Bales v. Ada County et al

Filing 36

MEMORANDUM DECISION AND ORDER. NOW THEREFORE IT IS HEREBY ORDERED, that the motion for extension of time 19 is GRANTED. Within 30 days from the date of this Order, the plaintiff shall either comply with the bonding requirement or file sufficien t expert testimony to explain why after many years when bonds were available, it is now impossible to comply with Idaho Code § 6-610. IT IS FURTHER ORDERED, that the Court will reserve ruling on the motion to dismiss (docket no. 27) until the Court examines whatever the plaintiff files in response to this decision. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

RAYNE BALES (f/k/a RAYNE AHO),
an individual,
Plaintiff,
vs.
ADA COUNTY, a county and body
politic and corporate in the State of
Idaho; CANYON COUNTY, a county
and body politic and corporate in the
State of Idaho; CITY OF BOISE, a
municipality organized under the laws of
the State of Idaho; MARK FURNISS,
individually and in his official capacity as
an employee of the City of Boise; ERIC
URIAN, individually and in his official
capacity as an employee of the City of
Boise; ROBERT GALLAS, individually
and in his official capacity as an
employee of the City of Boise;
MICHAEL MASTERSON, in both his
official capacity as the City of Boise
Police Chief, and Individually; GARY
RANEY, both in his official capacity as
the Ada County Sheriff and Individually;
KIERAN DONAHUE, both in his
official capacity as the Canyon County
Sheriff and Individually; MELINDA
CHYNOWETH, individually and in her
official capacity as an employee of
Canyon County; DOES I-XX, in their
individual and official capacities,
Defendants.

MEMORANDUM DECISION AND ORDER - 1

Case No. 1:15-cv-00299-BLW

MEMORANDUM DECISION AND
ORDER

INTRODUCTION
The Court has before it a motion for extension of time filed by plaintiff Rayne
Bales and a motion to dismiss filed by defendants City of Boise, Mark Furniss, Eric
Urian, Robert Gallas, and Michael Masterson. As explained below, the Court will grant
the motion for an extension of time and reserve ruling on the motion to dismiss.
BACKGROUND
Plaintiff Rayne Bales claims that the City and its police officers violated her
constitutional rights when they arrested and jailed her on the mistaken belief she was
violating several No Contact Orders (NCOs). In fact, the NCOs had been dismissed eight
months before Bales’s arrest on August 4, 2013.
Bales brings claims for (1) unlawful search and seizure under 42 U.S.C. § 1983;
(2) unlawful search and seizure under state law; (3) excessive force under 42 U.S.C. §
1983; (4) negligence under state law; (5) false arrest and imprisonment under state law;
and (6) failure to adequately train and supervise under 42 U.S.C. § 1983. Pursuant to
Idaho Code § 6-610, Bales was required to post a bond as a condition of suing the City’s
police officers. This case was filed on August 3, 2015, but the plaintiff has never filed
the required bond. Defendants seek dismissal on that basis.
ANALYSIS
Before a plaintiff may file any civil action against a law enforcement officer for
state law claims arising out of the performance of the officer’s duties, the plaintiff must
post bond under Idaho Code § 6-610. See, e.g., Timothy v. Oneida Cnty, 2014 WL
4384348, at *1 (D. Idaho Sept. 3, 2014). This is a condition precedent to filing suit. See
MEMORANDUM DECISION AND ORDER - 2

Idaho Code § 6-610(2). If the plaintiff fails to post bond, the Court “shall dismiss the
case.” Id. § 6-610(5).
Bales does not assert that the bonding requirement is inapplicable and she does not
seek a waiver due to indigency. Instead, her counsel filed an affidavit signed by
counsel’s receptionist – Brandy Austin – who states that she was unable to find any
bonding company that would write a bond for this purpose. See Austin Affidavit (Dkt.
No. 29-1) at ¶¶ 3-10. Receptionist Austin attaches an email she received from a Janet
Holthaus with Allied Bonding stating that the problem lies in the statute’s requirement
that plaintiff file “a written undertaking with at least two (2) sufficient sureties in an
amount to be fixed by the court.” Holthaus claims that the requirement that bonds be
posted by two sufficient sureties results in “what we call ‘splitting surety’” which is
apparently frowned upon by the insurance industry, making such a bond unavailable.
The Court is highly skeptical. With all due respect to Holthaus and receptionist
Austin, the Court has been handling lawsuits against police officers for more than 20
years and has never encountered this impossibility argument. Counsel have either filed
their bond or established indigency. Perhaps counsel needs to confer with other counsel
experienced in this area. Or perhaps the insurance industry has gone through a dramatic
change recently. But the current record does not contain sufficient expert testimony from
either an experienced and independent civil rights attorney or an official from the
insurance industry to convince the Court that the industry has undergone such a change as
to make compliance with Idaho Code § 6-610 impossible. The Court will give Bales
thirty days to supplement the record or face dismissal of the case. The Court will reserve
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ruling on the motion to dismiss until the Court can examine what Bales submits in
response to this decision.
ORDER
Pursuant to the Memorandum Decision set forth above,
NOW THEREFORE IT IS HEREBY ORDERED, that the motion for extension of
time (docket no. 19) is GRANTED. Within 30 days from the date of this Order, the
plaintiff shall either comply with the bonding requirement or file sufficient expert
testimony from either an experienced and independent civil rights attorney or an official
from the insurance industry to explain why after many years when bonds were available,
it is now impossible to comply with Idaho Code § 6-610.
IT IS FURTHER ORDERED, that the Court will reserve ruling on the motion to
dismiss (docket no. 27) until the Court examines whatever the plaintiff files in response
to this decision.

DATED: March 31, 2016

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

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