allowing inmates to choose their housing assignments is not such an obvious risk that CCA should have recognized the harm posed by implementation through such practice.
Moreover, the Ninth Circuit has explicitly rejected Eighth Amendment claims targeting prison policies related to housing rival gang members. In Nesbit v. Dept. of Public Safety, 283 Fed.Appx. 531, 2008 WL 2490440 (9th Cir. 2008), like here, plaintiffs alleged their attacks were a foreseeable result of a prison housing policy that separated rival gang members from each other but housed unaffiliated inmates with gangs. In an unpublished decision, the Nesbit court held Plaintiffs failed to demonstrate the housing policy itself amounted to deliberate indifference, “because nothing indicates that unaffiliated inmates were at a significantly greater risk of assault when housed with separated gang members.” 283 Fed.Appx. at 534. Although, as discussed above, there is evidence in the record to suggest there was more violence in the DEF unit than other units of the prison, there is insufficient evidence to establish such increased risk of violence was related to the unofficial policy of housing gang members together. As the Report highlighted:
[T]he Court here cannot conclude that housing gang members and non-affiliated groups together in the DEF Unit…inherently presented a substantial risk that a non-affiliated inmate would be physically assaulted or harmed as a consequence of
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the practice itself. This is true given the physical layout and control over inmates in the DEF Unit—groups of 16 inmates were separated by walks and not allowed to intermingle either during their dayroom or recreation time…. The physical layout and movement pattern of inmates housed in the DEF Unit was such that inmate assaults of the nature experienced by Plaintiffs would be all but impossible, unless someone hid in the closet or the shower. (Dkt. 231, p. 59.) In Labatad v. CCA, 714 F.3d 1155, 1160 (9th Cir. 2013), plaintiff challenged both the prison’s decision to house him in the same cell with a rival gang member, and the general policy that allowed rival gang members to be housed together. In Labatad, the prison did not have a policy of segregating rival gang members in cell assignments, but instead considered gang affiliation as one factor in the case-by-case evaluations used to make cell assignments. The Ninth Circuit upheld the district court’s conclusion that the prison’s policy permitting members of different gangs to be housed together was not itself an Eighth Amendment violation. In so holding, the Court noted if the prison was required to separate gang members by gang affiliation, “among other problems, ‘[t]he number of gang members housed…and the high representation of certain gangs would place an unmanageable burden on prison administrators were they required to separate inmates by gangs.” Id. (quoting Mayoral v. Sheahan, 245 F.3d 934, 939 (7th Cir. 2001)). See also Ellington v. E.S. Alameida, 2010 WL 2650632, *14 (E.D. Cal. 2010) (holding “plaintiff has failed to present evidence or cite any authority establishing that housing a non-affiliated inmate in the same cell as a gang-affiliated inmate will inherently present ‘a substantial risk’ that the non-affiliated inmate will be physically assaulted or harmed…Without more, plaintiff’s conclusory assertions regarding the ‘substantial
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danger’ of housing gang-affiliated and non-affiliated inmates in a cell together do not satisfy the objective component of Farmer.”).
In their objections, Plaintiffs attempt to distinguish Labatad because the policy there allowed rival gang members and unaffiliated members to be housed together, while the policy here clustered rival gang members together in their own walks. (Dkt. 233, p. 20.) Plaintiffs miss the point—Labatad and the aforementioned cases stand for the proposition that, without more, a policy of housing certain prisoners together, apart, or in accordance with prisoners’ choices, does not amount to an Eighth Amendment violation. Although they present evidence that gang clustering was against CCA policy and that officials knew about and sought to change the practice of clustering gangs together, Plaintiffs fail to show that they were incarcerated under conditions posing a “substantial risk of serious harm” due to gang clustering. Farmer, 511 U.S. at 834. Absent such showing, Plaintiffs cannot establish CCA’s practice of housing friendly gang members or groups of inmates together in the DEF unit amounted to an Eighth Amendment violation.
Finally, even assuming Plaintiffs could establish the practice of gang clustering amounted to deliberate indifference, their gang clustering claim fails for a lack of causation. While there is evidence to suggest the attack was possible due to understaffing and the failure to supervise Offender Campos, Plaintiffs have not shown the practice of allowing inmates to choose their own walks and grouping gang members together was the moving force behind the alleged violation of their constitutional rights. Although Plaintiffs suggest the earlier, June 14, 2011, inmate attack supports both their understaffing and gang clustering claim, the Court finds the earlier attack relevant only to
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the understaffing claim. That is, while there is evidence to suggest both the prior and instant attack were possible due to pervasive understaffing, there is nothing to suggest either attack was caused by the policy of clustering gang members together. Even if gangs had been disbursed, rival gang members could have attacked each other as they did in June 2011 and May 2012 due to staffing shortages.
c. Expert Reports Plaintiffs ask the Court to take their expert reports into account when determining whether to adopt the Report. (Dkt. 233, p. 20.) However, as CCA notes, Plaintiffs did not rely on—or cite to—their expert reports in responding to CCA’s Motion for Summary Judgment. Because the expert reports were not relevant to resolving the motion for summary judgment, the Court will not exercise its discretion to consider them here. Brown v. Roe, 279 F.3d 742, 744 (9th Cir. 2002).
ORDER NOW, THEREFORE, IT IS HEREBY ORDERED: 1. The Report (Dkt. 231) is REJECTED in part and ADOPTED in part. 2. The portions of the Report which granted Defendant summary judgment with
respect to Plaintiffs’ § 1983 understaffing claim is REJECTED, summary judgment is DENIED with respect to Plaintiffs’ § 1983 understaffing claim; 3. The Report is ADOPTED in all other respects;
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SO ORDERED.

DATED: July 7, 2016
_________________________ Edward J. Lodge United States District Judge

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

OMAR CASTILLON, DUSTY KNIGHT, JUSTIN PETERSON, LEON RUSSELL, CHRISTOHPER JORDAN, JACOB JUDD, MICHAEL FORDBRIDGES, AND RAYMOND BRYANT,
Plaintiffs,
v.
CORRECTIONS CORPORATION OF AMERICA, INC.,
Defendant.

Case No. 1:12-CV-00559-EJL
MEMORANDUM DECISION AND ORDER

On July 7, 2016, this Court entered an Order adopting in part and rejecting in part Magistrate Judge Candy Dale’s Report and Recommendation on a Motion for Summary Judgment by Defendant Correction Corporation of America (CCA). In its Order, this Court granted summary judgment to CCA on prisoner-Plaintiffs’ “gang clustering theory,” but denied summary judgment on Plaintiffs’ theories regarding understaffing and municipal liability. CCA seeks reconsideration of the Court’s order with respect to Plaintiffs’ understaffing claim, and also asks the Court to analyze its previously-briefed argument seeking summary judgment on
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Plaintiffs’ punitive damages claim.1 The Court here considers CCA’s Motion for Reconsideration (Dkt. 245). As reconsideration is denied, the Court will issue a separate order resolving CCA’s Motion to Bifurcate, as well as several evidentiary issues set forth in Plaintiffs’ Motion for Reconsideration and CCA’s Motion for Reconsideration of its Motion to Exclude Expert Testimony.
STANDARD OF REVIEW Neither the Federal Rules of Civil Procedure nor the Local Rules provide for a motion to reconsider. However, the Ninth Circuit has stated that motions to reconsider should be treated as motions to alter or amend under Federal Rule of Civil Procedure 59(e). Sierra On-Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415, 1419 (9th Cir. 1984); Backlund v. Barnhart, 778 F.2d 1386, 1388 (9th Cir. 1985). Reconsideration under Rule 59(e) is an “extraordinary remedy, to be used sparingly in the interests of finality and conservation of judicial resources.” Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir. 2003) (quotation omitted). As a result, the Ninth Circuit has identified three reasons sufficient to warrant a court’s reconsideration of a prior order: (1) an intervening change in controlling law; (2) the discovery of new evidence not previously available; or (3) the need to correct 1 This Court followed the framework of Judge Dale’s Report and Recommendation (“R&R”) in its Order, and focused on Plaintiff’s objections to the R&R. The Court overlooked CCA’s punitive damages argument since the R&R recommended granting summary judgment to CCA and thus did not discuss Plaintiffs’ claim for punitive damages.
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clear or manifest error in law or fact, to prevent manifest injustice. Id; see also 389 Orange Street Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999) (A motion for reconsideration “should not be granted, absent highly unusual circumstances, unless the district court is presented with newly discovered evidence, committed clear error, or there is an intervening change in the controlling law.) CCA suggests “some, if not all, of these considerations merit reconsideration of the Court’s Order on Defendant’s Motion for Summary Judgment.” (Dkt. 245, p. 3.)
Plaintiffs contend the Court should summarily deny CCA’s Motion because it was not timely submitted. (Dkt. 247, pp. 4-6.) However, a district court may modify a pre-trial interlocutory order, such as this Court’s Order denying summary judgment, “at any time prior to final judgment.” Amarel v. Connell, 102 F.3d 1494, 1515 (9th Cir. 1996). Whenever possible, the Court strives to resolve matters on the merits, rather than on procedural technicalities. Thus, despite the purported untimeliness of CCA’s motion, the Court will address CCA’s arguments.
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ANALYSIS A. Plaintiffs’ Understaffing Claim2 In its Motion for Reconsideration, CCA challenges the Court’s conclusion that Plaintiffs presented a genuine issue of material fact with respect to the Monell causation required to state a claim for violation of the Eight Amendment due to understaffing. Briefly, in light of evidence that the DEF high security unit was overstaffed on the day of the May 5, 2012 attack against Plaintiffs, Judge Dale recommended summary judgment be granted in favor of CCA because Plaintiffs “failed to articulate how CCA’s alleged policy of understaffing, when CCA on the day of the attack had more officers than the one pod control and four floor officers contractually required, caused the injuries of which they complain.” (Dkt. 231, p. 47.) This Court rejected the recommendation after finding there was sufficient evidence to withstand summary judgment on Plaintiffs’ claim that understaffing on May 4, 2012 was the moving force behind the attack. (Dkt. 236, p. 30.) In so holding, this Court credited testimony from Sergeant Garth Carrick and Pod Control Officer Jacob Mills suggesting an inmate (Offender Campos) was not supervised due to understaffing the night of May 4, 2012 when he rigged a closet
2 The Court will not here repeat the factual background of and legal framework for Plaintiffs’ § 1983 claim against CCA, including the four elements Plaintiffs are required to establish under Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691-94 (1978), already set forth in its Order denying summary judgment.
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door and communicated with Plaintiffs’ attackers. Plaintiffs’ attackers used the rigged closet to hide and avoid detection by guards so they could surprise Plaintiffs and attempt to murder them on the morning of May 5, 2012. The Court held a reasonable juror could determine a lack of staffing on the night of May 4, 2012 was the “moving force” behind Plaintiffs’ attack. “The testimony of Carrick and Mills regarding the lack of supervision the night of May 4, 2012, particularly when coupled with all of the evidence of frequent understaffing in the DEF unit in May of 2012, especially during the night shift, is sufficient to establish causation at the summary judgment stage.” (Id., pp. 31-32.)
On reconsideration, CCA argues Plaintiffs’ theory of understaffing on May 4, 2012 cannot withstand scrutiny because: (1) Plaintiffs have conceded that the contractually required, mandatory posts were filled during the second shift; (2) the Ninth Circuit has recently concluded in Kelly v. Wengler, 822 F.3d 1085 (9th Cir. 2016) that the contractual staffing requirements were the least intrusive means of bringing ICC into compliance with the Eighth Amendment; and (3) the critical element of Monell causation is missing. (Dkt. 245, p. 4.).
1. Staffing on the Night of May 4, 2012 CCA suggests Plaintiffs’ understaffing claim must fail because the DEF Unit was fully staffed on the night of May 4th. According to CCA Managing Director
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Kevin Myers, who reviewed Kronos Time Detail Reports, shift rosters, and the DEF logbook for that night, “the DEF Unit was fully staffed throughout [the] second shift between May 4 and May 5, 2012.” (Dkt. 245, p. 6.) During the second shift on May 4, 2012, the Idaho Correctional Center’s contract mandated a total of four officers in DEF—one pod control officer and three floor officers. (Dkt. 131, ¶ 11.) At 10:23 p.m., the time Offender Campos tampered with the janitor’s closet door in the F-1 Pod, Officer Mills, Officer Kelley, Officer Aivles, and Officer Coombs were on duty in the DEF Unit. In addition to Myers’ testimony showing CCA purportedly had the contractual minimum of staff posted on the night of May 4th, CCA notes Officer Mills confirmed in his affidavit that he recalled one pod control officer and three floor officers were posted in the DEF Unit on the night of May 4th. (Dkt. 245, pp. 6-7) (citing Mills Affidavit, Dkt. 14309, ¶¶ 17 & 21.)
At the outset, the Court notes that although the evidence regarding the specific staffing on May 4, 2012 is in the record, it was submitted in conjunction with CCA’s March, 2014 Motion to Stay and for Protective Order, and was not provided in the hundreds of pages submitted in support of CCA’s September, 2014 Motion for Summary Judgment. Although the record on summary judgment is replete with references to staffing on May 5, 2012, CCA did not offer any evidence on summary judgment regarding the specific staff present on May 4, 2012 when
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the closet door was rigged. See, e.g., Dkt. 166, CCA’s Motion for Summary Judgment, pp. 3, 10-12, 19 (arguing the DEF Unit was overstaffed on May 5, 2012 but failing to address staffing the night of May 4th); Dkt. 167, CCA’s Statement of Facts, pp. 7-8 (setting forth DEF staffing on May 5, 2012 but neglecting to discuss staffing on the night of May 4th); Dkt. 169, Myers Affidavit in Support of Motion for Summary Judgment, pp. 10-11 (reviewing staffing on May 5, 2012 and concluding DEF was fully staffed on May 5, without discussion of staffing on May 4); Dkt. 169-15, Carrick Affidavit in Support of Motion for Summary Judgment, ¶ 12 (discussing presence of staff and contractual minimum on May 5th); Dkt. 1709, Ex. 22k (staff roster for first day shift of May 5, 2012); Dkt. 170-10, Ex. 22l (staff log book for May 5, 2012); Dkt. 202, p. 7, CCA’s Reply in Support of Motion for Summary Judgment (erroneously suggesting the DEF Unit had four more officers posted than the contractual minimum on May 4, 2012 without identifying staff and/or specific times they were present). 3 When moving for summary
3 Although CCA notes other officers, including Officers Chase, Goodman, Anderson and Rodriquez worked a portion of the second shift in the DEF Unit the night of May 4th, none of these officers were posted in the DEF Unit after 8:38 p.m. that night. Officers Anderson and Rodriguez left work at 7:47 p.m., and Officers Chase and Goodman were reassigned to the G floor in another unit at approximately 8:38 p.m. (Dkt. 245, p. 6.) Such officers cannot be counted within the number of staff posted to the DEF Unit throughout the second shift of May 4, 2012. As CCA concedes in its Motion for Reconsideration, only the contractual minimum of three floor officers and one pod control officer were present in the DEF Unit at 10:23 p.m., the time Offender Campos rigged the janitor’s closet door. (Id.)
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judgment, CCA failed to present specific evidence regarding staffing on the night of May 4, 2012 despite Plaintiffs’ argument, in response to CCA’s Motion for Summary Judgment, that the planning of the attack began in the evening of May 4, 2012, when Offender Campos “who was not being supervised due to the understaffing at the facility, rigged the closet door.” (Dkt. 188, p. 10); see also (Dkt. 188-1, Plaintiffs’ Statement of Disputed Material Fact, ¶¶ 11, 46, 59.)
As the party seeking summary judgment, CCA had the burden of not only informing the Court of the basis for its motion, but also identifying those portions of the record which it believed demonstrated the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Fed.R.Civ.P. 56(c)(1) (a party asserting that a fact cannot be genuinely disputed must support the assertion by “citing to particular parts of materials in the record.”). A district court “need not examine the entire file for evidence establishing the [absence of] a genuine issue of fact, where the evidence is not set forth in the moving papers with adequate references so that it could be conveniently found.” Carmen v. S.F. Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001); see also Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996). As the Seventh Circuit observed in its oftquoted maxim, “‘judges are not like pigs, hunting for truffles buried in briefs.’” Independent Towers of Wash. v. Washington, 350 F.3d 925, 929 (9th Cir. 2003) (quoting United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991)). The fact
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CCA failed to meet its burden when moving for summary judgment with respect to understaffing on May 4, 2012 is not a basis for granting reconsideration. Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir. 2003) (a losing party cannot use a Rule 59(e) motion to raise arguments or present evidence that could have been raised before the entry of judgment).
CCA further suggests the Court gave Officer Mills’ testimony regarding understaffing on May 4, 2012 credit “that the law does not allow under Fed. R. Civ. P. 56.” (Dkt. 245, p. 7.) CCA argues Mills’ testimony was conclusory and based on mere allegation and speculation that not enough staff were present on the night of May 4, 2012. (Id.) However, Officer Mills was one of the four officers present in the DEF Unit on May 4, 2012, and testified that neither he, nor any of the other officers on duty, witnessed Offender Campos tampering with the closet door. (Dkt. 143-9, ¶ 20.) Officer Mills does not base his conclusion that Offender Campos was not supervised on mere speculation, but instead offers an eye-witness account of the night in question. Further, CCA did not provide any testimony from the other officers on duty that night to counter Officer Mills’ claim that Offender Campos was not supervised. As such, Officer Mills’ testimony presents a genuine issue of material fact precluding summary judgment. Blankenhorn v. City of Orange, 485 F.3d 463, 483 (9th Cir. 2007) (reversing grant of summary judgment where eye-witness testimony contradicted police report).
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CCA also suggests reconsideration is appropriate because Officer Mills
“never challenged the factual evidence presented by Managing Director Myers that
at least three floor officers and a pod officer were physically present at all times
during the second shift of the unit; indeed, Mills even corroborates this fact.”
(Dkt. 245, p. 8) (emphasis in original). Apart from the fact that the factual
evidence CCA belatedly identifies was not included with CCA’s briefing on the
Motion for Summary Judgment, the Court does not find such evidence conclusive for purposes of summary judgment.4 Although CCA claims it is undisputed that it
maintained the contractual minimum number of staff at all times during May 4,
2012, Plaintiffs have presented conflicting evidence sufficient to establish a
genuine issue of material fact.
4 As Plaintiffs note in their Response to CCA’s Motion for Reconsideration, there is also evidence that undermines the validity of Myers’ conclusions regarding staffing on the night of May 4, 2012. (Dkt. 247, pp. 10-13.) For instance, Myers admitted that the Kronos Data and the Log Books could not identify the location of correctional officers within the prison, and that CCA did not interview any of the officers on duty in DEF on the night of May 4, 2012 when it concluded the unit was fully staffed. (Id.) Although Mills stated he recalled three floor officer and one pod control officer on duty the night of May 4, he also testified such officers frequently left their posts during the shift. (Dkt. 143-9, ¶ 21.) For instance, Mills, who was the single pod control officer that night, did not work his entire shift in pod control because he was frequently called away to cover other posts. (Id., ¶ 14.) However, even if the Court accepts CCA’s conclusion that three floor officers and one pod control officer were present in the DEF Unit at all times during the second shift on May 4, 2012, Plaintiffs’ evidence disputes whether the four officers actually satisfied the contractual minimum number of staff.
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Significantly, IDOC Deputy Warden Tim Higgins testified during the contempt hearing in Kelly v. Wengler that Amendment Eight to CCA’s contract with IDOC included minimum expectations as far as staffing patterns at the facility, but also required additional staffing in certain cases, such as when an inmate was out of his cell. (Dkt. 167-5, p. 5). Higgins confirmed that direct supervision was contractually required, regardless of whether the minimum staff was fulfilled. (Id.) (stating the contract “includes what the minimum expectations are as far as the staffing patterns at the facility... The contract itself also has some other areas that do identify when additional staffing would be required. As an example, if a town hospital inmate was assigned to town hospital, it stipulates that that person would be supervised. It also says that if an inmate’s out of his cell, they’d be supervised.”) (emphasis added). According to Higgins, it appears CCA was required to have more staff than the contractual minimum if more staff was needed to directly supervise inmates outside of their cells. However, Officer Mills testified DEF “did not have enough staff to provide uninterrupted and direct supervision of offenders during the second shift on May 4, 2012.” (Dkt. 143-9, Mills Affidavit, ¶ 21.) Because there is a disputed issue of material fact with respect to whether Offender Campos was directly supervised, the Court cannot find CCA’s staffing numbers “were at or above IDOC’s contract requirements,” for purposes of summary judgment. (Dkt. 245, p. 9.)
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2. Kelly v. Wengler As discussed more fully in the Court’s Order denying summary judgment, various inmates at Idaho’s Correctional Center brought suit against CCA in 2011 alleging Eighth Amendment violations. The parties entered into a settlement agreement (“Kelly Agreement”) which, among other things, required CCA to maintain minimum staffing levels.5 (Dkt. 236, pp. 17-18.) Two years after the Kelly Agreement was entered into, Judge David Carter held a show cause hearing to determine whether CCA had breached it. Judge Carter held CCA in civil contempt and breach, and extended the Kelly Agreement, which was supposed to last for only two years, for another two years. CCA appealed, inter alia, Judge Carter’s contempt finding and extension of the settlement agreement. On May 23, 2016, after Plaintiffs and CCA had fully briefed Plaintiffs’ objections to the R&R, but before this Court entered its Order, the Ninth Circuit issued a decision upholding Judge Carter’s contempt order in Kelly v. Wengler, 822 F.3d 1085 (2016). In upholding Judge Carter’s extension of the Kelly Agreement, the Ninth Circuit explained: CCA further contends the district court abused its discretion by extending the entire settlement agreement instead of extending only the staffing
5 Amendment 8 to the Kelly Agreement is the contractual provision Higgins referenced regarding the minimum number of staff and the direct supervision requirement.
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requirements embodied in paragraph 4… When the district court and the parties approved the settlement agreement, there was no dispute that its remedies were narrowly drawn, necessary, and the least intrusive means to bring ICC into compliance with the Eighth Amendment, in accordance with [18 U.S.C. § 3626(a)(1)(A)]. The same remedies remain narrowly drawn, necessary, and the least intrusive means to rectify CCA’s continued Eighth Amendment violations.
Kelly, 822 F.3d at 1098.
CCA extends the above language to mean the Ninth Circuit held as long as
CCA had three floor officers and one pod control officer on the night of May 4,
2012, it complied with the Eighth Amendment. (Dkt. 245, p. 10); (Dkt. 252, p. 2)
(arguing, the “DEF Unit was fully staffed with three correctional officers and a pod
control officer on the second/evening shift of May 4-5, 2012—a threshold number
that the Ninth Circuit recently confirmed satisfies the constitutional minima for the
DEF Unit in question.”)
CCA misconstrues the Ninth Circuit’s ruling. The Kelly opinion did not
hold that as long as CCA had a contractual minimum number of staff all other
Eight Amendment violations were cured. Indeed, in addition to staffing
requirements, the Ninth Circuit highlighted CCA had failed to comply with other
requirements of the Kelly Agreement:
The district court’s findings were not confined the failure of CCA to fulfill the staffing requirements. The court found, in addition, that the ‘same supervisors who signed falsified record sheets remain[ed] on the job,’ and that CCA’s shoddy record keeping ‘obscured who was working at what posts and at what times.’ In light of these findings, the district court doubted
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CCA’s ‘compliance in other respects, such as whether every violent incident is reported.’ Kelly, 822 F.3d at 1098. Further, in light of CCA’s non-compliance, the Ninth Circuit held extension of the entire Kelly Agreement was necessary to rectify CCA’s continued Eighth Amendment violations: “Further, the district court was reasonably concerned that CCA’s failure to comply with staffing requirements affected its ability to comply with the settlement agreement’s other requirements. The court’s conclusion that the extension of the entire agreement was suitably tailored to correct CCA’s noncompliance was thus not an abuse of discretion.” Id. (emphasis added). As Plaintiffs note, the Kelly Agreement did not just identify minimum staffing requirements, but also mandated that CCA directly supervise inmates. (Dkt. 247, p. 13); (Dkt. 248-2, ¶ 11); (Dkt. 167-5, p. 5.) Direct supervision required an officer to be in the same room as an inmate when an inmate was out of their cell. (Dkt. 188-2, p. 73); (Dkt. 224-2, pp. 40-41.) Thus, under CCA’s logic, like a contractual minimum number of staff, direct supervision—another remedy of the Kelly Agreement—was “narrowly drawn, necessary and the least intrusive means to rectify CCA’s continued Eighth Amendment violations.” Kelly, 822 F.3d at 1098. Whether CCA fulfilled its obligation of direct supervision is a disputed issue of material fact precluding summary judgment.
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In reply to Plaintiffs’ opposition to reconsideration, CCA argues Plaintiffs’ contention regarding direct supervision fails because this money damages lawsuit is not for contempt or enforcement of a settlement agreement. (Dkt. 252, p. 7.) However, it is CCA’s claim that the Ninth Circuit held compliance with the Kelly Agreement constituted compliance with the Eighth Amendment. (Dkt. 245, p. 9) (stating the Ninth Circuit held in Kelly that “the staffing requirements and other contractual obligations imposed on CCA were the least intrusive means to bring the prison in compliance with the Eighth Amendment.”) CCA cannot ignore other remedies provided in the Kelly Agreement, such as the requirement of direct supervision, the Ninth Circuit also extended and, by implication, held necessary to satisfy the Eighth Amendment in Kelly. 822 F.3d at 1098.
CCA also suggests: Plaintiffs’ reasoning is circular and “rests on a flawed premise about the number of staff physically present: ‘CCA violated the [Kelly Agreement] on May 4, 2012 because Officer Campos was not directly supervised due to inadequate staffing.’ If the DEF Unit was fully staffed as shown above, it stands to reason that Plaintiffs’ direct supervision and settlement violation arguments must fail.” (Dkt. 252, p. 7) (quoting Plaintiffs’ Response to CCA’s Motion for Reconsideration, Dkt. 247, p.13.) The Court disagrees. If direct supervision is required under the Kelly Agreement, and the contractual minimum wasn’t enough to allow for direct supervision, then the number of staff present on May 4, 2012 may not have been
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enough to keep Plaintiffs safe. As the Ninth Circuit held, “there was no dispute that [the Kelly Agreement’s] remedies were narrowly drawn, necessary, and the least intrusive means to bring ICC into compliance with the Eighth Amendment.” Kelly, 822 F.3d at 1098. Further, as the testimony of Higgins, highlighted above, indicates, CCA was required to have staff above the contractual minimum if such staff was necessary to directly supervise inmates. (Dkt. 167-5, p. 5.)
Interestingly, Judge Carter ordered an Independent Monitor (“IM”) o check CCA’s compliance with the staffing requirements established in the Kelly Agreement after finding CCA in contempt for violating the agreement. (Dkt. 16815, p. 1.); see also Kelly v. Wengler, 979 F. Supp.2d 1104, 1116 (D. Idaho 2013.) The IM visited ICC during 70 on-site inspections between November 15, 2013 and June 29, 2014. During every on-site inspection, the IM found no violations of the staffing requirements established in Amendment 8. (Dkt. 168-15, p. 1.) In fact, the night shift frequently had 10 or more staff above the Amendment 8 requirements. (Id.) That CCA staffed its facility with 10 or more staff beyond the minimum requirement specified in Amendment 8 after it was held in contempt of the Kelly Agreement suggests the contractual minimum was not sufficient to satisfy CCA’s additional contractual and constitutional obligations to the prisoners housed at ICC.
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3. Causation CCA argues even if the Court concludes that a triable issue is presented as to whether the DEF Unit was staffed on May 4th in accordance with contractual and constitutional requirements, “Plaintiffs do not have the but-for causation evidence to reach a jury.” (Dkt. 245, p. 10.) To establish the alleged lack of staff the night of May 4th prevented the direct supervision of Offender Campos, Plaintiffs relied upon the declaration of Officer Mills and a Disciplinary Offense Report by Sergeant Garth Carrick, who reviewed the surveillance video of that night to later charge Campos with tampering with the door. CCA suggests Plaintiffs’ evidence is speculative because “inmate Campos was an assigned orderly or janitor, whose duties required him to work with janitor supplies… and there was no reason for his presence at the closet to spark suspicion by the three floor officers and pod officer on duty.” (Dkt. 245, p. 11.) Thus, regardless of whether Campos was directly supervised, “there would have been no logical reason for any officer to question Campos’ janitorial activities that night.” (Id.) Plaintiffs’ evidence is entitled to more weight than CCA suggests. First, with respect to Carrick’s report, CCA contends “Plaintiffs’ evidence shows only that Carrick used surveillance video after the assault to charge inmate Campos with tampering with the janitor door because one viewing the video could see him at the closet door.” (Id.) Carrick’s statement actually says more than this, explaining the
MEMORANDUM DECISION AND ORDER - 17

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surveillance video showed Offender Campos, at approximately 10:23 p.m., tampering with the closet door and communicating with the aggressors. (Dkt. 124, p. 4.) In the absence of any testimony from CCA to the contrary, it is reasonable to assume a guard directly supervising Offender Campos would have been suspicious after watching him “tamper” with the closet door and communicate with the attackers through their cell doors.
Moreover, any “speculation” regarding what Campos could actually be seen doing on the surveillance video is a result of CCA’s actions. CCA has admitted it failed to preserve the surveillance footage from the night of May 4, 2012. (Dkt. 143, pp. 5-6.) CCA cannot fault Plaintiffs for relying upon testimony from the only person who viewed Campos’ actions when CCA failed to preserve evidence that could supposedly contradict this account.6
Second, Mills’ affidavit is the only evidence before the Court regarding what the officers actually present in the DEF Unit on the night of May 4th witnessed. Mills stated, “I recall that neither I, nor any other officers on duty during the second shift on May 4, 2012 directly supervised Offender Campos when we accessed the janitor’s closet on the F1 pod… DEF did not have enough staff to provide uninterrupted and direct supervision of offenders during the second shift
6 CCA has not submitted an affidavit from Carrick to suggest the surveillance video only showed Campos at the closet door, rather than tampering with the door.
MEMORANDUM DECISION AND ORDER - 18

Case 1:12-cv-00559-DVB Document 260 Filed 11/10/16 Page 19 of 23
on May 4, 2012… Without an additional officer to relieve the four staff posted within DEF, gaps in coverage occurred when officers used the restroom or had to leave their post. ” (Dkt. 143-9, ¶ 20.) Although CCA had the burden on summary judgment to set forth specific evidence to establish an absence of material fact, it has not submitted evidence from any of the other guards on duty to dispute Mills’ testimony regarding direct supervision.
Finally, CCA suggests a Seventh Circuit case illustrates why Plaintiffs’ May 4th staffing allegations are inconsequential to the May 5th assault. (Dkt. 245, p. 12.) In Thomas v. Cook Cnty. Sheriff’s Dept., 604 F.3d 293 (7th Cir. 2010), a pretrial detainee died of pneumococcal meningitis and his mother brought a § 1983 action against the sheriff’s department and various officers and medical technicians at the county jail. Following a jury verdict for the mother, the Seventh Circuit affirmed the verdict against the individual officers, but reversed the verdict against the sheriff’s department. In so holding, the Seventh Circuit assumed the jail was understaffed but nonetheless concluded proof of causation was absent:
Because the jury held the individual officers liable, it must have found that the officers deliberately ignored Smith’s condition. But the evidence does not demonstrate that their actions had anything to do with understaffing. No one testified or even argued that the officers would have acted differently if more of them were on duty. How many officers would the Sheriff need to hire to ensure that no one deliberately ignores a complaint or medical request? We do not know. Id. at 306-07.
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Judge Dale similarly held, “Plaintiffs have failed to articulate how CCA’s alleged policy of understaffing, when CCA on the day of the attack had [at least three] more officers than the one pod control and four floor officers contractually required, caused the injuries of which they now complain.” (Dkt. 231, pp. 46-47.) Plaintiffs’ understaffing claim with respect to the night of May 4,, 2012 does not suffer the same deficiency identified by the Seventh Circuit in Thomas or by Judge Dale with respect to staffing of ICC on May 5th. That is, Plaintiffs have articulated how understaffing on May 4th caused the injuries of which they complain. Under Plaintiffs’ theory, if enough staff had been present to provide uninterrupted direct supervision of Offender Campos, he would not have had the opportunity to tamper with the closet door and communicate with Plaintiffs’ attackers. As the Court held in its Order denying summary judgment, [a]bsent Offender Campos’ closet rigging on May 4, 2012, a reasonable juror could conclude the assailants would not have been able to attack Plaintiffs on the morning of May 5, 2012.” (Dkt. 236, p. 33.) The Court again finds Plaintiffs have established Monell causation for purposes of summary judgment.
4. Punitive Damages On summary judgment, CCA argued that it was either entitled to immunity on Plaintiffs’ claim for punitive damages, or that the evidence was insufficient to
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satisfy the heightened proof requirements for punitive damages. (Dkt. 166-1, pp. 18-19.) As the Court did not address CCA’s arguments regarding punitive damages in its Order denying summary judgment, reconsideration is appropriate to consider CCA’s immunity and evidence-insufficiency arguments.
Public entities are immune from punitive damages under § 1983. City of Newport v. Fact Concerts, Inc., 453 U.S. 247 (1981). However, the defense of qualified immunity is not categorically available to private actors, like CCA, who act under the color of state law. Richardson v. McKnight, 521 U.S. 399, 404 (1997) (finding the qualified immunity defense unavailable to private prison guards because “a private firm, systematically organized to assume a major lengthy administrative task (managing an institution) with limited direct supervision, undertakes that task for profit and potentially in competition with other firms.”)
Where, as here, qualified immunity is not available to a defendant who is a private actor in an action brought under 42 U.S.C. § 1983, the Ninth Circuit has held the defendant nevertheless may assert a good faith defense to liability. Clement v. City of Glendale, 518 F.3d 1090, 1097 (2008). “A good faith defense fully protects defendants who act in good faith and thus provides them with protection similar to qualified immunity.” Franklin v. Fox, 2001 WL 114438, *5 (N.D. Cal. 2001). “Application of the good faith defense turns on the defendant’s subjective good faith; because good faith in an affirmative defense to liability, the
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defendant bears the burden of proof.” Sundquist v. Philip, 2008 WL 8549452 (N.D. Cal. 2008).
In Clement, the Ninth Circuit held a towing company was entitled to assert a good faith defense where the “company did its best to follow the law and had no reason to suspect that there would be a constitutional challenge to its actions.” 518 F.3 at 1097. Further, the “constitutional defect—a lack of notice to the car’s owner—could not have been observed by the towing company at the time when the tow was conducted; there would be no easy way for a private towing company to know whether the owner had been notified or not.” Id. Here, by contrast, there is ample evidence in the record to suggest CCA not only should have been aware of the constitutional violation (understaffing), but was aware it was severely understaffing its prison and consciously failed to correct the violation. (Dkt. 236, pp. 16-28.) CCA is not entitled to summary judgment on the basis of the good faith defense.
CCA also suggests Plaintiffs’ punitive damages claim should be dismissed because there exists no evidence of CCA acting with an evil motive or intent, or a reckless or callous indifference to the constitutional rights of others. (Dkt. 166-1, p. 18) (citations omitted). Punitive damages may be awarded on a finding of reckless or callous disregard of or indifference to a prisoner’s rights or safety. Smith v. Wade, 461 U.S. 30, 37 (1983).
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The punitive damages claim in this case is a close call. However, the Court finds the evidence Plaintiffs submitted on summary judgment creates a genuine dispute of material fact as to whether CCA acted with reckless disregard for the safety and rights of Plaintiffs. (Dkt. 236, pp. 16-28.) Accordingly, CCA is not entitled to summary judgment on Plaintiffs’ punitive damages claim.
The Court will reserve its ruling on whether or not the punitive damages claim will be submitted to the jury until the parties have rested.
ORDER NOW THEREFORE, it is hereby ORDERED: 1. CCA’S Motion for Reconsideration (Dkt. 245) is DENIED.
DATED: November 10, 2016 _________________________ Edward J. Lodge United States District Judge
MEMORANDUM DECISION AND ORDER - 23

 
 Case 1:12-cv-00559-DVB Document 373 Filed 10/06/17 Page 1 of 11

IN THE UNITED STATES COURT FOR THE DISTRICT OF IDAHO

OMAR CASTILLON, DUSTY KNIGHT, JUSTIN PETERSON, LEON RUSSELL, CHRISTOPHER JORDAN, JACOB JUDD, MICHAEL FORD-BRIDGES and RAYMOND BRYANT,
Plaintiffs,

MEMORANDUM DECISION AND ORDER

v.
CORRECTIONS CORPORATION OF AMERICA, INC.,
Defendant.

Judge Dee V. Benson Case No. 1:12-cv-559-DVB

Before the Court are two post-trial motions: (1) Plaintiffs' Motion to Alter, Amend or Correct Judgment and/or for a New Trial [Dkt. 361]; and Defendant's Motion to Amend, Correct or Alter Judgment [Dkt. 362]. Both motions have been fully briefed and a hearing was held before the Court in Boise, Idaho on September 29, 2017. At the hearing, Plaintiffs were represented by Anthony Shallot and Nildd Ramirez-Smith. Defendant was represented by Daniel P. Struck and Kirtland G. Naylor. Having considered the written and oral arguments of the parties, along with the relevant facts and the law, the Court enters the following Order.
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BACKGROUND
This case arouse out of an inmate-on-imnate assault that occurred on May 5, 2012 at the former Idaho Correctional Center, a private prison which, at the time of the attack, was operated by Defendant Corrections Corporation of America ("CCA") under contract with the Idaho Department of Corrections. On May 4, 2012, inmate Campos was assigned janitorial duties in the F-1 Pod, the housing unit in which Plaintiffs and others were housed. While completing his assigmnent, he secretly rigged the janitorial closet so that it would not lock. The next day, a group of inmates who were returning to their cells after recreation time outside, hid in the closet and waited for the next group of prisoners to be released from their cells for their recreation time. A few minutes later, as the second group left their cells, the first group emerged from the closet and attacked the second group of inmates, some with shanks or other homemade weapons. The injured members of the second group are the plaintiffs in this case.
Plaintiffs brought a Monell claim pursuant to 42 U.S.C. § 1983 against CCA, alleging a violation of their Eighth Amendment rights. [Dkt. 14]. See Monell v. New York City, 436 U.S. 658 (1978). In order to establish liability for a Monell claim tmder § 1983, a plaintiffmust show a direct causal link between a policy or custom and the alleged constitutional deprivation. Mendiola-Marinez, 836 F.3d at 1247 (citing Castro v. County ofLos Angeles, 833 F.3d 1060, 1075 (9111 Cir. 2016)(quoting City ofCanton v. Harris, 489 U.S. 378, 385 (1989)). Plaintiffs' claim was originally based on two theories: (1) CCA had a custom and policy of clustering gang members together, which created an environment that permitted the assault to occur; and (2) CCA had a custom and policy of understaffing that hindered the facility's ability to prevent or
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stop imnate-on-inmate violence. Judge Lodge of this Court granted summary judgment for CCA on Plaintiffs' "gang clustering" theory. He denied CCA's motion for summary judgment on Plaintiffs' overstaffing theory, however, finding "there is sufficient evidence to withstand summary judgment on Plaintiffs' claim that understaffing on May 4, 2012 was the moving force behind the attack." [Dkt. 236 at p. 30]. Judge Lodge found that "[a]bsent Offender Campos' closet rigging on May 4, 2012, a reasonable juror could conclude the assailants would not have been able to attack Plaintiffs on the morning ofMay 5, 2012." [Dkt. 236]. This was the issue presented to a jury at trial.
In order to succeed on their claim at trial, Plaintiffs were required to show: (1) that their constitutional rights were violated; (2) that CCA had a custom and policy of understaffing; and (3) a direct causa1link between the custom and policy of understaffing and the alleged constitutional deprivation. Mendiola-Martinez, 836 F.3d at 1247. See Fortson v. Los Angeles City Attorney's office, 852 F.3d 1190, 1195 (9th Cir. 2017). Under Monell, a plaintiff must show that "the policy at issue was the 'actionable cause' ofthe constitutional violation, which requires showing both 'but for' and proximate causation." Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1146 (9t11 Cir. 2012).
On February 22, 2017, following an eight day trial, the jury returned the Special Verdict Form finding that Plaintiffs proved the first two Monell elements, specifically, that Plaintiffs suffered a deprivation of their constitutional rights, and that CCA had a pattern and practice of understaffing. The jmy decided however, that the Plaintiffs had not met their burden of proving that understaffing on May 4 and 5, 2012 was the cause of this incident. Accordingly, the jury
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declined to award Plaintiffs any actual, nominal or punitive damages. The Court entered Judgment in this case reflecting the jury's findings on the Special Verdict Form. [Dkt. 342].
ANALYSIS I. Plaintiffs' Motion to Alter, Amend or Correct Judgment and/or
for a New Trial [Dkt. 3611
Plaintiffs' motion seeks, alternatively, a new trial; a partial new trial on damages; or to have the judgment altered to enter judgment in favor of Plaintiffs and to include an award of nominal damages.
A. Motion for a new trial "A new trial may be granted ... in an action in which there has been a trial by jury, for any of the reasons for which new trials have heretofore been granted in actions at law in the courts of the United States." Federal Rule of Civil Procedure 59(a)(1). Plaintiffs assert they are entitled to a new trial based on: (1) Jury Instmction Nos. 16 and 17; (2) the Special Verdict Form; and (3) specific evidentiary mlings.
1. Jury Instructions Plaintiffs argue that they are entitled to a new trial because Jury Instmction Nos. 16 and 17 required the jury to find that understaffing on May 4 and 5 was the moving force of the injuries sustained. They assert in their motion that proof of a pattern or practice of understaffing during the general time frame should have been sufficient to meet the causal element of Monell. At the close of evidence, the Court and counsel for both parties met to discuss and agree
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on jury instructions and a special verdict form to submit to the jury. Prior to trial, both sides had filed with the Court proposed versions of each. The proposed jury instructions submitted by both parties contained iterations ofthe Ninth Circuit Model Civil Jury Instructions. [Dkt. 312, 313].
"Because there are different legal standards establishing liability against the two types of defendants" to an action brought pursuant to 42 U.S. C. § 1983 -individuals and municipal bodies - the Ninth Circuit Model Civil Jury Instructions are organized to provide an "elements" instruction based on the type of defendant, and a "particular rights" instruction to establish the deprivation of particular constitutional rights. See 9111 Cir. Model Civ. Jury Instructions§ 9, Introductory Cmt.
The instmction that was ultimately adopted by the Court and given to the jury as Instmction No. 16 is the "elements" portion of the jury instmction, setting forth the elements of a Monell claim against CCA. [Dkt. 339 at 18.] It conforms with Model Instruction No. 9.5, entitled, "Section 1983 Claim Against Local Governing Body Defendants Based on Unlawful Official Policy, Practice, or Custom- Elements and Burden of Proof." This instruction requires the jury to find that Plaintiffs proved all ofthe elements in Instmction No. 16, as well as all of the elements of the accompanying "particular rights" instruction (Instmction No. 17), which was modeled after Model Instruction No. 9.28, entitled, "Particular Rights- Eighth Amendment- Convicted Prisoner's Claim of Failure to Protect."
Because Plaintiffs sought to hold CCA liable for their alleged constitutional violations under§ 1983, they were required to satisfy all of the elements for municipal liability established by Monell v. New York City, 436 U.S. 658 (1978). See Mendiola-Martinez v. Arpaio, 836 F.3d
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1239, 1247 (9th Cir. 2016). In denying summary judgment on the understaffing issue, Judge Lodge found that the critical issue was whether understaffing, not only in the general time frame, but specifically on May 4 when irunate Campos rigged the closet, was the moving force behind the incident. He stated, "[a]bsent Offender Campos' closet rigging on May 4, 2012, a reasonable juror could conclude the assailants would not have been able to attack Plaintiffs on the morning of May 5, 2012." [Dkt. 236 at p. 33]. The Court finds that the elements necessary in this case to prove causation under Monell are reflected in the Jury Instmctions, which were based on Judge Lodge's summary judgment mling and modeled after the Ninth Circuit Civil Model Jury Instmctions.
Having found that the jury instmctions were not improper, the Court further finds that Plaintiffs failed to object. Pursuant to Federal Rule of Civil Procedure 51, a party may allege error in the giving or failure to give a jury instmction only upon proper objection. The Ninth Circuit strictly interprets Rule 51 as precluding review ofjury instmctions in the absence of a proper objection. See Larez v. City ofLos Angeles, 946 F.2d 630, 638 (9th Cir. 1991); see also Hammer v. Gross, 932 F.2d 842, 847 (9th Cir. 1991)(plurality opinion)(en banc)("This court has enjoyed a reputation as the strictest enforcer of Rule 51; we have declared that there is no 'plain error' exception in civil cases in this circuit")(citations omitted), cert. denied, 502 U.S. 980 (1991). A proper objection is one that brings "into focus the precise nature of the alleged error" in the Court's instmction. McGonigle v. Combs, 968 F.2d 810, 823 (9th Cir. 1992)(citing Palmer v. Hoffman, 318 U.S. 109, 119 (1943)).
During the jury instmction conference in chambers, Plaintiffs' counsel expressed concern
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with "the comment that we limit it to May 4 and 5, because we did put on a case where there was evidence that there was systemic understaffing that led to the problems in controlling the imnates." Trial Transcript a 1293:4-13. His comments were not legal objections of the type required under United States v. Parsons, 1 F.3d 944, 945 (9th Cir. 1993); International House of Pancakes, Inc. v. Twin City Fire Ins. Co., 19 Fed. Appx., 686, 688 (9th Cir. 2001). Rather, Plaintiffs' counsel's comments were what the Ninth Circuit has termed "doe-like" and lacking in legal support that would indicate to the Court that Plaintiffs' objections were more than simple preferences. Parsons, 1 F.3d at 945. Ultimately, Plaintiffs' counsel agreed to Instmction 16: "We don't have any objection to the new instmction or the changes." Trial Transcript at 1295:6-24; see also Trial Transcript at 1293:20-23. Plaintiffs have therefore foregone their right to contest Instmction No. 16 and 17.
2. Special Verdict Form The Special Verdict Form that the Court adopted and gave to the jury was the product of significant discussion, collaboration and agreement by both parties. It tracked the three requisite elements of a Monell claim, which were also set forth in Jury Instmction Nos. 16 and 17. As discussed above, it specifically asked the jury to find: (1) whether there had been a constitutional violation; and, if so, (2) whether CCA had a custom or policy of understaffing; and, if so, (3) whether that custom or policy caused the constitutional violation on May 4 and 5, 2012. [Dkt. 341]. It also contained blanks beside the names of each Plaintiff for the jury to fill in the amounts, if any, it wished to award as damages and asked the separate question whether punitive damages should be awarded against CCA, as set forth in Jury Instmction No. 25, and, if so, in what
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amount. Though the jury found an underlying constitutional violation and a custom and policy of
understaffing (elements 1 and 2), it did not find the third and necessary element - a causal link between the constitutional violation and the custom and policy. [Did. 341]. Plaintiffs now argue that the third question on the Special Verdict Fonn was "superfluous" and created an inconsistent and contradictory result. The Court disagrees. The jury specifically found it was not the understaffing that was the moving force behind Plaintiffs' injuries.
Additionally, while Plaintiffs' counsel expressed his opinion during the conference with the Court and opposing counsel that the third question was Ulmecessary, he did not object to its inclusion and has therefore foregone his right to object to it.
3. Evidentiary Rulings Plaintiffs argue they are entitled to a new trial based on the Court's evidentiary rulings: (1) excluding Plaintiffs' second corrections expert, Pam Sonnen, from testifying; and (2) preventing Plaintiffs from raising punitive damages in their opening statement. District courts are granted broad discretion in admitting evidence. See Ruvalcaba v. City ofLos Angeles, 64 F.3d 1323, 1328 (9th Cir. 1995). A new trial should be granted only where an evidentiary ruling is erroneous and "substantially prejudiced the moving party." Jensen, 32 Fed. Appx. at 206 (citing Ruvalcaba, 64 F.3d at 1328).
i. Pam Sonnen: The Court initially permitted Plaintiffs to call Pam Sonnen as a second corrections expert, over Defendant's objection. However, as Ms. Sonnen's testimony unfolded on the witness stand, it became clear to the Court that her testimony was not only
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cumulative of their first expert, John Hepburns's testimony, but also she had no evidence to offer about understaffing on the critical specific dates of May 4 or 5, 2012. Neither Sonnen's expert report, nor her testimony at trial provided any correlation about how staffing in the F-1 Pod on May 4 or 5 contributed to inmate Campos's ability to rig the closet door, and thereby facilitate the attack. Rather, her analysis dealt with staffing generally in the prison. Over CCA's objections, the Court allowed Plaintiffs to present to the jury a wide array of evidence related to understaffing. The Court's exclusion of Sonnen's testimony as cumulative was properly within its discretion and therefore not err. See Borunda v. Richmond, 885 F.2d 1384, 1388 (91h Cir. 1988). 11. Punitive Damages
Plaintiffs allege that the Court erred in precluding Plaintiffs' counsel from raising punitive damages in his opening statement. Before trial, CCA filed a motion in limine to prohibit Plaintiffs from making improper "send a message" arguments until after the jury made a liability determination. [Dkt. 258]. The Court ruled that Plaintiffs' counsel was not to discuss punitive damages in his opening statement, but, that as evidence was presented at trial, the Court would determine whether and when the issue could be presented to the jury. [Dkt. 306]. The Court allowed Plaintiffs' counsel to discuss punitive damages and ask the jury to award them during his closing argument. The Court gave a jury instruction on punitive damages and included a question on the Special Verdict Form as to whether punitive damages should be awarded and, if so, in what amount. Prohibiting Plaintiffs' counsel from discussing punitive damages in his opening statement was a proper determination in balancing the potential prejudice to Defendant and was soundly within the Court's discretion.
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B. Motion for a partial new trial on damages In the alternative to granting a new complete trial, Plaintiffs request a new trial on the issue of damages because they contend the jury found liability on the Special Verdict Fonn Question No. 1. This position, as discussed above, is without merit. C. Motion to alter or amend the verdict Plaintiffs move for judgment to be entered in their favor because of the answer to Question No. 1 on the Special Verdict Form and to be awarded nominal damages. The Court gave the jury a clear instruction as to nominal damages. Instruction No. 24 states,
The law which applies to this case authorizes an award of nominal damages. If you find for a particular Plaintiff but find that the particular Plaintiffhas failed to prove damages as defined in these instructions, you must award nominal damages. Nominal damages may not exceed one dollar. Because the jury did not find for Plaintiffs, it did not award nominal damages.
II. Defendant's Motion to Amend, Correct or Alter Judgment [Did. 362] Defendant moves for the judgment to be amended to state: "Judgment is entered in favor of Defendant, with Plaintiffs to take nothing." The Judgment now recites the jury's findings on the the three questions on the Special Verdict Form. Plaintiffs object on the bases they asserted in support of their motion for a new trial, specifically that the jury found a constitutional violation. Plaintiffs further contend that the third question on the special verdict form is "superflouous" and that the judgment cannot be entered in favor of Defendant given the jury's answer to Question No. 1. Plaintiffs maintain that judgment should be entered in their favor and award $1 in nominal
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damages to each Plaintiff. Federal Rule of Civil Procedure 60(a) allows for corrections to judgments and the Court
agrees with Defendant's position. CONCLUSION
Plaintiffs' Motion to Alter, Amend or Correct Judgment and/or for a New Trial is hereby DENIED.
Defendant's Motion to Amend, Correct or Alter Judgment is hereby GRANTED. IT IS SO ORDERED.
DATED this 6111 day of October, 2017. Dee Benson United States District Judge
11

 
 Case 1:12-cv-559 Document <docnum> Filed <datefiled> Page 1 of 37
PROTO,RFSETL,TERMED
U.S. District Court District of Idaho (LIVE Database)Version 6.1.2 (Boise − Southern)
CIVIL DOCKET FOR CASE #: 1:12−cv−00559−DVB

Knight et al v. Correction Corporation of America Inc Assigned to: Judge Dee V Benson Referred to: Judge Mikel H. Williams (Settlement) related Case: 1:09−cv−00010−EJL
Case in other court: Ninth Circuit Court of Appeals, 17−35896 Cause: 42:1983 Prisoner Civil Rights
Plaintiff

Date Filed: 11/09/2012 Date Terminated: 03/09/2017 Jury Demand: Both Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: Federal Question

Omar Castillon TERMINATED: 06/04/2013

represented by Anthony Shallat ANGSTMAN JOHNSON 3649 N. Lakeharbor Lane Boise, ID 83703 208−384−8588 Email: anthony@angstman.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nikki Rachelle Ramirez−Smith Barrera Legal Group 623 11th Avenue South Nampa, ID 83651 208−515−5347 Email: nikkismithlaw@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas J Angstman ANGSTMAN JOHNSON 3649 Lakeharbor Lane Boise, ID 83634 208−384−8588 Email: tj@angstman.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Wyatt Benton Johnson Angstman, Johnson & Associates, PLLC 3649 Lakeharbor Lane Boise, ID 83703 (208) 384−8588 Fax: (208) 853−0117 Email: wyatt@angstman.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Dusty Knight

represented by Anthony Shallat (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nikki Rachelle Ramirez−Smith (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas J Angstman

Case 1:12-cv-559 Document <docnum> Filed <datefiled> Page 2 of 37

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Wyatt Benton Johnson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Justin Keith Peterson TERMINATED: 06/04/2013

represented by Nikki Rachelle Ramirez−Smith (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas J Angstman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Wyatt Benton Johnson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Leon Russell

represented by Anthony Shallat (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nikki Rachelle Ramirez−Smith (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas J Angstman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Wyatt Benton Johnson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Christopher S Jordan

represented by Anthony Shallat (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nikki Rachelle Ramirez−Smith (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas J Angstman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Wyatt Benton Johnson

Case 1:12-cv-559 Document <docnum> Filed <datefiled> Page 3 of 37

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Jacob Judd

represented by Anthony Shallat (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nikki Rachelle Ramirez−Smith (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas J Angstman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Wyatt Benton Johnson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Michael Ford−Bridges

represented by Anthony Shallat (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nikki Rachelle Ramirez−Smith (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas J Angstman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Wyatt Benton Johnson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Raymond Bryant

represented by Anthony Shallat (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nikki Rachelle Ramirez−Smith (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas J Angstman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Wyatt Benton Johnson

Case 1:12-cv-559 Document <docnum> Filed <datefiled> Page 4 of 37
(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Intervenor Plaintiff
The Media Coalition The Associated Press, Idaho Statesman Publishing, LLC, Cowles Publishing Company, The Post Company, TPC Holdings, Inc., Lee Publications, Inc., Pioneer Newspapers, Inc., Idaho Press−Tribune LLC, Idaho Press Club, Inc., The Hagadone Corporation, et al

represented by Charles A Brown PO Box 1225 Lewiston, ID 83501 (208) 746−9947 Fax: 1−208−746−5886 Email: CharlesABrown@cableone.net LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Defendant
Corrections Corporation of America Inc

represented by Daniel Patrick Struck Struck Love Bojanowski & Acedo, PLC 3100 W. Ray Road Suite 300 Chandler, AZ 85226 (480) 420−1600 Fax: (480) 420−1695 Email: dstruck@strucklove.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jacob H. Naylor NAYLOR & HALES, P.C. 950 W. Bannock Street Ste. 610 Boise, ID 83702 208−383−9511 Email: jake@naylorhales.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kirtlan G Naylor NAYLOR & HALES 950 W Bannock Ste 610 Boise, ID 83702 (208) 383−9511 Email: kirt@naylorhales.com (Inactive) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James R. Stoll Anderson, Julian & Hull, LLP PO Box 7426 Boise, ID 83702 208−344−5800 Email: jstoll@ajhlaw.com TERMINATED: 12/11/2013 ATTORNEY TO BE NOTICED
Tara B Zoellner Phoenix, AZ 85004 480−216−6151

Case 1:12-cv-559 Document <docnum> Filed <datefiled> Page 5 of 37
Email: tzoellner@wienekelawgroup.com TERMINATED: 08/07/2017 PRO HAC VICE

Date Filed 11/09/2012
11/14/2012 11/28/2012 11/29/2012 11/30/2012 12/07/2012 12/07/2012 12/11/2012 01/14/2013 01/17/2013 01/17/2013 01/18/2013
01/18/2013

# Docket Text
1 COMPLAINT against All Defendants ( Filing fee $ 350 receipt number 0976−951695.), filed by All Plaintiffs. (Attachments: # 1 Exhibit A−1, # 2 Exhibit A−2, # 3 Exhibit A−3, # 4 Exhibit A−4, # 5 Exhibit B−1, # 6 Exhibit B−2, # 7 Exhibit B−3, # 8 Exhibit B−4, # 9 Exhibit C, # 10 Exhibit D, # 11 Exhibit E, # 12 Cover Sheet)(Angstman, Thomas) (Video & photo disc, Exhibit D, in expandable filed folder on shelf in Clerk's Office−ja)
CORRECTIVE ENTRY − The attorney for the defendant should not have been entered at case opening and will be removed because they have not yet appeared in the case. (ja)
2 WAIVER OF SERVICE Returned Executed by Corrections Corporation of America Inc. Corrections Corporation of America Inc waiver sent on 11/13/2012, answer due 1/14/2013. (Naylor, Kirtlan)
3 NOTICE of Appearance by Kirtlan G Naylor on behalf of Corrections Corporation of America Inc (Naylor, Kirtlan)
4 NOTICE of Assignment to Magistrate Judge and Requirement for Consent sent to counsel for Plaintiffs and CCA, re 1 Complaint, 3 Notice of Appearance. Consent/Objection to Magistrate due by 2/1/2013. (ja)
5 Docket entry only − CONSENT to Magistrate Judge filed. (jp)
6 REQUEST FOR REASSIGNMENT TO DISTRICT JUDGE AND REASSIGNMENT OF CASE. Case reassigned to Judge Edward J. Lodge for all further proceedings. Judge Candy W Dale no longer assigned to case. Please use this case number on all future pleadings, 1:12−cv−559−EJL(jp)
7 LITIGATION ORDER Telephonic Scheduling Conference set for 2/7/2013 10:00 AM in Telephonic Hearing − Boise Chambers before Judge Edward J. Lodge. 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 (jp)
8 MOTION to Dismiss Kirtlan G Naylor appearing for Defendant Corrections Corporation of America Inc. Responses due by 2/7/2013 (Attachments: # 1 Memorandum in Support, # 2 Declaration of Margaret Purcell, # 3 Attachments A−I, # 4 Attachments J−Z)(Naylor, Kirtlan)
9 MOTION FOR PRO HAC VICE APPEARANCE by Daniel P. Struck. ( Filing fee $ 225 receipt number 0976−973818.)Kirtlan G Naylor appearing for Defendant Corrections Corporation of America Inc. Responses due by 2/11/2013 (Naylor, Kirtlan)
10 MOTION FOR PRO HAC VICE APPEARANCE by Tara B. Zoellner. ( Filing fee $ 225 receipt number 0976−973835.)Kirtlan G Naylor appearing for Defendant Corrections Corporation of America Inc. Responses due by 2/11/2013 (Naylor, Kirtlan)
11 NOTICE by Raymond Bryant, Omar Castillon, Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight, Justin Keith Peterson, Leon Russell re 9 MOTION FOR PRO HAC VICE APPEARANCE by Daniel P. Struck. ( Filing fee $ 225 receipt number 0976−973818.), 10 MOTION FOR PRO HAC VICE APPEARANCE by Tara B. Zoellner. ( Filing fee $ 225 receipt number 0976−973835.) of Non Opposition (Johnson, Wyatt)
12 DOCKET ENTRY ORDER granting 9 Motion for Pro Hac Vice Appearance of attorney Daniel Patrick Struck for Corrections Corporation of America Inc Per General Order 206, out−of−state counsel shall immediately register for ECF. (Notice sent to CM/ECF Registration Clerk) (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)

Case 1:12-cv-559 Document <docnum> Filed <datefiled> Page 6 of 37

01/18/2013
01/18/2013
01/24/2013 01/24/2013 01/25/2013
01/25/2013
02/08/2013 02/08/2013 02/15/2013 03/01/2013 03/01/2013 03/01/2013 03/04/2013
03/04/2013

13 DOCKET ENTRY ORDER granting 10 Motion for Pro Hac Vice Appearance of attorney Tara B Zoellner for Corrections Corporation of America Inc Per General Order 206, out−of−state counsel shall immediately register for ECF. (Notice sent to CM/ECF Registration Clerk) (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)
14 AMENDED COMPLAINT for Damages, and for Declaratory and Injunctive Relief against All Defendants, filed by All Plaintiffs. (Attachments: # 1 Exhibit A−1, # 2 Exhibit A−2, # 3 Exhibit A−3, # 4 Exhibit A−4, # 5 Exhibit B−1, # 6 Exhibit B−2, # 7 Exhibit B−3, # 8 Exhibit B−4, # 9 Exhibit C, # 10 Exhibit D, # 11 Exhibit E)(Angstman, Thomas) Modified on 1/18/2013 to verify that CD for Exhibit D has been received by the Clerk's Office and is on the shelf in the Clerk's Office(st).
15 SCHEDULING CONFERENCE FORM − LITIGATION PLAN by Corrections Corporation of America Inc. (Naylor, Kirtlan)
16 STIPULATION re 8 MOTION to Dismiss by Corrections Corporation of America Inc. (Naylor, Kirtlan)
17 ORDER approving 16 Stipulation. Motion to Dismiss 8 is withdrawn without prejudice. Motion to Dismiss terminated. Corrections Corporation of America Inc answer due 2/8/2013. 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 (st) (Entered: 01/28/2013)
18 SCHEDULING ORDER, referred to Judge for Mikel H. Williams for settlement. Amended Pleadings due by 6/4/2013. Discovery due by 9/8/2013. Joinder of Parties due by 6/4/2013. Judicially Supervised Settlement Conference shall be held by 6/4/2013. Pre−Trial Motions due by 1/24/2014. Jury Trial set for 9/24/2014 09:30 AM in Boise − Courtroom 2 before Judge Edward J. Lodge. 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 (st) (Entered: 01/30/2013)
19 MOTION to Dismiss Complaint Kirtlan G Naylor appearing for Defendant Corrections Corporation of America Inc. Responses due by 3/4/2013 (Attachments: # 1 Memorandum in Support, # 2 Purcell Declaration, # 3 Purcell Declaration Attachments A−I, # 4 Purcell Declaration Attachments J−Z)(Naylor, Kirtlan)
20 MOTION to Stay Discovery Kirtlan G Naylor appearing for Defendant Corrections Corporation of America Inc. Responses due by 3/4/2013 (Attachments: # 1 Memorandum in Support)(Naylor, Kirtlan)
21 RESPONSE to Motion re 20 MOTION to Stay Discovery Plaintiff's Opposition filed by Raymond Bryant, Omar Castillon, Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight, Justin Keith Peterson, Leon Russell. Replies due by 3/4/2013.(Johnson, Wyatt)
22 REPLY to Response to Motion re 20 MOTION to Stay Discovery filed by Corrections Corporation of America Inc.(Zoellner, Tara)
23 MOTION for Protective Order Tara B Zoellner appearing for Defendant Corrections Corporation of America Inc. Responses due by 3/25/2013 (Attachments: # 1 Memorandum in Support)(Zoellner, Tara)
24 STIPULATION re 19 MOTION to Dismiss Complaint to Extend Response Deadline by 14 days by Raymond Bryant, Omar Castillon, Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight, Justin Keith Peterson, Leon Russell. (Johnson, Wyatt)
25 ORDER Granting Response Deadline to Defendant's Motion to Dismiss (dkt 19 . re 24 Stipulation. Plaintiff's deadline to respond to Defendant's Motion to Dismiss Complaint is extended to 3/18/13. 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 (jp)
Set/Reset Deadlines as to 19 MOTION to Dismiss Complaint. Per Order #25, Responses due by 3/18/2013 (jp)

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03/18/2013 03/18/2013 03/18/2013 03/18/2013 03/18/2013 03/18/2013 03/18/2013 03/18/2013 03/18/2013 03/18/2013 03/18/2013 03/20/2013 03/21/2013
03/21/2013

26 RESPONSE to Motion re 19 MOTION to Dismiss Complaint Response to CCA's Motion to Dismiss (Dkt 19) filed by Raymond Bryant, Omar Castillon, Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight, Justin Keith Peterson, Leon Russell. Replies due by 4/4/2013.(Angstman, Thomas)
27 AFFIDAVIT in Opposition re 19 MOTION to Dismiss Complaint of TJ Angstman in Response to Defendants' Motion to Dismiss filed by Raymond Bryant, Omar Castillon, Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight, Justin Keith Peterson, Leon Russell. Replies due by 4/4/2013.(Angstman, Thomas)
28 AFFIDAVIT in Opposition by Christopher Jordan re 19 MOTION to Dismiss Complaint Declaration of Christopher Jordan filed by Raymond Bryant, Omar Castillon, Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight, Justin Keith Peterson, Leon Russell. Replies due by 4/4/2013.(Angstman, Thomas)
29 AFFIDAVIT in Opposition by Raymond Bryant re 19 MOTION to Dismiss Complaint Declaration of Raymond Bryant filed by Raymond Bryant, Omar Castillon, Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight, Justin Keith Peterson, Leon Russell. Replies due by 4/4/2013.(Angstman, Thomas)
30 AFFIDAVIT in Opposition by Michael Ford−Bridges re 19 MOTION to Dismiss Complaint Declaration of Michael Ford−Bridges filed by Raymond Bryant, Omar Castillon, Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight, Justin Keith Peterson, Leon Russell. Replies due by 4/4/2013.(Angstman, Thomas)
31 AFFIDAVIT in Opposition by Dusty Knight re 19 MOTION to Dismiss Complaint Declaration of Dusty Knight filed by Raymond Bryant, Omar Castillon, Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight, Justin Keith Peterson, Leon Russell. Replies due by 4/4/2013.(Angstman, Thomas)
32 AFFIDAVIT in Opposition by Jacob Judd re 19 MOTION to Dismiss Complaint Declaration of Jacob Judd filed by Raymond Bryant, Omar Castillon, Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight, Justin Keith Peterson, Leon Russell. Replies due by 4/4/2013.(Angstman, Thomas)
33 AFFIDAVIT in Opposition re 19 MOTION to Dismiss Complaint Declaration of Leon Russell filed by Raymond Bryant, Omar Castillon, Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight, Justin Keith Peterson, Leon Russell. Replies due by 4/4/2013.(Angstman, Thomas)
34 AFFIDAVIT in Opposition by Justin Peterson re 19 MOTION to Dismiss Complaint Declaration of Justin Peterson filed by Raymond Bryant, Omar Castillon, Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight, Justin Keith Peterson, Leon Russell. Replies due by 4/4/2013.(Angstman, Thomas)
35 MOTION to Seal Document 19 MOTION to Dismiss Complaint Thomas J Angstman appearing for Plaintiffs Raymond Bryant, Omar Castillon, Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight, Justin Keith Peterson, Leon Russell. Responses due by 4/11/2013 (Angstman, Thomas)
36 Sealed Document Re: 35 MOTION to Seal Document 19 MOTION to Dismiss Complaint Affidavit of TJ Angstman in Response to Defedant's Motion to Dismiss (Filed under seal). (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Angstman, Thomas)
37 STIPULATION re 19 MOTION to Dismiss Complaint to Extend Deadline for Reply by Corrections Corporation of America Inc. (Naylor, Kirtlan)
38 ORDER re 37 Stipulation filed by Corrections Corporation of America Inc, 19 MOTION to Dismiss Complaint filed by Corrections Corporation of America Inc. Defendant CCA's reply in support of the Motion to Dismiss (Dkt. 19) will be filed no later than April 12, 2013, in accordance with ECF and the Local Rules. 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 (st) (Entered: 03/22/2013)
Set/Reset Deadlines as to 19 MOTION to Dismiss Complaint. Replies due by 4/12/2013. (st) (Entered: 03/22/2013)

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03/25/2013 03/25/2013
04/10/2013 04/12/2013 04/15/2013 04/19/2013 04/30/2013 05/09/2013 05/15/2013
05/17/2013
05/20/2013 05/23/2013

39 MEMORANDUM in Opposition re 23 MOTION for Protective Order filed by Raymond Bryant, Omar Castillon, Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight, Justin Keith Peterson, Leon Russell. Replies due by 4/11/2013.(Johnson, Wyatt)
40 AFFIDAVIT in Opposition re 23 MOTION for Protective Order Affidavit of Counsel RE: Discovery filed by Raymond Bryant, Omar Castillon, Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight, Justin Keith Peterson, Leon Russell. Replies due by 4/11/2013. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13−1, # 14 Exhibit 13−2, # 15 Exhibit 13−3, # 16 Exhibit 13−4)(Johnson, Wyatt)
41 REPLY to Response to Motion re 23 MOTION for Protective Order filed by Corrections Corporation of America Inc.(Zoellner, Tara)
42 REPLY to Response to Motion re 19 MOTION to Dismiss Complaint filed by Corrections Corporation of America Inc. (Attachments: # 1 Exhibit 1)(Zoellner, Tara)
43 NOTICE by Corrections Corporation of America Inc of Filing Signed Affidavit (Attachments: # 1 Supplemental Declaration of Margaret Purcell)(Zoellner, Tara)
44 ORDER denying 23 Motion for Protective Order; denying 20 Motion to Stay. The parties shall have 30 days after entry of this Order in which to respond to any outstanding discovery requests. 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 (st)
45 Corporate Disclosure Statement by Corrections Corporation of America Inc. (Naylor, Kirtlan)
46 MOTION for Protective Order Tara B Zoellner appearing for Defendant Corrections Corporation of America Inc. Responses due by 6/3/2013 (Attachments: # 1 Memorandum in Support, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5)(Zoellner, Tara)
47 MOTION to Require Supplementation to Rule 7.1 Disclosure re 45 Corporate Disclosure Statement Objection to CCA's Rule 7.1 Disclosure and Motion to Require Supplementation Thomas J Angstman appearing for Plaintiffs Raymond Bryant, Omar Castillon, Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight, Justin Keith Peterson, Leon Russell. Responses due by 6/10/2013 (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B)(Angstman, Thomas)
48 MOTION to Amend/Correct 18 Scheduling Order,, Wyatt Benton Johnson appearing for Plaintiffs Raymond Bryant, Omar Castillon, Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight, Justin Keith Peterson, Leon Russell. Responses due by 6/10/2013 (Attachments: # 1 Memorandum in Support Memorandum in Support of Motion to Amend Scheduling Order, # 2 Affidavit Affidavit of TJ Angstman in Support of Motion to Amend Scheduling Order, # 3 Affidavit Affidavit of Wyatt Johnson in SUpport of Motion to Amend Scheduling Order, # 4 Exhibit Ex. 1 to Aff. Johnson, # 5 Exhibit Ex. 2 to Aff. Johnson, # 6 Exhibit Ex. 3 to Aff. Johnson, # 7 Exhibit Ex. 4 to Aff. Johnson, # 8 Exhibit Ex. 5 to Aff. Johnson, # 9 Exhibit Ex. 6 to Aff. Johnson, # 10 Exhibit Ex. 7 to Aff. Johnson, # 11 Exhibit Ex. 8−1 to Aff. Johnson, # 12 Exhibit Ex. 8−2 to Aff. Johnson, # 13 Exhibit Ex. 8−3 to Aff. Johnson, # 14 Exhibit Ex. 8−4 to Aff. Johnson, # 15 Exhibit Ex. 9 to Aff. Johnson, # 16 Exhibit Ex. 10 to Aff. Johnson, # 17 Exhibit Ex. 11 to Aff. Johnson, # 18 Exhibit Ex. 12 to Aff. Johnson, # 19 Exhibit Ex. 13 to Aff. Johnson, # 20 Exhibit Ex. 14 to Aff. Johnson)(Johnson, Wyatt)
49 ERRATA by Plaintiffs Raymond Bryant, Omar Castillon, Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight, Justin Keith Peterson, Leon Russell re 48 MOTION to Amend/Correct 18 Scheduling Order,, . (Johnson, Wyatt)
56 SETTLEMENT CONFERENCE ORDER (Responses to settlement conference questionnaire due 8/13/2013. Settlement Conference set for 8/20/2013 09:30 AM in Boise − Courtroom 1 before Judge Mikel H. Williams.). Signed by Judge Mikel H. Williams. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st) (Entered: 06/11/2013)

Case 1:12-cv-559 Document <docnum> Filed <datefiled> Page 9 of 37

06/03/2013 06/03/2013 06/03/2013
06/04/2013
06/04/2013 06/10/2013 06/18/2013 06/18/2013 06/20/2013 06/21/2013

50 STIPULATION re 48 MOTION to Amend/Correct 18 Scheduling Order,, by Corrections Corporation of America Inc. (Naylor, Kirtlan)
51 MEMORANDUM in Opposition re 46 MOTION for Protective Order filed by Raymond Bryant, Omar Castillon, Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight, Justin Keith Peterson, Leon Russell. Replies due by 6/20/2013. (Attachments: # 1 Exhibit Exhibit 1)(Johnson, Wyatt)
52 AFFIDAVIT of Wyatt Johnson re 51 Memorandum in Opposition to Motion, filed by Raymond Bryant, Omar Castillon, Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight, Justin Keith Peterson, Leon Russell . (Attachments: # 1 Exhibit Exhibit 1, # 2 Exhibit Exhibit 2, # 3 Exhibit Exhibit 3, # 4 Exhibit Exhibit 4, # 5 Exhibit Exhibit 5, # 6 Exhibit Exhibit 6, # 7 Exhibit Exhibit 7, # 8 Exhibit Exhibit 8, # 9 Exhibit Exhibit 9, # 10 Exhibit Exhibit 10−1, # 11 Exhibit Exhibit 10−2, # 12 Exhibit Exhibit 10−3, # 13 Exhibit Exhibit 10−4, # 14 Exhibit Exhibit 10−5, # 15 Exhibit Exhibit 10−6, # 16 Exhibit Exhibit 10−7, # 17 Exhibit Exhibit 10−8, # 18 Exhibit Exhibit 10−9, # 19 Exhibit Exhibit 10−10, # 20 Exhibit Exhibit 10−11, # 21 Exhibit Exhibit 10−12, # 22 Exhibit Exhibit 10−13, # 23 Exhibit Exhibit 10−14, # 24 Exhibit Exhibit 10−15, # 25 Exhibit Exhibit 10−16, # 26 Exhibit Exhibit 10−17, # 27 Exhibit Exhibit 10−18, # 28 Exhibit Exhibit 10−19, # 29 Exhibit Exhibit 10−20, # 30 Exhibit Exhibit 10−21, # 31 Exhibit Exhibit 10−22, # 32 Exhibit Exhibit 10−23, # 33 Exhibit Exhibit 10−24, # 34 Exhibit Exhibit 10−25, # 35 Exhibit Exhibit 10−26)(Johnson, Wyatt)
53 ORDER. That Plaintiffs' Motion to Amend Scheduling Order (Dkt. 48) shallbe stricken. The Court's Scheduling Order (Dkt. 18) shall be amended to providethat all amended pleadings and joinder of parties must be filed on or before 9/4/13. The current deadline for an ADR settlement conferenceto be held on or before 6/4/13 is VACATED. The parties shall contact the ADRDirector within 10 days of the date of this Order to arrange for a date and time for an ADR conference. Motions terminated: 48 MOTION to Amend/Correct 18 Scheduling Order, filed by Leon Russell, Michael Ford−Bridges, Omar Castillon, Raymond Bryant, Dusty Knight, Jacob Judd, Christopher S Jordan, Justin Keith Peterson. ( Amended Pleadings due by 9/4/2013, Joinder of Parties due by 9/4/2013). 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 (st)
54 MEMORANDUM DECISION AND ORDER granting 35 Motion to Seal Document ; granting in part and denying in part 19 Motion to Dismiss. All claims asserted by Plaintiffs Peterson and Castillon are DISMISSED without prejudice. 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 (st) (Entered: 06/05/2013)
55 RESPONSE to Motion re 47 MOTION to Require Supplementation to Rule 7.1 Disclosure re 45 Corporate Disclosure Statement Objection to CCA's Rule 7.1 Disclosure and Motion to Require Supplementation filed by Corrections Corporation of America Inc. Replies due by 6/27/2013.(Zoellner, Tara)
57 ANSWER to 14 Amended Complaint,, by Corrections Corporation of America Inc.(Zoellner, Tara)
58 DEMAND for Trial by Jury by Corrections Corporation of America Inc. (Zoellner, Tara)
59 REPLY to Response to Motion re 46 MOTION for Protective Order filed by Corrections Corporation of America Inc.(Zoellner, Tara)
60 First MOTION to Intervene by Media Coalition for the Limited Purpose of Opposing Defendant's Motion for a Protective Order Charles A Brown appearing for Intervenor THE ASSOCIATED PRESS; IDAHO STATESMAN PUBLISHING, LLC (The Idaho Statesman); COWLES PUBLISHING COMPANY (The Spokesman−Review); THE POST COMPANY (The Post Register, Challis Messenger, Shelley Pioneer, and Jefferson Star); TPC HOLDINGS, INC. (The Lewiston Tribune and Moscow−Pullman Daily News); LEE PUBLICATIONS, INC. (The Times−News (Twin Falls)); PIONEER NEWSPAPERS, INC. (The Pioneer Newspaper Group); IDAHO PRESS−TRIBUNE LLC (Idaho−Press Tribune (Nampa)); IDAHO PRESS CLUB, INC.; THE HAGADONE CORPORATION (The Coeur dAlene Press and The Bonner

Case 1:12-cv-559 Document <docnum> Filed <datefiled> Page 10 of 37

06/21/2013 06/27/2013 07/15/2013 07/17/2013
07/22/2013 07/25/2013
07/25/2013 08/01/2013 08/06/2013
08/06/2013 08/09/2013

County Daily Bee); THE NEWSPAPER ASSOCIATION OF IDAHO, INC., and KBOI−TV. Responses due by 7/15/2013 (Attachments: # 1 Memorandum in Support of Motion by Media Coalition to Intervene)(Brown, Charles)
61 Corporate Disclosure Statement by THE ASSOCIATED PRESS; IDAHO STATESMAN PUBLISHING, LLC (The Idaho Statesman); COWLES PUBLISHING COMPANY (The Spokesman−Review); THE POST COMPANY (The Post Register, Challis Messenger, Shelley Pioneer,. (Brown, Charles)
62 NOTICE by Raymond Bryant, Omar Castillon, Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight, Justin Keith Peterson re 60 First MOTION to Intervene by Media Coalition for the Limited Purpose of Opposing Defendant's Motion for a Protective Order Non−Opposition (Johnson, Wyatt)
63 RESPONSE to Motion re 60 First MOTION to Intervene by Media Coalition for the Limited Purpose of Opposing Defendant's Motion for a Protective Order, 46 MOTION for Protective Order filed by Corrections Corporation of America Inc. Replies due by 8/1/2013.(Zoellner, Tara)
64 MOTION to Compel Wyatt Benton Johnson appearing for Plaintiffs Raymond Bryant, Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight, Leon Russell. Responses due by 8/12/2013 (Attachments: # 1 Memorandum in Support Memorandum in Support of Motion to Compel, # 2 Affidavit Affidavit of Wyatt Johnson in Support of Motion to Compel, # 3 Exhibit Exhibit 1, # 4 Exhibit Exhibit 2, # 5 Exhibit Exhibit 3, # 6 Exhibit Exhibit 4, # 7 Exhibit Exhibit 5, # 8 Exhibit Exhibit 6, # 9 Exhibit Exhibit 7, # 10 Exhibit Exhibit 8, # 11 Exhibit Exhibit 9, # 12 Exhibit Exhibit 10−1, # 13 Exhibit Exhibit 10−2, # 14 Exhibit Exhibit 10−3, # 15 Exhibit Exhibit 11, # 16 Exhibit Exhibit 12, # 17 Exhibit Exhibit 13, # 18 Exhibit Exhibit 14, # 19 Exhibit Exhibit 15, # 20 Exhibit Exhibit 16, # 21 Exhibit Exhibit 17, # 22 Exhibit Exhibit 18, # 23 Exhibit Exhibit 19, # 24 Exhibit Exhibit 20)(Johnson, Wyatt)
65 First MOTION in Limine Wyatt Benton Johnson appearing for Plaintiffs Raymond Bryant, Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight, Leon Russell. Responses due by 8/15/2013 (Attachments: # 1 Memorandum in Support, # 2 Affidavit Affidavit of Counsel, # 3 Exhibit Exhibit A)(Johnson, Wyatt)
66 Supplemental MOTION to Compel Responses to Initial Disclosures Wyatt Benton Johnson appearing for Plaintiffs Raymond Bryant, Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight, Leon Russell. Responses due by 8/19/2013 (Attachments: # 1 Memorandum in Support Supplemental Memorandum in Support of Motion to Compel, # 2 Affidavit Supplemental Affidavit of Wyatt Johnson in SUpport of Motion to Compel, # 3 Exhibit Exhibit 1, # 4 Exhibit Exhibit 2)(Johnson, Wyatt)
67 Sealed Document Re: 66 Supplemental MOTION to Compel Responses to Initial Disclosures Exhibit 3 to Supplemental Affidavit of Wyatt Johnson. (Johnson, Wyatt)
68 REPLY to Response to Motion re 60 First MOTION to Intervene by Media Coalition for the Limited Purpose of Opposing Defendant's Motion for a Protective Order, 46 MOTION for Protective Order Reply to Opposition [Dkt 63] to Media Coalition's Motion to Intervene [Dkt 60] filed by The Media Coalition.(Brown, Charles)
69 MEMORANDUM DECISION AND ORDER. The Media Coalition's Motion to Intervene for the Limited Purpose of Opposing Defendant's Motion for a Protective Order 60 is GRANTED. Defendant's Motion for a Protective Order 46 is GRANTED. The Court shall issue a separate Protective Order. 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 (st) (Entered: 08/07/2013)
70 PROTECTIVE ORDER. 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 (st) (Entered: 08/07/2013)
71 ORDER of Transport. The Idaho Department of Correction officials shall take appropriate measures to transport Omar Castillon, Justin Peterson, Jacob Wayne Judd, Raymond Scott Byrant, Leon M Russell, Michael Walter Ford−Bridges, Dusty John Knight, and Christopher Sean Jordan on Tuesday, August 20, 2013 to arrive at 9:00 a.m. to the James A. McClure Federal Building and United States Courthouse, 550

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08/14/2013 08/15/2013 08/16/2013 08/20/2013
08/22/2013 08/30/2013
09/03/2013 09/03/2013 09/11/2013
09/13/2013
09/16/2013

West Fort Street, 6th Floor, Courtroom #1, Boise, Idaho. (Notice sent to USMS). 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 (st)
72 RESPONSE to Motion re 66 Supplemental MOTION to Compel Responses to Initial Disclosures, 64 MOTION to Compel filed by Corrections Corporation of America Inc. Replies due by 9/3/2013.(Zoellner, Tara)
73 RESPONSE to Motion re 65 First MOTION in Limine filed by Corrections Corporation of America Inc. Replies due by 9/3/2013.(Zoellner, Tara)
74 STIPULATION to Extend Final Discovery Cut−Off Date and Amendment of Pleadings Deadline by Raymond Bryant, Omar Castillon, Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight, Justin Keith Peterson, Leon Russell. (Johnson, Wyatt)
76 Minute Entry for proceedings held before Judge Mikel H. Williams: Settlement Conference held on 8/20/2013 Not Settled. The parties agreed to recess the conference until after additional discovery is conducted and a decision is rendered on any dispositive motions. They will contact the Court should they wish to convene a second settlement conference at that time. Time in Court: 2 hours, 30 minutes. (cjm) (Entered: 08/22/2013)
75 MOTION to Quash Subpoena Served on August 7, 2013 Tara B Zoellner appearing for Defendant Corrections Corporation of America Inc. Responses due by 9/16/2013 (Attachments: # 1 Memorandum in Support, # 2 Exhibit Affidavit of Tara Zoellner)(Zoellner, Tara)
77 ORDER GRANTING EXTENSION OF FINAL DISCOVERY CUT−OFF DATE AND AMENDMENT OF PLEADINGS DEADLINE re 74 Stipulation, filed by Leon Russell, Michael Ford−Bridges, Omar Castillon, Raymond Bryant, Dusty Knight, Jacob Judd, Christopher S Jordan, Justin Keith Peterson. (Amended Pleadings due by 10/4/2013, Final Discovery due by 12/20/2013, Joinder of Parties due by 10/4/2013). 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 (st)
78 REPLY to Response to Motion re 66 Supplemental MOTION to Compel Responses to Initial Disclosures, 64 MOTION to Compel filed by Raymond Bryant, Omar Castillon, Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight, Justin Keith Peterson, Leon Russell.(Johnson, Wyatt)
79 REPLY to Response to Motion re 65 First MOTION in Limine filed by Raymond Bryant, Omar Castillon, Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight, Justin Keith Peterson, Leon Russell.(Johnson, Wyatt)
80 ORDER OF REFERRAL. Plaintiffs' First Motion in Limine 65 is DENIED without prejudice. This case is referred to the Honorable Mikel H. Williams for purposes of conducting a discovery mediation conference. Within 10 days after entry of this Order, counsel for Plaintiffs and Defendant shall contact Claire Dwyer,(208) 334−1365, to set an appropriate date and time for the conference. 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 (st)
81 ORDER SETTING DISCOVERY MEDIATION. IT IS HEREBY ORDERED that: A discovery mediation conference is hereby set to take place on Friday, 10/18/2013 at 9:30 a.m. at the United States Courthouse in Boise, Idaho before United States Magistrate Judge Mikel H. Williams. The discovery mediation conference is for counsel only.( Discovery Hearing set for 10/18/2013 09:30 AM in Boise − Courtroom 1 before Judge Mikel H. Williams). Signed by Judge Mikel H. Williams. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)
82 MEMORANDUM in Opposition re 75 MOTION to Quash Subpoena Served on August 7, 2013 filed by Raymond Bryant, Omar Castillon, Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight, Justin Keith Peterson, Leon Russell. Replies due by 10/3/2013. (Attachments: # 1 Affidavit of Wyatt Johnson in Opposition to Motion to Quash, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4)(Johnson,

Case 1:12-cv-559 Document <docnum> Filed <datefiled> Page 12 of 37

10/03/2013 10/04/2013 10/10/2013 10/15/2013 10/18/2013 10/23/2013 11/08/2013 11/12/2013 11/15/2013
11/15/2013
11/18/2013
11/19/2013 12/11/2013

Wyatt)
83 NOTICE by Corrections Corporation of America Inc re 75 MOTION to Quash Subpoena Served on August 7, 2013 (Zoellner, Tara)
84 STIPULATION re 53 Order, Terminate Motions, Set Deadlines/Hearings,,,,,,,,, 77 Order, Set Deadlines/Hearings,,,, 18 Scheduling Order,, to Vacate Deadlines Pending Discovery Conference by Raymond Bryant, Omar Castillon, Corrections Corporation of America Inc, Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight, Justin Keith Peterson, Leon Russell. (Johnson, Wyatt)
85 ORDER re 84 Stipulation. 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 (cjm)
86 WITHDRAWAL OF DOCUMENT re: 47 MOTION to Require Supplementation to Rule 7.1 Disclosure re 45 Corporate Disclosure Statement Objection to CCA's Rule 7.1 Disclosure and Motion to Require Supplementation filed by Leon Russell, Michael Ford−Bridges, Omar Castillon, Raymond Bryant, Dusty Knight, Jacob Judd, Christopher S Jordan, Justin Keith Peterson. (Angstman, Thomas)
87 Minute Entry for proceedings held before Judge Mikel H. Williams: Parties met and conferred. Stipulation will be filed regarding matters that have been resolved.Discovery Hearing held on 10/18/2013. Time in Court 6 hours. (Court Reporter/ESR Not recorded.) (so) (Entered: 10/21/2013)
88 WITHDRAWAL OF DOCUMENT re: 75 MOTION to Quash Subpoena Served on August 7, 2013 filed by Corrections Corporation of America Inc. (Zoellner, Tara)
89 DOCKET ENTRY ORDER. The parties are hereby ordered to file the stipulation regarding matters resolved in the discovery conference held on October 18, 2013 by no later than November 15, 2013. Signed by Judge Mikel H. Williams. (el)
90 STIPULATION re 89 Order Regarding Discovery by Corrections Corporation of America Inc. (Naylor, Kirtlan)
91 DOCKET ENTRY ORDER APPROVING 90 Stipulation filed by Corrections Corporation of America Inc. IT IS HEREBY ORDERED that the Parties' Stipulation Regarding Discovery (Dkt. 90) is ADOPTED in full and this Order incorporates that Stipulation and the Parties are hereby ordered to abide by it. 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)
92 ORDER AMENDING SCHEDULING ORDER AND VACATING TRIAL DATE. Pursuant to the parties agreement developed during the discovery mediation conference on 10/18/2013, the Scheduling Order 18 is hereby amended. (Dispositive Motions due by 6/30/2014.) It is further ordered that the current trial date of 9/24/2013 is hereby VACATED. A new trial date will be set once dispositive motions have been resolved. Signed by Judge Mikel H. Williams. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)
93 ORDER. IT IS ORDERED that within 14 days of the date of this Order, Plaintiffs shall notify the Court whether they wish to withdraw their Motion to Compel (Dkt. 64) and/or their Supplemental Motion to Compel (Dkt. 66), or whether they wish to proceed to a decision by this Court on those Motions. (Case Management deadline set for 12/2/2013). 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 (st) (Entered: 11/19/2013)
94 WITHDRAWAL OF DOCUMENT re: 66 Supplemental MOTION to Compel Responses to Initial Disclosures filed by Leon Russell, Raymond Bryant, Michael Ford−Bridges, Jacob Judd, Dusty Knight, Christopher S Jordan, 64 MOTION to Compel filed by Leon Russell, Raymond Bryant, Michael Ford−Bridges, Jacob Judd, Dusty Knight, Christopher S Jordan. (Angstman, Thomas)
95 NOTICE by Corrections Corporation of America Inc Termination of ECF as Attorney (Naylor, Kirtlan)

Case 1:12-cv-559 Document <docnum> Filed <datefiled> Page 13 of 37

12/17/2013 12/17/2013 12/17/2013 12/17/2013 12/17/2013 01/09/2014 01/10/2014 01/13/2014 01/13/2014 01/13/2014 01/14/2014 01/24/2014
01/30/2014
01/30/2014

96 MOTION to Compel Thomas J Angstman appearing for Plaintiffs Raymond Bryant, Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight, Leon Russell. Responses due by 1/10/2014 (Attachments: # 1 Appendix, # 2 Appendix, # 3 Appendix, # 4 Appendix, # 5 Appendix)(Angstman, Thomas)
97 MEMORANDUM in Support re 96 MOTION to Compel filed by Raymond Bryant, Omar Castillon, Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight, Justin Keith Peterson, Leon Russell.(Angstman, Thomas)
98 Sealed Document Re: 96 MOTION to Compel Affidavit of TJ Angstman. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6)(Angstman, Thomas)
99 AFFIDAVIT in Support re 96 MOTION to Compel by Raymond Bryant, Omar Castillon, Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight, Justin Keith Peterson, Leon Russell. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6)(Angstman, Thomas)
100 AFFIDAVIT in Support re 96 MOTION to Compel by Raymond Bryant, Omar Castillon, Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight, Justin Keith Peterson, Leon Russell. (Angstman, Thomas)
101 MOTION to Set Amended Pleadings Deadline re 92 Order, Set Deadlines/Hearings,,,, Kirtlan G Naylor appearing for Defendant Corrections Corporation of America Inc. Responses due by 2/3/2014 (Naylor, Kirtlan)
102 MOTION for Extension of Time to File Response/Reply as to 96 MOTION to Compel Tara B Zoellner appearing for Defendant Corrections Corporation of America Inc. Responses due by 2/3/2014 (Zoellner, Tara)
103 RESPONSE to Motion re 96 MOTION to Compel filed by Corrections Corporation of America Inc. Replies due by 1/30/2014. (Attachments: # 1 Exhibit 1 to Defendant's Response to Plaintiff's MTC, # 2 Exhibit 2 to Defendant's Response to Plaintiff's MTC, # 3 Exhibit 3 to Defendant's Response to Plaintiff's MTC)(Zoellner, Tara)
104 MOTION to Seal Document 103 Response to Motion, Tara B Zoellner appearing for Defendant Corrections Corporation of America Inc. Responses due by 2/6/2014 (Zoellner, Tara)
105 Sealed Document Re: 104 MOTION to Seal Document 103 Response to Motion, Exhibit 1. (Attachments: # 1 Exhibit 2−B to Defendant's Motion to Seal, # 2 Exhibit 3−A to Defendant's Motion to Seal)(Zoellner, Tara)
106 NOTICE by Raymond Bryant, Omar Castillon, Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight, Justin Keith Peterson, Leon Russell re 101 MOTION to Set Amended Pleadings Deadline re 92 Order, Set Deadlines/Hearings,,,, of Objection to Proposed Briefing Schedule (Angstman, Thomas)
Please disregard. The attorney plans to file a separate Response to Motion (dkt #101). CORRECTIVE ENTRY − The entry docket number 106 Notice (Other), filed by Leon Russell, Michael Ford−Bridges, Omar Castillon, Raymond Bryant, Dusty Knight, Jacob Judd, Christopher S Jordan, Justin Keith Peterson was filed using the wrong event. This document should be filed as a Response to Motion and it should be linked to the Motion. The filing party shall re−submit their correct filing.(st) Modified on 1/27/2014 to edit the docket text. Attorney filed the Notice just to indicate that they object to the date proposed in dkt #101, but not to the motion as a whole. (st)
107 RESPONSE to Motion re 104 MOTION to Seal Document 103 Response to Motion, to Seal Exhibits 1, 2−B and 3−A (Doc104) filed by Raymond Bryant, Omar Castillon, Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight, Justin Keith Peterson, Leon Russell. Replies due by 2/18/2014. (Attachments: # 1 Affidavit Affidavit of TJ Angstman in Support of Response to Motion to Seal, # 2 Exhibit 1)(Angstman, Thomas)
108 MOTION for in Camera Review Thomas J Angstman appearing for Plaintiffs Raymond Bryant, Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight, Leon Russell. Responses due by 2/24/2014 (Attachments: # 1 Memorandum in Support Memorandum in support of in Camera Review, # 2 Affidavit Affidavit of TJ

Case 1:12-cv-559 Document <docnum> Filed <datefiled> Page 14 of 37

01/30/2014 01/30/2014
02/03/2014
02/07/2014
02/12/2014 02/12/2014 02/12/2014 02/24/2014 02/26/2014 03/10/2014

Angstman in Support of in Camera Review, # 3 Exhibit 1, # 4 Exhibit 2, # 5 Exhibit 3, # 6 Exhibit 4, # 7 Exhibit 5, # 8 Exhibit 6, # 9 Exhibit 7, # 10 Exhibit 8)(Angstman, Thomas)
109 REPLY to Response to Motion re 96 MOTION to Compel filed by Raymond Bryant, Omar Castillon, Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight. (Attachments: # 1 Affidavit Declaration of Verna Kessler, # 2 Affidavit Declaration of John Brooks)(Angstman, Thomas)
110 SEALED REPLY to Response to Motion re 96 MOTION to Compel filed by Raymond Bryant, Omar Castillon, Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight, Justin Keith Peterson. (Attachments: # 1 Memorandum in Support, # 2 Affidavit Sealed Affidavit of TJ Angstman, # 3 Exhibit Sealed Ex 1, # 4 Exhibit Sealed Ex 2, # 5 Exhibit Sealed Ex 3, # 6 Exhibit Sealed Ex 4, # 7 Exhibit Sealed Ex 5, # 8 Exhibit Sealed Ex 6, # 9 Exhibit Sealed Ex 7, # 10 Exhibit Sealed Ex 8, # 11 Exhibit Sealed Ex 9, # 12 Exhibit Sealed Ex 10, # 13 Exhibit Sealed Ex 11, # 14 Exhibit Sealed Ex 12, # 15 Exhibit Sealed Ex 13)(Angstman, Thomas)
111 REPLY to Response to Motion re 101 MOTION to Set Amended Pleadings Deadline re 92 Order, Set Deadlines/Hearings,,,, filed by Raymond Bryant, Omar Castillon, Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight, Justin Keith Peterson, Leon Russell. (Attachments: # 1 Affidavit, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Errata 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Errata 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14, # 16 Exhibit 15, # 17 Exhibit 16, # 18 Exhibit 17)(Angstman, Thomas)
112 MEMORANDUM DECISION AND ORDER. IT IS ORDERED: Defendant's Unopposed Motion for an Extension of Time to File Response to Plaintiffs' Motion to Compel 102 is GRANTED. Defendant's Response is deemed timely. Plaintiffs' Motion to Compel 96 is DENIED. Defendant' Motion to Set Amended Pleadings Deadline 101 isGRANTED IN PART and DENIED IN PART. All motions to amend or to join parties shall be filed no later than 2/28/2014. Defendant's Motion to Seal Exhibits 1, 2−B, and 3−A to CCA's Response to Plaintiffs' Motion to Compel 104 is GRANTED. Those exhibits 105 are ordered to remain SEALED. 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 (st)
113 WITHDRAWAL OF DOCUMENT re: 108 MOTION for in Camera Review filed by Leon Russell, Raymond Bryant, Michael Ford−Bridges, Jacob Judd, Dusty Knight, Christopher S Jordan. (Angstman, Thomas)
114 STIPULATION & Motion For Leave to Depose Incarcerated Witnesses by Corrections Corporation of America Inc. (Naylor, Kirtlan)
115 ORDER granting 114 Stipulation and Motion for Leave to Depose Incarcerated Witnesses. 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 (st)
116 STIPULATION re 112 Order on Motion to Compel, Order on Motion for Miscellaneous Relief, Order on Motion for Extension of Time to File Response/Reply, Order on Motion to Seal Document,,,,,,,,,,,, to Extend Amended Pleadings Deadline to March 14, 2014 and Set Deposition Limit by Raymond Bryant, Omar Castillon, Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight, Justin Keith Peterson, Leon Russell. (Angstman, Thomas)
117 ORDER APPROVING STIPULATION re 116 Stipulation to Extend Amended Pleadings Deadline to March 14, 2014 and Set Deposition Limit. It is hereby ordered: The Amended Pleadings and Joinder of Parties Deadline shall be extended by 14 days to March 14, 2014. The Plaintiffs shall not notice more than fifteen depositions. 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 (st)
118 MOTION to Stay Discovery ( Responses due by 4/3/2014), MOTION for Protective Order , MOTION to Expedite Tara B Zoellner appearing for Defendant Corrections Corporation of America Inc. (Attachments: # 1 Memorandum in Support, # 2 Affidavit Kirtlan Naylor, # 3 Exhibit Notice of Deposition − CCA, # 4 Exhibit Notice of Deposition − KPMG)(Zoellner, Tara)

Case 1:12-cv-559 Document <docnum> Filed <datefiled> Page 15 of 37

03/11/2014 03/11/2014
03/13/2014 03/13/2014 03/13/2014 03/13/2014 03/13/2014 03/14/2014
03/14/2014 03/14/2014 03/14/2014
03/14/2014 03/14/2014

119 MOTION Emergency Motion to Postpone Depositions re 118 MOTION to Stay Discovery MOTION for Protective Order MOTION to Expedite Tara B Zoellner appearing for Defendant Corrections Corporation of America Inc. Responses due by 4/4/2014 (Zoellner, Tara)
120 ORDER. Plaintiffs' response to Defendant's Motion to Stay Discovery and Motionfor Protective Order 118 shall be filed no later than 3/13/2014.Defendant's optional reply shall be filed no later than 3/14/2014. If theUnited States Attorney chooses to file a brief setting forth the government's position on defendant's motion, she shall do so no later than 3/14/2014. 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 (st)
121 RESPONSE to Motion re 118 MOTION to Stay Discovery MOTION for Protective Order MOTION to Expedite filed by United States Attorney's Office. Replies due by 3/31/2014.(Maloney, Kevin)
122 MEMORANDUM in Opposition re 118 MOTION to Stay Discovery MOTION for Protective Order MOTION to Expedite filed by Raymond Bryant, Omar Castillon. Replies due by 3/31/2014. (Attachments: # 1 Affidavit Affidavit of Counsel in Opposition, # 2 Affidavit Affidavit of TJ Angstman in Opposition)(Johnson, Wyatt)
123 MOTION to Seal , SEALED MOTION ( Responses due by 4/7/2014)Wyatt Benton Johnson appearing for Plaintiffs Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight, Leon Russell. (Johnson, Wyatt)
124 SEALED DOCUMENT Affidavit of Wyatt Johnson re 123 MOTION to Seal SEALED MOTION Wyatt Benton Johnson appearing for Plaintiffs Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight, Leon Russell. (Johnson, Wyatt) Modified on 3/14/2014 per Corrective Entry and to seal per attorney request (cjm).
125 AFFIDAVIT of Mark Eixenbergerin re 122 Memorandum in Opposition to Motion re 118 MOTION to Stay Discovery MOTION for Protective Order MOTION to Expedite filed by Michael Ford−Bridges, Christopher S Jordan, Jacob Judd. Replies due by 3/31/2014.(Johnson, Wyatt) Modified on 3/18/2014 to edit document title in the docket text and link to dkt #122(st).
CORRECTIVE ENTRY − The entry docket number 124 MOTION to Seal Document 123 MOTION to Seal SEALED MOTION filed by Leon Russell, Michael Ford−Bridges, Jacob Judd, Dusty Knight, Christopher S Jordan was filed incorrectly in this case as the wrong event was used. This is not a motion but an Affidavit supporting the motion at docket 123 and should be sealed also per attorney request. The Clerk's Office will edit the entry.(cjm)
126 CERTIFICATE OF MAILING by Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight re 123 MOTION to Seal SEALED MOTION (Johnson, Wyatt) Modified on 4/1/2014 to edit document title in the docket text (st).
127 STIPULATION re 119 MOTION Emergency Motion to Postpone Depositions re 118 MOTION to Stay Discovery MOTION for Protective Order MOTION to Expedite by Corrections Corporation of America Inc. (Naylor, Kirtlan)
128 MOTION for Protective Order Thomas J Angstman appearing for Plaintiffs Raymond Bryant, Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight, Leon Russell, United States Attorney's Office. Responses due by 4/7/2014 (Attachments: # 1 Memorandum in Support of Motion for Protective Order, # 2 Affidavit of Counsel in Support of Protective Order, # 3 Exhibit Exhibit A to Affidavit of Counsel)(Angstman, Thomas)
129 REPLY to Response to Motion re 118 MOTION to Stay Discovery MOTION for Protective Order MOTION to Expedite filed by Corrections Corporation of America Inc. (Attachments: # 1 Affidavit K. Myers, # 2 Affidavit K. Naylor, # 3 Affidavit T. Johnson, # 4 Exhibit Excerpt of Plfs 13th Request for Production)(Zoellner, Tara)
130 MOTION to Seal Document 129 Reply to Response to Motion, Exhibit 1, 1−A, 1−B, 1−C Tara B Zoellner appearing for Defendant Corrections Corporation of America Inc. Responses due by 4/7/2014 (Zoellner, Tara)

Case 1:12-cv-559 Document <docnum> Filed <datefiled> Page 16 of 37

03/15/2014 03/19/2014
03/27/2014 03/28/2014 03/31/2014
04/01/2014 04/02/2014 04/03/2014 04/07/2014
04/07/2014 04/15/2014

131 Sealed Document Re: 130 MOTION to Seal Document 129 Reply to Response to Motion, Exhibit 1, 1−A, 1−B, 1−C, 129 Reply to Response to Motion, . (Attachments: # 1 Exhibit 1−A Shift Roster, # 2 Exhibit 1−B Staffing Plan, # 3 Exhibit 1−C Logs)(Zoellner, Tara)
132 ORDER. IT IS ORDERED: Defendant's Motion to Stay and Motion for Protective Order 118 is DENIED. Because the parties have filed a Stipulation 127 with respect to the postponed depositions, Defendant's Emergency Motion to Postpone Depositions 119 is MOOT. Plaintiffs' Motion to Seal 123 is GRANTED. The Affidavit of Wyatt Johnson in Opposition to Defendant's Motion to Stay and for Protective Order 124 shall remain SEALED. Defendant's Motion to Seal 130 is GRANTED. The Declaration of K. Myers 131 shall remain SEALED. Factual discovery period will close on Friday, 4/11/2014. 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 (st)
133 MOTION to Amend/Correct Scheduling Order Wyatt Benton Johnson appearing for Plaintiffs Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight, Leon Russell. Responses due by 4/21/2014 (Attachments: # 1 Memorandum in Support, # 2 Affidavit of Counsel in Support)(Johnson, Wyatt)
134 MOTION to Expedite Hearing on Plaintiffs' Motion to Amend Scheduling Order (Doc 133) Wyatt Benton Johnson appearing for Plaintiffs Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight, Leon Russell. Responses due by 4/21/2014 (Johnson, Wyatt)
135 DOCKET ENTRY ORDER GRANTING 134 MOTION to Expedite Hearing on Plaintiffs' Motion to Amend Scheduling Order (Doc 133). Defendant's response to the 133 MOTION to Amend/Correct Scheduling Order shall be filed no later than Wednesday, April 2, 2014. Defendant shall include with its response an affidavit from Defendant's counsel responding to each of Plaintiffs' counsel's specific statements as set forth in the Affidavit of Wyatt Johnson (133−2), including (but not limited to) (1) whether Defendant's counsel previously agreed to the modification of the scheduling order as Plaintiff's counsel describes; (2) whether Defendant's counsel's current position is that it will not abide any such agreement; and (3) an explanation for any such change in position. Plaintiffs' optional reply shall be filed no later than Thursday, April 3, 2014. SO ORDERED. Signed by Judge Edward J. Lodge. (dmc)
136 CERTIFICATE OF SERVICE by Corrections Corporation of America Inc re 131 Sealed Document, (Zoellner, Tara)
137 RESPONSE to Motion re 133 MOTION to Amend/Correct Scheduling Order filed by Corrections Corporation of America Inc. Replies due by 4/21/2014. (Attachments: # 1 Affidavit Exhibit 1 − Declaration of Kirtlan Naylor, # 2 Affidavit Ex. 2 − Delclaration of Daniel Struck)(Zoellner, Tara)
138 REPLY to Response to Motion re 133 MOTION to Amend/Correct Scheduling Order filed by Raymond Bryant, Omar Castillon, Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight, Justin Keith Peterson, Leon Russell. (Attachments: # 1 Affidavit Rply Affidavit of TJ Angstman, # 2 Affidavit Reply Affidavit of Wyatt Johnson)(Johnson, Wyatt)
139 AMENDED SCHEDULING ORDER granting 133 MOTION to Amend/Correct Scheduling Order filed by Leon Russell, Michael Ford−Bridges, Jacob Judd, Dusty Knight, Christopher S Jordan. ( Amended Pleadings due by 4/11/2014. Factual Discovery due by 4/25/2014. Joinder of Parties due by 4/11/2014. Dispositive Motions due by 9/1/2014.). 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 (st)
140 RESPONSE to Motion re 128 MOTION for Protective Order filed by Corrections Corporation of America Inc. Replies due by 4/24/2014.(Zoellner, Tara)
141 MOTION for Protective Order Tara B Zoellner appearing for Defendant Corrections Corporation of America Inc. Responses due by 5/9/2014 (Attachments: # 1 Memorandum in Support, # 2 Exhibit 1 − Original 30(b)(6) Deposition Notice to CCA, # 3 Errata 2 − CCA's Objection to 30(b)(6) Notice of Deposition, # 4 Exhibit 3 − April 9, 2014 meet and confer letter regarding CCA 30(b)(6) Deposition, # 5 Exhibit 4

Case 1:12-cv-559 Document <docnum> Filed <datefiled> Page 17 of 37

04/28/2014 05/22/2014
05/22/2014
05/28/2014 06/09/2014 06/09/2014
06/09/2014 06/27/2014 07/01/2014 07/03/2014 07/21/2014

− Amended 30(b)(6) Notice of Deposition to CCA, # 6 Exhibit 5 − JEP000179−180 & JEP000379, # 7 Exhibit 6 − Correspondence, # 8 Proposed Order)(Zoellner, Tara)
142 Supplement to CCA's Motion for Protective Order Re: Plaintiffs' Notice of 30(b)(6) Deposition to Corrections Corporation of America 141 . Tara B Zoellner appearing for Defendant Corrections Corporation of America Inc. (Zoellner, Tara) Modified on 4/30/2014 to edit document title in the docket text and remove the response deadline since this is not a motion (st).
143 RESPONSE to Motion re 141 MOTION for Protective Order filed by Raymond Bryant, Omar Castillon, Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight, Justin Keith Peterson, Leon Russell. Replies due by 6/9/2014. (Attachments: # 1 Affidavit Affidavit of TJ Angstman in support of Memorandum in Opposition to CCA's Motion for Protective Order[Doc 141], # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14, # 16 Exhibit 15)(Angstman, Thomas)
144 Sealed Affidavit of TJ Angstman in Support of 143 Memorandum in Opposition to CCA's Motion for Protective Order re 141 MOTION for Protective Order filed by Raymond Bryant, Omar Castillon, Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight, Justin Keith Peterson, Leon Russell. Replies due by 6/9/2014. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Angstman, Thomas) Modified on 5/28/2014 to edit document title in the docket text and link to dkt #143 (st).
145 CERTIFICATE OF SERVICE by Raymond Bryant, Omar Castillon, Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight, Justin Keith Peterson, Leon Russell re 144 Sealed Response to Motion,, (Angstman, Thomas)
146 MOTION to Compel Thomas J Angstman appearing for Plaintiffs Raymond Bryant, Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight, Leon Russell. Responses due by 7/3/2014 (Attachments: # 1 Appendix Appendix to Motion, # 2 Memorandum in Support, # 3 Affidavit Affidavit of T.J. Angstman in Support of Motion to Compel, # 4 Exhibit 1, # 5 Exhibit 2, # 6 Exhibit 3, # 7 Exhibit 4, # 8 Exhibit 5, # 9 Exhibit 6)(Angstman, Thomas)
147 Sealed Affidavit of T.J. Angstman re 146 MOTION to Compel. Thomas J Angstman appearing for Plaintiffs Raymond Bryant, Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight, Leon Russell. Responses due by 7/3/2014 (Attachments: # 1 Exhibit Sealed Exhibit 1, # 2 Exhibit Sealed Exhibit 2, # 3 Exhibit Sealed Exhibit 3)(Angstman, Thomas) Modified on 6/10/2014 to edit document title in docket text since this is not a motion, and to seal this document at the attorney's request (st).
148 REPLY to Response to Motion re 141 MOTION for Protective Order , 142 Supplemental MOTION for Protective Order re Plaintiffs' Notice of 30(b)(6) Deposition to Corrections Corporation of America [Dkt. 141] filed by Corrections Corporation of America Inc.(Zoellner, Tara)
149 STIPULATION to Extend Dispositive Motion Deadline by Corrections Corporation of America Inc. (Zoellner, Tara)
150 ORDER. IT IS HEREBY ORDERED that the Stipulation is approved and the deadline for the parties to file dispositive motions shall be extended by 14 days from 9/1/2014 to 9/15/2014. 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 (st)
151 RESPONSE to Motion re 146 MOTION to Compel filed by Corrections Corporation of America Inc. Replies due by 7/21/2014. (Attachments: # 1 Exhibit Declaration of Tara B. Zoellner, # 2 Exhibit Declaration of Kirtlan G. Naylor)(Zoellner, Tara)
152 MOTION to Seal Affidavits Wyatt Benton Johnson appearing for Plaintiffs Raymond Bryant, Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight, Leon Russell. Responses due by 8/14/2014 (Johnson, Wyatt)

Case 1:12-cv-559 Document <docnum> Filed <datefiled> Page 18 of 37

07/21/2014 07/21/2014 07/21/2014 08/04/2014 09/02/2014
09/02/2014 09/02/2014 09/02/2014
09/02/2014
09/04/2014 09/04/2014 09/04/2014 09/04/2014

153 REPLY to Response to Motion re 146 MOTION to Compel filed by Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight, Justin Keith Peterson, Leon Russell. (Attachments: # 1 Affidavit of TJ Angstman, # 2 Exhibit A, # 3 Exhibit B)(Angstman, Thomas)
154 Sealed Affidavit of T.J. Angstman re 152 MOTION to Seal Affidavits filed by Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Angstman, Thomas) Modified on 8/4/2014 to edit document title in the docket text (st).
155 Sealed Document. (st) (Entered: 07/22/2014)
CORRECTIVE ENTRY − Docket number 154 Sealed Reply to Response to Motion, filed by Michael Ford−Bridges, Jacob Judd, Dusty Knight, Christopher S Jordan was filed using the wrong event. This document should have been filed using the event Sealed Document. The docket text has been edited and no further action is required. (st)
156 MEMORANDUM DECISION AND ORDER. IT IS ORDERED: Plaintiffs' Motion to Seal Affidavits 152 is GRANTED. Defendant's Motion for Protective Order Re: Plaintiffs' Amended Notice of 30(b)(6) Deposition to CCA 141 is GRANTED IN PART and DENIED IN PART. Plaintiff's Second Motion to Compel 146 is GRANTED IN PART and DENIED IN PART. 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 (st)
157 MOTION for Partial Summary Judgment Thomas J Angstman appearing for Plaintiffs Raymond Bryant, Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight, Leon Russell. Responses due by 9/26/2014 (Angstman, Thomas)
158 MEMORANDUM in Support re 157 MOTION for Partial Summary Judgment filed by Raymond Bryant, Omar Castillon, Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight, Justin Keith Peterson, Leon Russell.(Angstman, Thomas)
159 AFFIDAVIT in Support re 157 MOTION for Partial Summary Judgment filed by Raymond Bryant, Omar Castillon, Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight, Justin Keith Peterson, Leon Russell. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20)(Angstman, Thomas) Modified on 9/3/2014 to seal exhibits 2,5,6,8,9,12,14−20 per attorney request due to concerns with Protective Order (cjm). Modified on 9/3/2014 to specify exhibits sealed (st).
160 Statement of Undisputed Material Facts re 157 MOTION for Partial Summary Judgment filed by Raymond Bryant, Omar Castillon, Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight, Justin Keith Peterson, Leon Russell.(Angstman, Thomas) Modified on 9/3/2014 to seal exhibits per attorney request due to concerns with Protective Order (cjm). Modified on 9/4/2014 to unseal at attorney's request because it is not part of the protective order (st).
161 MOTION to Strike Expert Witness Thomas J Angstman appearing for Plaintiffs Raymond Bryant, Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight, Leon Russell. Responses due by 9/29/2014 (Angstman, Thomas)
162 MEMORANDUM in Support re 161 MOTION to Strike Expert Witness filed by Raymond Bryant, Omar Castillon, Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight, Justin Keith Peterson, Leon Russell.(Angstman, Thomas)
163 AFFIDAVIT in Support re 161 MOTION to Strike Expert Witness filed by Raymond Bryant, Omar Castillon, Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight, Justin Keith Peterson, Leon Russell. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Angstman, Thomas)
164 Sealed Document Re: 161 MOTION to Strike Expert Witness . (Attachments: # 1 Exhibit 1)(Angstman, Thomas)

Case 1:12-cv-559 Document <docnum> Filed <datefiled> Page 19 of 37

09/15/2014 09/15/2014 09/15/2014
09/15/2014 09/15/2014 09/16/2014
09/16/2014 09/16/2014
09/16/2014 09/26/2014 09/26/2014
09/26/2014

165 MOTION to Exclude the Testimony of John R. Hepburn and Pam Sonnen Tara B Zoellner appearing for Defendant Corrections Corporation of America Inc. Responses due by 10/9/2014 (Attachments: # 1 Memorandum in Support, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5)(Zoellner, Tara)
166 MOTION for Summary Judgment Tara B Zoellner appearing for Defendant Corrections Corporation of America Inc. Responses due by 10/9/2014 (Attachments: # 1 Memorandum in Support)(Zoellner, Tara)
167 Statement of Facts in Support re: 166 MOTION for Summary Judgment. Tara B Zoellner appearing for Defendant Corrections Corporation of America Inc. (Attachments: # 1 1, # 2 2, # 3 3, # 4 3A, # 5 4, # 6 5, # 7 6, # 8 7, # 9 7A)(Zoellner, Tara) Modified on 9/16/2014 to edit document title in the docket text since this is not a motion. Response deadline has been terminated and removed from the docket text (st). Modified on 9/19/2014 − Sealed Exhibit 1 (dkt #167−1) received by the Clerk's Office and is on the shelf in the file room (1 CD)(st).
168 SUPPLEMENT by Defendant Corrections Corporation of America Inc re 167 MOTION to Supplement Statement of Facts in Support re: 166 MOTION for Summary Judgment , 166 MOTION for Summary Judgment . (Attachments: # 1 9, # 2 10, # 3 11, # 4 12, # 5 13, # 6 14, # 7 15, # 8 16, # 9 17A, # 10 17B, # 11 17C, # 12 18, # 13 19, # 14 20, # 15 21)(Zoellner, Tara)
169 SUPPLEMENT by Defendant Corrections Corporation of America Inc Statement of Facts in Support. (Attachments: # 1 22A, # 2 22B, # 3 22C, # 4 22D, # 5 22E, # 6 22F, # 7 22G, # 8 22H, # 9 22I, # 10 22J, # 11 22K, # 12 22L, # 13 22M, # 14 23, # 15 24)(Zoellner, Tara) (Entered: 09/16/2014)
170 MOTION to Seal Exhibits in Support of CCA's Statement of Facts in Support of Motion for Summary Judgment Tara B Zoellner appearing for Defendant Corrections Corporation of America Inc. Responses due by 10/10/2014 (Attachments: # 1 Memorandum in Support, # 2 Exhibit 8, # 3 Exhibit 22C, # 4 Exhibit 22D, # 5 Exhibit 22E, # 6 Exhibit 22F, # 7 Exhibit 22G, # 8 Exhibit 22J, # 9 Exhibit 22K, # 10 Exhibit 22L, # 11 Exhibit 22M, # 12 Exhibit 22N)(Zoellner, Tara)
171 CERTIFICATE OF SERVICE for 170 Motion to Seal by Corrections Corporation of America Inc (Zoellner, Tara) Modified on 10/8/2014 to link to dkt #170 (st).
CORRECTIVE ENTRY − The entry docket number 170 MOTION to Seal Exhibits in Support of CCA's Statement of Facts in Support of Motion for Summary Judgment filed by Corrections Corporation of America Inc was filed incorrectly in this case. Per the filing attorney Exhibits 8,22C,22D,22E,22F,22G,22J,22K,22L and 22M were supposed to be filed under seal. The clerk has sealed those exhibits. For future reference please file sealed documents using "sealed document." (jp)
CORRECTIVE ENTRY − Docket number 167 MOTION to Supplement Statement of Facts in Support re: 166 MOTION for Summary Judgment filed by Corrections Corporation of America Inc was filed using the wrong event because it is not a motion. This document should have been filed using the event Supplement. The docket text has been corrected so no further action is needed.(st)
172 RESPONSE to Motion re 157 MOTION for Partial Summary Judgment filed by Corrections Corporation of America Inc. Replies due by 10/14/2014. (Attachments: # 1 Memorandum in Support)(Zoellner, Tara)
173 Statement Statement of Undisputed Facts in Opposition to Plaintiffs' Statement of Undisputed Material Facts 160 filed by Corrections Corporation of America Inc. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10 (filed under seal), # 11 Exhibit 11, # 12 Exhibit 12)(Zoellner, Tara) Modified on 10/8/2014 to link to dkt #160 (st).
174 Defendant CCA's Motion to Seal Exhibit 10 to CCA's Statement of Disputed Facts in Support of CCA's Response to Plaintiffs' Motion for Partial Summary Judgment (Dock 157). Tara B Zoellner appearing for Defendant Corrections Corporation of America Inc. Responses due by 10/20/2014 (Attachments: # 1 Memorandum in Support)(Zoellner, Tara) Modified on 9/29/2014 to edit document title in the docket text and change motion type (st).

Case 1:12-cv-559 Document <docnum> Filed <datefiled> Page 20 of 37

09/26/2014 09/29/2014 09/29/2014 10/06/2014 10/08/2014
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10/17/2014

175 Sealed Document. Tara B Zoellner appearing for Defendant Corrections Corporation of America Inc. Responses due by 10/20/2014 (Zoellner, Tara) Modified on 9/29/2014 to seal this document at the attorney's request (st).
176 CERTIFICATE OF SERVICE re 174 Motion to Seal and 175 Sealed Document by Corrections Corporation of America Inc (Zoellner, Tara) Modified on 10/8/2014 to link to dkt #174 and 175. (st).
177 RESPONSE to Motion re 161 MOTION to Strike Expert Witness Ken Katsaris filed by Corrections Corporation of America Inc. Replies due by 10/17/2014. (Attachments: # 1 Exhibit 1 − Hepburn Depo Testimony)(Zoellner, Tara)
178 ORDER. THEREFORE, IT IS HEREBY ORDERED that Plaintiffs' Motion for Protective Order Re: Pam Sonnen 128 is MOOT. 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 (st)
179 MEMORANDUM in Opposition re 170 MOTION to Seal Exhibits in Support of CCA's Statement of Facts in Support of Motion for Summary Judgment filed by Raymond Bryant, Omar Castillon, Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight, Justin Keith Peterson, Leon Russell. Replies due by 10/27/2014.(Angstman, Thomas)
180 MOTION for Extension of Time to File Response/Reply as to 166 MOTION for Summary Judgment Thomas J Angstman appearing for Plaintiffs Raymond Bryant, Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight, Leon Russell. Responses due by 11/3/2014 (Attachments: # 1 Affidavit)(Angstman, Thomas)
181 CERTIFICATE OF SERVICE by Raymond Bryant, Omar Castillon, Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight, Justin Keith Peterson, Leon Russell re 164 Sealed Document (Angstman, Thomas)
182 AFFIDAVIT in Support re 180 MOTION for Extension of Time to File Response/Reply as to 166 MOTION for Summary Judgment filed by Raymond Bryant, Omar Castillon, Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight, Justin Keith Peterson, Leon Russell.(Angstman, Thomas)
183 RESPONSE to Motion re 165 MOTION to Exclude the Testimony of John R. Hepburn and Pam Sonnen filed by Raymond Bryant, Omar Castillon, Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight, Justin Keith Peterson, Leon Russell. Replies due by 10/27/2014. (Attachments: # 1 Affidavit)(Angstman, Thomas)
184 Sealed Document Re: 183 Response to Motion, Sealed Affidavit in Support. (Angstman, Thomas)
185 RESPONSE to Motion re 180 MOTION for Extension of Time to File Response/Reply as to 166 MOTION for Summary Judgment Non−Opposition filed by Corrections Corporation of America Inc. Replies due by 10/31/2014.(Naylor, Kirtlan)
186 REPLY to Response to Motion re 157 MOTION for Partial Summary Judgment filed by Raymond Bryant, Omar Castillon, Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight, Justin Keith Peterson, Leon Russell.(Shallat, Anthony)
187 REPLY to Response to Motion re 161 MOTION to Strike Expert Witness filed by Raymond Bryant, Omar Castillon, Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight, Justin Keith Peterson, Leon Russell.(Angstman, Thomas)
188 RESPONSE to Motion re 166 MOTION for Summary Judgment filed by Raymond Bryant, Omar Castillon, Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight, Justin Keith Peterson, Leon Russell. Replies due by 11/3/2014. (Attachments: # 1 Exhibit, # 2 Affidavit)(Angstman, Thomas) Modified on 10/22/2014 − Exhibit 9 to the Affidavit of Thomas J. Angstman (1 DVD) received by the Clerk's Office and is on the shelf in the file room (st). Modified on 10/24/2014 to remove link to dkt #167 because the response is to dkt #166 (st).
189 MOTION to Strike 129 Reply to Response to Motion, Dkt. 129−1 Affidavit of Kevin Myers Thomas J Angstman appearing for Plaintiffs Raymond Bryant, Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight, Leon Russell. Responses due by 11/10/2014 (Attachments: # 1 Memorandum in Support)(Angstman,

Case 1:12-cv-559 Document <docnum> Filed <datefiled> Page 21 of 37

10/17/2014 10/17/2014 10/17/2014
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Thomas)
190 Sealed Document Re: 188 Response to Motion, Affidavit in Support of Statement of Disputed Material Facts in Opposition to Statement of Facts in Support of Defendant CCA's Motion for Summary Judgment (Sealed). (Angstman, Thomas)
191 MOTION in Limine to Exclude Exhibits 21, 22N, 23 Anthony Shallat appearing for Plaintiffs Raymond Bryant, Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight, Leon Russell. Responses due by 11/10/2014 (Attachments: # 1 Memorandum in Support)(Shallat, Anthony)
192 Sealed Document Re: 191 MOTION in Limine to Exclude Exhibits 21, 22N, 23, 188 Response to Motion, Affidavit of Anthony Shallat in Support of Plaintiffs' Statement of Disputed Material Facts in Opposition to Statement of Facts in Support of Defendnat CCA's Motion for Summary Judgment and Memorandum in Support of Motion in Limine to Exclude Exhibits 21, 22N, and 23 (Sealed). (Shallat, Anthony)
193 RESPONSE to Motion re 174 MOTION to Seal Document filed by Raymond Bryant, Omar Castillon, Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight, Justin Keith Peterson, Leon Russell. Replies due by 11/6/2014.(Shallat, Anthony)
194 CERTIFICATE OF SERVICE by Raymond Bryant, Omar Castillon, Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight, Justin Keith Peterson, Leon Russell re 192 Sealed Document, (Shallat, Anthony)
195 CERTIFICATE OF SERVICE by Raymond Bryant, Omar Castillon, Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight, Justin Keith Peterson, Leon Russell re 190 Sealed Document (Angstman, Thomas)
196 CERTIFICATE OF SERVICE by Raymond Bryant, Omar Castillon, Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight, Justin Keith Peterson, Leon Russell re 188 Response to Motion, Dkt. 188−2, Exhibit 9 (Angstman, Thomas)
197 REPLY to Response to Motion re 165 MOTION to Exclude the Testimony of John R. Hepburn and Pam Sonnen filed by Corrections Corporation of America Inc. (Attachments: # 1 Exhibit 1 − Hepburn Depo Excerpt)(Zoellner, Tara)
198 REPLY to Response to Motion re 170 MOTION to Seal Exhibits in Support of CCA's Statement of Facts in Support of Motion for Summary Judgment filed by Corrections Corporation of America Inc.(Zoellner, Tara)
199 NOTICE by Corrections Corporation of America Inc re 198 Reply to Response to Motion, 170 MOTION to Seal Exhibits in Support of CCA's Statement of Facts in Support of Motion for Summary Judgment, 168 Supplement, (of Filing Redacted Exhibits in Support of CCA's Statement of Facts in Support of Motion for Summary Judgment DKT. 168, 170, 198) (Attachments: # 1 Exhibit 22C, # 2 Exhibit 22D, # 3 Exhibit 22E, # 4 Exhibit 22F, # 5 Exhibit 22G, # 6 Exhibit 22J, # 7 Exhibit 22K, # 8 Exhibit 22L, # 9 Exhibit 22M)(Zoellner, Tara)
200 Sealed Document Re: 170 MOTION to Seal Exhibits in Support of CCA's Statement of Facts in Support of Motion for Summary Judgment, 168 Supplement, . (Attachments: # 1 Exhibit 17a, # 2 Exhibit 17b, # 3 Exhibit 17c, # 4 Exhibit 14, # 5 Exhibit 16)(Zoellner, Tara)
201 CERTIFICATE OF SERVICE by Corrections Corporation of America Inc re 200 Sealed Document (Zoellner, Tara) Modified on 12/5/2014 to link to dkt #200 (st).
202 REPLY to Response to Motion re 166 MOTION for Summary Judgment filed by Corrections Corporation of America Inc.(Zoellner, Tara)
203 REPLY to Response to Motion re 174 MOTION to Seal Document, 157 MOTION for Partial Summary Judgment (Reply in Support of Defendant CCA's Motion to Seal Exhibit 10 to CCA's Statement of Disputed Facts in Support of CCA's Response to Plaintiffs' Motion for Partial Summary Judgment) filed by Corrections Corporation of America Inc. (Attachments: # 1 Exhibit 1)(Zoellner, Tara)

Case 1:12-cv-559 Document <docnum> Filed <datefiled> Page 22 of 37

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06/30/2015 07/06/2015

204 RESPONSE to Motion re 189 MOTION to Strike 129 Reply to Response to Motion, Dkt. 129−1 Affidavit of Kevin Myers filed by Corrections Corporation of America Inc. Replies due by 11/28/2014. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Zoellner, Tara)
205 RESPONSE to Motion re 191 MOTION in Limine to Exclude Exhibits 21, 22N, 23 filed by Corrections Corporation of America Inc. Replies due by 11/28/2014. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8)(Zoellner, Tara)
206 REPLY to Response to Motion re 191 MOTION in Limine to Exclude Exhibits 21, 22N, 23 filed by Raymond Bryant, Omar Castillon, Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight, Justin Keith Peterson, Leon Russell. (Attachments: # 1 Affidavit)(Shallat, Anthony)
207 Sealed Document Re: 206 Reply to Response to Motion, Affidavit of Anthony M. Shallat in Support of Reply in Support of Motion in Limine to Exclude Exhibits 21, 22N, 23 (SEALED). (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Shallat, Anthony)
208 REPLY to Response to Motion re 189 MOTION to Strike 129 Reply to Response to Motion, Dkt. 129−1 Affidavit of Kevin Myers filed by Raymond Bryant, Omar Castillon, Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight, Justin Keith Peterson, Leon Russell. (Attachments: # 1 Affidavit)(Shallat, Anthony)
209 ORDER OF REFERENCE. IT IS HEREBY ORDERED that ALL MATTERS in the above case are referred to United States Magistrate Judge Candy W. Dale. Judge Dale is directed to conduct all necessary and proper proceedings pertaining thereto. 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 (st)
210 DOCKET ENTRY ORDER finding as moot 180 Plaintiffs' Motion for Extension of Time to File Response/Reply to Defendant CCA's Motion for Summary Judgment 166 . Defendant filed a notice of non−opposition to Plaintiffs' request to file their response on October 17, 2014. The Plaintiffs' response brief 188 was timely filed as of that date. Signed by Judge Candy W. Dale. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (klw)
211 NOTICE by Corrections Corporation of America Inc re 166 MOTION for Summary Judgment (Request for Judicial Notice/Notice of Supplemental Authority) (Attachments: # 1 Exhibit A − News Release)(Zoellner, Tara)
NOTICE TO COURT that counsel Kevin T. Maloney wishes to no longer be noticed electronically on this case as of the date of this notice. (Maloney, Kevin)
212 ORDER granting in part and denying in part 170 Defendant's Motion to Seal. In addition, Defendants have seven (7) days to provide the Court with verification that Exhibit 1 is not identical to the DVD attached as Exhibit D to the Complaint and Amended Complaint. Otherwise, Exhibit 1 will be unsealed without further Court order. Denying 174 Motion to Seal Document − Exhibit 10. Instead, the Court grants Defendant's request contained in its Reply (Dkt. 203 ), to submit Exhibit 10 in redacted form. Signed by Judge Candy W. Dale. (klw)
213 REPORT AND RECOMMENDATIONS re 157 Planitffs' MOTION for Partial Summary Judgment filed by Leon Russell, Raymond Bryant, Michael Ford−Bridges, Jacob Judd, Dusty Knight, Christopher S Jordan . Recommending DENIAL of Plaintiffs' motion. Objections to R&R due by 7/16/2015. Signed by Judge Candy W. Dale. (klw)
214 NOTICE by Corrections Corporation of America Inc re 166 MOTION for Summary Judgment , 202 Reply to Response to Motion (Notice of Supplemental Authority) (Attachments: # 1 Exhibit 1 − Cloyd v. Brewer, # 2 Exhibit 2 − Cotta v. County of Kings 1.7.15, # 3 Exhibit 3 − Cotta v. County of Kings 2.9.15)(Zoellner, Tara)
215 NOTICE by Corrections Corporation of America Inc re 212 Order on Motion to Seal, Order on Motion to Seal Document,,,, 166 MOTION for Summary Judgment , Corrective Entry,, (Defendant Corrections Corporation of America's Verification of

Case 1:12-cv-559 Document <docnum> Filed <datefiled> Page 23 of 37

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Exhibit 1 to Defendant's Motion for Summary Judgment (Docs. 166, 170 & 212)) (Zoellner, Tara)
216 DOCKET ENTRY NOTICE of Hearing on Motion: 166 MOTION for Summary Judgment, 165 MOTION to Exclude the Testimony of John R. Hepburn and Pam Sonnen, 161 MOTION to Strike Expert Witness, 189 MOTION to Strike 129 Reply to Response to Motion, Dkt. 129−1 Affidavit of Kevin Myers − Motion Hearing set for 8/13/2015 02:30 PM in Boise − Courtroom 6 before Judge Candy W. Dale. (at)
217 ORDER denying 191 Motion in Limine. Signed by Judge Candy W. Dale. (klw)
218 AMENDED DOCKET ENTRY NOTICE of Hearing on Motions: 166 MOTION for Summary Judgment, 165 MOTION to Exclude the Testimony of John R. Hepburn and Pam Sonnen, 161 MOTION to Strike Expert Witness, 189 MOTION to Strike 129 Reply to Response to Motion, Dkt. 129−1 Affidavit of Kevin Myers − Motion Hearing currently set for 8/13/2015 02:30 PM is hereby VACATED and RE−SET for 8/27/2015 02:30 PM in Boise − Courtroom 6 before Judge Candy W. Dale. (at)
219 DOCKET ENTRY ORDER − Defendant provided the Court with verification pursuant to the Court's Order 212 that Exhibit 1, filed in support of its Motion for Summary Judgment, is not identical to Exhibit D, attached to Plaintiffs' First Amended Complaint. See Notice, Dkt. 214 . Accordingly, Exhibit 1 will remain sealed for the reasons explained in the Court's Order 212 . Signed by Judge Candy W. Dale. (klw)
220 RESPONSE re 211 Notice (Other) filed by Raymond Bryant, Omar Castillon, Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight, Justin Keith Peterson, Leon Russell . (Attachments: # 1 Affidavit)(Shallat, Anthony)
221 ORDER ADOPTING REPORT AND RECOMMENDATION. NOW THEREFORE IT IS HEREBY ORDERED that the Report and Recommendation 213 shall be INCORPORATED by reference and ADOPTED in its entirety. IT IS THEREFORE ORDERED Plaintiffs' Motion for Partial Summary Judgment 157 is DENIED. 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 (st)
222 NOTICE by Corrections Corporation of America Inc re 211 Notice (Other), 220 Response(generic) (Notice of Non−Reply to Plaintiffs' Response to Request for Judicial Notice/Notice of Supplemental Authority) (Zoellner, Tara)
223 Docket Text Minute Entry for proceedings held before Judge Candy W. Dale: Appearance by Thomas Angstman and Anthony Shallat for the Plaintiffs; Daniel Struck, Tara Zoellner, and Kirtlan Naylor for the Defendants. Motion Hearing held on 8/27/2015 re 161 MOTION to Strike Expert Witness, 165 MOTION to Exclude the Testimony of John R. Hepburn and Pam Sonnen, 166 MOTION for Summary Judgment, 189 MOTION to Strike 129 Reply to Response to Motion, Dkt. 129−1 Affidavit of Kevin Myers. Oral argument heard. Motions taken UNDER ADVISEMENT. Order forthcoming. Time in Court 1 hour 35 mins. (ESR A. Tate.) Audio File Location Boise − Courtroom 6. (at)
224 MOTION for Sanctions Based Upon Spoliation of Evidence Anthony Shallat appearing for Plaintiffs Raymond Bryant, Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight, Leon Russell.Motions referred to Candy W. Dale. Responses due by 9/28/2015 (Attachments: # 1 Memorandum in Support, # 2 Affidavit)(Shallat, Anthony)
225 Sealed Document Re: 224 MOTION for Sanctions Based Upon Spoliation of Evidence SEALED Affidavit of Anthony M. Shallat in Support of Motion for Sanctions Based Upon Spoliation of Evidence. (Shallat, Anthony)
226 MOTION to Stay re 224 MOTION for Sanctions Based Upon Spoliation of Evidence Kirtlan G Naylor appearing for Defendant Corrections Corporation of America Inc. Responses due by 10/5/2015 (Attachments: # 1 Declaration of Kirtlan G. Naylor, # 2 Exhibit A−Declaration of Kirtlan G. Naylor)(Naylor, Kirtlan)
227 DOCKET ENTRY ORDER − Pending before the Court is Defendant's Motion to Stay briefing regarding Motion for Sanctions 226 . Finding good cause, the Court orders

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that the time within which to submit briefs (of no more than 5 pages) shall be shortened as follows: Response or notice of non−objection due on or before September 21, 2015; Reply, if any, due on or before September 24, 2015. Dist. Idaho L. Rule 6.1. The Court will decide the motion without a hearing. Dist. Idaho L. Rule 7.1(d). Until the motion to stay is resolved, no further submissions are due to the pending motion for sanctions 224 . Signed by Judge Candy W. Dale. (klw)
228 RESPONSE to Motion re 226 MOTION to Stay re 224 MOTION for Sanctions Based Upon Spoliation of Evidence filed by Raymond Bryant, Omar Castillon, Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight, Justin Keith Peterson, Leon Russell. Replies due by 10/5/2015.(Shallat, Anthony)
229 REPLY to Response to Motion re 226 MOTION to Stay re 224 MOTION for Sanctions Based Upon Spoliation of Evidence filed by Corrections Corporation of America Inc.(Naylor, Kirtlan)
230 DOCKET ENTRY ORDER granting 226 Motion to Stay − The Court has considered the arguments for and against the imposition of a stay related to further briefing of Plaintiffs' motion for sanctions. Because the resolution of the pending motion for summary judgment could render the motion for sanctions moot, and the Court finds no actual prejudice would inure to the parties, the Court GRANTS the motion to stay 224 . No further motions or briefing on any pending motions will be permitted until the Court issues its ruling on the motion for summary judgment. Signed by Judge Candy W. Dale. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (klw)
231 REPORT AND RECOMMENDATION re 166 MOTION for Summary Judgment filed by Corrections Corporation of America Inc. NOW THEREFORE IT IS HEREBY RECOMMENDED: Defendant's Motion for Summary Judgment (Dkt. 166) be GRANTED. Objections to R&R due by 12/21/2015. Signed by Judge Candy W. Dale. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)
232 ORDER denying as moot 161 Motion to Strike ; denying as moot 165 Motion to Exclude; denying as moot 189 Motion to Strike ; denying as moot 224 Motion for Sanctions. Signed by Judge Candy W. Dale. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)
233 OBJECTION to 231 Report and Recommendations . (Shallat, Anthony)
234 AFFIDAVIT of Affidavit of Anthony M. Shallat in Support of Objection to Report and Recommendation [Dkts. 231 and 232] re 233 Objection to Report and Recommendations filed by Raymond Bryant, Omar Castillon, Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight, Justin Keith Peterson . (Attachments: # 1 Exhibit A − Hepburn Expert Report)(Shallat, Anthony)
235 RESPONSE TO OBJECTION TO R&R filed by Corrections Corporation of America Inc.(Zoellner, Tara)
236 ORDER ON REPORT AND RECOMMENDATIONS. The Report 231 is REJECTED in part and ADOPTED in part. The portions of the Report which granted Defendant summary judgment with respect to Plaintiffs § 1983 understaffing claim is REJECTED, summary judgment 166 is DENIED with respect to Plaintiffs § 1983 understaffing claim. The Report is ADOPTED in all other respects. 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 (st)
237 SCHEDULING ORDER. The parties shall notify the Courts ADR Coordinator, Keith Bryan, within 60 days of this Order if they seek to pursue mediation or desire a settlement conference. Motions in limine, if any, shall be filed 30 days prior to trial. (Jury Trial set for 12/13/2016 09:30 AM in Boise − Courtroom 2 before Judge Edward J. Lodge.). 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 (st)
238 ORDER ON EVIDENTIARY MOTIONS. Any Motion for Reconsideration shall be filed on or before the 9/7/2016 deadline for notifying the Court regarding the Parties'

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intent to pursue pre−trial resolution of this matter. In addition, the Order of Reference 209 is hereby WITHDRAWN for all future motions in this case. 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 (st)
239 MOTION for Reconsideration re 238 Order, Set Deadlines,, Motion to Strike Expert Witness (Dkt. 161), Motion to Strike Affidavit of Kevin Myers (Dkt. 189), Motion for Sanctions Based Upon Spoliation of Evidence (Dkt. 224) Anthony Shallat appearing for Plaintiffs Raymond Bryant, Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight, Leon Russell. Responses due by 8/19/2016 (Shallat, Anthony)
240 Transcript of Proceedings for Motions Hearing held on 8/27/2015 before Judge Candy W. Dale. 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 9/1/2016. Redacted Transcript Deadline set for 9/9/2016. Release of Transcript Restriction set for 11/7/2016.(st) (Entered: 08/08/2016)
241 Notice of Filing of Official Transcript (st)
242 RESPONSE to Motion re 239 MOTION for Reconsideration re 238 Order, Set Deadlines,, Motion to Strike Expert Witness (Dkt. 161), Motion to Strike Affidavit of Kevin Myers (Dkt. 189), Motion for Sanctions Based Upon Spoliation of Evidence (Dkt. 224) filed by Corrections Corporation of America Inc. Replies due by 9/6/2016.(Zoellner, Tara)
243 MOTION for Reconsideration re 238 Order, Set Deadlines,, Tara B Zoellner appearing for Defendant Corrections Corporation of America Inc. Responses due by 9/26/2016 (Zoellner, Tara)
244 REPLY to Response to Motion re 239 MOTION for Reconsideration re 238 Order, Set Deadlines,, Motion to Strike Expert Witness (Dkt. 161), Motion to Strike Affidavit of Kevin Myers (Dkt. 189), Motion for Sanctions Based Upon Spoliation of Evidence (Dkt. 224) filed by Raymond Bryant, Omar Castillon, Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight, Justin Keith Peterson, Leon Russell.(Shallat, Anthony)
245 MOTION for Reconsideration re 236 Order Adopting Report and Recommendations,, Daniel Patrick Struck appearing for Defendant Corrections Corporation of America Inc. Responses due by 10/11/2016 (Struck, Daniel)
246 MOTION to Bifurcate Tara B Zoellner appearing for Defendant Corrections Corporation of America Inc. Responses due by 10/31/2016 (Attachments: # 1 Memorandum in Support)(Zoellner, Tara)
247 RESPONSE to Motion re 245 MOTION for Reconsideration re 236 Order Adopting Report and Recommendations,, filed by Raymond Bryant, Omar Castillon, Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight, Justin Keith Peterson, Leon Russell. Replies due by 10/28/2016.(Shallat, Anthony)
248 AFFIDAVIT re 247 Response to Motion, filed by Raymond Bryant, Omar Castillon, Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight, Justin Keith Peterson, Leon Russell . (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Shallat, Anthony)
249 Sealed Document Re: 247 Response to Motion, SEALED Affidavit of Anthony M. Shallat in Support of Plaintiffs' Response to [Dkt. 245] Defendant's Motion for Partial Reconsideration of Court's Order [Dkt. 236]. (Attachments: # 1 Exhibit A)(Shallat, Anthony)
250 SUBPOENA RETURNED EXECUTED as to Kevin Myers served on 9/26/2016. (Naylor, Kirtlan)
251 SUBPOENA RETURNED EXECUTED as to Steven Conry served on 9/26/2016. (Naylor, Kirtlan)

Case 1:12-cv-559 Document <docnum> Filed <datefiled> Page 26 of 37

10/28/2016 10/31/2016 11/10/2016 11/10/2016 11/10/2016
11/10/2016 11/10/2016 11/10/2016 11/10/2016 11/10/2016
11/10/2016 11/11/2016 11/11/2016 11/11/2016 11/16/2016 11/16/2016

252 REPLY to Response to Motion re 245 MOTION for Reconsideration re 236 Order Adopting Report and Recommendations,, filed by Corrections Corporation of America Inc.(Zoellner, Tara)
253 RESPONSE to Motion re 246 MOTION to Bifurcate filed by Raymond Bryant, Omar Castillon, Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight, Justin Keith Peterson, Leon Russell. Replies due by 11/17/2016.(Shallat, Anthony)
254 MOTION in Limine No. 1 to Preclude Testimony From CCA Executives Tara B Zoellner appearing for Defendant Corrections Corporation of America Inc. Responses due by 12/5/2016 (Attachments: # 1 Exhibit 1)(Zoellner, Tara)
255 MOTION in Limine No. 2 to Preclude Evidence of CCA's Net Worth, Assets, Income, Salaries, and Bonuses Tara B Zoellner appearing for Defendant Corrections Corporation of America Inc. Responses due by 12/5/2016 (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6)(Zoellner, Tara)
256 MOTION in Limine No. 3 to Preclude Testimony of Unqualified Affiants Regarding Staffing Pattern and Appropriate Staffing Tara B Zoellner appearing for Defendant Corrections Corporation of America Inc. Responses due by 12/5/2016 (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6)(Zoellner, Tara)
257 MOTION in Limine No. 4 to Preclude Evidence of Dismissed Claims Tara B Zoellner appearing for Defendant Corrections Corporation of America Inc. Responses due by 12/5/2016 (Zoellner, Tara)
258 MOTION in Limine No. 5 to Exclude Improper Arguments Tara B Zoellner appearing for Defendant Corrections Corporation of America Inc. Responses due by 12/5/2016 (Zoellner, Tara)
259 MOTION in Limine No. 6 to Preclude Evidence of KPMG Audit and Report Tara B Zoellner appearing for Defendant Corrections Corporation of America Inc. Responses due by 12/5/2016 (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Zoellner, Tara)
260 MEMORANDUM DECISION AND ORDER denying 245 Motion for Reconsideration. 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)
261 MOTION in Limine No. 7 to Preclude Evidence Relating to Kelly v. Wengler Contempt Proceedings and Any Suggestion that ICC was More Violent than State−Run Facilities Tara B Zoellner appearing for Defendant Corrections Corporation of America Inc. Responses due by 12/5/2016 (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Zoellner, Tara)
262 MOTION in Limine No. 8 to Preclude Evidence of Dissimilar Inmate−on−Inmate Assaults Tara B Zoellner appearing for Defendant Corrections Corporation of America Inc. Responses due by 12/5/2016 (Zoellner, Tara)
263 MOTION in Limine Anthony Shallat appearing for Plaintiffs Raymond Bryant, Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight, Leon Russell. Responses due by 12/5/2016 (Attachments: # 1 Memorandum in Support)(Shallat, Anthony)
264 Sealed Document Re: 263 MOTION in Limine Sealed Affidavit in Support. (Shallat, Anthony)
265 STIPULATION Regarding Defendant's Motions in Limine by Corrections Corporation of America Inc. (Zoellner, Tara)
266 Order Granting Stipulation Regarding Defendant's Motions In Limine. 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 (st)
269 ORDER. The Court accordingly lifts the stay (Dkt. 230) and sets the following expedited briefing schedule: Defendant's Response to Plaintiffs' Motion for Sanctions shall be filed on or before 12/1/2016. Plaintiffs' Reply to Defendant's Response, if any,

Case 1:12-cv-559 Document <docnum> Filed <datefiled> Page 27 of 37

11/16/2016 11/17/2016 11/17/2016 11/18/2016 11/21/2016 11/21/2016 11/21/2016 11/23/2016 11/23/2016
11/23/2016 11/23/2016 12/01/2016 12/06/2016

shall be filed on or before 12/8/2016. 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 (st) (Entered: 11/18/2016)
Set/Reset Deadlines as to 224 MOTION for Sanctions Based Upon Spoliation of Evidence. Responses due by 12/1/2016. Replies due by 12/8/2016. (Per Order, dkt #269)(st) (Entered: 11/18/2016)
267 NOTICE by Raymond Bryant, Omar Castillon, Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight, Justin Keith Peterson, Leon Russell (Attachments: # 1 Affidavit)(Shallat, Anthony)
268 REPLY to Response to Motion re 246 MOTION to Bifurcate filed by Corrections Corporation of America Inc.(Zoellner, Tara)
270 STIPULATION Regarding Plaintiffs' Motions in Limine by Raymond Bryant, Omar Castillon, Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight, Justin Keith Peterson, Leon Russell. (Shallat, Anthony)
271 ORDER GRANTING STIPULATION REGARDING PLAINTIFFS' MOTIONS IN LIMINE re 270 Stipulation. 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 (cjs)
272 DOCKET ENTRY ORDER VACATING 12/13/2016 JURY TRIAL AND PRE−TRIAL FILING DEADLINES. The matter will reset after the Court has the opportunity to explore reassignment to another judge. SO ORDERED. 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)
273 MOTION to Quash Subpoena by Movant Christopher Price. Responses due by 12/15/2016 (Attachments: # 1 mailed approval notice, # 2 envelope)(st) (Entered: 11/22/2016)
274 RESPONSE to Motion re 263 MOTION in Limine filed by Corrections Corporation of America Inc. Replies due by 12/12/2016. (Attachments: # 1 Declaration of Tara B. Zoellner, # 2 Exhibit 1, # 3 Exhibit 2)(Zoellner, Tara)
275 RESPONSE to Motion re 255 MOTION in Limine No. 2 to Preclude Evidence of CCA's Net Worth, Assets, Income, Salaries, and Bonuses, 257 MOTION in Limine No. 4 to Preclude Evidence of Dismissed Claims, 256 MOTION in Limine No. 3 to Preclude Testimony of Unqualified Affiants Regarding Staffing Pattern and Appropriate Staffing, 259 MOTION in Limine No. 6 to Preclude Evidence of KPMG Audit and Report, 262 MOTION in Limine No. 8 to Preclude Evidence of Dissimilar Inmate−on−Inmate Assaults, 254 MOTION in Limine No. 1 to Preclude Testimony From CCA Executives, 258 MOTION in Limine No. 5 to Exclude Improper Arguments, 261 MOTION in Limine No. 7 to Preclude Evidence Relating to Kelly v. Wengler Contempt Proceedings and Any Suggestion that ICC was More Violent than State−Run Facilities filed by Raymond Bryant, Omar Castillon, Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight, Justin Keith Peterson, Leon Russell. Replies due by 12/12/2016.(Shallat, Anthony)
276 AFFIDAVIT of Affidavit of Anthony M. Shallat in Support of Plaintiffs' Response to Defendant's Motions in Limine (Dkts. 256, 255, 256, 257, 258, 259, 261, 262) re 275 Response to Motion,,,, filed by Raymond Bryant, Omar Castillon, Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight, Justin Keith Peterson, Leon Russell . (Attachments: # 1 Exhibit A)(Shallat, Anthony)
277 Sealed Document Re: 275 Response to Motion,,,, SEALED Affidavit of Anthony M. Shallat in Support of Plaintiffs' Response to Defendant's Motions in Limine. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Shallat, Anthony)
278 RESPONSE to Motion re 224 MOTION for Sanctions Based Upon Spoliation of Evidence filed by Corrections Corporation of America Inc. Replies due by 12/19/2016. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Zoellner, Tara)
279 DOCKET ENTRY ORDER: This case is reassigned to United States Senior District Judge Dee V. Benson, sitting by special designation. Jury Trial is set for 2/13/2017 at

Case 1:12-cv-559 Document <docnum> Filed <datefiled> Page 28 of 37

12/06/2016 12/08/2016 12/16/2016 12/19/2016 12/20/2016 12/29/2016
01/03/2017
01/04/2017

01:30 PM in Boise − Courtroom 1, before Judge Dee V Benson. The case number shall be changed to 1:12−cv−00559−DVB, which the parties are directed to use on all future filings. All previous judge referrals, if any, are withdrawn. SO ORDERED. 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)
DOCKET ENTRY NOTICE of Case Number Change. Case reassigned to Judge Dee V Benson for all further proceedings. Judge Edward J. Lodge no longer assigned to case. Please use case number 1:12−cv−00559−DVB on all future pleadings. (st)
280 REPLY to Response to Motion re 224 MOTION for Sanctions Based Upon Spoliation of Evidence filed by Raymond Bryant, Omar Castillon, Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight, Justin Keith Peterson, Leon Russell.(Shallat, Anthony)
281 NOTICE by Corrections Corporation of America Inc [Proposed] Scheduling Order (Zoellner, Tara)
282 SCHEDULING ORDER − Witness Lists, Exhibits, Exhibit Lists, Deposition Designations due by 1/23/2017. Jury Instructions and Proposed Voir Dire due by 1/30/2017 (Case Management deadline set for 1/30/2017). Signed by Judge Dee V Benson. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)
283 ORDER DENYING MOTION TO BIFURCATE denying 246 Motion to Bifurcate. Signed by Judge Dee V Benson. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st) (Entered: 12/21/2016)
284 DOCKET ENTRY NOTICE of Hearing on Motions: 259 MOTION in Limine No. 6 to Preclude Evidence of KPMG Audit and Report, 273 MOTION to Quash, 257 MOTION in Limine No. 4 to Preclude Evidence of Dismissed Claims, 254 MOTION in Limine No. 1 to Preclude Testimony From CCA Executives, 262 MOTION in Limine No. 8 to Preclude Evidence of Dissimilar Inmate−on−Inmate Assaults, 258 MOTION in Limine No. 5 to Exclude Improper Arguments, 255 MOTION in Limine No. 2 to Preclude Evidence of CCA's Net Worth, Assets, Income, Salaries, and Bonuses, 261 MOTION in Limine No. 7 to Preclude Evidence Relating to Kelly v. Wengler Contempt Proceedings and Any Suggestion that ICC was More Violent than State−Run Facilities, 256 MOTION in Limine No. 3 to Preclude Testimony of Unqualified Affiants Regarding Staffing Pattern and Appropriate Staffing, 263 MOTION in Limine − Motion Hearing set for 1/6/2017 10:00 AM in Boise − Courtroom 1 before Judge Dee V Benson. (at)
285 DOCKET ENTRY NOTICE of Hearing on Motion 239 MOTION for Reconsideration re 238 Order, Set Deadlines,, Motion to Strike Expert Witness (Dkt. 161), Motion to Strike Affidavit of Kevin Myers (Dkt. 189), Motion for Sanctions Based Upon Spoliation of Evidence (Dkt. 224), 224 MOTION for Sanctions Based Upon Spoliation of Evidence, 243 MOTION for Reconsideration re 238 Order, Set Deadlines,, : Motion Hearing set for 1/6/2017 10:00 AM in Boise − Courtroom 1 before Judge Dee V Benson. (so)
286 DOCKET ENTRY NOTICE AMENDING Hearing on Motion (AMENDING TIME ONLY) 259 MOTION in Limine No. 6 to Preclude Evidence of KPMG Audit and Report, 273 MOTION to Quash, 257 MOTION in Limine No. 4 to Preclude Evidence of Dismissed Claims, 254 MOTION in Limine No. 1 to Preclude Testimony From CCA Executives, 262 MOTION in Limine No. 8 to Preclude Evidence of Dissimilar Inmate−on−Inmate Assaults, 258 MOTION in Limine No. 5 to Exclude Improper Arguments, 255 MOTION in Limine No. 2 to Preclude Evidence of CCA's Net Worth, Assets, Income, Salaries, and Bonuses, 239 MOTION for Reconsideration re 238 Order, Set Deadlines,, Motion to Strike Expert Witness (Dkt. 161), Motion to Strike Affidavit of Kevin Myers (Dkt. 189), Motion for Sanctions Based Upon Spoliation of Evidence (Dkt. 224), 261 MOTION in Limine No. 7 to Preclude Evidence Relating to Kelly v. Wengler Contempt Proceedings and Any Suggestion that ICC was More Violent than State−Run Facilities, 256 MOTION in Limine No. 3 to Preclude Testimony of Unqualified Affiants Regarding Staffing Pattern and Appropriate Staffing, 224 MOTION for Sanctions Based Upon Spoliation of Evidence, 263 MOTION in Limine , 243 MOTION for Reconsideration re 238 Order, Set Deadlines,,

Case 1:12-cv-559 Document <docnum> Filed <datefiled> Page 29 of 37

01/06/2017
01/13/2017 01/13/2017 01/13/2017 01/13/2017 01/17/2017 01/18/2017 01/19/2017 01/23/2017

: Motion Hearing set for 1/6/2017 09:00 AM in Boise − Courtroom 1 before Judge Dee V Benson. (so)
305 Minute Entry for proceedings held before Judge Dee V Benson: Motion Hearing held on 1/6/2017 re 273 MOTION to Quash filed by Christopher Price, 255 MOTION in Limine No. 2 to Preclude Evidence of CCA's Net Worth, Assets, Income, Salaries, and Bonuses filed by Corrections Corporation of America Inc, 224 MOTION for Sanctions Based Upon Spoliation of Evidence filed by Leon Russell, Raymond Bryant, Michael Ford−Bridges, Jacob Judd, Dusty Knight, Christopher S Jordan, 257 MOTION in Limine No. 4 to Preclude Evidence of Dismissed Claims filed by Corrections Corporation of America Inc, 256 MOTION in Limine No. 3 to Preclude Testimony of Unqualified Affiants Regarding Staffing Pattern and Appropriate Staffing filed by Corrections Corporation of America Inc, 263 MOTION in Limine filed by Leon Russell, Raymond Bryant, Michael Ford−Bridges, Jacob Judd, Dusty Knight, Christopher S Jordan, 259 MOTION in Limine No. 6 to Preclude Evidence of KPMG Audit and Report filed by Corrections Corporation of America Inc, 262 MOTION in Limine No. 8 to Preclude Evidence of Dissimilar Inmate−on−Inmate Assaults filed by Corrections Corporation of America Inc, 254 MOTION in Limine No. 1 to Preclude Testimony From CCA Executives filed by Corrections Corporation of America Inc, 258 MOTION in Limine No. 5 to Exclude Improper Arguments filed by Corrections Corporation of America Inc, 261 MOTION in Limine No. 7 to Preclude Evidence Relating to Kelly v. Wengler Contempt Proceedings and Any Suggestion that ICC was More Violent than State−Run Facilities filed by Corrections Corporation of America Inc. (Court Reporter/ESR Ed Young.) (so) (Entered: 01/26/2017)
287 MOTION unopposed request for transport of certain plaintiffs for trial Anthony Shallat appearing for Plaintiffs Raymond Bryant, Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight, Leon Russell. Responses due by 2/6/2017 (Shallat, Anthony)
288 NOTICE by Raymond Bryant, Omar Castillon, Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight, Justin Keith Peterson, Leon Russell Notice of Service of Trial Subpoena (Timothy Wengler) (Attachments: # 1 Affidavit)(Angstman, Thomas)
289 MOTION for Reconsideration Kirtlan G Naylor appearing for Defendant Corrections Corporation of America Inc. Responses due by 2/6/2017 (Attachments: # 1 Memorandum in Support, # 2 Affidavit, # 3 Exhibit Audio CD, # 4 Affidavit, # 5 Affidavit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit)(Naylor, Kirtlan) Modified on 1/17/2017 − Exhibit 1−A to Bethany Davis Declaration (1 CD) received and is in the Clerk's Office file room (st).
290 ORDER DENYING MOTIONS TO RECONSIDER MOTIONS TO EXCLUDE EXPERT WITNESSES − The motions to reconsider (Dkt. Nos. 239 and 243 ) with respectto Plaintiffs Motion to Exclude Expert Witness (Dkt. No. 161 ) and Defendants Motion to Exclude the Testimony of John R. Hepburn and Pam Sonnen (Dkt. No. 165 ) are DENIED. Signed by Judge Dee V Benson. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs) (Entered: 01/17/2017)
291 MOTION re 289 MOTION for Reconsideration to Shorten Time Kirtlan G Naylor appearing for Defendant Corrections Corporation of America Inc. Responses due by 2/10/2017 (Naylor, Kirtlan)
292 NOTICE by Corrections Corporation of America Inc re 288 Notice (Other), Non−Service (Attachments: # 1 Exhibit A)(Naylor, Kirtlan)
293 DOCKET ENTRY ORDER granting 291 Motion for Reconsideration to Shorten Time. Signed by Judge Dee V Benson. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (so)
294 ORDER to Transport Plaintiff for Trial (Jacob Wayne Judd, Inmate #90319) granting 287 MOTION unopposed request for transport of certain plaintiffs for trial filed by Leon Russell, Raymond Bryant, Michael Ford−Bridges, Jacob Judd, Dusty Knight, Christopher S Jordan. IDOC to take appropriate measures to transport Jacob Wayne Judd to Courtroom #1 in Boise on 2/13/2017−2/17/2017 and 2/21/2017−2/23/2017 beginning at 8:30 a.m. (Notice sent to USMS). Signed by Judge Dee V Benson.

Case 1:12-cv-559 Document <docnum> Filed <datefiled> Page 30 of 37

01/23/2017
01/23/2017
01/23/2017 01/23/2017 01/23/2017 01/23/2017 01/23/2017 01/24/2017
01/25/2017 01/25/2017 01/26/2017 01/26/2017
01/26/2017

(caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)
295 ORDER to Transport Plaintiff for Trial (Christopher Sean Jordan, Inmate #46369) granting 287 MOTION unopposed request for transport of certain plaintiffs for trial filed by Leon Russell, Raymond Bryant, Michael Ford−Bridges, Jacob Judd, Dusty Knight, Christopher S Jordan. IDOC to take appropriate measures to transport Christopher Sean Jordan to Courtroom #1 in Boise on 2/13/2017−2/17/2017 and 2/21/2017−2/23/2017 beginning at 8:30 a.m. (Notice sent to USMS). Signed by Judge Dee V Benson. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)
296 ORDER to Transport Plaintiff for Trial (Raymond Scott Bryant, Inmate #46123) granting 287 MOTION unopposed request for transport of certain plaintiffs for trial filed by Leon Russell, Raymond Bryant, Michael Ford−Bridges, Jacob Judd, Dusty Knight, Christopher S Jordan. IDOC to take appropriate measures to transport Raymond Scott Bryant to Courtroom #1 in Boise on 2/13/2017−2/17/2017 and 2/21/2017−2/23/2017 beginning at 8:30 a.m. (Notice sent to USMS). Signed by Judge Dee V Benson. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)
297 Witness List (sealed) by Raymond Bryant, Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight, Leon Russell. (Shallat, Anthony)
298 Disclosure Statement filed byAnthony Shallat on behalf of Raymond Bryant, Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight, Leon Russell. (Shallat, Anthony)
299 Disclosure Statement filed byTara B Zoellner on behalf of Corrections Corporation of America Inc. (Zoellner, Tara)
300 Witness List (sealed) by Corrections Corporation of America Inc. (Zoellner, Tara)
301 Exhibit List by Corrections Corporation of America Inc.. (Zoellner, Tara)
302 RESPONSE to Motion re 289 MOTION for Reconsideration filed by Raymond Bryant, Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight, Justin Keith Peterson, Leon Russell. Replies due by 2/10/2017. (Attachments: # 1 Affidavit Affidavit of Anthony M. Shallat in Support of Plaintiffs' Response to (Dkt. 289) Motion for Reconsideration and Sanctions, # 2 Affidavit Affidavit of Thomas J. Angstman in Support of Plaintiffs' Response to (Dkt. 289) Motion for Reconsideration and Sanctions, # 3 Exhibit A, # 4 Exhibit B, # 5 Exhibit C, # 6 Exhibit D, # 7 Exhibit F)(Angstman, Thomas)
303 NOTICE by Corrections Corporation of America Inc of Involved Attorney for ECF (Naylor, Jacob)
304 DOCKET ENTRY NOTICE AMENDING Hearing (AMENDING TIME ONLY − TRIAL TO BEGIN 9:00 AM): Jury Trial set for 2/13/2017 09:00 AM in Boise − Courtroom 1 before Judge Dee V Benson. (so)
CORRECTIVE ENTRY − Docket number 303 Notice (Other) filed by Corrections Corporation of America Inc was filed using the wrong event. For future reference, 'Notice of Appearance' should be used, which is located under civil events, other filings, notices. (st)
306 ORDER re Plaintiff's Motion in Limine 263 . Motion 254 is granted in part and denied in part. Motion 255 is granted in part and denied in part. Motion 256 is denied. Motion 257 is granted in part and denied in part. Motion 258 is granted in part and denied in part. Motion 259 is granted. Motion 261 is denied. Motion 262 is granted in part and denied in part. Motion 224 is granted in part and denied in part. Signed by Judge Dee V Benson. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)
307 REPLY to Response to Motion re 289 MOTION for Reconsideration Memorandum in Support filed by Corrections Corporation of America Inc. (Attachments: # 1 Appendix A)(Naylor, Kirtlan)

Case 1:12-cv-559 Document <docnum> Filed <datefiled> Page 31 of 37

01/27/2017
01/30/2017 01/30/2017 01/30/2017 01/30/2017 01/30/2017 01/30/2017 01/30/2017 01/30/2017 01/30/2017 02/03/2017 02/06/2017 02/06/2017 02/06/2017
02/07/2017 02/10/2017 02/10/2017
02/10/2017

317 ORDER denying 289 Motion for Reconsideration and Sanctions. Defendant has not presented the court with newly discovered evidence, clear error, manifest injustice, or an intervening change in controlling law that would support reconsideration of the court's previous ruling. The Court also finds no basis for Defendant's motion for sanctions against Plaintiffs or their attorneys. As such, Defendant's Motion for Reconsideration and Sanctions is DENIED. Signed by Judge Dee V Benson. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (km) (Entered: 02/03/2017)
308 TRIAL BRIEF Plaintiffs' Evidentiary Objections Under Local Rule 16.3 by Raymond Bryant, Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight, Leon Russell. (Shallat, Anthony)
309 Proposed Voir Dire by Raymond Bryant, Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight, Leon Russell. (Shallat, Anthony)
310 Special Verdict (Proposed) by Plaintiffs Raymond Bryant, Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight, Leon Russell. (Attachments: # 1 Verdict Forrm Attachment)(Shallat, Anthony)
311 Exhibit List by Raymond Bryant, Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight, Leon Russell.. (Shallat, Anthony)
312 Proposed Jury Instructions by Raymond Bryant, Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight, Leon Russell. (Shallat, Anthony)
313 Proposed Jury Instructions by Corrections Corporation of America Inc. (Attachments: # 1 Exhibit 1)(Struck, Daniel)
314 Proposed Voir Dire by Corrections Corporation of America Inc. (Struck, Daniel)
315 Special Verdict (Proposed) by Defendant Corrections Corporation of America Inc. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Struck, Daniel)
316 TRIAL BRIEF by Corrections Corporation of America Inc. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Struck, Daniel)
318 Exhibit List (Amended) by Corrections Corporation of America Inc.. (Struck, Daniel)
319 SUBPOENA RETURNED EXECUTED as to Norma Rodriguez, Lance Smith, Tim Higgins, Tim Johnson, Joby Watkins served on 1/26/2017. (Naylor, Kirtlan)
320 ERRATA by Defendant Corrections Corporation of America Inc re 301 Exhibit List, 318 Exhibit List . (Attachments: # 1 Exhibit 1 − Defendant's Exhibit List)(Zoellner, Tara)
321 Objection by Plaintiffs Raymond Bryant, Omar Castillon, Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight, Justin Keith Peterson, Leon Russell to. Related document: 316 Trial Brief filed by Corrections Corporation of America Inc. (Attachments: # 1 Affidavit)(Shallat, Anthony)
322 MOTION to Strike 311 Exhibit List Tara B Zoellner appearing for Defendant Corrections Corporation of America Inc. Responses due by 2/28/2017 (Attachments: # 1 Memorandum in Support)(Zoellner, Tara)
323 Objection by Plaintiffs Raymond Bryant, Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight, Leon Russell to. Related document: 313 Proposed Jury Instructions filed by Corrections Corporation of America Inc.(Shallat, Anthony)
324 Objection by Defendant Corrections Corporation of America Inc to. Related document: 308 Trial Brief filed by Leon Russell, Raymond Bryant, Michael Ford−Bridges, Jacob Judd, Dusty Knight, Christopher S Jordan. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Zoellner, Tara)
325 Objection by Defendant Corrections Corporation of America Inc to. Related document: 312 Proposed Jury Instructions filed by Leon Russell, Raymond Bryant, Michael Ford−Bridges, Jacob Judd, Dusty Knight, Christopher S Jordan.(Zoellner, Tara)

Case 1:12-cv-559 Document <docnum> Filed <datefiled> Page 32 of 37

02/13/2017 02/14/2017
02/15/2017
02/16/2017 02/17/2017
02/20/2017 02/20/2017 02/20/2017 02/21/2017 02/21/2017
02/22/2017 02/22/2017

331 Minute Entry for proceedings held before Judge Dee V Benson: Day 1, SEALED Jury Selection held on 2/13/2017. (Court Reporter/ESR Ed Young.) (Attachments: # 1 Supplement Sealed Jury List) (so) (Entered: 02/27/2017)
332 DOCKETE TEXT Minute Entry for proceedings held before Judge Dee V Benson: Jury Trial Day 2 held on 2/14/2017. Out of the jury presence trial issues were discussed with the Court. Jury seated at 9:15 a.m. Plaintiffs presents its case in chief and calls Timothy Higgins as a witness, witness sworn testimony given and exhibits received. Jury excused at 3 :15 p.m. to return tomorrow at 9:00 a.m.Out of the jury presence discussion held on admissibility of exhibits 1373, 1004, Court will receive exhibit 1373 and will delay its ruling on 1004 until tomorrow. (Court Reporter/ESR Ed Young.) (so) (Entered: 02/27/2017)
333 DOCKET TEXT Minute Entry for proceedings held before Judge Dee V Benson: Jury Trial Day 3 held on 2/15/2017. Jury seated at 9:00 a.m. Court explains to the Jury that Mr. Higgins cross examination will continue at a different time to accommodate cnsl. Plaintiffs call Dr. Robert Calhoun, Dustyn Skogsberg, Jacob Mills and Garth Carrick as a witnesses, witnesses sworn, testimonies given and exhibits received. Cross examinations. Jury excused at 3:30 p.m. to return tomorrow at 9:00 a.m. Defense calls Tom Kessler as a witness. Witness sworn, testimony given and exhibits received. Cross examinations. (Court Reporter/ESR Ed Young.) (so) (Entered: 02/27/2017)
334 DOCKET TEXT Minute Entry for proceedings held before Judge Dee V Benson: Jury Trial Day 4 held on 2/16/2017. Jury seated at 9:00 a.m. Testimony of Garth Carrick continued. Mr. Kevin Myers called as a witness, witness sworn, testimony given and exhibits received. Cross examination. Jury excused at 3:30 p.m. to return tomorrow at 9:00 a.m. (Court Reporter/ESR Ed Young.) (so) (Entered: 02/27/2017)
335 DOCKET TEXT Minute Entry for proceedings held before Judge Dee V Benson: Jury Trial Day 5 held on 2/17/2017. Jury seated at 9:00 a.m. Plaintiff calls Steven Conry, John Hepburn as a witnesses, witnesses sworn, testimonies given and exhibits. Cross examinations. Defense cnsl cross examines Mr. Timothy Higgins who was previously called earlier in the week. Plaintiff calls Shane Jepsen as a witness. Witness sworn, testimony given and exhibits received. Jury excused at 3:30 p.m. to return on Tuesday 2/21/2017 at 9:00 a.m. (Court Reporter/ESR Ed Young.) (so) (Entered: 02/27/2017)
326 TRIAL BRIEF Bench Memorandum in Support of Plaintiffs' Proposed Redactions to the Kelly v. Wengler Decision and the Serious Incident Report by Raymond Bryant, Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight, Leon Russell. (Attachments: # 1 Exhibit, # 2 Exhibit)(Shallat, Anthony)
327 TRIAL BRIEF Plaintiffs' Bench Memorandum Regarding Punitive Damages Instruction by Raymond Bryant, Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight, Leon Russell. (Angstman, Thomas)
328 TRIAL BRIEF Re: Punitive Damages Standard by Corrections Corporation of America Inc. (Zoellner, Tara)
329 TRIAL BRIEF Re: Court Decisions and Redactions by Corrections Corporation of America Inc. (Attachments: # 1 Exhibit 1 − Defendant's Proposed Redactions (SIR))(Zoellner, Tara)
336 DOCKET TEXT Minute Entry for proceedings held before Judge Dee V Benson: Jury Trial Day 6 held on 2/21/2017. Cnsl present. Out of the jury presence, issues of evidence were discussed and rulings were made as to pleadings #326 and #327. Court made findings on the record. Jury seated at 9:30 a.m. Plaintiff calls Damon Hininger, Raymond Scott Bryant, Walter Ford−Bridges, Christopher Jordan, Jacob Judd, Dusty Knight, as witnesses, witnesses sworn, testimony given and exhibits received. Cross examinations. Jury excused at 3:30 p.m. to return tomorrow at 9:00 a.m. (Court Reporter/ESR Ed Young.) (so) (Entered: 02/27/2017)
330 Special Verdict (Proposed) by Defendant Corrections Corporation of America Inc. (Attachments: # 1 Exhibit 1 − CCA's Proposed Special Verdict Form)(Zoellner, Tara)
337 DOCKET TEXT Minute Entry for proceedings held before Judge Dee V Benson: Jury Trial Day 7 held on 2/22/2017. Jury seated at 9:00 a.m. Plaintiff calls Leon Matthew Russell, Jeri Russell, Pam Sonnen, (After an objection was made by the defense, Ms. Sonnen was excused as a witness) as witnesses, witnesses sworn, testimonies given

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02/22/2017
02/22/2017 02/22/2017 02/22/2017 03/09/2017 03/22/2017 03/22/2017
03/30/2017
04/05/2017 04/06/2017 04/27/2017 04/27/2017
05/23/2017

and exhibits received. Plaintiff rests.Defendants present their case in chief and calls Tim Johnson as a witness. Witness sworn, testimony given and exhibits received. Cross examination. Out of the jury presence defendants move for a Rule 50 motion for a directive verdict. Arguments heard. Court denied the motion to dismiss and takes under advisement the motion to dismiss for punitive damages. Defense calls Tom Kessler as a witness. Witness sworn, testimony given and exhibits received. Cross examination. Defense rests. Jury excused at 3:30 p.m. to return tomorrow at 9:00 a.m. Out of the jury presence jury instruction conference held. (Court Reporter/ESR Ed Young.) (so) (Entered: 02/27/2017)
338 DOCKET TEXT Minute Entry for proceedings held before Judge Dee V Benson: Jury Trial Day 8 completed on 2/22/2017. Jury seated at 9:00 a.m. Jury instructions read. Closing arguments heard. Defendant moved for mistrial. Court denies motion. Jury excused at 11:45 p.m. to deliberate. Jury returned with a verdict at 7:45 p.m. Jury polled. Jury thanked and excused. (Court Reporter/ESR Ed Young.) (so) (Entered: 02/27/2017)
339 Jury Instructions. (st) (Entered: 03/01/2017)
340 Jury Notes. (st) (Entered: 03/01/2017)
341 Special Verdict (Attachments: # 1 sealed special verdict)(st) (Entered: 03/01/2017)
342 JUDGMENT after jury verdict (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st) Modified on 3/16/2017 to edit docket text (st). (Entered: 03/10/2017)
343 STIPULATION to Extend Deadline for Filing Motions for Attorneys' Fees and Bills of Costs by Raymond Bryant, Omar Castillon, Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight, Justin Keith Peterson, Leon Russell. (Shallat, Anthony)
344 ORDER ON STIPULATION TO EXTEND DEADLINE FOR FILING MOTIONS FOR ATTORNEYS' FEES AND BILLS OF COSTS. The deadline for either party to file any fee application and bill of costs is extended from 3/23/2017 to 14 days after the Court rules on any post−judgment motions. Signed by Judge Dee V Benson. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st) (Entered: 03/23/2017)
345 ORDER EXTENDING DEADLINE TO FILE POST−JUDGMENT MEMORANDUMS AND AFFIDAVITS IN SUPPORT. IT IS HEREBY ORDERED that the deadline for the parties to file any memorandum and/or affidavits supporting a post−judgment motion shall be 14 days after the Court has delivered a completed trial transcript in its entirety to both parties. Signed by Judge Dee V Benson. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)
346 MOTION to Alter Judgment ( Responses due by 4/26/2017), MOTION to Amend/Correct Judgment, and/or, MOTION for New Trial Anthony Shallat appearing for Plaintiffs Raymond Bryant, Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight, Leon Russell. (Shallat, Anthony)
347 MOTION to Amend/Correct 342 Judgment , MOTION to Alter Judgment ( Responses due by 4/27/2017)Tara B Zoellner appearing for Defendant Corrections Corporation of America Inc. (Zoellner, Tara)
348 STIPULATION re 345 Order, Regarding Pending Post−Trial Response Deadlines by Corrections Corporation of America Inc. (Zoellner, Tara)
349 ORDER GRANTING STIPULATION REGARDING PENDING POST−TRIAL RESPONSE DEADLINES. IT IS HEREBY ORDERED that upon filing of Memoranda in support of the parties' Federal Rule of Civil Procedure 59 Motions 346 and 347 , each party will have 21 days to submit their responses. Signed by Judge Dee V Benson. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st) (Entered: 04/28/2017)
350 Transcript of Proceedings held on 2/13/2017 (Jury Tral Day 1) before Judge Dee V Benson. Court Reporter/Transcriber Ed Young, Telephone number 801−328−3202.

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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 6/13/2017. Redacted Transcript Deadline set for 6/23/2017. Release of Transcript Restriction set for 8/21/2017.(cjs) Modified on 8/25/2017 to seal due to juror names (jp). (Entered: 05/26/2017)
351 Transcript of Proceedings held on 2/14/2017 (Jury Trial Day 2) before Judge Dee V Benson. Court Reporter/Transcriber Ed Young, Telephone number 801−328−3202. 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 6/13/2017. Redacted Transcript Deadline set for 6/23/2017. Release of Transcript Restriction set for 8/21/2017.(cjs) (Entered: 05/26/2017)
352 Transcript of Proceedings held on 2/15/2017 (Jury Trial Day 3 before Judge Dee V Benson. Court Reporter/Transcriber Ed Young, Telephone number 801−328−3202. 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 6/13/2017. Redacted Transcript Deadline set for 6/23/2017. Release of Transcript Restriction set for 8/21/2017.(cjs) (Entered: 05/26/2017)
353 Transcript of Proceedings held on 2/16/2017 (Jury Trial Day 4) before Judge Dee V Benson. Court Reporter/Transcriber Ed Young, Telephone number 801−328−3202. 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 6/13/2017. Redacted Transcript Deadline set for 6/23/2017. Release of Transcript Restriction set for 8/21/2017.(cjs) (Entered: 05/26/2017)
354 Transcript of Proceedings held on 2/17/2017 (Jury Trial Day 5) before Judge Dee V Benson. Court Reporter/Transcriber Ed Young, Telephone number 801−328−3202. 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 6/13/2017. Redacted Transcript Deadline set for 6/23/2017. Release of Transcript Restriction set for 8/21/2017.(cjs) (Entered: 05/26/2017)
355 Transcript of Proceedings held on 2/21/2017 (Jury Trial Day 6) before Judge Dee V Benson. Court Reporter/Transcriber Ed Young, Telephone number 801−328−3202. 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 6/13/2017. Redacted Transcript Deadline set for 6/23/2017. Release of Transcript Restriction set for 8/21/2017.(cjs) (Entered: 05/26/2017)
356 Transcript of Proceedings held on 2/22/2017 (Jury Trial Day 7) before Judge Dee V Benson. Court Reporter/Transcriber Ed Young, Telephone number 801−328−3202. 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 6/13/2017. Redacted Transcript Deadline set for 6/23/2017. Release of Transcript Restriction set for 8/21/2017.(cjs) (Entered: 05/26/2017)
357 Transcript of Proceedings held on 2/23/2017 (Jury Trial Day 8) before Judge Dee V Benson. Court Reporter/Transcriber Ed Young, Telephone number 801−328−3202. 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

Case 1:12-cv-559 Document <docnum> Filed <datefiled> Page 35 of 37

05/26/2017 05/31/2017
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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 6/13/2017. Redacted Transcript Deadline set for 6/23/2017. Release of Transcript Restriction set for 8/21/2017.(cjs) (Entered: 05/26/2017)
358 Notice of Filing of Official Transcript (cjs)
359 MOTION Unopposed Motion to Confirm Deadline to File Memorandums and/or Affidavits in Support of Post−Judgment Motions Anthony Shallat appearing for Plaintiffs Raymond Bryant, Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight, Leon Russell. Responses due by 6/21/2017 (Attachments: # 1 Affidavit)(Shallat, Anthony)
360 ORDER ON UNOPPOSED MOTION TO CONFIRM DEADLINE TO FILE MEMORANDUMS AND/OR AFFIDAVITS IN SUPPORT OF POST−JUDGMENT MOTIONS granting 359 Motion. Parties must file memorandums and accompanying affidavits to post−judgment motions by 6/9/2017. Signed by Judge Dee V Benson. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st) (Entered: 06/02/2017)
Set/Reset Deadlines as to 347 MOTION to Amend/Correct 342 Judgment MOTION to Alter Judgment , 346 MOTION to Alter Judgment MOTION to Amend/Correct Judgment, and/or MOTION for New Trial . Responses due by 6/9/2017 (Per Order, dkt #360)(st)
361 MEMORANDUM in Support re 346 MOTION to Alter Judgment MOTION to Amend/Correct Judgment, and/or MOTION for New Trial filed by Raymond Bryant, Omar Castillon, Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight, Justin Keith Peterson, Leon Russell. (Attachments: # 1 Affidavit)(Shallat, Anthony)
362 MEMORANDUM in Support re 347 MOTION to Amend/Correct 342 Judgment MOTION to Alter Judgment filed by Corrections Corporation of America Inc.(Zoellner, Tara)
363 RESPONSE to Motion re 346 MOTION to Alter Judgment MOTION to Amend/Correct Judgment, and/or MOTION for New Trial filed by Corrections Corporation of America Inc. Replies due by 7/6/2017.(Zoellner, Tara)
364 RESPONSE to Motion re 347 MOTION to Amend/Correct 342 Judgment MOTION to Alter Judgment filed by Raymond Bryant, Omar Castillon, Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight, Justin Keith Peterson, Leon Russell. Replies due by 7/14/2017.(Shallat, Anthony)
365 REPLY to Response to Motion re 346 MOTION to Alter Judgment MOTION to Amend/Correct Judgment, and/or MOTION for New Trial filed by Raymond Bryant, Omar Castillon, Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight, Justin Keith Peterson, Leon Russell.(Shallat, Anthony)
366 REPLY to Response to Motion re 347 MOTION to Amend/Correct 342 Judgment MOTION to Alter Judgment filed by Corrections Corporation of America Inc.(Zoellner, Tara)
367 NOTICE by Corrections Corporation of America Inc of Withdrawal of Counsel (Struck, Daniel)
368 NOTICE by Corrections Corporation of America Inc − Change of Firm Name and Attorney Contact Information (Struck, Daniel)
369 DOCKET ENTRY NOTICE of Hearing on Motion 347 MOTION to Amend/Correct 342 Judgment MOTION to Alter Judgment , 346 MOTION to Alter Judgment MOTION to Amend/Correct Judgment, and/or MOTION for New Trial : Motion Hearing set for 9/29/2017 09:30 AM in Boise − Courtroom 1 before Judge Dee V Benson. (so)
370 DOCKET ENTRY NOTICE AMENDING Hearing on Motion (AMENDING TIME ONLY) 347 MOTION to Amend/Correct 342 Judgment MOTION to Alter Judgment , 346 MOTION to Alter Judgment MOTION to Amend/Correct Judgment, and/or

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09/25/2017 09/29/2017
10/06/2017
10/06/2017 10/17/2017 10/31/2017
11/02/2017 11/02/2017 11/02/2017 11/13/2017

MOTION for New Trial : Motion Hearing set for 9/29/2017 11:00 AM in Boise − Courtroom 1 before Judge Dee V Benson. (so)
371 SECOND AMENDED DOCKET ENTRY NOTICE of Hearing on Motion (CHANGE IN TIME ONLY) 347 MOTION to Amend/Correct 342 Judgment MOTION to Alter Judgment , 346 MOTION to Alter Judgment MOTION to Amend/Correct Judgment, and/or MOTION for New Trial : Motion Hearing set for 9/29/2017 10:30 AM before Judge Dee V Benson. (so)
372 Minute Entry for proceedings held before Judge Dee V Benson: Motion Hearing held on 9/29/2017 re 347 MOTION to Amend/Correct 342 Judgment MOTION to Alter Judgment filed by Corrections Corporation of America Inc, 346 MOTION to Alter Judgment MOTION to Amend/Correct Judgment, and/or MOTION for New Trial filed by Leon Russell, Raymond Bryant, Michael Ford−Bridges, Jacob Judd, Dusty Knight, Christopher S Jordan. Motions taken UNDER ADVISEMENT (Court Reporter/ESR Ed Young.) (so) (Entered: 10/03/2017)
373 MEMORANDUM DECISION AND ORDER denying 346 MOTION to Alter Judgment MOTION to Amend/Correct Judgment, and/or MOTION for New Trial filed by Leon Russell, Raymond Bryant, Michael Ford− Bridges, Jacob Judd, Dusty Knight, Christopher S Jordan and granting 347 MOTION to Amend/Correct 342 Judgment MOTION to Alter Judgment filed by Corrections Corporation of America Inc. Signed by Judge Dee V Benson. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)
374 AMENDED JUDGMENT ON JURY VERDICT. IT IS ORDERED AND ADJUDGED: Judgment is entered in favor of the Defendant with Plaintiffs to take nothing. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)
375 BILL OF COSTS by Corrections Corporation of America Inc. Taxation of Costs due by 10/20/2017 (Attachments: # 1 Affidavit Daniel P. Struck, # 2 Itemization of Costs, # 3 Exhibit 1, # 4 Exhibit 2 (part 1), # 5 Exhibit 2 (part 2), # 6 Exhibit 3)(Struck, Daniel)
376 OBJECTION TO BILL OF COSTS by Raymond Bryant, Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight, Leon Russell re 375 Bill of Costs, filed by Corrections Corporation of America Inc. (Attachments: # 1 Affidavit Declaration of Indigency − Christopher Jordan, # 2 Affidavit Declaration of Indigency − Dusty Knight, # 3 Affidavit Declaration of Indigency − Jacob Judd, # 4 Affidavit Declaration of Indigency − Leon Russell, # 5 Affidavit Declaration of Indigency − Michael Ford Bridges, # 6 Affidavit Declaration of Indigency − Raymond Scott Bryant)(Shallat, Anthony)
377 NOTICE OF APPEAL (17−35896) by Raymond Bryant, Michael Ford−Bridges, Christopher S Jordan, Jacob Judd, Dusty Knight, Leon Russell. Filing fee $ 505, receipt number 0976−1656961. (Notice sent to Court Reporter & 9th Cir) (Shallat, Anthony) Modified on 11/9/2017 to add appeal number (st).
378 USCA Case Number 17−35896 for 377 Notice of Appeal filed by Leon Russell, Raymond Bryant, Michael Ford−Bridges, Jacob Judd, Dusty Knight, Christopher S Jordan. (st) (Entered: 11/09/2017)
379 USCA Time Schedule Order (17−35896) as to 377 Notice of Appeal, filed by Leon Russell, Raymond Bryant, Michael Ford−Bridges, Jacob Judd, Dusty Knight, Christopher S Jordan. (Notice sent by e−mail to Court Reporter) (st) (Entered: 11/09/2017)
380 Transcript filed for Motion Hearing held on 1/6/2017 before Judge Dee Benson, re 377 Notice of Appeal. Court Reporter/Transcriber Ed Young, Telephone number 801−328−3202. 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. Redaction Request due 12/4/2017. Redacted Transcript Deadline set for 12/14/2017. Release of Transcript Restriction set for 2/11/2018. (st) (Entered: 11/15/2017)

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381 Redaction of 350 Transcript of hearing held on 2/13/2017 (Jury Trial Day 1). Court Reporter/Transcriptionist Ed Young, 801−328−3202. (st) (Entered: 11/15/2017)
382 Notice of Filing of Official Transcript (st)
383 TRANSCRIPT REQUEST by Omar Castillon for proceedings held on 9/29/2017 before Judge Judge Dee V Benson re 377 Notice of Appeal. (Notice sent by e−mail to Court Reporter) Transcript due by 11/21/2017. (st)
384 Transcript filed for Motions Hearing held on 9/29/2017 before Judge Dee Benson, re 377 Notice of Appeal. Court Reporter/Transcriber Ed Young, Telephone number 801−328−3202. 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. Redaction Request due 12/12/2017. Redacted Transcript Deadline set for 12/22/2017. Release of Transcript Restriction set for 2/19/2018. (st)
385 Notice of Filing of Official Transcript (st)
386 ORDER of USCA as to 377 Notice of Appeal, filed by Leon Russell, Raymond Bryant, Michael Ford−Bridges, Jacob Judd, Dusty Knight, Christopher S Jordan. This appeal is voluntarily dismissed. The parties shall bear their own costs and attorneys fees on appeal. A copy of this order shall serve as and for the mandate of this court. (cjs) (Entered: 05/22/2018)