Saetrum v. Ada County Sheriff's Office et al

Filing 66

MEMORANDUM AND ORDER RE: MOTION TO DISMISS; MOTION FOR RECONSIDERATION; MOTION TO STRIKE; and MOTION RE: PERSONAL JURISDICTION denying 43 Plaintiff's Motion for Reconsideration; denying in part and granting in part 44 Defendant's Motion to Dismiss for Failure to State a Claim; denying as moot 45 Defendant's Motion to Strike; denying 55 Plaintiff's Motion for a Ruling Regarding Service and Personal Jurisdiction. The stay of discovery imposed in the 5/22/2014 Order is L IFTED. Plaintiff has twenty days from the date this Order is signed to file a Third Amended Complaint, if he can do so consistent with this Order. Signed by Judge William B. Shubb. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjm)

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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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CIV. NO. 1:13-425 WBS

v.
ADA COUNTY SHERIFF GARY
RANEY, in his individual
capacity, DEPUTY ADA COUNTY
SHERIFF JAKE VOGT, in his
individual capacity, DEPUTY
ADA COUNTY SHERIFF TYLER
STENGER, in his individual
capacity, DEPUTY ADA COUNTY
SHERIFF KEVIN LOUWSMA, in his
individual capacity, DEPUTY
ADA COUNTY SHERIFF JOHN DOE
1, in his individual
capacity, DEPUTY ADA COUNTY
SHERIFF JOHN DOE 2, in his
individual capacity and
DEPUTY ADA COUNTY SHERIFF
JANE DOE 1, in her individual
capacity,

MEMORANDUM AND ORDER RE: MOTION
TO DISMISS; MOTION FOR
RECONSIDERATION; MOTION TO
STRIKE; and MOTION RE: PERSONAL
JURISDICTION

Defendants.
----oo0oo---Plaintiff Adam Todd Saetrum filed this action under 42
U.S.C. § 1983 based on alleged excessive force and inadequate
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medical care during his arrest and detention in Ada County,

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Idaho.

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dismiss plaintiff’s First Amended Complaint for failure to state

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a claim upon which relief can be granted pursuant to Federal Rule

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of Civil Procedure 12(b)(6).

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Complaint (“SAC”), and defendants again move to dismiss the SAC

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as insufficiently pled under Rule 12(b)(6).

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I.

The court previously granted defendants’ motion to

Plaintiff filed a Second Amended

Factual and Procedural Background

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On February 26, 2013, the Ada County Sheriff’s Office

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carried out an undercover purchase of marijuana from plaintiff in

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the parking lot of the Boise Town Square Mall.

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Compl. (“SAC”) ¶ 14.)

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officers, including defendants Deputy Sheriff Jake Vogt, Deputy

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Sheriff Tyler Stenger, and Detective Kevin Louwsma.

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Plaintiff met with the undercover officer in the officer’s

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unmarked car and agreed to sell marijuana to the undercover

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officer.

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and instructed the uniformed officers to arrest plaintiff.

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(Id. ¶ 20.)

(Second Am.

The operation involved at least six

(Id. ¶ 15.)

The undercover officer then left the car
(Id.)

Deputies Vogt and Stenger drove their marked patrol

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cars toward the unmarked car and two other officers drove a

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marked patrol car toward plaintiff’s car.

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Plaintiff had exited the unmarked car and was walking toward his

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car when Deputy Vogt first observed him.

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was allegedly unarmed as he walked toward his car, which was

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blocked in by another marked patrol car.

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Deputy Vogt was about thirty feet from plaintiff, he activated

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his overhead lights.

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and hit plaintiff with his left front bumper at a speed of

(Id. ¶ 27.)

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(Id. ¶¶ 21-22.)

(Id. ¶ 24.)

Plaintiff

(Id. ¶¶ 24-25.)

When

He then allegedly accelerated

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approximately thirteen miles per hour.

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(Id.)

After Deputy Vogt’s patrol car knocked plaintiff to the

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ground, plaintiff allegedly stood up and faced Deputy Vogt

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without making any effort to flee or resist arrest.

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Deputy Vogt exited his car and allegedly “spun Plaintiff around

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and threw and/or used his body to drive Plaintiff to the ground.”

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(Id. ¶ 29.)

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(Id. ¶ 28.)

Despite having witnessed these events, Deputy Louwsma
did not indicate that plaintiff needed medical treatment when he

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completed the Ada County Jail Arresting Officer’s Form.

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32-33.)

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and did nothing to ensure plaintiff received medical care.

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During plaintiff’s detention, he was allegedly limping and

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vomiting, had a visibly swollen knee, and became increasingly

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confused and disorientated.

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father and attorney met with him and expressed concerns about

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plaintiff’s need for medical treatment, plaintiff’s father was

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allegedly assured by an unidentified female deputy sheriff that

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plaintiff would receive medical care.

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however, never received medical care during his detention.

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(Id. ¶¶

Deputy Stenger also allegedly witnessed the incidents

(Id. ¶¶ 34-35.)

(Id.)

After plaintiff’s

(Id. ¶ 37.)

Plaintiff,

In his Second Amended Complaint, plaintiff asserts

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three claims: (1) a § 1983 claim against Deputy Vogt for

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violation of substantive due process; (2) a § 1983 claim against

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Deputy Vogt and defendant Ada County Sheriff Gary Raney for

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excessive force in violation of the Fourth Amendment; and (3) a §

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1983 claim against Deputies Vogt, Stenger, Louwsma, and Sheriff

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Gary Raney for failure to provide medical care in violation of

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the Fourteenth Amendment.

After the court granted defendants’
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motion to dismiss plaintiff’s curt and conclusory First Amended

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Complaint, plaintiff filed the SAC with significantly more

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factual allegations.

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Defendants now move to dismiss the SAC pursuant to Rule

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

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granted.

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refusal to consider his claims against “Doe” defendants in the

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May 22, 2014 Order, and defendants move to strike an affidavit

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submitted in support of that motion.

Plaintiff also moves for reconsideration of the court’s

Lastly, plaintiff has filed

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a “motion for a ruling” as to whether defendants have waived

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service of process and consented to personal jurisdiction.

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II.

Analysis

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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).

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A.

Scheuer v.

To survive a motion to dismiss, a plaintiff

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

This “plausibility standard,” however, “asks

Ashcroft v. Iqbal,

Claims Against the Deputy Defendants
1.

Violation of Substantive Due Process
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In the May 22, 2014 Order, the court discussed

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plaintiff’s § 1983 claim based on an alleged violation of his

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right to substantive due process in light of County of Sacramento

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v. Lewis, 523 U.S. 833 (1998).

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accidentally hit and killed a passenger during a high speed chase

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and the court concluded the conduct was assessed under the

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“shocks the conscience” standard governing violations of

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substantive due process.

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In that case, officers

Lewis, 523 U.S. at 846-47.

Under Lewis, the standard used to determine whether

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conduct “shocks the conscience” depends on “whether the officers

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had the opportunity for actual deliberation.”

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546 F.3d 1131, 1138 (9th Cir. 2008).

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is practical, then an officer’s ‘deliberate indifference’ may

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suffice to shock the conscience.”

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546, 554 (9th Cir. 2010).

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enforcement officer makes a snap judgment because of an

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escalating situation, his conduct may only be found to shock the

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conscience if he acts with a purpose to harm unrelated to

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legitimate law enforcement objectives.”

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Porter v. Osborn,

“Where actual deliberation

Wilkinson v. Torres, 610 F.3d

“On the other hand, where a law

Id.

Here, although the parties dispute what standard should

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govern plaintiff’s claim, it would be premature for the court to

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determine whether Deputy Vogt had time to deliberate at the

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pleading stage because that inquiry is entirely fact-driven.

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Taken in the light most favorable to plaintiff, plaintiff was

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unarmed, cornered in by other patrol cars, and not attempting to

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flee or resist arrest.

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plaintiff’s direction and accelerated toward him, ultimately

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hitting plaintiff in the knee and causing him to fall.

Deputy Vogt nonetheless aimed his car in

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These

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allegations give rise to at least a plausible violation of

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plaintiff’s substantive due process rights under either standard.

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The court will therefore deny Deputy Vogt’s motion to dismiss the

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claim.

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2.

Fourth Amendment Violation

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In his second claim, plaintiff alleges that Deputy Vogt

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used excessive force when he hit plaintiff with his patrol car

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and subsequently threw him to the ground.

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the Fourth Amendment only if it is objectively unreasonable,

Use of force violates

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which is a question of fact requiring consideration of factors

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such as “(1) the severity of the crime at issue; (2) whether the

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suspect poses an immediate threat to the safety of the officers

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or others; and (3) whether the suspect actively resists detention

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or attempts to escape.”

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965, 976 (9th Cir. 1997) (citing Graham v. Connor, 490 U.S. 386,

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388 (1989)).

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Liston v. County of Riverside, 120 F.3d

With respect to the use of his patrol car to hit

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plaintiff, Deputy Vogt’s only argument is that the conduct does

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not come within the Fourth Amendment.

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because plaintiff was able to stand up after the patrol car hit

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his leg, the impact from the patrol car did not amount to a

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“seizure.”

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a plaintiff must be seized to give rise to a Fourth Amendment

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violation and that a “seizure” requires “‘a governmental

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termination of freedom of movement through means intentionally

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applied.’” (quoting Brower v. County of Inyo, 489 U.S. 593, 596–

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597 (1989) (emphasis omitted))).

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Deputy Vogt contends that,

See generally Lewis, 523 U.S. at 844 (explaining that

Plaintiff alleges, however, that upon standing, he
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stood “next to the front left tire of the police cruiser” and

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“turned towards Defendant instead of doing anything to indicate

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he would flee or resist arrest.”

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light most favorable to plaintiff, hitting plaintiff with the

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patrol car successfully terminated plaintiff’s freedom of

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movement because plaintiff ceased walking and remained in the

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same location.

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Deputy Vogt’s use of his patrol car is therefore sufficient to

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withstand dismissal.1

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(SAC ¶¶ 28-29.)

Taken in the

Plaintiff’s theory of unreasonable force based on

In stark contrast to the lack of factual allegations in

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the FAC, plaintiff’s SAC also contains sufficient allegations to

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state a cognizable Fourth Amendment violation based on Deputy

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Vogt having thrown plaintiff to the ground during the arrest.

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For example, the SAC alleges that plaintiff had committed a non-

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violent crime and was unarmed, cornered in by other patrol cars

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and deputies, and neither resisting arrest nor attempting to

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flee.

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plaintiff, plaintiff has stated a plausible claim that Deputy

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Vogt used excessive force when he threw plaintiff to the ground

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after having just knocked him to the ground with his patrol car.

Taking these facts in the light most favorable to

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3.

Failure to Provide Medical Treatment

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When an individual has “not been convicted of a crime,

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Ultimately, whether the constitutionality of Deputy
Vogt’s use of his patrol car is assessed under the Fourth
Amendment or Fourteenth Amendment will depend on whether he
intentionally or accidentally struck plaintiff with his patrol
car. See generally Lewis, 523 U.S. at 844. The SAC pursues both
theories in the alternative and, based on the factual allegations
in the SAC, both theories are plausible and sufficient to state a
claim.
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but ha[s] only been arrested, his rights derive from the due

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process clause rather than the Eighth Amendment’s protection.”

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Gibson v. County of Washoe, 290 F.3d 1175, 1187 (9th Cir. 2002)

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(citing Bell v. Wolfish, 441 U.S. 520, 535 (1979)).

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“[w]ith regard to medical needs, the due process clause imposes,

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at a minimum, the same duty the Eighth Amendment imposes:

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‘persons in custody ha[ve] the established right to not have

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officials remain deliberately indifferent to their serious

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medical needs.’”

Nonetheless,

Id. (quoting Carnell v. Grimm, 74 F.3d 997, 979

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(9th Cir. 1996)) (second alteration in original).

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Eighth Amendment’s standard of deliberate indifference, a person

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is liable for denying a prisoner needed medical care only if the

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person ‘knows of and disregards an excessive risk to inmate

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health and safety.’”

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825, 837 (1994)); see also Farmer, 511 U.S. at 837 (“[T]he

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official must both be aware of facts from which the inference

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could be drawn that a substantial risk of serious harm exists,

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and he must also draw the inference.”).

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“Under the

Id. (quoting Farmer v. Brennan, 511 U.S.

The only allegations in the SAC about Deputies Vogt,

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Stenger, and Louwsma’s knowledge of plaintiff’s serious medical

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needs are that they were “aware of Defendant Vogt’s use of force

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and Plaintiff’s resulting injuries,” (SAC ¶ 68), and “knew that

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Defendant Vogt’s use of force during Plaintiff’s arrest had

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caused Plaintiff’s injuries,” (id. ¶ 66).

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allegations lack factual support.

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allege that Deputy Vogt’s alleged use of force caused injuries

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that were immediately apparent or that plaintiff complained to

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any of those three deputies about his injuries.
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These conclusory

For example, the SAC does not

According to the

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SAC, plaintiff’s injuries did not physically manifest until

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“[b]etween two and three hours after his arrest” when he was

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booked into Ada County Jail.

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part of the booking process, Plaintiff was stripped searched and,

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. . . Plaintiff was limping and his knee had become visibly

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swollen . . . . Over the next three to four hours, Plaintiff

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became increasingly confused, disoriented and ill as a result of

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his head injury.”).)

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sufficient factual allegations rendering it plausible that

(Id. ¶ 34; see id. ¶¶ 34-35 (“As

Accordingly, because the SAC fails to plead

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Deputies Vogt, Stenger, and Louwsma had knowledge of his serious

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medical needs, the court must grant their motion to dismiss

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plaintiff’s third claim.

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B.

Supervisor Liability Claims Against Sheriff Raney
“Because vicarious liability is inapplicable to . . . §

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1983 suits, a plaintiff must plead that each Government-official

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defendant, through the official’s own individual actions, has

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violated the Constitution.”

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defendant may be held liable as a supervisor under § 1983 if

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there exists either (1) his or her personal involvement in the

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constitutional deprivation, or (2) a sufficient causal connection

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between the supervisor’s wrongful conduct and the constitutional

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violation.”

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The Ninth Circuit has stated that supervisors may be held liable

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under § 1983 under the following theories:

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Iqbal, 556 U.S. at 676.

“A

Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011).

“(1) for setting in motion a series of acts by others,
or knowingly refusing to terminate a series of acts by
others, which they knew or reasonably should have
known would cause others to inflict constitutional
injury; (2) for culpable action or inaction in
training, supervision, or control of subordinates; (3)
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for acquiescence in the constitutional deprivation by
subordinates; or (4) for conduct that shows a
‘reckless or callous indifference to the rights of
others.’”
Moss v. U.S. Secret Serv., 675 F.3d 1213, 1231 (9th Cir. 2012)
(quoting al-Kidd v. Ashcroft, 580 F.3d 949, 965 (9th Cir. 2009),
rev’d on other grounds, Ashcroft v. al-Kidd, 131 S. Ct. 2074
(2011)).2
In his second and third claims against Sheriff Raney,

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plaintiff alleges that the constitutional violations occurred as
a result of Sheriff Raney’s “failure to properly train, supervise
and control” the deputy defendants.

(SAC ¶¶ 59, 70.)

These

allegations, however, lack any factual support and are therefore
insufficient under Iqbal.

See, e.g., 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

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The Ninth Circuit’s enumeration of cognizable theories
of liability against a supervisor preceded Iqbal, which clarified
that a supervisor could be held liable only “through the
official’s own individual actions,” Iqbal, 556 U.S. at 676. The
plaintiffs in Moss alleged § 1983 claims based on Fourth
Amendment violations and the Ninth Circuit recognized that,
because al–Kidd was decided pre-Iqbal, the “extent to which its
supervisory liability framework is consistent with that decision
and remains good law has been debated.” Moss, 675 F.3d at 1231
n.6 (citing al–Kidd, 598 F.3d at 1141 (O’Scannlain, J.,
dissenting from denial of rehearing en banc); Bayer v. Monroe
Cnty. Children & Youth Servs., 577 F.3d 186, 191 n.5 (3d Cir.
2009); Maldonado v. Fontanes, 568 F.3d 263, 274 n.7 (1st Cir.
2009)). The Ninth Circuit nonetheless declined “to consider that
debate” because the plaintiffs did not “allege sufficient facts
to meet the standard set forth in al-Kidd.” Id. Similar to
Moss, the court recognizes the uncertainty of the supervisor
liability standard governing Fourth Amendment claims, but need
not resolve the issue because plaintiff’s allegations are
factually insufficient under any of the potential theories.
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Plaintiffs’ injuries”); Moss, 675 F.3d at 1231 (“[T]he protestors

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claim that ‘the use of . . . excessive force against them’ was

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‘the result of inadequate and improper training, supervision,

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instruction and discipline . . . .’

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[] conclusory.

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the officers’ training or supervision, nor do they specify in

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what way any such training was deficient.”); Hydrick v. Hunter,

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669 F.3d 937, 941-42 (9th Cir. 2012) (contrasting the “bald” and

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“conclusory” factual allegations in plaintiffs’ complaint with

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However, this allegation is

The protestors allege no facts whatsoever about

the detailed factual allegations in Starr).

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Plaintiff’s second theory of Sheriff Raney’s liability

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rests entirely on Sheriff Raney’s inaction after the alleged

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constitutional violations occurred.

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Sheriff Raney failed to investigate the alleged violations or

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discipline the deputies and thereby “condoned and ratified” their

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conduct.

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allegations, the SAC alleges that Sheriff Raney allowed deputies

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to complete inaccurate supplement reports after plaintiff’s

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concussion was discussed during his criminal proceedings and that

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Sheriff Raney did not take any action to investigate or prevent

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destruction of certain records after he learned of the alleged

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violations in the criminal proceedings.

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(SAC ¶¶ 60, 71.)

Plaintiff alleges that

As factual support for these

(Id. ¶¶ 38, 40.)

Even assuming that the SAC contains sufficient factual

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allegations supporting this theory, Sheriff Raney’s inaction

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occurring exclusively after the alleged violations cannot

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plausibly allege “a sufficient causal connection between the

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supervisor’s wrongful conduct and the constitutional violation.”

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Starr, 652 F.3d at 1207.

Although the Ninth Circuit has upheld
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supervisor liability based on the supervisor’s “knowledge of and

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acquiescence in unconstitutional conduct by his or her

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subordinates,” the plaintiff must still show that “the supervisor

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breached a duty to plaintiff which was the proximate cause of the

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injury.”

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Id.
Assuming Larez v. City of Los Angeles, 946 F.2d 630

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(9th Cir. 1991) is still good law post-Iqbal, it does not stand

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for the proposition that a supervisor’s mere acquiescence in or

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ratification of the conduct giving rise to plaintiff’s claim is

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sufficient to hold that supervisor personally liable.

In Larez,

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the plaintiffs submitted evidence from a two-year study showing

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that an environment of rejecting citizens’ complaints existed

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before the officers used excessive force against the plaintiffs

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and thereby caused the officers to believe that their use of

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excessive force would be tolerated.

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646-47; see also Blankenhorn v. City of Orange, 485 F.3d 463,

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485–86 (9th Cir. 2007) (relying on the two-year study to explain

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why the Larez court upheld the jury verdict against the

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supervisor).

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“establish the requisite causal link only when the supervisor

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engaged in at least some type of conduct before the

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unconstitutional incident and the supervisor knew or should have

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known that his conduct could cause the constitutional violation

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the plaintiff suffered.”

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2:09–1025 WBS DAD, 2010 WL 2843409, at *7 (E.D. Cal. July 20,

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2010); see also Starr, 652 F.3d at 1208 (discussing cases).

Larez, 946 F.2d at 635-36,

A supervisor’s conduct is therefore sufficient to

Jones v. County of Sacramento, Civ. No.

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Accordingly, because plaintiff’s allegations in his

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second and third claims are insufficient to state a plausible
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claim against Sheriff Raney, the court will grant his motion to

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dismiss those claims.

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C.

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“Doe” Defendants
In his FAC, plaintiff alleged certain claims against

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“Doe” defendants and the court declined to consider those claims

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in the May 22, 2014 Order because “the use of ‘Doe’ pleading is

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improper, since there is no provision in federal rules permitting

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use of fictitious defendants.”

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576 GMN LRL, 2012 WL 1155390, at *2 n.1 (D. Nev. Apr. 4, 2012).

May v. Williams, Civ. No. 2:10–

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The SAC nonetheless seeks to bring claims against three “Doe”

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defendants and plaintiff requests that the court allow him to

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proceed against these unidentified officers until he can discover

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their identity during discovery.

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argument, the Federal Rules of Civil Procedure do not provide for

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“Doe” pleading and Rules 15 and 16 provide the procedures for

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plaintiff to amend his complaint upon discovering the identity of

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any unknown defendants.

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to the federal rules would result in any meaningful difference

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because “the relation back provisions of state law, rather than

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Rule 15(c), govern a federal cause of action pursuant to 42

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U.S.C. § 1983.”

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768 (9th Cir. 1989).

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claims against “Doe” defendants and will deny plaintiff’s motion

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for reconsideration of its May 22, 2014 Order.

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D.

As the court explained at oral

It is also questionable whether adhering

Merritt v. County of Los Angeles, 875 F.2d 765,
Accordingly, the court will not address any

Service of Process and Personal Jurisdiction
In a somewhat unusual motion, plaintiff seeks “a

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ruling” as to whether defendants have waived the requirement of

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service of process and consented to personal jurisdiction.
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Defendants have not filed any motion challenging the sufficiency

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of service.

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therefore deny plaintiff’s motion.

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Windsor, 133 S. Ct. 2675, 2711-12 (2013).

The court does not give advisory rulings and will
E.g., United States v.

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IT IS THEREFORE ORDERED that

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(1) defendants’ motion to dismiss the Second Amended

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Complaint (Docket No. 44) be, and the same hereby is, DENIED as

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to plaintiff’s first and second claims against Deputy Vogt and

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GRANTED as to plaintiff’s second claim against Sheriff Raney and

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plaintiff’s third claim against all defendants;

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(2) plaintiff’s motion for reconsideration of the

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court’s May 22, 2014 Order (Docket No. 43) be, and the same

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hereby is, DENIED;

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(3) defendants’ motion to strike the affidavit of

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Rodney Saetrum submitted in support of plaintiff’s motion for

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reconsideration (Docket No. 45) be, and the same hereby is,

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DENIED AS MOOT; and

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(4) plaintiff’s motion for a ruling regarding service

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and personal jurisdiction (Docket No. 55) be, and the same hereby

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is DENIED; and

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(5) the stay of discovery imposed in the May 22, 2014
Order3 is LIFTED.

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Plaintiff has twenty days from the date this Order is

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

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consistent with this Order.

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In the May 22, 2014 Order, the court granted
defendants’ motion to stay all discovery “until resolution of
defendants’ motion to dismiss any Second Amended Complaint.”
(May 22, 2014 Order at 10:22-23.)
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Dated:

August 25, 2014

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