Kinkade v. City of Weiser et al

Filing 69

MEMORANDUM DECISION AND ORDER RE: MOTIONS TO STRIKE. NOW THEREFORE IT IS HEREBY ORDERED: Defendants' Motion to Strike 52 , as to the affidavit of Carrie Kinkade (Dkt. 47-3), is DENIED; and as to the affidavit of William Musser (Dkt. 47- 5), is DENIED in part and GRANTED in part. Defendants' Motion to Strike 60 , as to the affidavit of Carrie Kinkade (Dkt. 56-5), is DENIED in part and GRANTED in part; and as to the affidavits of Carrie Kinkade (Dkt. 56- 6), and William Musser (Dkt. 56-2 and Dkt. 56-7), is GRANTED. Signed by Judge Candy W. Dale. (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

CARRIE ANN KINKADE,
Case No. 1:16-CV-00194-EJL-CWD
Plaintiff,
v.
CITY OF WEISER, WEISER POLICE
DEPARTMENT, BRANDON
HATHORN, individually, JASON
MAXFIELD, individually, CHIEF
GREG MOON,

MEMORANDUM DECISION AND
ORDER RE: MOTIONS TO STRIKE
(DKT. 52; DKT. 60)

Defendants.

INTRODUCTION
Pending before the Court are two motions to strike filed by Defendants City of
Weiser, Police Chief Greg Moon, and police officers Brandon Hathorn and Jason
Maxfield. (Dkt. 52 and Dkt. 60.)1 The motions are made pursuant to rules 12(f) and
56(c)(4) of the Federal Rules of Civil Procedure. The parties have fully briefed each
motion, and presented oral arguments at a hearing on December 7, 2017. After carefully

1
The first, a Motion to Strike the Affidavits of Carrie A. Kinkade (Dkt. 47-3) and William Musser (Dkt.
47-5) in Opposition to Defendants’ Motion for Partial Summary Judgment. (Motion to Strike at Dkt. 52.) And
second, a Motion to Strike the Affidavit of Carrie A. Kinkade in Opposition to Defendants’ Motion for Summary
Judgment (Dkt. 56-6) and the Affidavit of Carrie Kinkade Regarding Signature of 8/21/2017 (Dkt. 56-5)
(collectively “Kinkade Affidavits”), along with the Affidavit of William Musser (Dkt. 56-2) and the Affidavit of
William Musser (Dkt. 56-7). (Motion to Strike at Dkt. 60.)

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considering the parties’ briefing, arguments, docket, and relevant authorities, the Court
will deny in part and grant in part Defendants’ motion to strike at Docket 52, and will
deny in part and grant in part Defendants’ motion to strike at Docket 60.
The undersigned notes, however, that Defendants’ motion for partial summary
judgment (Dkt. 41), and Defendants’ motion for summary judgment (Dkt. 55), are
pending for resolution by the presiding District Judge, who retains the discretion to
modify the rulings contained in this decision should he conclude the undersigned
committed error. 28 U.S.C. § 636(b)(1)(A). Further, rulings on whether the evidence is
admissible at trial are reserved to the time of trial, and Defendant’s objections are
preserved.
BACKGROUND
In this case, Carrie Ann Kinkade alleges that two police officers employed by the
City of Weiser, Brandon Hathorn and Jason Maxfield, are personally liable for excessive
use of force and arrest without probable cause under 42 U.S.C. Section 1983 and the
Idaho Tort Claims Act. Kinkade alleges the same claims against the City of Weiser and
Police Chief Greg Moon. (Second Amended Complaint, Dkt. 25.)
In a state case related to the same incident, the State of Idaho filed criminal
charges against Kinkade for disturbing the peace, a violation of Idaho Code Section 186409, and for battery upon a certain personnel, a police officer, a violation of Idaho Code
Section 18-915(3)(B). On June 3, 2014, a preliminary hearing was conducted on the
matter. During the hearing, the state magistrate judge found that there was probable cause

MEMORANDUM DECISION AND ORDER RE: MOTIONS TO STRIKE – 2

for an arrest based on the battery charge. The charges against Kinkade were later dropped
by the State.
Defendants filed a motion for partial summary judgment limited to Kinkade’s
arrest without probable cause claim (false arrest). (Dkt. 41.) Additionally, Defendants
filed a motion for summary judgment for all claims alleged against the City of Weiser
and Police Chief Greg Moon. (Dkt. 55.) Plaintiff responded to each motion with briefing
including the affidavits that are the subject of the pending motions to strike. 2
STANDARD OF LAW
Federal Rule of Civil Procedure 12(f) governs motions to strike. Under the rule, a
“court may strike from a pleading an insufficient defense or any redundant, impertinent,
or scandalous matter.” Fed. R. Civ. P. 12(f). Motions to strike are “generally regarded
with disfavor because of the limited importance of pleading in federal practice, and
because they are often used as a delaying tactic.” Neilson v. Union Bank of Cal., N.A.,
290 F.Supp.2d 1101, 1152 (C.D. Cal. 2003). A court has broad discretion in deciding
such motions. Phelps v. City of Parma, Idaho, No. 1:14-CV-00085-EJL, 2015 WL
893112, at *1 (D. Idaho Mar. 2, 2015). Motions strike must be construed in the light most
favorable to the non-moving party. Id. A court will deny such motion if the challenged
material has “any relation to the subject matter of the controversy.” Id.

2

The motions for summary judgment will be ruled on via a separate memorandum decision order from the

Court.

MEMORANDUM DECISION AND ORDER RE: MOTIONS TO STRIKE – 3

Defendants assert that each of the affidavits fails to comply with the requirements
of Federal Rule of Civil Procedure 56(c)(4), which requires that affidavits or declarations
submitted in response to a motion for summary judgment “be made on personal
knowledge, set out facts that would be admissible in evidence, and show that the affiant
or declarant is competent to testify on the matters stated.”
Defendants argue that the affidavits contain information that is not relevant to the
motions. According to the Federal Rules of Evidence, “[a]ll relevant evidence is
admissible, except as otherwise provided by the Constitution of the United States, by Act
of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant
to statutory authority.” Fed. R. Evid. 402. Evidence is relevant when it has “any tendency
to make the existence of any fact that is of consequence to the determination of the action
more probable or less probable than it would be without the evidence.” Fed. R. Evid. 401.
DISCUSSION
I.
Defendants’ Motion to Strike the Affidavits of Kinkade and Musser as to the
Motion for Partial Summary Judgment
Defendants’ motion for partial summary judgment is limited Kinkade’s false arrest
claim against the two officers, and is limited to Defendant’s argument that those claims
are barred by collateral estoppel because of a previous finding of probable cause for
arrest by a state magistrate judge. (Dkt. 41.) They argue that the evidence in Kinkade’s
affidavit (Dkt. 47-3) is irrelevant to Defendants’ argument that collateral estoppel bars
the false arrest claim. The affidavit discusses Kinkade’s version of the events, argues
Officer Hathorn’s version of the events is inaccurate, asserts that he engaged in excessive

MEMORANDUM DECISION AND ORDER RE: MOTIONS TO STRIKE – 4

force during the arrest, argues that Kinkade’s reaction was one of self-defense, and
includes photographs of her injuries.
Defendants argue the evidence in Musser’s affidavit (Dkt. 47-5), is likewise
irrelevant to their collateral estoppel argument. The affidavit discusses Musser’s expert
qualifications and experience, his interpretation of the body camera footage, contains his
opinion that the officers used excessive force and his opinion that Kinkade’s response to
Officer Hathorn was one of self-defense.
The doctrine of collateral estoppel does act as a bar to false arrest claims when, as
is the case in this matter, a judge made a previous finding that there was probable cause
for the arrest in question. However, the doctrine has its limitations. Collateral estoppel
applies only if the party had a full and fair opportunity to litigate the issue of probable
cause in the previous case. Allen v. McCurry, 449 U.S. 90 at 95 (1980). In Idaho, full and
fair opportunity is shown by the following factors:
(1) the party against whom the earlier decision was asserted had a full and
fair opportunity to litigate the issue decided in the earlier case; (2) the issue
decided in the prior litigation was identical to the issue presented in the
present action; (3) the issue sought to be precluded was actually decided in
the prior litigation; (4) there was a final judgment on the merits in the prior
litigation; and (5) the party against whom the issue is asserted was a party or
in privity with a party to the litigation.
Glass v. Wengler, No. 1:12-CV-00380-EJL, 2013 WL 6858312, at *15 n.8 (D. Idaho
Dec. 30, 2013) (citing Berkshire Inv., LLC v. Taylor, 278 P.3d 943, 951 (Idaho 2012)).
Additionally, Courts in the Ninth Circuit have held that collateral estoppel should
be denied where a plaintiff shows the officer fabricated evidence or lied at the
preliminary hearing. McCutchen v. City of Montclair, 87 Cal.Rptr.2d 95, 99–101 (1999).
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Therefore, any evidence submitted by Kinkade to show any of Idaho’s five factors
were not met, or that Officer Hathorn fabricated evidence or lied at the hearing, is
relevant to the Court’s determination of Defendants’ motion for partial summary
judgment.
Kinkade argues that the evidence submitted shows she did not have a full and fair
opportunity to litigate the issue of probable cause. She asserts that Officer Hathorn’s
testimony during the probable cause hearing was inconsistent with the facts, as
demonstrated by the body camera footage of the incident, and Kinkade’s own
recollection as set forth in her affidavit.
Although the Defendants’ collateral estoppel argument is lodged primarily in law,
the information in Kinkade’s affidavit is not entirely irrelevant to her defense that
collateral estoppel does not apply. Some of the periphery details regarding Kinkade’s
history of domestic abuse, and the inclusion of the photographs are likely irrelevant. The
Court, however, appropriately limited its consideration to whether the evidence presented
raised issues under any of Idaho’s five full and fair opportunity factors, or whether
Officer Hathorn lied or fabricated evidence related to the issue of probable cause.
Therefore, the Court’s report and recommendation on Defendants’ motion for partial
summary judgment would be no different has Kinkade properly omitted these details. As
such, Defendants’ objections to the Court’s consideration of the Kinkade affidavit (Dkt.
47-3), while valid in some limited respects, are overruled.
The Musser affidavit contains a recitation of his qualifications and experience,
(Dkt. 47-5 ¶¶ 1-5; and pp. 16-22), his interpretation of the body camera footage (Id. at ¶¶
MEMORANDUM DECISION AND ORDER RE: MOTIONS TO STRIKE – 6

6-14), his review of the post-arrest report (Id. at 16), and his conclusions regarding the
officers’ use of force (Id. at ¶¶15, 17.) Like the Kinkade affidavit, the Musser affidavit is
relevant only in so far as it provides information to the Court regarding whether Idaho’s
five full and fair opportunity factors were met, and whether Officer Hathorn’s testimony
at the preliminary hearing was inconsistent with other evidence. The Court notes that it
independently reviewed the body camera footage, and notes further, that the state
magistrate judge who made the probable cause finding was presented with and viewed
the relevant portion of the body camera footage during the probable cause hearing. This
was an isolated portion of the events that transpired surrounding the timeframe of the
arrest.
The Court does not find the qualifications portion of the affidavit irrelevant, as an
expert witnesses’ qualifications are relevant to the reviewing Court. Therefore,
Defendants’ objections to the Court considering paragraphs 1 through 5 and the other
qualifications information contained on pages 16 through 22 are overruled.
The Court also does not find the portions of the Musser affidavit that relate to the
time before and the time leading up to the arrest to be irrelevant, especially when viewed
in a light most favorable to Plaintiff. Therefore, Defendants’ objection as to paragraphs 6
through 12 is overruled. Paragraph 16 specifically discusses what Officer Hathorn stated
in his post-arrest report regarding the actions of Kinkade that led to her arrest, therefore
Defendants’ objection as to paragraph 16 is also overruled.
Paragraphs 15 and 17 discuss Musser’s conclusions regarding the officers’ use of
force. This topic is irrelevant to the Court’s inquiry into the sufficiency of the basis for
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the probable cause finding. Therefore, Defendant’s objection as to the Court considering
paragraphs 15 and 17 is sustained.
II.
Defendants’ Motion to Strike the Affidavits of Kinkade and Musser as to the
Motion for Summary Judgment
Defendants’ motion for summary judgment is focused on dismissing the claims
alleged against the City of Weiser and Police Chief Greg Moon. (Dkt. 55.) Defendants
assert qualified immunity applies to the claims against Chief Moon. They argue further
that no constitutional violation was caused by Chief Moon’s alleged failure to train and
supervise, or the City’s alleged failure to do the same. They argue there was no
ratification of the conduct or like-conduct by Chief Moon. They assert also that Kinkade
has not pointed to any custom or policy of the City that would establish its liability for
the officers’ conduct. Instead, they point to their policy manual and officer training that
took place prior to the incident.
Defendants seek to strike the entirety of Kinkade’s affidavits. (Affidavit
Regarding Signature of 8/21/2017, Dkt. 56-5); Affidavit in Opposition to Defendants’
Motion for Summary Judgment, Dkt. 56-6.) The affidavit regarding signature contains
Kinkade’s attestation that she reviewed and signed the affidavit filed at Docket 56-6 on
August 21, 2017.3 Otherwise, it contains two additional factual assertions: that Kinkade
made many requests to have an officer other than Officer Maxfield or Officer Hathorn
remove her from the patrol car because she felt the officers “were an adrenaline [sic]

3

Kinkade previously filed an unsigned copy of her affidavit. This affidavit was filed, in part, to attest to the
authenticity of the previously filed, unsigned affidavit.

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rush, were mad, and would find some way to hurt” her again; and that she was taken to
Weiser Memorial Hospital to be evaluated after she was booked at the jail. (Dkt. 56-5 at
2.)
Defendants argue the evidence in Kinkade’s affidavits is irrelevant to their
argument that Chief Moon is entitled to qualified immunity and the City of Weiser is not
liable as a policymaker. Kinkade’s affidavit, at Docket 56-6, discusses her version of the
events, asserts Officer Hathorn’s version of the events is inaccurate, argues that he
engaged in excessive force during the arrest, asserts that her reaction was one of selfdefense, and includes photographs of her injuries.
The Kinkade affidavits do not contain the type of evidence of practice, custom or
policy necessary to refute the motion for summary judgment by showing the City of
Weiser is liable under the tenants of the Monell doctrine. See Monell v. Dep’t of Social
Servs., 436 U.S. 658 (1978). Further, the Kinkade affidavits do not contain any evidence
to show that Police Chief Moon, as final policymaker, either caused a Constitutional
violation, ratified the officers’ actions, or acted in deliberate indifference to Kinkade’s
constitutional rights. See Christie v. Iopa, 176 F.3d 1231 (9th Cir. 1999).
Defendants similarly argue, the Musser affidavits (Dkt. 56-2 Dkt. 56-7), are
irrelevant because whether Hathorn and Maxfield used excessive force is irrelevant to the
determination of the questions before the Court on the motion for summary judgment.
Like the Kinkade affidavits, the Musser affidavits do not contain the type of evidence of
practice, custom or policy, necessary to refute the motion for summary judgment by
showing potential liability for the City of Weiser under the tenants of the Monell
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doctrine. Further, as with the Kinkade affidavits, none of the evidence presented in the
Musser affidavits shows that Chief Moon, as final policymaker, either caused a
Constitutional violation, ratified the officers’ actions, or acted in deliberate indifference
to Kinkade’s constitutional rights.
None of the evidence in the affidavits is useful for the purpose of identifying if
any potential, unproven inadequacies in training were the result of a deliberate or
conscious choice by Chief Moon or the City of Weiser. See Alexander v. City and County
of San Francisco, 29 F.3d 1355, 1367 (9th Cir.1994). Therefore, Defendants’ objections
to the affidavit of Kinkade (Dkt. 56-6), and the affidavits of Musser (Dkt. 56-2 and Dkt.
56-7), are sustained. As to the affidavit of signature (Dkt. 56-5), the Court agrees that
paragraphs 5 and 6 are irrelevant to the determination of the motion for summary
judgment. Therefore, the objections to those paragraphs are sustained. The objections to
the other portions of the affidavit included for the purpose of confirming Kinkade’s
signature on her affidavit of August 21, 2017, are overruled.
ORDER
NOW THEREFORE IT IS HEREBY ORDERED:
1) Defendants’ Motion to Strike (Dkt. 52), as to the affidavit of Carrie Kinkade (Dkt.
47-3), is DENIED; and as to the affidavit of William Musser (Dkt. 47-5), is
DENIED in part and GRANTED in part;
2) Defendants’ Motion to Strike (Dkt. 60), as to the affidavit of Carrie Kinkade (Dkt.
56-5), is DENIED in part and GRANTED in part; and as to the affidavits of

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Carrie Kinkade (Dkt. 56-6), and William Musser (Dkt. 56-2 and Dkt. 56-7), is
GRANTED.
January 23, 2018

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