Young v. Young et al

Filing 56

MEMORANDUM DECISION AND ORDER granting 35 Canyon County's Motion for Summary Judgment; granting 36 Prosecutor Defendant's Motion for Summary Judgment; granting 37 State of Idaho's Motion for Summary Judgment; granting 38 City o f Nampa's Motion for Summary Judgment; denying as moot 47 Prosecutor Defendant's Motion to Strike. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by dks)

IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF IDAHO

M E G A N A. YOUNG, individually and as le g a l guardian of the minor children J.Y., K .Y . and M.Y.,

) ) ) ) P l a i n t if f s , ) ) ) D A V ID L. YOUNG, individually and in ) his Official capacity as Canyon County ) P ro s e c u tin g Attorney; THE SHERIFF OF ) C A N Y O N COUNTY in his Official ) c a p a c ity; CANYON COUNTY, a ) p o litic a l subdivision of the State of ) Id a h o ; THE CITY OF NAMPA, a ) p o litic a l subdivision of the State of ) Id a h o ; THE STATE OF IDAHO, a ) p o litic a l subdivision of the United ) S ta te s of America; JOHN DOES 1-5, ) JO H N DOES 6-10; JOHN DOES 11-15, ) and JOHN DOES 16-20, ) ) D e f e n d a n ts . ) _______________________________________)

C iv i l Case No. 06-324-S-EJL

M E M O R A N D U M DECISION A N D ORDER

P en d in g before the Court in the above-entitled matter are four motions for summary ju d g m e n t filed by Defendants and a motion to strike portions of the affidavits of Megan Y o u n g and Kathy J. Edwards filed by certain Prosecutor Defendants. Having fully reviewed th e record, the Court finds that the facts and legal arguments are adequately presented in the b r i e f s and record. Accordingly, in the interest of avoiding further delay, and because the C o u rt conclusively finds that the decisional process would not be significantly aided by oral

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a rg u m e n t, this matter shall be decided on the record before this Court without oral argument.

F a c tu a l Background T h e facts of this case are tragic due to the years of sexual abuse suffered by Plaintiff M e g a n Young, however, a detailed factual background is necessary for determining whether th e Plaintiff has cognizable claims against the Defendants. Plaintiff Megan Young,

in d iv id u a lly and as the legal guardian for three minor children, J.Y., K.Y. and M.Y., brought th is action against David Young, individually and in his official capacity as the Canyon C o u n ty Prosecuting Attorney; the Sheriff of Canyon County in his official capacity; Canyon C o u n ty; the State of Idaho; the City of Nampa and John Does 1-20. Plaintiff alleges civil rig h ts violations pursuant to 42 U.S.C. § 1983, a state created danger and intentional and/or n e g lig e n t infliction of emotional distress by all Defendants. Defendants deny all claims and s e e k dismissal as a matter of law of all claims. M e g a n Aundrea Marshall (later her named changed to Megan Young and she will be ref erred to as "Megan") was born on March 4, 1987. In 1988, Megan and her mother, S a n d ra McCurry, moved in to live with Michael Young. When Megan was 14, she gave b irth to her first child on February 3, 2002. Megan did not list a father on the birth certificate f o r J.Y. After the birth of Megan's first child, J. Y., Sandra and Michael were married and M e g a n petitioned the court to change her name to Megan Young. Megan was not legally

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a d o p te d by Michael Young, but her name was changed. On October, 24, 2003, when Megan was sixteen, she gave birth to her second child, K .Y . Megan did not list a father on the birth certificate for K.Y. O n November 4, 2003, Megan's aunt telephoned the Idaho Department of Health and W e lf a re ("IDHW") and reported her concern that Megan's second child looked just like M ic h a el Young. The referral was faxed by IDHW to the Canyon County Sheriff's office on N o v e m b e r 5, 2003 for further investigation. Sheriff's Detective Danny Martineau 1 along w ith Detective Chuck Gentry interviewed Megan at her home in November 2003 and she a d a m a n tly denied Michael Young was the father of her two children.2 Megan gave the

D e te c tiv e s names of two different boys she said were the fathers of her children although she d id not know the whereabouts of the alleged fathers. Megan's mother was not present for th e interview, but the interview was recorded. M e g a n later provided Detective Martineau with a letter purporting to be from the f a th e r of one of her children. Detective Martineau determined the referral should be closed b a se d on Megan's denials, the letter and no further evidence. The closure was approved by

It is undisputed Detective Martineau had worked as a School Resource Officer at M id d le to n High School for approximately three years before he transferred to the Canyon C o u n ty Sheriff's Criminal Investigation Division for approximately seven months prior to th e interview of Megan. It is also undisputed that Detective Martineau had attended a 36 h o u rs course on conducting child abuse and sexual abuse investigations and had trained u n d e r an experienced field officer prior to interviewing Megan. The audio recording of this interview is attached as Exhibit A to the Affidavit of C h u c k Gentry, Docket No. 35-6. M e m o r a n d u m Decision and Order -32

1

D e te c tiv e Martinueau's supervisor. The following year, on June 30, 2004, Megan disclosed to law enforcement Detective C h ris Garrison that Michael Young was the father of both her children. Detective Garrison to ld Megan she should not be living in the same house as Michael Young. Detective G a rriso n did not take Megan into custody due to the fact Megan was living with her aunt, D e b b ie at the time. Megan stayed with her aunt for two nights and had no contact with Michael Young. T h e re a fte r, she stayed with her aunt Susan Vanderhoof, family member Judy Briggs and a co u sin, Brianna Nelson. IDHW was not advised or involved in any decision regarding where M e g a n was living following her disclosure of abuse to Detective Garrison. The decision to c h a n g e locations was made by Megan. On July 9, 2004, the Canyon County Sheriff's Department delivered a Probable Cause A f f id a v it and Warrant Request to the Prosecutor Defendants requesting charges be brought a g a in s t Michael Young for sexually abusing Megan and fathering Megan's first two children. V irg in ia Bond ("Bond") was the Chief Criminal Deputy Prosecuting Attorney who reviewed th e materials submitted by the Sheriff's Department and she requested additional c o rro b o ra tin g evidence before initiating criminal charges. Before corroborating evidence w a s received, Bond learned Michael Young had obtained legal counsel. Bond contacted c o u n se l for Michael Young and plea negotiations ensued. Criminal charges were ultimately f ile d on November 12, 2004. In July 2005, the United States Attorney's Office requested the

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s ta te charges be dismissed as part of a plea bargain on the federal criminal charges. Michael Young was convicted on federal charges relating to his sexual abuse of M e g a n and was sentenced to thirteen years in prison and twenty-five years of supervised re le a se . The state charges were dismissed on August 22, 2005. M ic h a el Young divorced Sandra on July 23, 2004. On August 2, 2004, Michael and M e g a n were married. Megan delivered her third child, M.Y. on June 29, 2005. M e g a n and Michael Young were divorced in January 2007. M e g a n turned 18 years of age on March 4, 2005. The 180th day after March 4, 2005 w a s August 31, 2005. Megan, on behalf of her interest and her three children, filed a Notice o f Tort Claim against the State of Idaho and the Prosecutor Defendants on September 23, 2 0 0 5 . Megan also filed a Notice of Tort claim against the Canyon County Defendants on S e p te m b er 28, 2005. It is undisputed that Megan did not post a bond prior to filing a c o m p la in t against prosecutor David Young. It was determined that in 1993, Megan Young disclosed to a school counselor that she w a s being abused by Michael Young. The disclosure was reported to the Nampa City Police an d the IDHW. Megan was interviewed by a Health & Welfare caseworker. Megan's m o th e r was notified and spoke with the caseworker. The police officer required Michael Y o u n g to be out of the house that evening. As a result of the disclosure, Megan was evaluated at the CARES Unit in Boise. D u rin g the CARES interview, Megan denied any abuse had occurred and she recanted her

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e a rlie r disclosure so she could stay with her mother. The decision to allow Michael Young b a c k into the house was solely made by Megan's mother, Sandra Young. Megan was never in the physical or legal custody of IDHW. F r o m 1993 until June 2004, Megan did not disclose the abuse she was experiencing to anyone other than her sister, Shami. Following the birth of her first child, Megan had no c o n ta c t with anyone associated with the IDHW. Megan did not speak with anyone from ID H W about possible abuse after 1993.

Motions for Summary Judgment 1 . Standard of Review M o tio n s for summary judgment are governed by Rule 56 of the Federal Rules of Civil P ro c e d u re . Rule 56 provides, in pertinent part, that judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with th e affidavits, if any, show that there is no genuine issue as to any material fact and that the m o v ing party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). T h e Supreme Court has made it clear that under Rule 56 summary judgment is m a n d a te d if the non-moving party fails to make a showing sufficient to establish the e x is te n c e of an element which is essential to the non-moving party's case and upon which the n o n -m o v in g party will bear the burden of proof at trial. See, Celotex Corp v. Catrett, 477 U .S . 317, 322 (1986). If the non-moving party fails to make such a showing on any essential

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e le m e n t, "there can be no `genuine issue of material fact,' since a complete failure of proof c o n c ern in g an essential element of the nonmoving party's case necessarily renders all other f a cts immaterial." Id. at 323.3 M o re o v e r, under Rule 56, it is clear that an issue, in order to preclude entry of su m m a r y judgment, must be both "material" and "genuine." An issue is "material" if it a f f e c t s the outcome of the litigation. An issue, before it may be considered "genuine," must b e established by "sufficient evidence supporting the claimed factual dispute . . . to require a jury or judge to resolve the parties' differing versions of the truth at trial." Hahn v. Sargent, 5 2 3 F.2d 461, 464 (1st Cir. 1975) (quoting First Nat'l Bank v. Cities Serv. Co. Inc., 391 U.S. 2 5 3 , 289 (1968)). The Ninth Circuit cases are in accord. See, e.g., British Motor Car Distrib. v . San Francisco Automotive Indus. Welfare Fund, 882 F.2d 371 (9th Cir. 1989). A c c o rd in g to the Ninth Circuit, in order to withstand a motion for summary judgment, a party (1 ) must make a showing sufficient to establish a genuine issue of fact with re sp e c t to any element for which it bears the burden of proof; (2) must show th a t there is an issue that may reasonably be resolved in favor of either party;

3

See also, Rule 56(e) which provides, in part: W h e n a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or d e n ia ls of the adverse party's pleadings, but the adverse party's response, by a f f id a v its or as otherwise provided in this rule, must set forth specific facts s h o w in g that there is a genuine issue for trial. If the adverse party does not s o respond, summary judgment, if appropriate, shall be entered against the a d v e rs e party.

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a n d (3) must come forward with more persuasive evidence than would o th e rw is e be necessary when the factual context makes the non-moving party's c la im implausible. Id. at 374 (citation omitted). O f course, when applying the above standard, the court must view all of the evidence in a light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 2 4 2 , 255 (1986); Hughes v. United States, 953 F.2d 531, 541 (9th Cir. 1992). 2 . Claims of Civil Rights Violations Pursuant to 42 U.S.C. § 1983 A . Section 1983 Claims in General T h e purpose of 42 U.S.C. § 1983 is to deter state actors from using the badge of their a u th o rity to deprive individuals of their federally guaranteed rights and to provide relief to h a rm e d parties. See Wyatt v. Cole, 504 U.S. 158, 161 (1992). To state a claim under § 1983, a plaintiff must allege facts which show a deprivation of a right, privilege or immunity s e c u re d by the Constitution or federal law by a person acting under color of state law. Id. Acting under color of state law is "a jurisdictional requisite for a § 1983 action." West v. A tk in s, 487 U.S. 42, 46 (1988). In this case, it is not disputed that the named Defendants w e r e acting under color of state law. Therefore, the question becomes, did the Defendants' a c tio n s deprive Plaintiffs of a right, privilege or immunity secured by the Constitution or f e d e ra l law. B . Qualified Immunity C ertain Defendants have raised the defense of qualified immunity. Police officers are

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e n ti t le d to "qualified immunity" for their actions within the scope of their employment " in so f a r as their conduct does not violate clearly established statutory or constitutional rights o f which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 815 (1 9 8 2 ). The purpose of qualified immunity is to "avoid excessive disruption of government a n d permit the resolution of many insubstantial claims on summary judgment." Saucier v. K atz, 533 U.S. 194, 200, 202 (2001). On the other hand, this privilege allows redress where c le a r wrongs are caused by state actors. Id. "The privilege is an immunity from suit rather th a n a mere defense to liability, and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial." Id. at 200-01. "As a result, [courts] have repeatedly stre ss e d the importance of resolving immunity questions at the earliest possible stage in litig a tio n ," long before trial. Id. at 201, see also Act Up!/Portland v. Bagley, 988 F.2d 868, 8 7 3 (9th Cir. 1993) (citing Hunter v. Bryant, 502 U.S. 224 (1991)). The initial question in determining whether an officer is entitled to qualified immunity is whether, taken in the light most favorable to the party asserting injury, the facts alleged s h o w that the defendant's conduct violated a constitutional right. Saucier v. Katz, 533 U.S. 1 9 4 , 201, (2001); Billington v. Smith, 292 F.3d 1177, 1183 (9th Cir. 2002). If not, "there is n o necessity for further inquiries concerning qualified immunity." Saucier, 533 U.S. at 201. If , however, a violation could be established under the facts presented, the next step is to d eterm ine whether the right was "clearly established." Id. "The relevant, dispositive inquiry i n determining whether a right is clearly established is whether it would be clear to a

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re a so n a b le officer that his conduct was unlawful in the situation he confronted." Id. at 202. " T h e question is what the officer reasonably understood his powers and responsibilities to b e , when he acted, under clearly established standards." Id. at 208. Plaintiff bears the burden o f establishing the rights violated were "clearly established." Houghton v. South, 965, F.2d 1 5 3 2 , 1534 (9 th Cir. 1992). "[ S ] e c tio n 1983 `is not itself a source of substantive rights,' but merely provides `a m e th o d for vindicating federal rights elsewhere conferred." Graham v. Connor, 490 U.S. 3 8 6 , 393-94 (1989). Therefore, the Court will analyze the constitutional rights Plaintiffs a lle g e were violated by the Defendants. C. Claims Against Municipalities T o make a claim against a municipality for a § 1983 violation, four criteria must be s a tis f ie d : ( 1 ) That [the Plaintiff] possessed a constitutional right of which he was d e p riv e d ; (2) that the municipality had a policy; (3) that the policy "amounts to deliberate indifference" to the Plaintiff's constitutional right; and (4) that the p o lic y is the "moving force behind the constitutional violation.." O v ia tt v. Pearce, 954 F.2d 1470, 1474 (9 th Cir. 1992) (quoting City of Canton v. Harris, 489 U .S . 378, 389-91 (1989)). A municipality may not be held liable under § 1983 solely because it employed a co n stitutio n al wrongdoer. Monell v. Dept. of Social Services, 436 U.S. 658 (1978).

F u r th e rm o re , a municipality cannot be held liable under § 1983 where no constitutional v io la tio n has occurred. Sweaney v. Ada County, 119 F.3d 1385, 1392 (9th Cir. 1997). Memorandum Decision and Order -10-

D . Defendants' Claims 1 ) Sheriff of Canyon County and Canyon County P la in tif f s claim in Count 3, that the Sheriff of Canyon County, Sheriff Nourse, and C a n yo n County violated Plaintiffs' First Amendment rights, Fifth Amendment rights, Due P r o c e ss rights, Equal Protection rights, and failed to properly train investigators of sexual a b u se . As to the First Amendment right to family associations, the Court finds there are no g e n u in e issues of material fact. Pursuant to Roberts v. U.S. Jaycees, 468 U.S. 609. 618 (1 9 8 4 ), a person has the right to be free from unjustified interference by the state. In this c a se , Plaintiffs allege Detective Martineau's failure to remove Megan from the home at the tim e he investigated the November 2003 referral violated her right to family association. As indicated by the undisputed facts and the recording of the interview, Megan was a d a m a n t that she was not being abused and that Michael Young was not the father of her c h ild re n . Moreover, she provided names of the purported fathers and a letter from one of the a lleg e d fathers indicating no interest in the child. The evidence provided to the Detective did n o t support removing Megan from the home. Additionally, Detective Martineau took no a c t i o n that prevented Megan from interacting with her family members. Accordingly, P la in tif f s have failed to establish a factual basis for a violation of Megan's First Amendment rig h ts and the claim must be dismissed. No defendants prevented Megan from interacting w ith her family members, so this analysis would be the same for all the Defendants in this a c tio n and the claim must be dismissed against all defendants.

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S e c o n d , Plaintiffs claim a Fifth Amendment violation. The Fifth Amendments's Due P r o c e ss Clause only applies to actions of the federal government, not those of state or local g o v e rn m e n ts . Dusenberry v. United States, 534 U.S. 161, 167 (2002). Therefore, as a matter o f law the Fifth Amendment claims must be dismissed as to all defendants. T h ird , Plaintiffs claim a Fourteenth Amendment violation of Megan's substantive Due P r o c e s s rights based on Detective Martineau's failure to remove Megan from the home as p a rt of the November 2003 IDHW referral. Basically, the Plaintiffs claim that Detective M a rtin e a u 's failure to remove Megan from the home in November/December 2003, "caused M e g a n to suffer continued sexual abuse at the hands of Michael, resulting in the birth of the th ird minor child." Amended Complaint, ¶ 97. Docket No. 17. The question becomes is it a violation of Megan's substantive Due Process rights under the Fourteenth Amendment for th e Detective to fail to prevent Michael from sexually abusing Megan after the Detective in te rv ie w e d Megan. Under DeShaney v. Winnebago County Dep't of Soc. Serv's., 489 U.S. 189 (1989), th e Supreme Court held that the Due Process Clause "forbids the State itself to deprive in d iv id u a ls of life, liberty, or property without `due process of law,' but its language cannot f a ir ly be extended to impose an affirmative obligation on the State to ensure that those in te re sts do not come to harm through other means." 489 U.S. at 195. "But nothing in the la n g u a g e of the Due Process Clause itself requires the State to protect the life, liberty, and p ro p e rty of its citizens against invasion by private actors." Id. Even if a state official refuses

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to provide protective services that could avert injuries, the government cannot be held liable u n d e r § 1983. Id. at 196. The facts of the DeShaney case are strikingly similar to the case at bar. In DeShaney, th e allegations were that various governmental actors failed to prevent a father from p h ys ic a lly abusing his son. The state authorities were advised of the suspected abuse on at le a st five occasions before the father beat the son so severely that he suffered permanent b rain damage. The Supreme Court held that the Due Process Clause does not require g o v e r n m e n t actors to protect private citizens against harm from other private citizens. R a th e r, the Due Process Clause is intended to protect private citizens from the actions of g o v e r n m e n t a l actors. In the present case, the DeShaney case requires this Court to find that the Sheriff of C a n yo n County and Detective Martineau did not violate Megan's substantive Due Process C laus e rights as the law enforcement officers were not required to protect Megan from harm f ro m another private citizen, Michael Young. A "failure to protect an individual from private v i o le n c e simply does not constitute a violation of the Due Process Clause." Id. at 197.

W h ile law enforcement officers try to protect the public from being harmed, the state actors c a n not be held liable for a constitutional violation when private citizens harm other private c itiz e n s . The Plaintiff argues the state actors should be liable under an exception to the D e S h a n e y opinion which holds the state actors liable for state created dangers. The Plaintiff

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c ites the Court to Kennedy v. City of Ridgefield, 411 F.3d 1134 (9th Cir. 2005) and its a m e n d e d version at 423 F.3d 117, but those opinions were withdrawn and cannot be cited a s precedent. See Kennedy v. City of Ridgefield, 440 F.3d 1091 (9th Cir. 2006). Without re lyin g on Kennedy, the Court agrees that an exception exists to the DeShaney ruling. Four m o n th s after the DeShaney decision, the Ninth Circuit did establish the "state created danger th e o ry" in Wood v. Ostrander, 879 F.2d 583 (9th Cir. 1989). In Wood, the Ninth Circuit held th a t a substantive Due Process Claim could be established where the police create a danger t o an individual. In Wood, the police officer arrested the driver of a car and impounded a v e h ic le which left the passenger, Wood, stranded in a high crime area early in the morning w h ere she was attacked. The Court found the governmental actors disregarded Wood's s a f ety amounting to deliberate indifference. Id. at 558. In L.W. v. Grubbs, 92 F.3d 894, 900 (9 th Cir. 1996), the court rejected a "gross negligence standard for culpability and determined " th e plaintiff must show that the state official participated in creating a dangerous situation, a n d acted with deliberate indifference to the known or obvious danger in subjecting plaintiff to it." In Penilla v. City of Huntington Beach, 115F.3d 707 (9th Cir. 1997), the Ninth

C irc u it emphasized that a due process claim must be based on an affirmative exercise of state p o w e r which creates a risk which, but for the state's affirmative action, would not have e x iste d . In Johnson v. City of Seattle, 474 F.3d 634, 639 (9th Cir. 2007), the Ninth Circuit s e t forth the rule that the governmental actors must affirmatively place the plaintiff in a p o s itio n of danger to which she should not otherwise have been exposed.

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W ith o u t addressing whether the facts justified Detective Martineau's closure of the in v e stig a tio n , in this case it is undisputed that Detective Martineau's failure to remove M e g a n from the home did not place Megan in a different danger than she would have o th e rw is e experienced. Detective Martineau took no affirmative action that exposed Megan o r her children to a danger different than she or the children were already exposed to prior to the interview. Moreover, Megan's adamant denial of the alleged abuse supports

D e tec tiv e 's Martineau's failure to take affirmative action to remove her from the home with M ic h a el Young. The harm in this case was by Michael Young, not Detective Martineau and th e state created danger theory does not apply to the facts of this case because the exception re q u ire s more than a mere failure to act. Absent an affirmative act to create a danger, the S h e rif f and Canyon County cannot be liable for a constitutional violation. Moreover, there is simply no evidence Megan's children were abused by Michael Y o u n g , so there can be no duty owed to these minor children by Detective Martineau or S h e rif f Nourse. F o u r th , as to any Equal Protection claim, Plaintiffs have failed to present any evidence th a t the investigation of the November 2003 IDHW referral was handled differently than any o th e r IDHW referral for alleged sexual abuse and the claim must be dismissed. The Equal P r o te c tio n argument is the same for all the Defendants, Plaintiffs have failed to establish that th e investigation by any of the Defendants was handled differently than any other sexual a b u se claim. The policies and practices in this case are facially neutral and require proof of

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d iscrim inato ry intent or motive. Navarro v. Block, 72 F.3d 712, 716 (9th Cir. 1995). P la in tif f has failed to establish or create a genuine issue of material fact regarding d isc rim in a to ry intent or motive and summary judgment in favor of the Defendants is a p p ro p r ia te . F if th , to the extent Plaintiffs have raised a procedural Due Process clause claim, such is dismissed as to all Defendants as it is not included in the Amended Complaint. H a v in g found no constitutional violation by Detective Martineau, the Sheriff of C a n yo n County cannot be held liable under § 1983. The undisputed facts do not establish a genuine issue of material fact regarding Detective Martineau's training or the training p o lic ie s of the Sheriff. The affidavits of Chris Smith, Christina Garrison and Detective M a rtin e a u establish that Detective Martineau received extensive training prior to in te rv ie w in g Megan. There is no evidence submitted by Plaintiffs that support the argument th e harm to Megan could have been avoided if the Sheriff had trained Detective Martineau d if f ere n tly. Thus, summary judgment in favor of Sheriff Nourse on the alleged § 1983 c la im s should be granted. A s to Canyon County, a municipality cannot be held liable under § 1983 where no co n stitutio n al violation has occurred. Sweaney v. Ada County, 119 F.3d 1385, 1392 (9th Cir. 1 9 9 7 ). In this case, the Court has determined that no violation of a constitutional right o c c u rre d , therefore, the claims against the municipality must also be dismissed as a matter o f law. Moreover, the Court finds Plaintiffs have failed to carry their burden to establish via

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e v id e n c e that the municipality had a policy or custom which was the moving force behind th e alleged constitutional violations. A plaintiff is required to provide evidence of a "formal p o lic y" or "widespread practice" in order for a municipality or local government unit to be h e ld liable under § 1983. Nadell v. Las Vegas Metropolitan Police Dept., 268 F.3d 924 929 (9 th Cir. 2001). A custom may be inferred from "evidence of repeated constitutional

v io la tio n s for which the errant municipal officers were not discharged or reprimanded." G ille tte v. Delmore, 979 F.2d 1342, 1349 (9th Cir.1992). However, "[a] plaintiff cannot p ro v e the existence of a municipal policy or custom based solely on the occurrence of a sin g le incident or unconstitutional action by a non-policymaking employee." Davis v. City o f Ellensburg, 869 F.2d 1230, 1233 (9th Cir.1989). H e r e , Plaintiffs allege the Sheriff's Department failed to train or supervise its officers, b u t has produced no specific evidence of a training or supervision policy that led to a c o n s ti tu t io n a l violation in this case. Nor have Plaintiffs provided evidence that the actual tra i n i n g received created a widespread practice or repeated constitutional violations for w h ic h errant officers were not disciplined. Because Plaintiffs have not carried their burden, th e claims against Canyon County in Count 3 must be dismissed.

2) Prosecutor Defendants (Canyon County and David Young) A d o p t in g the analysis above for the constitutional claims against these Defendants, th e Court finds Plaintiffs claims against the Prosecutor Defendants must also be dismissed

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a s a matter of law. Specifically, Plaintiffs allege that the state created a danger when Megan w a s exposed for approximately four months, from July 9, 2004 (date Prosecutor Bond re c e iv e d the documents requesting criminal charges be filed) and November 12, 2004 (date t h e state criminal charges were filed). This constitutional claim fails as the Prosecutor D e f en d a n ts did not affirmatively place the plaintiff in a position of danger to which she w o u ld not otherwise have been exposed. Johnson v. City of Seattle, 474 F.3d 634, 639 (9th C ir. 2007). Plaintiffs have failed to establish that the Prosecutor Defendants actions did more th a n simply expose Megan to a danger that already existed. See. L.W. v. Grubbs, 974 F.2d 1 1 9 , 121 (9th Cir. 1992). Simply put, the Prosecutor Defendants did not take any affirmative a c t io n with deliberate indifference in creating a foreseeable danger to Megan and a mere f a ilu re to act does not create liability. Negligence, whether gross or simple, is insufficient to prove a constitutional violation. See Daniels v. Williams, 474 U.S. 327, 328 (1986). A lte rn a tiv e ly, prosecutors are entitled to absolute immunity from liability for conduct a ss o c ia te d with the judicial phase of the criminal process. Burns v. Reed, 500 u.S. 478, 486 (1 9 9 1 ). The alleged actions of the prosecutor which delayed the criminal prosecution and re su lted in the dismissal of the state charges are the type of actions that are subject to a b s o lu te immunity. H a v in g failed to find constitutional violations by individual prosecutors, the claim ag ains t Canyon County also fails. Sweaney v. Ada County, 119 F.3d 1385, 1392 (9th Cir. 1 9 9 7 ).

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3 ) State of Idaho - IDHW A d o p tin g the earlier analysis, the legal result is the same for the claims against the S ta te of Idaho. Plaintiffs claim the IDHW breached its duty when it failed to remove Megan f ro m the home of her mother. The IDHW investigated Megan's claims in 1993 when she re c a n te d her allegations of abuse by Michael Young and the IDHW referred the second in q u iry in November 2003 to law enforcement officers with Canyon County to investigate. M e g a n and her children were never in the legal custody of the State of Idaho. IDHW can h o ld children no longer than 48 hours. In this case, Megan and her children were never f o u n d be in imminent danger by investigators and Megan's denial of the abuse during both in v e s tig a tio n s supported Megan being released back into her mother's care. The facts are undisputed for purposes of determining liability. Like the social workers in DeShaney, there was no violation of Megan's Due Process rights by the IDHW and the c la im s must be dismissed. As to the state created danger theory, the Court finds the IDHW d id not take affirmative actions which placed Megan or her children in a different or more d a n g e ro u s situation than otherwise existed. Also, there is no pattern of unconstitutional b e h a v io r by state employees. For these reasons, the Court finds as a matter of law that the ID H W did not violate Megan's Fourteenth Amendment rights. Furthermore, the State of Idaho is not a "person" as defined by § 1983 and is not a m e n a b le to suit under 42 U.S.C. § 1983. "Person" encompasses municipalities, not states. W ill v. Michigan Dept. of State Police, 491 U.S. 58 (1989). Any claims for failing to train

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em p loyee s also fails for the same reason. Finally, the failure to train claims fail as the Court h a s not found that a constitutional violation has occurred.

4 ) City of Nampa and Nampa Police Department A p p lyin g the analysis to the claims against the City of Nampa and the Nampa Police D ep artm en t require the claims of constitutional violations to be dismissed. In 1993, Megan's a lle g a tio n s of abuse to her school counselor were disclosed to the IDHW and local law e n f o rc e m e n t from the City of Nampa. The Nampa Police Department investigated the claims a n d met with Megan, the IDHW caseworker and the school counselor. Sergeant Greenwood o f the Nampa Police Department interviewed Michael Young and Sandra Young. At the tim e Michael Young was interviewed, he had moved out of the house, so there was no im m in e n t danger pursuant to the Child Protection Act. Megan recanted her earlier

a lle g a tio n s and the Nampa Police did not proceed any further with the investigation. B a se d on these facts, the Court finds no constitutional violations occurred under D e S h a n e y and the state created danger exception does not apply. The Nampa Police D e p a rtm e n t took no affirmative steps that placed Megan in a greater danger than already e x is te d . L.W. v. Grubbs, 974 F.2d 119 (9th Cir. 1992). Having found no constitutional v io la tio n by individual police officers, the municipality cannot be liable. Sweaney v. Ada C o u n ty, 119 F.3d 1385, 1392 (9th Cir. 1997).

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3 . Idaho Constitution Claims To the extent Counts 3 and 4 set forth a claim for a violation of Idaho's Constitution, a civil cause of action for damages of a state constitutional right does not exist. Katzberg v. R eg en ts of Univ. of Calif., 58 P.3d 339, 358 (Calif. 2002). State constitutional claims are n o t cognizable under Idaho law and this claim must be dismissed as to all defendants. See S ta te v. Charpentier, 962 P.2d 1033, 1037 (Idaho 1998) (rights of individuals under the Idaho C o n stitutio n not greater than those provided under the federal constitution).

4 . Claims of Intentional and/or Negligent Infliction of Emotional Distress 1 ) Sheriff of Canyon County and Canyon County In order to establish a claim for intentional infliction of emotional distress, Plaintiffs m u s t prove: (1) the conduct must be intentional or reckless; (2) the conduct must be extreme o r outrageous; (3) there must be a causal connection between the conduct and the emotional d is tre s s ; and (4) the emotional distress must be severe. McKinley v. Guaranty Nat. Ins. Co., 1 5 9 P.3d 884, 891 (2007). In order to establish a claim for negligent infliction of emotional distress, the Plaintiffs m u s t prove: (1) the existence of a duty; (2) a breach of that duty; (3) proximate cause; (4) d a m a g e s ; and (5) physical manifestation of the injury. Czaplicki v. Gooding Joint School D ist. No. 231, 775 P.2d 640 (1989). T h e claim for intentional or negligent infliction of emotional distress is a state law

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c la im that requires compliance with the Idaho Tort Claims Act ("ITCA"), Idaho Code § 69 0 3 . In order to bring this type of state law tort claim, Plaintiffs must file a timely Notice of T o rt Claim. Id. Compliance with the notice requirements is a prerequisite to filing a state la w claim. Cobbley v. City of Challis, 59 F.3d 959 (Idaho 2002). It is undisputed that the N o tice of Tort Claim was served on these defendants on September 28, 2005. The failure to file a timely notice within 180 days of Megan's eighteenth birthday, requires this claim to b e dismissed. As to Megan's children's emotional distress claims, the timeliness issue does not a p p ly. However, the undisputed facts support dismissal of this claim since Plaintiffs do not c la im the children were abused by Michael Young or that the Sheriff Department's actions w e re extreme or outrageous. In fact, there is a lack of any evidence about specific harm to th e children being caused by Detective Martineau or that the Detective owed a duty to the c h ild re n .

2) Prosecutor Defendants (Canyon County and David Young) P la in tif f s failed to timely file and serve proper notices of tort claims and the state law c la im s of Megan must be dismissed as a matter of law. The notice of tort claim was received a p p ro x im a tely three weeks too late on September 23, 2005. Moreover, Plaintiffs failed to p o s t the requisite bond under Idaho Code § 6-610 for the state law claims against David Y o u n g . The claims of the minor children have not established causation as there is no

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a lle g a tion that Michael Young abused any of the minor children he fathered with Megan. Future potential harm is not sufficient to create a claim as there is no current evidence of e m o tio n a l distress. See Neal v. Neal, 873 P.2d 871 (1994); DeMoss v. City of Coeur d 'A lene , 795 P.2d 875 (1990). F u rth e r, Idaho prosecutors and their respective counties are entitled to absolute im m u n i ty for quasi-judicial functions. Nation v. State Dept. of Correction, 158 P.3d 953 (2 0 0 7 ). Plaintiffs claim the prosecuting attorney's office delayed filing criminal charges and th e dismissal of the state charges. Both these allegations are subject to immunity. The d e c is io n to file criminal charges is quasi-judicial. Botello v. Gammick, 413 F.3d 971, 977 (9 th Cir. 2005). The preparation of filing criminal charges is a judicial function. Kalina v. F le tc h e r, 522 U.S. 118 (1997). The decision to dismiss criminal charges is a quasi-judicial f u n c tio n . Brooks v. George County, Miss., 84 f.3d 157, 168 (5th Cir. 1996). Because the a lle g e d actions are subject to quasi-judicial immunity, the Prosecutor Defendants are immune f r o m the state law claims.

3 ) State of Idaho - IDHW It is undisputed that Megan did not timely file a notice of tort claim with the Secretary o f State, so her state law claims must be dismissed. Idaho does not recognize a claim for the to rt of wrongful life. Blake v. Cruz, 698 P.2d 315 (1984) and the minor children have failed to establish causation for their emotional distress claims related to the State of Idaho' alleged

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f a ilu re to protect their mother. Therefore, these state law claims must be dismissed.

4) City of Nampa and Nampa Police Department It is undisputed that Plaintiffs failed to file and serve proper notices of tort claims and th e claims must be dismissed as a matter of law. Further, Plaintiffs failed to respond to the s ta te claim arguments of the City of Nampa and pursuant to Dist. Idaho Loc. Civ. R. 7.1, f a ilu re to respond can be deemed consent to granting the motion on the uncontested portions o f the motion.

5 . Conclusion T h e facts of this case are tragic, however, the legal questions of whether rights were v io la te d or duties breached cannot be driven by the facts. Instead, this Court must apply the law and the law is clear. There are no genuine issues of material fact which prevent summary ju d g m e n t from being entered. The undisputed facts support the legal conclusion that c o n stitu tio n a l rights were not violated and absent violations, the municipalities cannot be liab le. The State of Idaho is not a "person" under § 1983 and Plaintiffs have failed to e sta b lis h a violation of constitutional rights by the IDHW. The state law claims must be d is m is s e d due to failure to comply with the tort notice requirements, because the claims have n o t been established and because such claims are not recognized under Idaho tort law. All

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th e parties wish Megan had never been abused by Michael Young, but the Defendants cannot b e held liable for the private actions of Michael Young and the case must be dismissed.

Order B e in g fully advised in the premises, the Court hereby orders that: 1 ) Canyon County Sheriff's Department and Canyon County's Motion for Summary J u d g m en t (Docket No. 35) is GRANTED. 2 ) Prosecutor Defendants' Motion for Summary Judgment (Docket No. 36) is G RA N TED . 3 ) State of Idaho's Motion for Summary Judgment (Docket No. 37) is GRANTED. 4 ) City of Nampa's Motion for Summary Judgment (Docket No. 38) is GRANTED. 5 ) Prosecutor Defendants' Motion to Strike (Docket No. 47) is denied as moot as the m o t io n for summary judgment is being granted in favor of the Prosecutor Defendants. DATED: March 31, 2009

Honorable Edward J. Lodge U. S. District Judge

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