Saetrum v. Ada County Sheriff's Office et al

Filing 41

MEMORANDUM AND ORDER Re: Motion to Dismiss; Motion to Stay Discovery and Motion to Disqualify. Defendants' motion to dismiss the First Amended Complaint in its entirety be (Docket No. [20 is GRANTED; defendants' motion to stay discovery (Do cket No. 29 ) is GRANTED and all discovery is stayed until the court rules on any motion to dismiss any Second Amended Complaint; and Deputy Vogt's motion to disqualify Rodney Saetrum as counsel for plaintiff (Docket No. 18 )is DENIED WITHOUT PREJUDICE. Plaintiff has 20 days from the date this Order is signed to file a Second Amended Complaint, if he can do so consistent with this Order.. Signed by Judge William B. Shubb. (jp)

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UNITED STATES DISTRICT COURT

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DISTRICT OF IDAHO

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----oo0oo----

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ADAM TODD SAETRUM,
Plaintiff,

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v.
ADA COUNTY SHERIFF GARY
RANEY, in his official
capacity, DEPUTY SHERIFF JAKE
VOGT, individually and in his
official capacity, and JOHN
AND JANE DOES 1-10, deputies
and employees of the ADA
COUNTY SHERIFF’S OFFICE,

MEMORANDUM AND ORDER RE: MOTION
TO DISMISS; MOTION TO STAY
DISCOVERY AND MOTION TO
DISQUALIFY

Defendants.
----oo0oo----

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CIV. NO. 1:13-425 WBS

Plaintiff Adam Todd Saetrum filed this action under 42

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U.S.C. § 1983 based on alleged excessive force and inadequate

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medical care during his arrest and detention on February 26, 2013

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in Ada County, Idaho.

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Vogt used excessive force against him during his arrest when he

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struck plaintiff with his police vehicle and “knocked, pushed or

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threw” plaintiff to the ground.

Plaintiff alleges that defendant Deputy

After his arrest, plaintiff
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alleges that unnamed officers ignored his complaints of physical

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injuries and failed to provide him with medical care.

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First Amended Complaint (“FAC”), plaintiff alleges a § 1983 claim

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against defendant Sheriff Raney and Deputy Vogt based on the use

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of excessive force in violation of the Fourth Amendment and a §

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1983 claim against Sheriff Raney based on the denial of adequate

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medical care in violation of the Fourteenth Amendment.

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In his

Presently before the court are defendants’ motion to
dismiss the FAC pursuant to Federal Rule of Civil Procedure

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12(b)(6) for failure to state a claim upon which relief can be

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granted; defendants’ motion to stay discovery; and Deputy Vogt’s

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motion to disqualify plaintiff’s counsel.

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each motion in turn.

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1.

The court will address

Motion to Dismiss
On a motion to dismiss under Rule 12(b)(6), the court

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must accept the allegations in the complaint as true and draw all

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reasonable inferences in favor of the plaintiff.

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Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by

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Davis v. Scherer, 468 U.S. 183 (1984); Cruz v. Beto, 405 U.S.

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319, 322 (1972).

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must plead “only enough facts to state a claim to relief that is

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plausible on its face.”

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544, 570 (2007).

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for more than a sheer possibility that a defendant has acted

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unlawfully,” and where a complaint pleads facts that are “merely

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consistent with a defendant’s liability,” it “stops short of the

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line between possibility and plausibility.”

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556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 557).

Scheuer v.

To survive a motion to dismiss, a plaintiff

Bell Atl. Corp. v. Twombly, 550 U.S.

This “plausibility standard,” however, “asks

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Ashcroft v. Iqbal,

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“While a complaint attacked by a Rule 12(b)(6) motion

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to dismiss does not need detailed factual allegations, a

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plaintiff’s obligation to provide the ‘grounds’ of his

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entitle[ment] to relief’ requires more than labels and

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conclusions . . . .”

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original) (citations omitted).

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elements of a cause of action, supported by mere conclusory

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statements, do not suffice.”

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A.

Twombly, 550 U.S. at 555 (alteration in
“Threadbare recitals of the

Iqbal, 556 U.S. 678.

Official Capacity Claims

As the court previously explained when denying

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defendants’ motion for a more definite statement, if a plaintiff

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seeks damages from an officer, the suit is generally against the

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officer in his individual capacity; if the plaintiff seeks an

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injunction, the suit is generally against the officer in his

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official capacity.

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clarification, plaintiff’s FAC seeks only damages but names

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Sheriff Raney only in his official capacity and Deputy Vogt in

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his individual and official capacities.

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explained that a claim for damages against an officer in his

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official capacity is treated as a claim against the municipality:

(See Docket No. 9.)

Despite this

The Supreme Court has

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Official-capacity
suits,
in
contrast,
“generally
represent only another way of pleading an action
against an entity of which an officer is an agent.”
As long as the government entity receives notice and
an opportunity to respond, an official-capacity suit
is, in all respects other than name, to be treated as
a suit against the entity.
It is not a suit against
the official personally, for the real party in
interest is the entity.
Thus, while an award of
damages against an official in his personal capacity
can be executed only against the official’s personal
assets, a plaintiff seeking to recover on a damages
judgment in an official-capacity suit must look to the
government entity itself.
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Kentucky v. Graham, 473 U.S. 159, 165-66 (1985) (quoting Monell

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v. New York City Dep’t of Social Servs., 436 U.S. 658, 690, n.55

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(1978) (internal citations omitted); see also Cmty. House, Inc.

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v. City of Boise, 623 F.3d 945, 966-67 (9th Cir. 2010).

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Here, because plaintiff names Sheriff Raney and Deputy

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Vogt in their official capacities and seeks only damages, those

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claims must be treated as claims against the municipality.1

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municipality, however, can be liable under § 1983 only “when

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execution of a government’s policy or custom, whether made by its

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lawmakers or by those whose edicts or acts may fairly be said to

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represent official policy, inflicts the injury.”

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U.S. at 693.

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conclusory Monell allegations that lack factual content from

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which one could plausibly infer Monell liability.

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Rodriguez v. City of Modesto, 535 Fed. App’x 643, 646 (9th Cir.

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2013) (affirming the district court’s dismissal of Monell claim

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based only on conclusory allegations and lacking factual

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allegations); Via v. City of Fairfield, 833 F. Supp. 2d 1189,

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1196 (E.D. Cal. 2011) (citing cases).

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A

Monell, 436

Since Iqbal, courts have repeatedly rejected

See, e.g.,

Plaintiff’s FAC contains only conclusory Monell

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allegations and lacks any factual content giving rise to a

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plausible Monell claim.

(See, e.g., FAC ¶ 18 (“Defendant Raney

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Although plaintiff insists his claim for damages
against the officers in their official capacity should not be
treated as Monell claims, his explanation of his claims is selfdefeating. (See, e.g., Pl.’s Opp’n at 6 (“Defendant Vogt is
named in his official capacity as a Deputy Ada County Sheriff in
order to hold the Ada County Sheriff’s Office liable as the
moving force behind Defendant Vogt’s violation of Plaintiff’s
Constitutional rights.”) (emphasis added) (Docket No. 28).)
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failed to properly train the individual Defendants regarding the

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constitutional limits on the use of force during seizure and

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arrests and to establish proper policies, procedures, practices,

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and customs regarding the use of force that resulted in the

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excessive force during Plaintiff’s arrest.”).)

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because plaintiff’s claims for damages against Sheriff Raney and

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Deputy Vogt in their official capacities must be treated as

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claims against the municipality and plaintiff fails to adequately

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allege a cognizable theory of Monell liability, the court must

Accordingly,

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grant defendants’ motion to dismiss both claims against Sheriff

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Raney and the claim against Deputy Vogt in his official

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capacity.2

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B.

Individual Capacity Claim

To the extent plaintiff intended to assert claims for
damages against Sheriff Raney in his individual capacity based on
his role as a supervisor, plaintiff’s allegations are also
conclusory and factually insufficient. See generally Starr v.
Baca, 652 F.3d 1202, 1207 (9th Cir. 2011) (“A defendant may be
held liable as a supervisor under § 1983 if there exists either
(1) his or her personal involvement in the constitutional
deprivation, or (2) a sufficient causal connection between the
supervisor’s wrongful conduct and the constitutional
violation.”); see also Henry A. v. Willden, 678 F.3d 991, 1004
(9th Cir. 2012) (finding allegations regarding supervisor
liability insufficient because, inter alia, the Complaint failed
to allege that the supervisors “had any personal knowledge of the
specific constitutional violations that led to Plaintiffs’
injuries”); Moss v. U.S. Secret Serv., 675 F.3d 1213, 1231 (9th
Cir. 2012) (“[T]he protestors claim that ‘the use of . . .
excessive force against them’ was ‘the result of inadequate and
improper training, supervision, instruction and discipline . . .
.’ However, this allegation is [] conclusory. The protestors
allege no facts whatsoever about the officers’ training or
supervision, nor do they specify in what way any such training
was deficient.”); Hydrick v. Hunter, 669 F.3d 937, 941-42 (9th
Cir. 2012) (contrasting the “bald” and “conclusory” factual
allegations in plaintiffs’ complaint with the detailed factual
allegations in Starr).
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Plaintiff first alleges that Deputy Vogt used excessive

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force when he struck plaintiff with his police vehicle “during

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Plaintiff’s seizure and arrest.”

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that, in light of County of Sacramento v. Lewis, 523 U.S. 833

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(1998), plaintiff’s cursory allegations regarding Deputy Vogt

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striking him with his police vehicle are insufficient to give

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rise to a plausible Fourth Amendment violation.

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(FAC ¶ 16.)

Deputy Vogt argues

In Lewis, the plaintiff’s son was the passenger on a
motorcycle driven by an individual attempting to flee from

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police.

523 U.S. at 836.

During the course of the high-speed

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chase, the motorcycle tipped and the patrol car skidded into the

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plaintiff’s son, causing fatal injuries.

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held that the officer’s actions did not give rise to a cognizable

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Fourth Amendment violation because, even though the police were

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in pursuit of the motorcycle, a “seizure” requires “a

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governmental termination of freedom of movement through means

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intentionally applied.”

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Inyo, 489 U.S. 593, 596–597 (1989)).

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such a seizure cannot occur when the vehicle hits an individual

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accidentally, even if during the course of an attempted seizure.

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Id.

Id. at 837.

The court

Id. at 844 (quoting Brower v. County of
The Court explained that

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Here, the FAC alleges only that Deputy Vogt struck

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plaintiff with his vehicle “[d]uring the arrest” and “during

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Plaintiff’s seizure and arrest.”

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factual allegations illuminating whether Deputy Vogt

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intentionally struck plaintiff with his vehicle, whether he did

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so in attempt to seize plaintiff, or whether such efforts were

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successful.

(FAC ¶¶ 10, 16.)

It lacks any

As it now stands, the FAC’s silence about what
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occurred fails to sufficiently allege that Deputy Vogt’s conduct

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with his police vehicle amounted to a seizure under the Fourth

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Amendment.

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With the remaining allegations regarding Deputy Vogt’s

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alleged use of force by hitting, striking, or pushing plaintiff,

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that use of force gives rise to a plausible Fourth Amendment

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violation only if it was objectively unreasonable.

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Connor, 490 U.S. 386, 388 (1989).

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is objectively unreasonable under the Fourth Amendment is a

Graham v.

Whether an officer’s conduct

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question of fact requiring consideration of factors such as “(1)

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the severity of the crime at issue; (2) whether the suspect poses

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an immediate threat to the safety of the officers or others; and

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(3) whether the suspect actively resists detention or attempts to

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escape.”

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Cir. 1997) (citing Graham, 490 U.S. at 388).

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Liston v. County of Riverside, 120 F.3d 965, 976 (9th

As the Supreme Court explained in Iqbal, “[w]hile legal

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conclusions can provide the framework of a complaint, they must

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be supported by factual allegations.”

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any relevant factual allegations, such as whether plaintiff was

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armed or resisting arrest, the conclusory allegation that Deputy

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Vogt’s use of force was excessive is insufficient to give rise to

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a plausible Fourth Amendment violation.

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County of Honolulu, Civ. No. 11–00221 DAE–RLP, 2011 WL 3566860,

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at *6-7 (D. Haw. Aug. 12, 2011) (dismissing § 1983 Fourth

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Amendment claim because the complaint “provides no factual basis

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for concluding that a seizure was [] unreasonable”); Loewe v.

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City & County of Honolulu, Civ. No. 10–00368 DAE–KSC, 2010 WL

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4642024, at *6 (D. Haw. Nov. 3, 2010) (dismissing a complaint
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556 U.S. at 679.

Without

See Medeiros v. City &

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alleging that the officers shot the decedent “seven times at

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point blank range” because it failed to “allege any facts

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describing the conduct of the officers or Decedent immediately

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before or after the incident”).

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Accordingly, because the FAC relies solely on

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conclusory allegations and lacks sufficient factual content to

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allege plausible Fourth Amendment violations, the court must

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grant Deputy Vogt’s motion to dismiss the first claim against

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him.

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C.

Claim against Unnamed Defendants

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Plaintiff purports to assert his second claim against

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Sheriff Raney, which the court will dismiss for the reasons

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discussed, and other unnamed officers who denied plaintiff

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medical treatment at the jail.

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currently unaware of the identity of the officers responsible for

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the alleged deprivation and is awaiting discovery to determine

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their identities and amend the FAC to join them as parties.3

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Status (Pretrial Scheduling) Order in this case anticipated this

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possibility and gave plaintiff thirty days to amend the FAC to

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join additional parties, but plaintiff did not do so within the

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time provided.

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files a second amended complaint alleging a cognizable § 1983

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claim against the municipality or a named officer, it would be

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premature for the court to assess the sufficiency of plaintiff’s

Plaintiff indicates that he is

(See Docket No. 24.)

The

Unless and until plaintiff

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Although the FAC purports to name “Doe” defendants,
“the use of ‘Doe’ pleading is improper, since there is no
provision in federal rules permitting use of fictitious
defendants.” May v. Williams, Civ. No. 2:10–576–GMN–LRL, 2012 WL
1155390, at *2 n.1 (D. Nev. Apr. 4, 2012).
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allegations underlying his second claim.
2.

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Motion to Stay Discovery
Indicating that they intend to assert qualified

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immunity, defendants request the court to stay discovery until

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qualified immunity is resolved.

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entitlement not to stand trial or face the other burdens of

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litigation,” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985), and

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one of its purposes “is to protect public officials from the

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‘broad-ranging discovery’ that can be ‘peculiarly disruptive of

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effective government,’” Anderson v. Creighton, 483 U.S. 635, 646

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n.6 (1987) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 817

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(1982).

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possible, discovery should be delayed until qualified immunity is

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resolved.

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(recognizing that “even such pretrial matters as discovery are to

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be avoided if possible” before resolution of qualified immunity);

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Crawford-El v. Britton, 523 U.S. 574, 597-98 (1998) (“[T]he trial

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court must exercise its discretion [to limit discovery under

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Federal Rule of Civil Procedure 26(c)] in a way that protects the

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substance of the qualified immunity defense . . . so that

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officials are not subjected to unnecessary and burdensome

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discovery or trial proceedings.”).

Qualified immunity is “an

The Supreme Court has repeatedly explained that, when

Harlow, 457 U.S. at 818; Mitchell, 472 U.S. at 526

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Assuming plaintiff files a Second Amended Complaint,

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defendants are entitled to a stay of discovery until the court

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resolves any motion to dismiss asserting qualified immunity.

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Defendants go further, however, and contend that they are also

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entitled to a stay of discovery until resolution of their

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anticipated summary judgment motion that would be limited to
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raising qualified immunity.
As the Supreme Court has explained, if a defendant does

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not prevail on a motion to dismiss based on qualified immunity,

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“discovery may be necessary before [defendant’s] motion for

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summary judgment on qualified immunity grounds can be resolved.”

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Anderson, 486 U.S. at 646 n.6; see also Crawford-El, 523 U.S. at

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598-600 (explaining that, if the plaintiff’s action survives a

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motion to dismiss asserting qualified immunity “and is otherwise

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viable, the plaintiff ordinarily will be entitled to some

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discovery” subject to the trial court’s “broad discretion to

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tailor discovery narrowly and to dictate the sequence of

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discovery” under Rule 26(c)); Anderson, 486 U.S. at 646 n.6

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(noting that any discovery for purposes of a summary judgment

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motion raising only qualified immunity “should be tailored

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specifically to the question of [defendant’s] qualified

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immunity”).

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Given the concerns inherent in requiring a plaintiff to

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oppose a motion for summary judgment without discovery and the

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necessary inquiries before granting any limitation on such

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discovery, defendants are entitled only to a limited stay of

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discovery at this time.

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to stay all discovery until resolution of defendants’ motion to

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dismiss any Second Amended Complaint.

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resolved, if it does not dispose of plaintiff’s claims,

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defendants may seek limited protection from discovery only if

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doing so is consistent with the aims of qualified immunity and

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plaintiff’s need for discovery to defend against any motion for

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summary judgment.

The court will grant defendants’ motion

After that motion is

See generally Crawford-El v. Britton, 523 U.S.
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at 598-600.

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3.

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Motion to Disqualify Counsel
On February 20, 2014, plaintiff’s father, attorney

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Rodney R. Saetrum of Saetrum Law Offices, associated as counsel

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for plaintiff, joining plaintiff’s original attorney, David W.

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Lloyd of Saetrum Law Offices.

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Professional Conduct 3.7(a), Deputy Vogt opposes Rodney Saetrum’s

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representation of plaintiff and moves to disqualify him.

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Relying on Idaho Rule of

Idaho Rule of Professional Conduct 3.7(a) provides:

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(a) A lawyer shall not act as advocate at a trial in
which the lawyer is likely to be a necessary witness
unless:
(1) the testimony relates to an uncontested issue;
(2) the testimony relates to the nature and value of
legal services rendered in the case; or
(3)
disqualification
of
the
lawyer
would
work
substantial hardship on the client.

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As a threshold matter, Deputy Vogt’s motion is premature because

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Rule 3.7 is expressly limited to a lawyer’s advocacy “at a

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trial.”

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2013 WL 5876317, at *9 (D. Idaho Oct. 31, 2013) (“[R]aising [Rule

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3.7] at this point is premature.

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lawyer/witness from representing a client during pretrial

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proceedings.”); In re Elias, No. 02–41340, 2005 WL 4705220, at *6

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(Bankr. D. Idaho June 10, 2005) (“Counsel’s disqualification

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under [] Idaho Rules of Professional Conduct [3.7] is not

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absolute. . . . Under the Rule, Counsel would likely not be

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prohibited from representing the bankruptcy estate during pre-

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trial matters even if he is called as a witness at trial.

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the issue arise prior to trial, Counsel could assume a dual role

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See Burch-Lucich v. Lucich, Civ. No. 1:13–00218–BLW,

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This rule does not prevent a

Should

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under the circumstances set forth in the Rule.”).

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Even assuming the court could consider the motion at

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this time, Deputy Vogt has not made a sufficient showing that

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Rodney Saetrum would be a necessary witness at trial or that his

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representation of plaintiff would prejudice defendants.

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Idaho R. Prof’l Conduct 3.7(a) cmt. (2004) (“The opposing party

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has proper objection where the combination of roles may prejudice

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that party’s rights in the litigation.”);4 see also Legault v.

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Amalgamated Sugar Co., LLC, No. Civ. No. 03–210–E–LMB, 2005 WL

See

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6733650, at *2 (D. Idaho Feb. 10, 2005) (“Where a motion to

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disqualify comes from opposing counsel, the motion should be

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reviewed with caution.”).

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motion to disqualify is premature and it is unclear at this time

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whether Rodney Saetrum will be a necessary witness at trial, the

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court will deny his motion to disqualify without prejudice to it

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being raised at the time of trial.

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Accordingly, because Deputy Vogt’s

IT IS THEREFORE ORDERED that defendants’ motion to

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dismiss the First Amended Complaint in its entirety be (Docket

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No. 20), and the same hereby is, GRANTED; defendants’ motion to

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stay discovery (Docket No. 29) be, and the same hereby is,

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GRANTED and all discovery is stayed until the court rules on any

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motion to dismiss any Second Amended Complaint; and Deputy Vogt’s

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motion to disqualify Rodney Saetrum as counsel for plaintiff

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Although the commentary refers to prejudice “in the
litigation,” Rule 3.7 unequivocally limits its scope to an
attorney’s representation “at a trial.” The reference to
“litigation” in the comment--which addresses only when the
opposing party may object under Rule 3.7--cannot be interpreted
as intending to significantly expand the plain language of the
rule.
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(Docket No. 18) be, and the same hereby is, DENIED WITHOUT

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PREJUDICE.

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Plaintiff has twenty days from the date this Order is

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signed to file a Second Amended Complaint, if he can do so

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consistent with this Order.

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Dated:

May 22, 2014

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