1 IN THE SUPREME COURT OF THE STATE OF IDAHO

Docket No. 48053

In the Matter of Application for Writ of Habeas Corpus.

-------------------------------------------------- NOVA MARIE WILLIAMS, CHLOE REANNEN WAGER, ROSE MARIE FEW, JOY LYNN KIRKLAN, ALEXIS A LYCE MOON, BARBARA SIGRID WARREN, JESSICA MARIE KIBE, AMBER RENEE DESCHENE, ASHLEY RAE ASHCRAFT, JESSE RICHARD PEDROZA, BRANDON JACOB RABER, ANTHONY ALLEN COFFEY, PATRICK LEE CARNEY, KENNETH W. DAUGHTRY, OMAR MARTINEZ JUAREZ, WILLIAM JOHN HAMILTON, BEAU AL AN MICHEL, CODY JOHN JAMES BUTTERFIELD, CAMERON WILSON, ABNER MIZAEL G. MOTEPEQUE, DOUGLAS BUTLER PHILLIPS, RANDALL LEE SANTERO, BRANDON LEE NETHERTON, DAZIE JOE OLSEN, JOSHUA MICHAEL ANDERSON, BRANDON MCMILLAN, BRYAN RIGGS, MICHAEL ELTON MCCARROLL, ALEX M ICHAEL LITZ, RYAN MICHAEL DIETRICH, GAVIN CORDELL MILAND, ISAIAH MCKENDRICK BELL, RICK EUGENE WEAVER, EMIL MERCADO, MICHAEL MCDONOUGH, MICHAEL ALEXANDRA DEAN, WILLIAM MYLES, AMOS COOMBS, MICHAEL DUMAS, JOHN MCKAY, ALFRED BOWERS, JR., JESUS LOPEZ, and BRETT ROGERS,

Petitioners

- Appellants,

v.
MIKE HOLLINSHEAD, Sheriff of Elmore County; and SHAUNA GAVIN, Administrator of the Elmore County Jail, ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Boise , September 2020 Term

Opinion Filed: November 2, 2020
Melanie Gagnepain, Clerk2

Respondents.

_______________________________________ ) ) )
Appeal from the District Court of the Fourth Judicial District of the State of Idaho, Elmore County. James S. Cawthon
, District Judge.
The district court’s order granting summary judgment is affirmed

. Petersen Moss Hall & Olsen, Idaho Falls , for appellant s

. Nathan Olsen argued.
Daniel Page, Elmore County Prosecuting Attorney, Mountain Home , for respondent s

. Ralph Blount argued.

_____________________ BRODY, Justice.
Th is appeal concer ns a group of prisoners ( “ Petitioners ” ) seeking a writ of habeas corpus
based on the conditions of their confinement during the COVID

- 19 pandemic . The Petitioners

are all incarcerated at the Elmore County J ail ( “ Jail ” )

. The y contend their cond itions of
confinement constitute cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution

. More specifically, the P etitioners assert they are in imminent danger because officials at the Jail have not implemented a ny discernable mitigation measure s in

res ponse to the COVID

- 19 pandemic. Elm ore County Sheriff Mike Holli nshead and L ieutenant
Shauna Gavin ( collectively “ Officials ” ) deny this assertion . Furthermore, t he Officials contend
that the Petitioners ’ request for a writ of habeas corpus should be denied because the Petitioners
have not exhausted their administrative remedies

. T he Officials filed a motion for summary j udgment with the district court, which was granted. The district court also awarded the Officials
their attorney fees . The Petitioners timely appealed the district court’s decision s to this Court
, which agreed to hear th e appeal on an expedited basis

. We affirm the district court’s decision granting summary judgment , but we reverse the district court’s award of attorney fees.

I. FACTUAL AND PROCEDURAL BACKGROUND
Nine female prisoners incarcerate d in the Jail filed a petition seeking a writ of habeas

corpus with this Court on April 3, 2020. Th is Court subsequently transferred the matter to the Elmore County district court

. The district court consolidated the case with a related case involving a nother petitio n seeking a writ of habeas corpus filed by a group of male pris oners3

incarcerated at the Jail. Thus, t he case now includes two petitions involving 43 mal e and female prisoners

. T he district court heard the case on an expedited basis.
The Petitioners contend their conditions o f confinement at the Jail are not saf e due to the
COVID

- 19 pandemic. The Petitioners assert that “[n]o detectable measures have been taken to protect the [P]etitioners since the outbreak of the COVID

- 19 [pandemic] .” Consequently, t he Petitioners argue they “are confronted with a situation of imminent and extreme threat to their
health . . . that demands immediate and substantive action. ” The Petitioners reference documents issued by the Centers for Disease Control and Prevention and the American Correctional Association that provide guidelines for addressing COVID

- 19 in correctional facilities to support their argument
, claim ing the Offi cials are not adhering to the se guidelines. The Petitioners
contend that the “current conditions of confinement constitute a clear and present violation of the Eighth Amendment of the U.S. Constitution banning cruel and unusual punishment.” Consequently, t hey s eek a writ of habeas corpus to provide injunctive relief

. The Jail has promulgated a n administrative g rievance process for prisoners. The
administrative grievance process includes four step s : (1) a prisoner should communicate the grievance to a Jail s taff member; (2) if the prisoner is unsatisfied with the response at step one, the prisoner should communicate the grievance to a Jail shift supervisor; (3) if the prisoner is unsatisfied with the response at step two, the prisoner should submit a written grievance to the Jail administrator; and, (4) if the prisoner is unsatisfied with the response at step three, the prisoner should file an appeal with the Jail administrator within ten days. In or der to determine if
the Petitioners had complied with the Jai l’s administrative process, the district court issued an Order to Show Exhaustion of Remedies or Applicability of Exception. The Petitioners filed a response to the district court’s order that included handwritten statements from s ome of the
Petitioners de scribing their concerns regarding the conditions at the Jail and what ste ps they had
taken , if any, to resolve tho se concerns

. The statements are unsworn and, in some instances, unsigned or undated

. S ome of the Petitioners utilized step one or step two of the administrative grievance process. Furthermore, o ne Petitioner filed a written grievance, as required by step three
of the administrative grievance process. T here have been no appeals , however, to the Jail
administrator under step four of the administra tive grievance process

. During the course of the proceedings below, the Petitioners sought certain records from
the Officials

. M ore specifically, the Petitioners sought a record dated March 17, 2020, th at4

contained a list of inmates that could potentially be released early in res ponse to the COVID

- 19 pandemic. The Petitioners also sought any additional records related to the May 17, 2020, record.
The Officials treated the request as a request for public record s and provided several redacted
documents to the Petitioners

. The Petitioners objected to the redactions and filed a motion for discovery with the district court. The Petitioners also sought san ctions against the Officials

. The
motion for d iscovery was filed approximately one week after the Officials ha d moved for summary judgment

. The dist rict court denied the motion for d iscovery , noting that d iscovery in a
habeas corpus proce eding is discretionary and allowed only if necessary to protect or defend a substantive state or federal constitutional right

. T he district court explained its reasoning why discovery was not necessary in this instance , noting that the Peti ti oners had already received the May 17, 2020, record they sought.
T he Officials filed a motion for summary judgment with the district court sev eral days prior to the Petitioners’ motion for discovery , arguing that the Petitioners had failed to exhaust
administrative remedies. The Officials also asserted the Petitioners had failed to raise a genuine issue of material fact upon which relief may be granted

. The Officials asserted the Petitioners
had “failed to demonstrate that each petitioners’ state or federal constitutional rights may have been violated relative to ‘conditions of confinement’ or any other grounds co gnizable under the
Idaho Habeas C orpus and Institutional Litigation Procedures Act. ”
The Petitioners responded by arguing, in part, that they had followed the Jail’ s administrative procedures by lodging some verbal complaints and one written complaint. T he
Petitioners also asserted they w ere not require d to exhaust administrative remedies because they
face an imminent threat from the COVID

- 19 pandemic an d, as such, qualify for an exception to the exhaustion requirement

. Addit ionally, the Petitioners arg ued for the first time that
, “in
addi tion to the threat of the COVID

- 19 [pandemic] , th e [ P ] etitioners’ right to due process, i.e. [,] a timely resolution of their claims and access to the courts[,] ha s been detrimentally affected.” Namely, t he Petitioners argue d that “the Idaho Supreme Court’s emergency order restricting court activities, as amended, has resulted in substantial delays in the processing of th e prisoners/detainees’ claims.” Finally, the Petitioners asserted the Officials had not shown cause why the petition for habeas corpus shou ld not be granted, arguing that the Officials bear this
burden.5

The district court issued its memorandum d ecision on May 18, 2020. The district court granted summary j udgm ent, holding that the Petitioners had failed to exhaust their administrative
remedies as required by I daho Code section 19

- 4206 , and that they did not qualify for an exception

. The district court also h eld that even if the Petitioners had exhaust ed their
administrative remedies or qualified for an exception, there is “no genuine issue of m aterial fact and the [ Officials ] are entitled to judgment as a matter of law
, as to any assertion in this proceeding that the [ Officials ’] actio ns in response to the COVID

- 19 v irus, constituted deliberate
indifference or the imposition of punishment.” Fina lly, the district court held that the proceeding was brought frivolously and awarded the Officials their attorney fees.
The Petitioners filed a notice of appeal four days after the district court issued its
decision

. This Court granted the Petitioners’ req uest to expedite the appeal pursuant to Idaho Appellate Rule 44.
II. STANDARD OF REVIEW
A h abeas corpus proceeding is a civil action and the Idaho Rules of Civil Procedure generally apply. I.C. § 19

- 4208 . When reviewing a ruling on a motion for summary judg men t, this Court utilizes the same standard that was employed by the trial court

. Eldridge v. West , 166 Idaho 303, 308 , 458 P.3d 172, 177 (2020). “The court must grant summary judgment if the movant shows that there is no genuine dispute as to any material fa ct and the movant is entitled to judgment as a matter of law.” I.R.C.P. 56(a). The burden of establishing the absence of a genuine issue of material fact rests with the movant. Id. “When assessing summary judgment on a habeas corpus petition, [an appellate court will] treat all uncontroverted allegations in the petition as true, and

. . . liberally construe all controverted facts and draw all reasonable inferences in favor of the nonmoving party.” Drennon v. Craven , 141 Idaho 34, 36, 105 P.3d 694, 696 (Ct. App. 2004). If the movant demonstrates the absence of a question of material fact,
the burden shifts to the nonmoving party to demonstrate an issue of material fact exists. Eagle Springs Homeowners Ass’ n, Inc. v. Rodina , 165 Idaho 862, 868 , 454 P.3d 504, 5 10 (2019)

. The nonmoving party must present evidence that contradicts the evidence submitted by the movant.
Id. A mere scintilla of evidence is not adequate to create a genuine is sue of material fact. Id. Furthermore, t he nonmoving party in a habeas corpus proceeding may not rely on mere allegations contained in the pleadi ngs; rather, the nonmovant must present evidence to establish6

specific facts showi ng there is a genuine dispute

. Quinlan v. Idaho Comm’n for Pardons &
Parole , 138 Idaho 726, 729, 69 P.3d 1 46, 149 (2003).
III. ANALYSIS
The writ of habeas corpus

— sometimes referred to as the Great Writ

—holds a revered place in the history of th e common law and our nation. See Dallin H. Oaks, Habeas Corpus in
the States: 1776

- 1865
, 32 U

. C hi. L. Rev., 243 (1965) (de scribing the history of the writ of habeas corpus and how it evolved into the Great Writ); see also Neil Douglas McFeeley, The Historical Development of Habeas Corpus , 30 Sw

. L.J. 585 (1976) ( describing the origins of the
Great Writ ). “ Throughout the centu ries the Great Writ has been the shield of personal freedom insuring liberty to persons illegally detained. ” Smith v. Bennett , 365 U.S. 708, 714 (1961). The writ of habeas corpus continues to serve that same crucial purpose today. Thus, we approach our

ana lysis accordingly.
The Petitioners contend that the district court erred when it de nied their motion for discovery , awarded summary judgment in favor of the Officials , and awarded attorney fees to the
Officials

. Although w e h old that the district court err ed when it awarded attorney fees to the
Officials , it did not err when it denied the Petitioners’ motion for discovery and awarded summary judgment in favor of the Officials

. A. The district court did not er r when it denied the Petitioners’ m otion for d isco very. The Petitioners assert that the district court erred when it denied their m otion for
d iscovery. Specifically, t he Petitioners argue that the district court abused its discretion when it did not allow the Petitioners to discover potentially r elevant information that was raised in
connection with the Officials ’ motion for summary j udgment . We disagree. When reviewing an alleged discovery error in a habeas corpus action, we review the trial
court’s decision for an abuse of discretion. Storm v. Spaulding , 137 Idaho 145, 149, 44 P.3d 1200, 1204 (Ct. App. 2002). To do this, w e assess “[w]hether the trial court: (1) correctly perceived the issue as one of discretion; (2) acted within the outer boundaries of its discretion; (3) acted consistently with the leg al standards applicable to the specific choices available to it; and (4) reached its decision by the exercise of reason.” Lunneborg v. My Fun Life , 163 Idaho 856, 863, 421 P.3d 187, 194 (2018). Discovery is not typically pe rmitted in a habeas corpus action . I.C. § 19

- 4210(1)

. However, “[i]f factual issues are raised by the pleadings, the court may, upon motion, grant leave7

for disc overy in accordance with Idaho [R]ules of [C]ivil [P] rocedure.” I.C. § 19

- 4210(3)(a). “If the court finds that discovery is nece ssary to protect or defend a substantive state or federal constitutional right at issue, it shall enter an order tailored to allow discovery for that limited purpose.” I.C. § 19

- 4210(3)(b). Here, the Petitioners sought a record dated March 17, 2020, which contained a list of prisoners at the Jail who could potentially be released early in res ponse to the COVID

- 19 pandemic. The Petitioners also sought any additional records related to the May 17, 2020, record.
The Officials treated the request as a request for public records and provided s everal redacted
records to the Petitioners. Th e Petitioners objected to the redactions and filed a motion for
d iscovery

. The dist rict court denied the m otion for d iscovery , noting that the Petitioners had already been provi ded with the May 17, 2020, record the y were seeking. Thus, t he district court reaso ned
that n o showing had been made that discovery was necessary to protect or defend a substantive

co nstitutional right. T he district court also determined that the Petitione rs’ arguments in support
of discovery were largely based on speculation. There is no room for dispute that the district court satisfied the first three prongs of this Court’s abuse of discretion test. Lunneborg , 163 Idaho at 863, 421 P.3d at 194. The only real
issue is whether the district court reached its decision through the exercise of reason. Here, t he
Petitioners ha d already received the May 17, 2020, record they were seeking . Furthermore, the May 17, 2020, document did not include any substantive red actions. Thus, the district court
reasoned that discovery was not necessary to protect or defend a co ns titutional right. The distr ict court also noted that “the [P] etitioners have not specified in their motion what ‘related correspondence and documents’ to the March 17, 2020 ‘letter’ they seek, nor have they specified how th[e] ‘related correspondence and documents’ will assist them in protecting or defending a
state or federal constitutional right at issue.” Furthermore, the district c ourt stated that the Petitioners’ “other arguments for discovery appear to be essentially based upon speculation. . . . [W]hile they reference an email citing jail COVID

- 19 policies, there is already evidence in the record concerning the jail’s COV ID

- 19 policies and procedures .”
Because the district court reached its decision through the exercise of reason, we hold
that the district court did not abuse its discretion when it denied the Petitioners’ motion for
d iscovery.8

B. The district court did not err when it granted summary jud gment in favor of the Officials

. The district court granted summary judgment under Idaho Rule of Civil Procedure 56 on two bases. First, the district court held that the Petitioners had not exhausted their administrative remedies, nor were they excused fro m doing so due to imminent danger . Second, the district
court held that there is no genuine issue of material fact as to whether the Officials’ actions in regards to the COVID

- 19 pandemic constitute deliberate indifference or the imposition of a cruel

or u nusual punishment. Initially, we note that the Officials filed a motion to dismiss under Idaho Rule of Civil
Procedure 12 just days after the female Petitioners filed their petition for a writ of habeas corpus. The Officials argued, in part, that the Petit ioners had failed to state a claim upon which relief could be granted because the Petitioners had failed to exhaust administrative remedies . The Officials also asserted that the Petitioners were not excused from exhausting administrative
remedies because t he Petitioners were not in imminent danger. To evaluate the Officials’ motion to dismiss, the district court issued an Order to Demonstrate Exhaustion of Remedies or Applicability of Exception. The Petitioners responded to the district court’s order by fil ing a supplemental brief and a declaration from their attorney (“April declaration”). The April declaration included two news articles concerning the COVID

- 19 pandemic and its impact on jails in Bannock County, Idaho, and Chicago, Illinois. The news articl es do not directly pertain to conditions of confinement at the Jail. Next, the April declaration included copies of two letters from the Sheriff of Ada County pertaining to the COVID

- 19 pandemic and its impact on the jail in that county. The letters do not directly concern conditions of confinement at the Elmore County Jail. Lastly, the April declaration included unsworn statements from some of the Petitioners describing their concerns about the COVID

- 19 virus and their conditions o f
confinement. The Petiti oners’ concerns, as they relate to the COVID

- 19 pandemic, include: 1) the desire for more supplies, such as hand soap, face masks, and cleaning supplies; 2) the inability to maintain social distancing; 3) unsanitary conditions in some parts of the Jail, su ch as mold in the showers and bodily fluids in the recreation yard, that may lead to health problems; 4) concerns about the potential impact of the COVID

- 19 virus on older prisoners and prisoners with pre

- existing health conditions; and, 5) delays in court proceedings associated with the
COVID

- 19 pandemic. However, the Petitioners’ statements were not made under penalty of perjury, and, in some cases, the statements were unsigned or undated.9

Five days after the Petitioners filed the April declaration, the O fficials filed a motion for summary judgment. Consequently
, the district court incorporated the motion to dismiss with the motion for summary judgment

. See D.A.R., Inc. v. Sheffer , 134 Idaho 141, 143, 997 P.2d 602, 604 (2000) (“ If, on a motion asserting fa ilure to state a claim upon which relief can be granted, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56 . . . .”) ; see also
I.R.C. P. 12(d).
1. The Petitioners did not satisfy the s tandard for submitting evidence on summary judgment.
This Court has made it clear how a summary judgment motion is to be opposed by a nonmoving party:
When considering evidence presented in

. . . opposition to a motion for summary judgment, a court can only consider material which would be admissible at trial. As a rule, supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and sha ll show affirmatively that the affiant is competent to testify to the matters stated therein. Union Bank, N.A. v. JV L.L.C. , 163 Idaho 306, 314, 413 P.3d 407, 415 (2017) (quoting Taft v. Jumbo Foods, Inc. , 155 Idaho 511, 515, 314 P.3d 193, 197 (2013)) ; see also Gem State Ins. Co.
v. Hutchison , 145 Idaho 10, 14, 175 P.3d 172, 176 (2007) ( stating that a court can only rely on evidence that is admissible at trial when considering evidence in opposition to a motion for summary judgment); see also Losee v. Deuts che Bank Nat’l Tr. Co. , 165 Idaho 883, 886, 454 P.3d 525, 528 (2019) (stating that a court can only consider material which would be admissible at trial when ruling on a motion for summary judgment). Consequently, “[u]sworn statements are entitled to no pr obative weight in passing on motions for summary judgment.” Camp v. Jiminez , 107 Idaho 878, 882, 693 P.2d 1080, 1084 (Ct. App. 1984). This Court’s holdings that a party opposing summary judgment must provide evidence
that would be admissible at trial are consistent with Idaho Rule of Civil Procedure 56(c). Idaho Rule of Civil Procedure 56(c) (1)(A) states that a party opposing summary judgment must cite to specific materials in the record, including affidavits or declarations. Further, an affidavit or
decla ration “used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.” I.R.C.P. 56(c)(4).10

We note that Idaho law now enables individuals to easily file a declaration that is the equivalent of an affidavit. See I.C. § 9

- 1406. The individual need only declare that the statement is true and correct, and that it is made under penalty of perjury. Id. Notwithstanding t his lenient standard, the Petitioners here failed to file declarations under penalty of perjury. Consequently,
the Petitioners ’ unsworn statements are entitled to “no probative weight” when assessing the Officials’ motion for summary judgment. Camp , 107 Id aho at 882, 693 P.2d at 1084.
2. The Petitioners did not demonstrate they were excused from exh austing administrative remedies

. T he Petitioners did not exhaust their administrative remedies as required by Idaho law. I.C. § 19

- 4206(1). The Petitioners argue , h owever, they ar e excused from exhausting
administrative remedies because the COVID

- 19 pandemic constitute s an imminent danger of serious physical injury

. Thus, t he y contend the district court erred wh en it granted summary judgment on this basis. We dis agre e. Generally, a petition seeking a writ of habeas corpus pertaining to conditions of
confinement may not b e brought until all administrative remedies have been exhausted. I.C. §
19

- 4206(1). However, there are two exceptions to t his general rule. First, if a correctional facility has not implemented a system for administrative remedies, the requirement to exhaust
administ rative remedies is waived. I.C. § 19

- 4206(2). Second, an individual is excused from the requirement to exhaust administrative remedies if s he is able to demonstrate to the district court’s
satisfaction that s he is in imminent d anger . I.C. § 19

- 4206(1).
T he record shows that the Jail has an administrative grievance process in place . Thus, the first exception is not applicable here

. Therefore, the only remaining question is whether the
Petitioners are excused from the requirement to exhaust administrative remedies because they
have satisfactorily demonstrated they are in imminent d anger

. The Petitioners make several arguments i n an effort to de monstrate they are in imminent danger. First, t he verified petitions filed by the Petitioners include a number of general assertions regarding the COVID

- 19 virus and its potential impact on individuals incarcerated in the Jail.
The P etitioners assert, for example, that they are at risk of contracting COVID

- 19 because it is not feasible to practice social distancing in the J ail ; they must share toilets and showers; they do not have sufficient access to cleaning supplies; and they do not have sufficient acces s to free soap. The Petitioners assert that “[n]o detectable measures have been taken to protect the [P]etitioners since the outbreak of the COVID

- 19 [ pandemic ].” The Petitioners also assert that11

they “have received no health or screening measures to check for symptoms of COVID

- 19 .” As explained below, m any of these assertions are not supported by the record. Further, even if the assertions were supported by the record, they do not rise to the level of “imminent danger.” I.C. § 19

- 4206(1). Rather, the conce rns are prospective and speculative. We also note that the nonmoving party in a habeas corpus proceeding may not rely on mere allegations contained in the pleadings to defeat summary judgment ; rather, the nonmovant must present evidence to establish specif

ic facts showing there is a genuine dispute. Quinlan , 138 Idaho at 729, 69 P.3d at 149 (2003).
Next , s ome of the Petitioners submitted unsworn statements to the district cou rt that
describe their concerns about COVID

- 19 and their conditions of confinement

. These unsworn

statements were provided in response to the district court’s Order to Show Exhaustion of Remedies or Applicability of Exception. As explained above, the unsworn statements describe
some of the Petitioners’ concerns about the COVID

- 19 virus a nd t heir conditions of
confinement. However, the Petitioners’ statements were not made under penalty of perjury, and, in some cases, the statements were unsigned or undated. Stated differently
, the unsworn

statement s do not comply with Idaho Rule of Civil Procedure 56 or our case law. Consequently,
the statements do not have any probative weight when ruling on summary judgment

. Camp , 107 Idaho at 882, 693 P.2d at 1084.
Next , the Petitioners cite two recent federal distric t court decisions from California t o support the ir argument that the Petitioners here face an imminent danger

. Castillo v. Barr , No. CV2000605TJHAFMX, 2020 WL 1502864, a t *1 (C.D. Cal. Mar. 27, 2020); Bent v. Barr , No.
19

- CV

- 06123

- DMR, 2020 WL 1812850, at *1 (N.D. Cal. Apr. 9, 2020). These f ederal district court cases are not binding on t his Court, of course, but may be instructive

. T he federal district court cases cited by the Petitioners are distinguishable from the case
at bar for at least two reasons. First, both decisions pertain to civi l immigration d etainees being held by the United States government. Ca stillo
, 2020 WL 1502864, at *1; Bent , 2020 WL
1812850 , at *1

. Second, the petitioners in the se cases based their actions on various Fifth Amendment claims because they are civil, not cri minal, detainees. Castillo , 2020 WL 1502864, at *3; Bent , 2020 WL 1812850, at *2. In contrast, the Petitioners here are criminal detainees and are basing their habeas corpus action on alleged violati ons under the Eighth Amendment. As the
Castillo court not ed, “[t]he t heme underlying the [p] etitioners’ various Fifth Amendment claims12

is that they are civil, not criminal, detainees. ” Castillo , 2020 WL 1502864, at *3. “As civil detainees, [they] are entitled to more considerate treatment than criminal detainees . . . .” Id. The
Castillo court then opined that “a civil detainee’s constitutional rights are violated if a condition of his confinement places him at substantial risk of suffering serious harm, such as the harm caused by a pandemic.” Id. It is worth not ing , however, that o ther federal district courts have reached the opposite conclusion in similar cases

. See, e.g. , Dawson v. Asher , No. C20

- 0409JLR

MAT, 2020 WL 1304557, at *3 (W.D. Wash. Mar. 19, 2020) (holding that the mere possibility
of harm from the C OVI D

- 19 virus is insufficient to warrant extraordinary relief ). Consequently,
the federal district court cases ci ted by the Petitioners have limited utility with respect to the case
at bar

. Lastly, the Petitioners reference this Court’s orders concerning t he COVID

- 19 pandemic and its impact on Idaho’s criminal justic e system. See Order In re: Emergency Reduction in
Court Services and Limitation of Access to Court Facilities (April 22, 2020)
, https://isc.idaho.gov/EO/CERTIFIED

- 042220

- Emergency

- Reduction

- Orde r.pdf ( ordering that
court services be curtailed to protect the public and mitigate the spread of the COVID

- 19 virus) ; see also Order In re: Amendments to the Idaho Misdemeanor Criminal Rules (May 13, 2020) , https://isc.idaho.gov/EO/Order

- In

- Re

- IMCR

- Amendm ents

- CERTIFIED.pdf ( establishing a temporar y book

- and

- release bond schedule for certain low

- risk offenses to reduce jail

p opulations in light of the COVID

- 19 pandemic ). It is true that t his Court has taken extraordinary

measures in light of the da nger pres ented by the COVID

- 19 virus

. We have also recognized the unique challenges faced by jails and other correctional facilities as a resul t of the COVID

- 19 pandemic. We have expres sly sta ted, for example, that reducing jail populations due to the
COVID

- 19 pand emic “ is an important goal when the accu sed offender does not pose an un d ue public safety risk to society or a risk of flight

. . . .” Order In re: Amendments to the Idaho
Misdemeanor Criminal Rules. With that said, th is Court’s orders do not constitute ev idence or judicial notice that the Petiti oners here face imminent danger. Rather, th e Court’s orders are a measured judicial response to the pandemic intended to balance the rights of defendants and the protection of society, while mitigat ing potential dan gers associated with the COVID

- 19 virus

. Based on the foregoing, and absent any specific evidence of imminent danger to prisoners
housed within the Jail requiring immediate court intervention
, the Petitioners ar e not excused from exhausting administrative remedies merely because the COVID

- 19 pandemic constitutes a13

general risk to inmates

. We hold , therefore, that t he district court did not err w hen it granted summary j udg men t in favor of the Officials based on the failure of the Petitioners to exhaust
admin istrative remedies

. 3. The district court did not err when it granted summary j udgment on the basis that there is no genuine issue of material fact as to whether the Officials ’ actions constitute deliberate indifference or the imposition of punishment.
The Pe titioners contend that the district court erred when it held that there is no genuine
issue of material fact “as to any assertio n . . . that the [ Officials ’] actio ns in response to the
COVID

- 19 virus [] constituted deliberate indifference or the imposition of punishment

. ” We disagree.
The appropriate inquiry in a habeas corpus action when a prisoner alleges a jail official
has failed to address a serious medical need is whether the official exhibited deliberate
indifference. Hayes v. Conway , 144 Idaho 503, 5 07, 163 P.3d 1215, 1219 (Ct. App. 2007).
Deliberate indifference to the serious medical needs of a prisoner constitutes a violation of the Eighth Amendment to the United States Constitution

. Estelle v. Gamble , 429 U.S. 97, 104 (1976). “To show a prison off icial was deliberately indifferent, the inmate must show that the prison official knew that the inmate faced a substantial risk of serious harm, and the prison official disregarded that risk by failing to take reasonable measures to abate it.” Hayes v. Kes sler
, 161 Idaho 833, 838, 392 P.3d 11, 16 (Ct. App. 2016). Here, t he Officials ’ motion for summary j udgment was supported by two declaration s from Lieutenant Gavin and other admissible evidence that shows the Officials have implemented mitigation measure s to abate the risk associated with the COVID

- 19 virus

. Lieutenant Gavin’s
declarations , in particular, show that th e Jail has implemented numerous policy and procedural changes in response to the COVID

- 19 pandemic . Those measures include:

On March 13, 202 0, jail staff were not ified that if an inmate comes to jail with symptoms of a cold or flu, s taff must make sure the inmate is housed separate from other inmates. Detention Deputies and jail staff were given the directive that if an inmate is housed separa tely because of flu

- like symptoms, that inmate must be afforded cleaning supplies o n a daily basis and the inmate will be educated about proper personal hygiene, i.e., washing their hands with soap and water and covering their coughs and sneezes. Deput ies and staff were also urged to practice good hygiene themselves by washing their hands, wearing gloves when interacting with inmates, covering their coughs and sneezes, and staying home and notify their supervisor if they are feeling ill. Each detention empl oyee
was sent the ‘Interim guidance for mass gatherings and public events in Idaho ’ dated March 12, 2020
, regarding limiting gatherings to no more than 250 people.14 On March 16, 2020, all inmate programs in the county jail, i.e., those facilitated by volunt eers and contractors, and contact visits were suspended. See Exhibits U1 and U2. On March 17, 2020, as set forth in Exhibit V, deputies and staff have been required to screen all new arrestees in the pre

- booking area prior to being accepted into the facili ty for intake processing. Screening is done by asking the inmate questions about their contacts a nd travel and taking the inmate’ s temperature. Deputies and staff were notified that inmates with a fever over 100.3 are to be ref

used and sent to the hospital to be medically cleared first. When an inmate is cleared to come in the jail, de puties and staff were directed t o issue a mask to the inmate and direct that it be worn for a 14

- day quarantine period. Inm ate workers are then directed to clean and disinfect the pre

- booking area after each new intake. At the beginning of each shift o n March 17, 2020, and thereafter, deputies and staff have their temperatures taken. If a detention employee is found to have a t emperature above 100.3 degrees, the employee is sen t home until they no longer have a fever. If that same staff member has or starts to experience additional symptoms associated with the coronavirus (dry cough, shortness of breath), the employee is required to b e seen/tested for the presence o f the COVID

- 1 9 virus and not to return to work until medical clearance documentation has been submitted to the Elmore County H uman Resources Director. Since March 17, 2020, when a detention deputy is notified that an inmate is showing signs and symptoms of the COVID

- 19 v irus, the inmate is to be immediately re

- housed in cell 106. The contracting medical provider’s staff are to be notified immediately so they may determine the best course o f treatment for the inmate and whether t o conduct COVID

- 1 9 o r any other testing. D eputies and staff were directed that all inmates who were housed with the symptomatic inmate must also be isolated from other inmates in the jail. If any ill inmates are housed in area 100 , detention deputies are re quired to wear full protective equipment (PPE) before entering into the area 100 hallway and minimize contact with the inmate(s) as much as possible. Since March 17, 2020, twenty

- four hour Immigration and Customs Enforcement (ICE) d etainees are to be ho used in a quarantine pod with no other inmat es. Any inmates housed in the quarantine pod must be moved into individual isolation cell(s) before immigration inmates are moved in. Persons subject to a twenty

- four hour ICE hold are not to be offered r ecreation, library visitation, o r any other act ivity that would require them to leave the quarantine pod. After all persons under a twenty

- fo ur

- hour ICE hold are released to ICE, the skylight will be open f or a minimum o f two hours. After venting the quarantine pod, inmate workers are directed to sanitize t he pod. On March 17, 2020, the Elmore County Prosecutor sent a list of non

v iolent offenders he sought to have released from the jail t o reduce the jail population.15 On March 18, 2020, the Idaho Supreme Court’s Order Amending Idaho Misdemeanor Rule 13 to re duce the bail bond amount to “Book & Release” for the following misdemeanor offenses in v iolation of Idaho Code §§ 49

- 301 (no license/invalid licen se), 18

- 8001 (DWP offenses), 49

- 1229, 49

- 1232, and 49

- 1428 (no insurance) was distributed to Sheriff’s Deputi es. Detention Deputies were ordering that no one should be put in jail o r re quired to bond out for the offenses listed in the Order. On March 1 9, 2020, the Elmore County Jail’ s work release, split time, and weekender options and the Sheriff Inmate Labor De tail (SILD) programs are suspended. Since March 22, 2020, detention employees were directed that cleaning products
, equipment and supplies will go into the pods every day for a thorough deep cleaning. Previously, cleaning products, equipment and supplies f or a deep

clean [were] not sent into the pods on Mondays.
As o f March 23, 2020, the Sheriff directed that any training outside o f Elmore County must be pre

- approved by the Sheriff or Chief o f Operations and any Sheriff ’ s Office employee planning to travel out side Elmore County for leisure o r vacation must notify the ir supervisor. Since March 25, 2020, D etentio n deputies and staff have been directed to put a copy o f the COVlD

- 19 screening form in the inma te’s file and in the medical in

- box. On March 26, 2020 , the Elmore County Jail stopped accepting commitments. If an individual attempted to check into jail to complete a portion of jail time, the Detention Deputy directs the indiv idual to file for an extension o f time with the court prior to the deadline for completing jail time on the person’s commitment paperwork. On March 26, 202 0, all inmates received notice o f the precautions against the COVID

- 19 contagion taken by the Elmore County Jail. Inmates received information explaining the up to fourteen

- day incu bation period, how the virus is transmitted, the importance of washing hands and not touching the face. Within a fourteen

- day incubation per iod, inmates were instructed to wear a provided mask. On March 27, 2020, pod 1100 and pod 1200 were cleared of inmat es and designated as ‘quarantine pods.’ New arrestees will be held in a quarantine pod for the first fourteen days of incarceratio n. During the quarantine period, each inmate will have their temperature checked at least daily and will be checked for the si gns/symptoms o f COVID

- 19 by medical st aff. After fourteen days with no symptoms, the inmate may be re

- housed in a general population pod. Since March 3 0, 2020, inmates are not sent to a central location in the jail to have their hair cut. Instead, hair cut ting supplies are sent into each pod for individual use and then sanitized with barbicide/clippercide spray between each

use. Additionally, the Jail ob tained a computer for inmates to use in Zoom videoconferencing by the Elmore County Court for hearings an d purchased two

no

- touch medi cal thermometers for screening o f staff and inmates.16 Since April 1, 2020, arrestees are brought into the sally port where detention deputies, wearing a face mask, gloves and eye protection, meet to take their temperat ure and as k them the questions o n the COVID

- 19 screening questionnaire. Since April 6, 2020, arresting deputies and officers have not been authorized to enter the jail p ast the pre

- booking area.
As o f April 7, 2020, the Elmore County Jail has been accepting commitme nts with guidance from the Elmore County Prosecutor. An individual who attempts to check into jail to complete jail time is met in the lobby by a Detention Deputy wearing a face mask, gloves, and eye protection, asked all questions on the COVID

- 19 screenin g questionnaire, and have their temperature taken. If the person is positive for signs/symptoms on the screening form or has a fever, the person’s information, including how ma[n]y days they have left to complete their sentence, is sen[t] to the Prosecutor ’s Office to request an extension of time. If the person is at the end of their time to complete their sentence and they are positive for signs/symptoms on the screening form o r have a fe ver, the Detention Deputy contacts the on

- call prosecutor to request an immediate extension. If the individual passes screening, the person is booked into the jail, issued a face mask and housed consistent with the jail ’s quarantine procedures. Since April 8, 2020, spray bottles with disinfectant are distributed to each pod after lunch to clean the pod. Spray bo ttles are picked up after use to prevent the cleaning product from being used as a weapon a gainst inmates and staff. On April 13, 2020, the jail began using Zoom for telemedicine for all inmate Mental Health v isits.
S ince April 14, 2020, all inmates being transported outside the jail are required to wear a mask and gloves. Transport officers actively transporting inmates are required to wear a mask and gloves and transport vehicles are sanitized at the end of the norma l duty day and a fter any unscheduled transport on nights o r w eekends. Belly chains, shackles, and handcuffs are sanitized with barbicide/clippercide after removal from an inmate/arrestee. Detention Deputies are encouraged to use disposable single flex cuff s for non

- emergent, compliant inmate move ment within the facility. Jail staff complete d training o n the proper procedure for donning and doffing PPE o n April 15, 2020. Jail staff were reminded that they must wear a mask and gloves each time they enter a qu arantined area in the jail and informed that they are authorized to we ar face masks for the duration of their shifts. The COVID

- 19 procedures are updated as kn owledge about COVID

- 19 increases.
T he Petitioners ’ response in opposition to the motion for s umma ry j udgment fails to show a genuine issue of material fact exists. On May 5, 2020, t he Petitioners submitted a declaration from their attorney (“May declaration”) in opposition to the Officials’ motion for summary judgment. However, the May declaration i nc luded only two exhibits

— an order to self

-17

isolate issued by the Idaho Department of He alth and Welfare and a document promulgated by
the Centers for Disease C ontrol and Prevention entitled “ Interim Guidance on Management of Coronavirus Disease 2019 (COVID

- 1 9) in Correctional an d Detention Facilities. ” T he Officials provided these same documents as part of their exhibits in support of the ir m oti on for summary j udgment. The April declaration , which the Petitioners filed in response to the district court’s
Orde r to Show Exhaustion of Remedies or Applicability of Exception , also misses the mark. The April declaration included two news articles concerning the COVID

- 19 pandemic and its impact on jails in Bannock County, Idaho, and Chicago, Illinois
, but they do not directly pertain to
conditions of confinement at the Jail. T he April declaration also included two letters from the Sheriff of Ada County that do not directly concern conditions of confinement at the Jail. And, as
described above
, the April de claration in cluded unsworn statements from some of the P etitioners
describi ng their concerns about the COVID

- 19 virus and their conditions of confinement. However, t he Petitioners’ statements were not made under penalty of perjury, and, in some cases,
the statements w ere unsigned or undated.
As noted , unsworn statements “are entitled to no probative weight” when ruling on motions for summary judgment. Camp , 107 Idaho at 882, 693 P.2d at 1084. Idaho Rule of Civil
Procedure 56 (c) (4) clearly sets out the pr ocess to oppose summary judgment: an affidavit or declaration “used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated. ” Likewise, t his Court has made it clear how summary judgment is to
be opposed : “ When considering evidence presented in support of or opposition to a motion for summary judgment, a court can only consider material which would be admissible at trial. ”
U nion Bank
, 163 Idaho at 314, 413 P.3d at 415

. Consequently, the Petitioners unsworn

statements are ineffective in opposing the Officials’ motion for summary judgment

. T he Petitioners also made a number of general assertions regarding the COVID

- 19 pandemic and their conditions of confinement in their peti tions . T hose assertions are also ineffective, however, in opposing summary j udgment. See Quinlan , 138 Idaho at 729, 69 P.3d at 149 (stating that the nonmoving party in a habeas corpus proceeding may not rely on mere allegations contained in the pleadings ). T he nonmoving party must present evidence to establish specific facts that show there is a genuine dispute

. Id.18

Under Idaho Rule of Civil Procedure 56(a), a “ court must grant summary judgment if the
movant sho ws that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” If the movant demonstrates the absence of a question of material fact, the burden then falls on the nonm oving party to demonstrate an is sue of material fact exist s

. Eagle Springs , 165 Idaho at 868, 454 P.3d at 510 . The nonmoving p arty must present evidence contradicting the evidence submitted by the movant. Id. A mere scintilla of evidence is not adequate to create a genuine issue of mater ial fact. Id. Here, the Officials
, as the moving party, met their burden of showing there is no genuine dispute as to any material fact regarding whether the Officials ’ actions constitute deliberate
indifference or the imposition of punishment

. The eviden ce indicates that the Officials have implemented mitigation measures at the Jail to abate the risk associated with the COVID

- 19
virus . This evidence directly refutes the Petitioners’ claim that no detectable measures have been

ta ken to protect the P etition ers in response to the COVID

- 19 pandemic. The evidence provided by the Officials dispels any notion that the Officials acted with deliberate indifference. In

cont rast, the Petitioners have failed to show that a genuine issue of material fact exists for the reasons explained above . The May d eclaration includes the same exhibits that the Officials provided a s evidence in support of their motion for summary j udgment. There is no genuine dispute as to any material fact. Furthermore, the April declaration made b y the Petitioners’ attorney was not made on personal knowledge. See I.R.C.P. 56(c) (4) (“An affidavit used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or dec larant is competent to testify on the
matters stated.” ).
Even if the Petitioners’ statements included with the April declaration were properly
mad e under penalty of perjury
, the y do not create a genuine issue of material fact as to whether
the Officials ’ actions in response to the COVID

- 19 pandemic co nstitute deliberate indifference or the imposition of punishment

. The Petitioners have not provided evidence showing that t he mitigation measures delineated in Lieutenant Gavin’s declarations are not adequate or that the

measures have not been implemented. Furthermore, the Petitioners have not provided evidence showing that the Officials’ actions c onstitute deliberate indifference or the imposition of punishment.19

Consequently, we hold that the district court di d not err when it granted summary judgment in favor of the Officials on the basis there is no genuine issue of material fact as to whether the Officials’ actions constitute deliberate indifference or the imposition of punishment

. C. The district court did no t err when it refused to consider the Petitioners’ new due process claims

. The district court refused to consider the Petitioners’ new due process claims relating to delays in court proceedings when it granted the Officials ’ motion for summary j udgment bec ause the new claims were not relevant to the is sues raised in the original petitions

. The Petitioners argue that the district court erred when it refused to consider these due process claims

. We disagree.
The district court did not err when it declined to consider n ew due process claims that

were raised by the Petitioners for the first time after the Officials had f iled their motion for summary j udgment. “A habeas corpus proceeding is a civil action and is governed by the provisions of [the Idaho Habeas Cor pus and Institutional Litigation Procedures Act ] and the
Idaho court rules to the extent that such rules are not inconsistent with this act.” I.C. § 19

- 4208.
The Idaho Habeas Corpus and Institutional Litigation Procedures Act provides : U pon the filing of a responsive motion or pleading, a prisoner may file a reply to the response or the court may order a reply to the response on its own motion. The court should consider any reply filed only to the extent it is relevant to the issues and allegations raised i n the original petition for writ of habeas corpus. I.C. § 19

- 4209 (4)

. Here, the petition for writ of habeas corpus filed with this Court on A pril 3, 2020, alleged
constitutional violations associated only with the Eighth Amendment and conditions of
confine ment . More specifically, the Petitioners identified the following constitutional concerns:
CONSTITUTIONAL VIOLATIONS 44. Pursuant to the Idaho and United States Constitution, the procedure of which is provided for in Idaho statute, prisoners are entitled t o a petition for writ of habeas corpus to protect against a violation of their Constitutional Rights. See [I.C.] § 19

- 4201 et [] al. 45. A writ of habeas corpus may be sought for Constitutional violations relating to the prisoner’s “conditions of confinemen t.” See [I.C.] § 19

- 4205(2)(a). 46. “As noted by the United States Supreme Court, the modern import of the Eighth Amendment requires judges to review conditions of confinement with due regard for broad and idealistic concepts of dignity, civilized standard s, humanity and decency. Estelle v. Gamble , 429 U.S. 97, 102, 97 S.Ct. 285, 290, 50 L.Ed.2d20

251 (1976).” Wilson v. State , 113 Idaho 563, 567, 746 P.2d 1022, 1026 (Idaho App. 1987). 47. “Even if prisoners are not mem bers of the ‘public generally,’ the Eight h Amendment (of the U.S. Constitution) protects them from unsanitary living conditions and unnecessary exposure to communicable diseases.” Wilson v. State
, 113 Idaho 563, 566, 746 P.2d 1022, 1025 (Idaho App. 1987) (citations omitted.) 48. The petitioners’ current conditions of confinement constitute a clear and present violation of the Eighth Amendment of the U.S. Constitution banning cruel and unusual punishment.
The petition for writ of habeas corpus filed by the male Petitioners on April 15, 2020, contai ns nearly identical language. We note that b oth petitions state that the Petitioners “ are essentially
stuck in their current situa tion [for] the foreseeable future” because “[m] ost hearings have been
cancelled or postponed ” due to the COVID

- 19 pandemic. Ne ither petition claims, however, that the Petitioners’ due process rights under the Fourteenth Amendment to the United States
Constitution have been violated due to delays in court proceedings. Rather, t he petitions address
the Petitioners’ conditions of co nfinement and alleged vio lati ons under the Eighth Amendment concerning cruel and unusual punishment.
When the Petitioners filed their response to the Officials ’ motion for summary j udgment, however, the Petitioners claimed for the first time that the Peti tioners’ due proces s rights were being violated because of delays in court proceedings associated with the COVID 19 pandemic

. They argued : III. Petitioners’ Rights to a Timely Resolution of their Case and

Due Process A re Also at Issue.
A nother critical po int that should not be overlooked is that in addition to the threat of the COVID

- 19 [virus] , the [P] etitioners’ right to due process, i.e. [,] a timely resolution of their cla ims and access to the courts [,] has been detrimentally affected.
The Petitioners c oncluded their argument by stating that “[t] his issue yet provides another basis for denying summary judgment to the [ Officials ] and providing relief to the [P] etitioners. ”
Under Idaho Code section 19

- 4209 , a court should consider arguments “ only to the e xtent [the y are] relevant to the issues and allegations raised in the original petition for writ of habeas corpus.” Here, the new due process arguments contained in the Petitioners’ response to the
Officials ’ motion for summary j udgment regarding delay s in court proceedings are not relevant

to the issues and allegations raised in the origi nal petitions. N either petition claimed that the Petitioners’ due process rights under the Fourteenth Amendment were being violated because of21

delays in court proceedings. Rather, both petitions pertain to the Eighth Amendment an d
conditio ns of confinement

. Therefore, we hold that the district court did not err when it declined
to consider the Petitioners’ new due process claims when it granted summary j udgment.
D. The distric t court err ed when it awarded the Officials their attorney fees.
The district court held that the Petitioners’ habeas corpus action was frivolous and awarded attorney fees to the Officials . T he Petitioners argue , however, that the ir habeas corpus
action in volved material issues of law that have not heretofore been settled by statute or case law. Thus, the Petitioners argue that the district court erred when it awarded the Officials their attorney fees. We concur. The decision to award attorney fees is withi n the discretion of the trial court, and its
decision is reviewed for abuse of discretion. See Inclusion, Inc. v. Idaho Dep’t of Health & Welfare , 161 Idaho 239, 240, 385 P.3d 1, 2 (2016) (stating that a decision to a ward attorney fees
is subject to an abu se of discretion standard of review ); Lunneborg , 163 Idaho at 863, 421 P.3d at
194. “In any habeas corpus action . . . the judge shall award reasonable attorney ’s fees to the respondent, if, in the judgment of the court, the habeas corpus action was brough t frivolously by the petitioner.” I.C. § 12

- 122

. In making its decision, the district court must make a specific finding whether the petition for habeas corpus was frivolous

. Id. A petition for writ of habe as corpus is frivolous if it is “ based upon claims which either had no basis in fact or, even if the factual allegations were true, they did not, as a matter of law, justify any relief to the petitioner

. . . .” Id. A district court may, however, “determine that the action was not brought frivolously when the action involves a material issue of law that has not been settled by statute or by [S]upreme [C]ourt decision . . . .” Id. Here, t he district cou rt found the Petitioners’ habeas corpus action was frivolous . In doing so, the district court highlig hted various reasons for its determination. The district court
failed to evaluate , however, whether the habeas corpus action involved a material and unsettle d
issue of law. Id. By failing to consider this issue, the district court did not fully evaluate the le gal standards applicable to the specific choices available to the district court. Lunneborg , 163 Idaho at 863, 421 P.3d at 194. This constitutes reversible error under the Court’s abuse of discretion
standard of review. Id.22

T he Petitioners argue that the claims in this case “at the very least address unsettled law” because Idaho has never “had to confront a situation such as this, a world

- wide pandemic over a highly contagious and pote ntially deadly disease . . . .” We hold that the meaning of the term

“ im minent danger,” as utilized in Idaho Code section 19

- 4206, was a material and unsettled issue
of law in the context of the COVID

- 19 pandemic . T he Petitioners made a cogent argument that
the threat of the COVID

- 19 virus constitutes an “imminent danger” unde r Idaho law. I.C. § 19

- 4206(1). Furthermore, the Petitioners cited recent case law in support of their position. Finally, t he Petitioners argue that the award of attorney fees here will have a chilling effect on future habeas corpus petitions . They argue:
[T] his Court should be deeply concerned about the ‘chilling ef fect’ of an award of attorney [] fees in this case. Even when represented by counsel (which is rarely the case in a habeas corpus petition), the institutional barriers that a prisoner confronts i n whether to pursue such a petition to enforce his or her rights are enormous and daunting.

. . . If this Court were to uphold the district court’ s decision on attorney [] fees, it is hig hly unlikely that any prisoner o r detainee w ill ever pursue their righ ts under this statute. This w ill effectively render Idaho’s habeas corpus act useless as a tool to protect against and remedy the violations o f Constitutional rights for prisoners and detainees.
T he Petitioners’ argument has merit. As we stated above, the writ of habeas corpus serves

a crucial purpose. T he Great Writ insures liberty to persons unlawfully detained by their government

. Smith , 365 U.S. at 714

. Idaho Code section 12

- 122 also serves an important role , of course, by dissuading prisoners from fili ng frivolous petitions and by conserving judicial

resources. Nevertheless, c ourts should be reluctant to award attorney fees to respondents in habeas corpus proceedings unless it is clear that a petition is “ based upon claims which either
had no basis in f

act or, even if the factual allegations were true, they did not, as a matter of law, justify any relief to the petitioner .” I.C. § 12

- 122. That is not the case here. Based on the foregoing, we hold that the district court erred when it awarded attorney
fee s to the Officials

. E. The Officials are not entitled to attorney fees on appeal

. T he Officials contend they are entitled to attorney fees on appeal under Idaho Code
sections 12

- 121 and 12

- 122. We disagree. Courts may award attorney fees to a prevailing party if the “case was brought, pursued or defended frivolously, unreasonab ly or without foundation.” I.C. § 1 2

- 121. Similarly, a court shall23

award attorney fees to the respondent in a habeas corpus case if the action was brough t frivolously. I.C. § 12

- 122.
Her e, t he Petitioners prevailed on one of the issues considered on appeal

— namely the award of attorney fees below. Furthermore, we cannot say that the habeas corpus action was frivolous for the reasons previously stated. Therefore, t he Officials ’ request for attorney fees on appeal is denied.
IV. CONCLUSION In light of the foregoing, we affirm the district court’s dec ision granting summary j udgment in favor of the Officials, but we reverse the district court’s award of attorney fees. T he
Officials ’ request for att orney fees on appeal is denied

.

Chief Justice BURDICK, and Justices BEVAN, STEGNER, and MOELLER CONCUR.