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ORDER REQUESTING SUPPLEMENTAL 

BRIEFING, GRANTING PLAINTIFF’S MOTION 

FOR ADDITIONAL DISCOVERY, AND 

RENOTING RENEWED MOTION FOR 

SUMMARY JUDGMENT - 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

TONY D. PENWELL,

Plaintiff,

v.

REED HOLTGEERTS, et al.,

Defendants.

CASE NO. C05-2106 TSZ-MAT

ORDER REQUESTING 

SUPPLEMENTAL BRIEFING, 

GRANTING PLAINTIFF’S MOTION 

FOR ADDITIONAL DISCOVERY, 

AND RENOTING RENEWED

MOTION FOR SUMMARY 

JUDGMENT

After plaintiff Tony Penwell was appointed counsel, defendants renewed their motion for 

summary judgment. (Dkt. 145; see Dkt. 81.) In opposition, Mr. Penwell moved under Federal 

Rule 56(d) for additional time to depose two declarants, to submit additional information, and 

presumably to submit a supplemental affidavit highlighting genuine questions of material fact. 

(Dkt. 150, at 18–19.) The Court finds that the parties have yet to address certain issues and 

authorities, particularly while Mr. Penwell has had representation, and that further development 

of the record would assist in resolving defendants’ dispositive motion. The Court therefore 

ORDERS:

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ORDER REQUESTING SUPPLEMENTAL 

BRIEFING, GRANTING PLAINTIFF’S MOTION 

FOR ADDITIONAL DISCOVERY, AND 

RENOTING RENEWED MOTION FOR 

SUMMARY JUDGMENT - 2

1. The parties are DIRECTED to provide supplemental briefing on the following 

issues:

a. In Greene v. Solano County Jail, 513 F.3d 982, 983 (9th Cir. 2008), the 

Ninth Circuit concluded that in contradiction to RLUIPA’s plain language 

“the Claybank Jail’s policy of prohibiting Greene, a maximum security 

prisoner, from attending group religious worship services substantially 

burdened his ability to exercise his religion.” Although this Court

specifically cited Greene in an earlier Report and Recommendation, the 

parties forego any discussion of Greene. The parties must provide an 

explanation for why Greene does or does not apply to Mr. Penwell’s 

allegations.

b. The parties should address the question of qualified immunity—both as 

to the First Amendment claim and the RLUIPA claim—and discuss the 

impact of Cutter v. Wilkinson, 544 U.S. 709, 720–21 & n.10 (2005), 

Shakur v. Schriro, 514 F.3d 878, 884–85 (9th Cir. 2008), and Greene v. 

Solano County Jail, 513 F.3d 982, 983 (9th Cir. 2008).

c. The parties should also address the questions of personal involvement

and lack of respondeat superior liability.

2. Mr. Penwell’s Rule 56(d) motion to take the depositions of Lynell Sellers and 

Merv Weidner is GRANTED. The differing accounts of those declarants and of 

Mr. Penwell and other inmates may assist resolution of the pending summary 

judgment motion.

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ORDER REQUESTING SUPPLEMENTAL 

BRIEFING, GRANTING PLAINTIFF’S MOTION 

FOR ADDITIONAL DISCOVERY, AND 

RENOTING RENEWED MOTION FOR 

SUMMARY JUDGMENT - 3

3. Defendants’ renewed motion for summary judgment (Dkt. 145) is RENOTED

for consideration on October 12, 2012.

a. The parties’ supplemental papers, including any exhibits, declarations and 

affidavits, are due by October 1, 2012.

b. The parties’ responses are due by October 12, 2012.

4. The Clerk is DIRECTED to provide a copy of this Order to the Honorable 

Thomas S. Zilly.

Dated this 31st day of July, 2012.

A

Mary Alice Theiler 

United States Magistrate Judge

Case 2:05-cv-02106-TSZ-MAT Document 156 Filed 07/31/12 Page 3 of 3