Wicklund v. Idaho Department of Corrections et al

Filing 44

ORDER ADOPTING REPORT AND RECOMMENDATIONS 40 Report and Recommendations; granting in part and denying in part 34 Motion for Summary Judgment; All claims against State Defendants are dismissed except for the First Amendment claim as discussed in this Order against Defendant Bennett.. 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)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

MARK STEPHEN WICKLUND,
Case No. 1:09-CV-00674-EJL-CWD
Plaintiff,
ORDER ON REPORT AND
RECOMMENDATION

v.
IDAHO DEPARTMENT OF
CORRECTIONS, a department of the
State of Idaho, IDAHO COMMISSION
OF PARDON AND PAROLE, a
commission of the State of Idaho,
STATE OF IDAHO SANE
SOLUTIONS, TERRY REILLY
HEALTH SERVICES, KEN BENNETT,
an individual, MOIRA LYNCH, an
individual, WILLIAMS C. YOUNG, an
individual, BRANDON SUTHERLAND,
an individual, ELISSA MEZO, an
individual, MARK MCCULLOUGH, an
individual, HEIDI HART, an individual,
Defendants.

On November 22, 2011, Chief United States Magistrate Candy W. Dale issued a
Report and Recommendation (Dkt. 40) in this matter. Pursuant to 28 U.S.C. § 636(b)(1),
the parties had fourteen days in which to file written objections to the Report and
ORDER ON REPORT AND RECOMMENDATION - 1

Recommendation. Objections were filed by Defendants. No objection nor a response to
Defendants’ objections were filed by Plaintiff. The matter is now ripe for the Court's
review of the objections.
Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court “may accept, reject, or modify, in
whole or in part, the findings and recommendations made by the magistrate judge.”
Moreover, this Court “shall make a de novo determination of those portions of the report
which objection is made.” Id. In United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th
Cir. 2003), the court interpreted the requirements of 28 U.S.C. 636(b)(1)(C):
The statute [28 U.S.C. § 636(b)(1)(C)] makes it clear that the district judge
must review the magistrate judge's findings and recommendations de novo
if objection is made, but not otherwise. As the Peretz Court instructed, “to
the extent de novo review is required to satisfy Article III concerns, it need
not be exercised unless requested by the parties.” Peretz, 501 U.S. at 939
(internal citation omitted). Neither the Constitution nor the statute requires a
district judge to review, de novo, findings and recommendations that the
parties themselves accept as correct. See Ciapponi, 77 F.3d at 1251
(“Absent an objection or request for review by the defendant, the district
court was not required to engage in any more formal review of the plea
proceeding.”); see also Peretz, 501 U.S. at 937-39 (clarifying that de novo
review not required for Article III purposes unless requested by the parties)
....
See also Wang v. Masaitis, 416 F.3d 993, 1000 & n.13 (9th Cir. 2005).

Before the Court is the Motion for Summary Judgment (Dkt. 34) filed by
Defendants Idaho Department of Correction (“IDOC”); the Idaho Commission of Pardon
and Parole (“ICPP”); the State of Idaho; and state employees Ken Bennett, Director of
Probation and Parole; Moira Lynch, supervisor of Probation and Parole; William C.
Young, Commissioner for Idaho Commission for Pardon and Parole; and Brandon

ORDER ON REPORT AND RECOMMENDATION - 2

Sutherland, a probation officer (collectively, the “State Defendants”). The State
Defendants seek judgment as a matter of law on all of the claims presented by Plaintiff in
his Complaint.
In the Report and Recommendation, Judge Dale recommends that summary
judgment be granted in favor of State Defendants on all claims except for the First
Amendment claim under § 1983, brought against the individually named State
Defendants, with the exception of Defendant William C. Young (who should be
dismissed from the lawsuit). Stated another way, Judge Dale recommends Plaintiff may
proceed with his damage claims asserted under the First Amendment against State
Defendants Ken Bennett (“Bennett”), Moria Lynch (“Lynch”) and Brandon Sutherland
(“Sutherland”) in their individual capacities.
State Defendants object to the failure of Judge Dale to recommend Wicklund’s
§ 1983 First Amendment claims also be dismissed against the State Defendants Bennett,
Lynch and Sutherland. The State Defendants base this objection on several different
arguments. Each of which will be addressed by this Court.
FACTUAL BACKGROUND
While acknowledging that State Defendants’ objections include some objections to
Judge Dale's inclusion of certain facts, the Court incorporates Judge Dale's factual
background from pages 2-5 of the Report and Recommendation, Dkt. 40, as a basis for
evaluating the objections:
On May 8, 2001, Plaintiff Wicklund was charged by
ORDER ON REPORT AND RECOMMENDATION - 3

information with a felony and he later entered a plea of guilty on
August 27, 2001, to the charge of sexual battery of a minor child
age 16/17 years of age. (Aff. of Bennett Ex. 1, Dkt. 34-6.) Idaho
State District Judge Thomas Neville entered a judgment of
conviction, an order suspending execution of the judgment, and
an order of probation on November 15, 2001. (Id.) The state
court sentenced Wicklund to incarceration for a term of seven
years, with two years fixed and five years indeterminate, which
sentence was suspended and a seven year probationary period
imposed instead. (Id.) As a condition of probation, Wicklund was
required to successfully complete a SANE Solutions structured
sex offender treatment program. (Id.) In January of 2008,
Wicklund was charged with a probation violation, and found to
have violated the terms of his probation. (Aff. of Bennett Ex. 3,
4 Dkt. 34-8, 34-9.) As a result, Wicklund’s term of probation was
extended through November 13, 2011, and he was required to
continue with his treatment at SANE Solutions as a continued
condition of his probation. (Id. Ex. 5, Dkt. 34-10.) Wicklund has
lodged several claims against the Ada County Prosecuting
Attorney’s office and polygrapher James Page surrounding the
litigation of his probation violation, and voiced his concerns
about his allegations of misconduct during his SANE Solutions
therapy sessions. (Aff. of Artiach Ex. 1, Dkt. 34-4); see also
Wicklund v. Page, Case No. 1:09-cv-00671-EJL-CWD; Wicklund
v. Ada County, 1:09-cv-00673-CWD; Wicklund v. State of Idaho,
1:10-cv-00057-EJL-CWD; and Wicklund v. Hunstman, 1:10-cv00341-WBS, all of which were filed in this Court.
Wicklund’s complaint in this case relates to a meeting
that occurred among him and the individually named State
Defendants which, according to the Complaint, occurred on or
about February of 2009. Defendant Melissa Mezo, an employee
of Terry Reilly Heath Services and a participant of the SANE
Solutions program, produced business records indicating the
meeting occurred on January 26, 2009, which fact was not
disputed by Wicklund. (Aff. of Mezo ¶ 9, Dkt. 34-3.) Wicklund
has affirmed the meeting occurred in January of 2009. (Aff. of
Wicklund ¶ 1, Dkt. 35-1.) According to the State Defendants,
SANE Solutions notified the Probation and Parole Department
that Wicklund was disrupting therapy sessions with his
criticisms of the prosecutor’s office, polygrapher James Page,
ORDER ON REPORT AND RECOMMENDATION - 4

and the judicial system. (Id. ¶¶ 7—8.) A meeting was
scheduled, which took place at the Fourth District probation
office. (Compl. ¶18 Dtk. 1; Aff. of Bennett ¶5, Dkt. 34-5.)
During the meeting, the individuals present allegedly addressed
Wicklund’s disruptive behavior, and thereafter he did not
repeat the disruptive behavior during SANE Solutions therapy
sessions. (Aff. of Mezo ¶¶ 9—10.) Wicklund was told to
refrain from commenting about his grievances and to
participate in group therapy, and informed that failure to
satisfactorily complete the program would constitute a
probation violation. (Aff. of Bennett ¶ 7, Ex. 6, Dkt. 34-5.) As
of May 11, 2011, Wicklund was continuing with his probation
and had not been cited for any probation violations after the
January 25, 2009 meeting. (Id. ¶ 8.)
Wicklund, however, paints a different picture of the
meeting, which he claims was “secretive, coercive and
threatening.” (Compl. ¶17, Dkt. 1.) Wicklund contends that the
State Defendants “demanded” he stop his investigation
regarding Page, and he was “ordered” not to take legal action
against the Ada County Prosecutor’s Office or the polygrapher,
James Page, otherwise he “would go to jail that day.” (Compl.
¶¶ 19-20.) Wicklund also avers he was informed that, if a
lawsuit was filed in the future, he “would be jailed pursuant to
discretionary time,” and was told to “stand down.” (Compl. ¶¶
21-23.)
Wicklund filed a Notice of Tort Claim with the Idaho
Secretary of State on August 19, 2009, containing details about
the meeting described in his Complaint, although the Notice
alleged that the meeting occurred in 2008. (Aff. of Artiach ¶1, Ex.
1, Dkt. 34-4.)
Wicklund filed a three count complaint with the Court on
December 22, 2009, against the named Defendants for violation
of his constitutional rights under the First, Fifth, and Fourteenth
Amendment under 42 U.S.C. § 1983, as well as for negligence
and intentional infliction of emotional distress. Wicklund
contends that the State Defendants’ threats violated his First
Amendment right to free speech, because the State Defendants
threatened to incarcerate him if he spoke of his investigations and
ORDER ON REPORT AND RECOMMENDATION - 5

the alleged improper conduct he was investigating. Wicklund
seeks “nominal and actual damages” for the constitutional
violation.
In addition, Wicklund alleges the State Defendants were
negligent because they breached their duty of care by “calling the
meeting, intimidating the Plaintiff, threatening to jail [Plaintiff],
and depriving him of his liberty when they knew or should have
known their conduct was unreasonable.” The third count alleges
intentional infliction of emotional distress, claiming that the State
Defendants’ threats and conduct were intentional and that
Wicklund suffered “extreme emotional distress” as a result of the
State Defendants’ conduct. Wicklund seeks damages under the
state law claims.
ANALYSIS
1.

Standards for Motions for Summary Judgment
The Court agrees that the correct standard for summary judgment motions was

applied by Judge Dale. Motions for summary judgment are governed by Rule 56 of the

Federal Rules of Civil Procedure. 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 the affidavits, if any, show that there is no genuine issue
as to any material fact and that the moving party is entitled to a judgment as a matter of
law." Fed. R. Civ. P. 56(c).
Rule 56 makes it is clear that an issue, in order to preclude entry of summary
judgment, must be both "material" and "genuine." An issue is "material" if it affects the
outcome of the litigation. An issue, before it may be considered "genuine," must be
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, 523 F.2d 461, 464 (1st Cir. 1975) (quoting First Nat'l Bank v. Cities Serv. Co.
Inc., 391 U.S. 253, 289 (1968)). The Ninth Circuit cases are in accord. See, e.g., British

ORDER ON REPORT AND RECOMMENDATION - 6

Motor Car Distrib. v. San Francisco Automotive Indus. Welfare Fund, 882 F.2d 371 (9th
Cir. 1989).
According 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
respect to any element for which it bears the burden of proof; (2) must show
that there is an issue that may reasonably be resolved in favor of either party;
and (3) must come forward with more persuasive evidence than would
otherwise be necessary when the factual context makes the non-moving
party's claim implausible.
Id. at 374 (citation omitted).
Of 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. 242, 255 (1986); Hughes v. United States, 953 F.2d 531, 541 (9th Cir.
1992).

2.

Objections
A. Reliance on Unverified Complaint
Defendants allege the magistrate judge erred in relying on allegations in the

unverified Complaint to create a genuine issue of material fact preventing summary
judgment instead of requiring Plaintiff to come forward with other admissible evidence in
the form of an affidavit or declaration. This Court acknowledges that mere allegations in
an unverified complaint cannot be used to create an issue of material fact. See McKenzie
v. US. Home Corp., 704 F.2d 778, 779 (5th Cir. 1983). The Court is confident that Judge
Dale is also well aware of the need to look to “admissible evidence” to determine if a
genuine issue of material fact exists when reviewing a motion for summary judgment. In
ORDER ON REPORT AND RECOMMENDATION - 7

fact, Judge Dale stated such in footnote 4 of the Report and Recommendation: “Wicklund
may not rely upon the pleadings and must show by “affidavits, or by the depositions,
answers to interrogatories, or admissions on file” that a genuine issue of material fact
exists. Celotex, 477 U.S. at 324.” The Court will consider the specific evidence relied upon
by Judge Dale in ruling on the objections presented.
B. Were Defendants Being Sued in Their Individual Capacities
State Defendants object to Judge Dale’s finding that the individually named State
Defendants were being sued in their individual capacities. Judge Dale determined that to the
extent the individually named state employees were being sued in their “official” capacities such
claims were barred as those are essentially claims against State of Idaho and such claims are
barred by the Eleventh Amendment to the United States Constitution. See Kentucky v. Graham,
473 U.S. 159 (1985). Judge Dale then examined the Complaint in detail and determined that
based on the nature of the claims, the Plaintiff was also suing the individually named state
employees Bennett, Lynch and Sutherland in their “individual” or personal capacities. It is this
second determination State Defendants object to.
State Defendants argue the cases relied upon by Judge Dale were distinguishable as
such cases were not motions for summary judgment, but motions to dismiss and therefore the
standard applied was more lenient since the courts were limited to only considering the
pleadings in a light most favorable to the plaintiffs. The Court agrees the question presented in
Price v. Akaka, 928 F.2d 824, 828 (9th Cir. 1990), Demery v. Kupperman, 735 F.2d 1139 (9th
Cir. 1984) and Blaylock v. Schwinden, 862 F.2d 1352 (9th Cir. 1988) all involved motions to
ORDER ON REPORT AND RECOMMENDATION - 8

dismiss. However, this Court is unpersuaded that the form of the motion controls whether or
not Wicklund is pursuing his claims against Bennett, Lynch and Sutherland in both their
official and individual capacities.
In this case, Plaintiff named as individual defendants both state probation employees as
well as private sector employees who worked for SANE Solutions. Because Plaintiff’s
Complaint is different than the complaints in Price and Demery where the plaintiffs named
only state actors as Defendants, Defendants argue it is illogical to construe Wicklund’s
Complaint as bringing a claim against Bennett, Lynch and Sutherland in their individual
capacities. Again, the Court is not persuaded by this argument. When considering the
Complaint as a whole, the Court finds that it is possible to construe the Complaint as alleging
claims against the state employees both in their official and individual capacities. While a
better practice may be to specifically list each defendant (in the caption and in the body of the
complaint) and state the status in which such defendant is being sued, the Court finds in
construing Wicklund’s Complaint in this case it is at least plausible that he was stating a claim
against Bennett, Lynch and Sutherland in both capacities.

ORDER ON REPORT AND RECOMMENDATION - 9

Where an official is sued under § 1983 for damages, the presumption is that the suit is
against the state actor in his or her individual capacity. Shoshone-Bannock Tribes v. Fish and
Game Comm’n, 42 F.3d 1278, 1284 (9th Cir. 1994). This is because a claim for damages
against state officials is clearly barred by the Eleventh Amendment. Id. While it is true in this
particular case Wicklund sought to have the Court overturn the immunity provided by the
Eleventh Amendment, that does not mean that an alternative claim against the state officials
was not also being brought against Bennett, Lynch and Sutherland in their individual
capacities. The Court acknowledges the presumption can be rebutted, but the Court finds the
Complaint in this case adequately indicates Bennett, Lynch and Sutherland are individuals not
just agents of the State of Idaho, IDOC and the Idaho Commission of Pardon and Parole.
Further Wicklund seeks money damages against these three individuals for alleged violations
of Wicklund’s constitutional rights. Because money damages are being sought, Judge Dale
was correct in finding the claims are against Bennett, Lynch and Sutherland should be
construed as claims against these defendants in their individual capacities.
Finally, the Court finds the State Defendants argument pursuant to the Idaho Tort
Claims Act (“ITCA”) as unpersuasive as the individual capacity claim is pursuant to 42 U.S.C.
§ 1983, not the ITCA. Judge Dale recommends dismissing Wicklund’s claims under the
ITCA based on Plaintiff’s failure to give notice of such claims within the requisite 180 day
notice period. Therefore, any interpretations concerning the ITCA presumptions are not
binding on the determination of whether Plaintiff has alleged a § 1983 claim against state
employees in their individual capacities. For all these reasons, the Court denies the objection
ORDER ON REPORT AND RECOMMENDATION - 10

that the claims against Bennett, Lynch and Sutherland are only in their official capacities.

C.

Qualified Immunity for State Defendants
1) Qualified Immunity Standard

Having determined Wicklund’s Complaint presents a claim against Bennett, Lynch
and Sutherland in their individual capacities, the next objection the Court must address is
the State Defendants objection concerning the applicability of qualified immunity as a
defense for the alleged First Amendment violations. State Defendants argue Judge Dale
discussed the proper standard for qualified immunity in her Report and Recommendation
but failed to apply the doctrine properly to the facts presented.
The standard for qualified immunity was accurately set forth by Judge Dale in pages
9 -12 of the Report and Recommendation and this Court incorporates the same standard:
When a plaintiff is seeking damages against a state
official, the Court generally construes the complaint as an
individual capacity suit because an official capacity suit for
damages would be barred. See Cerrato v. San Francisco
Community College Dist., 26 F.3d 968, 973 n.16 (9th Cir.
1994). The Eleventh Amendment prohibition against monetary
damages imposed upon a state and its officials acting in their
official capacity does not apply to personal capacity suits
seeking to impose personal liability upon government officials
for actions taken under color of state law. Id. (citing Kentucky
v. Graham, 473 U.S. 159, 165 (1985)). Although the Complaint
does not expressly state that Wicklund is suing the individual
State Defendants in their individual capacities, the basis of the
claims asserted and the nature of the relief sought—monetary
damages—can reasonably be construed as asserting claims
against the individual State Defendants in their individual
capacities. See Price v. Akaka, 928 F.2d 824, 828 (9th Cir.
ORDER ON REPORT AND RECOMMENDATION - 11

1990) (construing a complaint to assert claims against state
officials in their individual capacities based upon the claims
asserted and the nature of the relief sought).
In Section 1983 actions, the doctrine of qualified
immunity protects state officials from personal liability for onthe-job conduct so long as the conduct is objectively
reasonable and does not violate an inmate’s clearly-established
federal rights. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)
(citations omitted). Conversely, a state official may be held
personally liable in a Section 1983 action if he knew or should
have known that he was violating a plaintiff's clearlyestablished federal rights. Id. True to its dual purposes of
protecting state actors who act in good faith and redressing
clear wrongs caused by state actors, the qualified immunity
standard “gives ample room for mistaken judgments by
protecting all but the plainly incompetent or those who
knowingly violate the law.” Hunter v. Bryant, 502 U.S. 224,
227 (1991).
The Court generally applies a two pronged test to
resolve qualified immunity claims. First, the Court considers
whether, “[t]aken in the light most favorable to the party
asserting the injury . . . the facts alleged show the
[defendants’] conduct violated a constitutional right,” and
second, whether that right was clearly established. Saucier v.
Katz, 533 U.S. at 201 (citing Siegert v. Gilley, 500 U.S. 226,
232 (1991)). The Court must consider the materials submitted
in support of, and in opposition to, summary judgment, and
view all facts in favor of the party opposing summary
judgment. Squaw Valley Development Co v. Goldberg, 375
F.3d 936, 942 (9th Cir. 2004), rev’d on other grounds (citing
Jeffers v. Gomez, 267 F.3d 895, 909 (9th Cir. 2001)). If no
constitutional violation is found, the inquiry ends at step one.
Id. (citing Cunningham v. City of Wenatchee, 345 F.2d 802,
810 (9th Cir. 2003)). If the parties’ submissions create a
triable issue of material fact as to whether a constitutional
violation has occurred, the Court proceeds to step two. Id.
(citing Saucier v. Katz, 533 U.S. 194, 201 (2001)). Courts
may “exercise their sound discretion in deciding which of the
two prongs of the qualified immunity analysis should be
ORDER ON REPORT AND RECOMMENDATION - 12

addressed first in light of the circumstances in the particular
case at hand.” Pearson v. Callahan, 129 S.Ct. 808, 818
(2009).
To determine whether a right was clearly established, a
court turns to Supreme Court and Ninth Circuit law existing
at the time of the alleged act. Osolinski v. Kane, 92 F.3d 934,
936 (9th Cir. 1996) (citation omitted). In the absence of
binding precedent, the district courts should look to available
decisions of other circuits and district courts to ascertain
whether the law is clearly established. Id. (citation omitted).
The inquiry of whether a right was clearly established
“must be undertaken in light of the specific context of the case,
not as a broad general proposition.” Saucier v. Katz, 533 U.S.
at 201. For the law to be clearly established, “[t]he contours of
the right” must be sufficiently clear that a reasonable official
would understand that his conduct violates that right.
Anderson v. Creighton, 483 U.S. 635 (1987). It is not
necessary that the “very action in question has previously been
held unlawful, . . . but it is to say that in the light of preexisting
law the unlawfulness must be apparent” to the official. Id.
“The relevant, dispositive inquiry in determining whether a
right is clearly established is whether it would be clear to a
reasonable [defendant] that his conduct was unlawful in the
situation he confronted.” Saucier v. Katz, 533 U.S. at 194-95
(citing Wilson v. Layne, 526 U.S. 603, 615 (1999)).
Application of qualified immunity is appropriate where “the
law did not put the [defendant] on notice that his conduct
would be clearly unlawful. Id., 533 U.S. at 195.
However, if there is a genuine dispute as to the “facts
and circumstances within an officer’s knowledge,” or “what
the officer and claimant did or failed to do,” summary
judgment is inappropriate. Act Up!/Portland v. Bagley, 988
F.2d 868, 873 (9th Cir.1993). When a Section 1983 defendant
makes a properly supported motion for summary judgment
based on immunity, the plaintiff has the obligation to produce
evidence of his own; the district court cannot simply assume
the truth of the challenged factual allegations in the complaint.
Butler v. San Diego District Attorney’s Office, 370 F.3d 956,
963 (9th Cir. 2004).
ORDER ON REPORT AND RECOMMENDATION - 13

2) Scope of the Alleged Violation of First Amendment Rights
State Defendants argue that the Report and Recommendation fails to address
each prong of the qualified immunity analysis. State Defendants argue that first the
Court must determine whether Wicklund’s disruptive comments during his court
ordered therapy sessions constituted protected speech under the First Amendment.
State Defendants want to limit scope of the alleged constitutional violation to the
probation officers’ undisputed order to Wicklund to stop his disruptive complaints about
the polygrapher and prosecutor during his court ordered therapy sessions. The Court
finds this is too restrictive of a view of the First Amendment claim presented. The
Court finds that the alleged First Amendment violation is Wicklund’s assertion that
Bennett, Lynch and Sutherland threatened that if he continued to pursue his complaints
against the polygrapher and prosecutor, he would be put in jail for a probation violation.
The Court understands that the State Defendants maintain that the discussion at the
meeting was limited to the disruptive behavior during the therapy sessions and that no
threat of jail time was made concerning Wicklund’s pursuit of complaints and potential
lawsuits outside the therapy sessions. However, the affidavit of Wicklund creates a
genuine issue of material fact regarding what was stated at the meeting on January 26,
2009.

ORDER ON REPORT AND RECOMMENDATION - 14

Judge Dale specifically cited and quoted from Wicklund’s affidavit (not the
allegations in the Complaint) in finding a genuine issue of fact existed regarding the
First Amendment claim on pages 14 and 15 of the Report and Recommendation:
In his affidavit, Wicklund states that, during the
meeting, Defendant Bennett, the Director of Probation and
Parole, held up a “handful of papers” constituting the letters
Wicklund had sent to the probation department, governor’s
office, and attorney general’s office complaining about
polygrapher James Page, SANE Solutions, and the IDOC.
Allegedly, Defendant Bennett told Wicklund that if he did “not
‘stand down’ with regards to the matter and [Wicklund’s]
complaint involving him,” Defendant Bennett would jail
Wicklund. Bennett also allegedly told Wicklund that,
“depending on how I handled things, he would determine
whether to put me in jail and asked me what I had to say for
myself.” Bennett allegedly asked Wicklund what he had to say
for himself regarding this “bull*** and lawsuits and all your
investigations.” Defendant Lynch allegedly stated toWicklund
that his life would be “a lot simpler if [he] would get away from
all this ‘nonsense.’”
This Court finds Wicklund’s affidavit clearly establishes Wicklund’s personal
knowledge of the scope of the meeting and his recollection of what was said by Bennett
and Lynch. While the State Defendants have provided affidavits from other attendees of
the meeting who have a significantly different recollection of what Wicklund was told,
the Court cannot resolve the disputed facts at this stage in the litigation. Instead, the
Court must view the facts in a light most favorable to Wicklund, which means assuming
as true Wicklund’s description in his affidavit of what was said by Bennett and Lynch.
For purposes of analyzing the motion for summary judgment, this Court cannot
ignore that Wicklund has provided some admissible evidence that a party opponent
(“Bennett) said if he did not “stand down” with regards to his complaints about the

ORDER ON REPORT AND RECOMMENDATION - 15

polygrapher, prosecutor and probation department, he would be put in jail. (Aff. of
Wicklund, Dkt. 35-1, ¶ 12.) It is this alleged threat of imprisonment if Wicklund did not
drop his complaints, letter writing, and pursuit of potential civil rights lawsuits against
the polygrapher and prosecutor outside of the therapy sessions that constitutes the
alleged First Amendment violation. (Aff. of Wicklund, Dkt. 35-1, ¶ 28.)
It is undisputed the State Defendants restricted Wicklund’s speech during the
therapy sessions. State Defendants contend they did so because he would be in violation
of the terms of his probation for failure to complete the court ordered sessions if he was
removed from participating in the sessions due to his disruptive behavior. The State
Defendants argue that they had a legitimate correctional goal in preventing Wicklund
from disrupting the therapy sessions. The Court agrees.
To the extent the State Defendants’ objection is that summary judgment should be
granted as to a First Amendment right regarding speech during the therapy sessions, the
Court will clarify that it concurs with State Defendants’ argument that the probation
officers’ order during the meeting or at any other time prohibiting Wicklund from
complaining about the polygrapher, prosecutor or prosecuting attorney’s office during
court ordered therapy session was not a violation of Wicklund’s First Amendment rights.
Wicklund’s speech during the therapy sessions is not protected speech under the First
Amendment. See United States v. Turner, 44 F.3d 900, 903 (10th Cir. 1995).
“[P]robationers, like parolees and prisoners, properly are subject to limitations from
which ordinary persons are free.” United States v. Bee, 162 F.3d 1232, 1234 (9th Cir.
1998). In this case, it is undisputed by Wicklund’s comments about the polygrapher and

ORDER ON REPORT AND RECOMMENDATION - 16

prosecutor were not related to the purpose of the court ordered therapy and were in fact
disruptive to the group therapy sessions.
To the extent that Plaintiff is seeking damages related to the actions of Bennett,
Lynch and Sutherland to limit Wicklund’s disruptive behavior during the therapy
sessions, the Court finds that summary judgment is appropriate as there are no genuine
issues of material fact and as a matter of law Wicklund’s speech during the therapy
sessions is not protected by the First Amendment. Therefore, no constitutional violation
has been shown and the Court need not continue its qualified immunity analysis on the
undisputed restrictions on Wicklund’s speech during Wicklund’s court ordered therapy
sessions.
3) First Amendment Retaliation Claim Concerning the Remaining
Individually Named State Defendants and Qualified Immunity
As to the disputed First Amendment claim related to the alleged threat of
imprisonment to curtail Wicklund’s First Amendment rights to file complaints and civil
lawsuits about the polygrapher and prosecutor’s office, the Court must determine if the
motion for summary judgment should be granted on this claim. The Court agrees with
Judge Dale that for purposes of the motion for summary judgment, the disputed threat of
imprisonment for failing to cease activities outside the therapy sessions, but while on
probation, states a First Amendment claim.
a) Defendants Lynch and Sutherland
As discussed earlier, Bennett is the Director of Probation and Parole for the Fourth

ORDER ON REPORT AND RECOMMENDATION - 17

Judicial District, Lynch is a Supervisor of Probation and Parole in the Fourth Judicial
District and Sutherland is Wicklund’s Probation Officer in the Fourth Judicial District.
The January 26, 2009 meeting took place at the Probation Office for the Fourth Judicial
District.
In Wicklund’s affidavit he indicates that Bennett is the person who allegedly
threatened imprisonment if he did not cease his complaints, letter writing and potential
lawsuits. (Aff. of Wicklund, Dkt. 35-1.) Wicklund states Sutherland and Lynch were
also at the January meeting as were representatives of SANE Solutions (Mark
McCullough, Melissa Mezo and Heidi Hart). Wicklund does not indicate in his affidavit
or in any other evidence submitted that Sutherland or Lynch made any threats of
retaliation during the meeting. Wicklund states in his affidavit that Lynch told him he
needed to go to the other aftercare group therapy meeting and that he understood that
requirement. (Aff. of Wicklund, Dkt. 35-1, ¶ 25.) Wicklund also states Lynch told him
is life would be simpler if her would get away from all this “nonsense.” (Aff. of
Wicklund, Dkt. 35-1, ¶ 26.) Even construing these facts in a light most favorable to
Plaintiff, the mere attendance at the meeting by Lynch and Sutherland as well as the
limited statements by Lynch to Wicklund after the meeting do not rise to the level of
establishing a claim for a First Amendment retaliation against these defendants for
violations of Wicklund’s civil rights under § 1983. Simply put, Lynch’s recommending
Wicklund stop this “nonsense” does not equate to a threat of imprisonment or retaliation.
Wicklund has only provided admissible evidence that the alleged threatening statements
ORDER ON REPORT AND RECOMMENDATION - 18

were made by Bennett, the Director of Probation and Parole for the Fourth Judicial
District. The actions and statements of Bennett cannot be used to create individual
liability against Lynch and Sutherland where Plaintiff has provided no evidence of any
separate threats of retaliation by these two individuals. Therefore, the Court finds no
reasonable jury could find that Lynch and Sutherland’s attendance and minimal
participation at the January 2009 meeting rises to the level of a constitutional violation.
Having found the actions of Lynch and Sutherland did not violate Wicklund’s
civil rights, the Court need not continue with the qualified immunity analysis. State
Defendants Lynch and Sutherland should have their motion for summary judgment
granted in their favor on the Plaintiff’s First Amendment claim by these defendants in
their individual capacities.
b) Defendant Bennett
As to Defendant Bennett, the Court finds Plaintiff has established a genuine issue
of material fact exists regarding what was actually said at the January 26, 2009 meeting.
The Court finds Wicklund’s complaints, letter writing and filing of civil lawsuits is
protected speech under the First Amendment. Rizzo v. Dawson, 778 F.2d 527 (9th Cir.
1985); Rhodes v. Robinson, 408 F.3d 559 (9th Cir. 2005).1 State actors cannot limit a
probationer’s right to file civil lawsuits if the probationer believes his civil rights have

1

Although Wicklund was not incarcerated, the parties have not pointed the Court to any
other authority indicating the elements of a First Amendment claim are substantially
different for persons subject to probationary restrictions. Wicklund relied upon Rhodes in
his memorandum. (Mem. at 7 Dkt. 35.)
ORDER ON REPORT AND RECOMMENDATION - 19

been violated by the polygrapher and/or the prosecutor’s office.
State Defendants do not object that the law related to a First Amendment
retaliation claim was “clearly established” in January of 2009. “[T]he prohibition against
retaliatory punishment is ‘clearly established law’ in the Ninth Circuit, for qualified
immunity purposes. That retaliatory actions by prison officials are cognizable under
§ 1983 has also been widely accepted in other circuits.” Pratt v. Rowland, 65 F.3d 802,
806 & n. 4 (9th Cir. 1995). Therefore, the Court must next determine in its qualified
immunity analysis if, in viewing the facts in a light most favorable to Plaintiff, Plaintiff
has as a matter of law established the facts necessary to support a constitutional violation
for retaliation.
The elements for a retaliation claim are: “(1) [a]n assertion that a state actor took
some adverse action against an inmate (2) because of (3) that prisoner’s protected
conduct, and that such action (4) chilled the inmate’s exercise of his First Amendment
rights, and (5) the action did not reasonably advance a legitimate correctional goal.
Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005). The State Defendants argue
there was no evidence Wicklund’s First Amendment rights were “chilled” since he filed
numerous civil lawsuits.
Wicklund believes that January 26, 2009 meeting that is the subject of his
Complaint “was a clear attempt to force me to drop my complaints and potential lawsuits
that [he] was investigating,” and was “about more than my commenting during group
sessions,” because the State Defendants made it clear that he “would be jailed if [he]
ORDER ON REPORT AND RECOMMENDATION - 20

pursued the matter any further.” (Aff. of Wicklund, Dkt. 35-1, ¶¶ 28-30.) Wicklund’s
affidavit establishes the first three elements that an adverse action was taken by state
actors against him involving his protected First Amendment conduct.
As to the fourth element, whether the facts establish Wicklund’s exercise of his
First Amendment rights were “chilled,” this is a close call for the Court. Judge Dale
correctly pointed out that a plaintiff must allege either a “chilling effect” or that he
suffered some other harm. Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009) (citing
Rhodes, 408 F.3d at 568 n.11). Wicklund has provided no evidence that he suffered
some “other harm” as a result of the meeting. Therefore, he must establish that the
alleged threat of imprisonment “chilled” the exercise of his First Amendment rights.
In this case, the record establishes Wicklund stopped his disruptive comments
related to his complaints about the polygrapher and prosecutor during his therapy
sessions, Wicklund was never cited with a probation violation due to his continuing
complaints, letter writing and pursuit of civil rights lawsuits, and Wicklund was never
imprisoned for his First Amendment actions during or outside his therapy sessions.
Moreover, after the January 26, 2009 meeting, Wicklund filed numerous civil lawsuits
discussed in the Factual Background section of this Order against the polygrapher James
Page, Ada County, the State of Idaho, and the Idaho Sexual Offender Classification
Board. These civil filings seem to provide irrefutable evidence that Wicklund’s exercise
of his First Amendment rights was not in any way “chilled” even though Wicklund
claims he was “stunned” after the meeting. (Aff. of Wicklund, Dkt. 35-1, ¶ 27.)
ORDER ON REPORT AND RECOMMENDATION - 21

However, in Brodheim v. Cry, 584 F.3d 1262, 1271(9th Cir. 2009), the Ninth
Circuit held that the test is not whether the plaintiff’s rights were actually chilled.
The district court examined several occasions on
which Brodheim claims his exercise of the right to file
grievances was “chilled,” as well as the number of grievances
that Brodheim filed after the incident, and concluded that
Brodheim failed to produce sufficient evidence of such
chilling. However, this focus on whether or not the record
showed Cry was actually chilled was incorrect. In Rhodes, we
explicitly held that an objective standard governs the chilling
inquiry; a plaintiff does not have to show that “his speech was
actually inhibited or suppressed,” but rather that the adverse
action would chill or silence a person of ordinary firmness
from future First Amendment activities.” 408 F.3d at 568-69,
quoting Mendocino Enviro. Center v. Mendocino Cty., 192
F.3d 1283, 1300 (9th Cir. 1999) (emphasis in original). To
hold otherwise “would be unjust” as it would “allow a
defendant to escape liability for a First Amendment violation
merely because an unusually determined plaintiff persists in
his protected activity.” Id. at 569.
So the question becomes has Wicklund shown that Bennett’s alleged threat of
imprisonment for complaining and pursuing civil lawsuits outside of the therapy
sessions would have chilled or silenced a person of ordinary firmness from exercising
his First Amendment rights? This Court cannot say as a matter of law based on the
record before it that Wicklund has failed to meet this objective standard. This is a
determination the finders of fact will have to make after weighing the credibility of all
the witnesses at trial.

ORDER ON REPORT AND RECOMMENDATION - 22

As to the fifth element, State Defendants have not argued that limiting
Wicklund’s speech outside of his therapy sessions was to advance a legitimate
correctional goal. This is because State Defendants maintain the alleged threat of jail
time for activities outside of the therapy sessions was never made and presumably
because the case law supports that limiting a probationer’s First Amendment speech
and access to the courts does not advance a legitimate correctional goal.
In summary, the Court finds the Plaintiff’s First Amendment claim against
Bennett survives summary judgment. Wicklund has a protected First Amendment right
to complain and access the courts in connection with his civil rights claims. It will be
up to a jury to weigh the testimony and credibility of the witnesses and determine: (1) if
Bennett made the alleged threats of imprisonment if Wicklund exercised his First
Amendment rights outside of the court ordered therapy sessions; (2) if the statements
the jury determines were made during the January 26, 2009 meeting would have chilled
or silenced a person of ordinary firmness from exercising his First Amendment rights;
and (3) what damages, if any, should be awarded if Plaintiff is successful in proving a
First Amendment retaliation claim.
ORDER
IT IS HEREBY ORDERED:
1) Defendants’ Motion for Summary Judgment (Dkt. 34) is
GRANTED IN PART AND DENIED IN PART. All claims against State
Defendants are dismissed except for the First Amendment claim as discussed
ORDER ON REPORT AND RECOMMENDATION - 23

in this Order against Defendant Bennett.

DATED: March 16, 2012

Honorable Edward J. Lodge
U. S. District Judge

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