Brown et al v. Jayne et al

Filing 119

MEMORANDUM ORDER denying 98 Motion for Discovery Sanctions; denying 102 Motion for Mediation Lawyer; granting 104 Motion for Summary Judgment; granting 108 Motion for Summary Judgment; denying 114 Motion for Summary Judgment. 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 cjm)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
TYRAH B. BROWN and KEITH A.
BROWN,

)
)
)
Plaintiffs,
)
)
vs.
)
)
JEFF JAYNE, JOHN VALDEZ,
)
PHYLLIS SCOTT, NICK LAMANNA, )
ELAINE SAVAGE, CHRIS
)
BREAW, and THE ESTATE OF LES )
BREAW,
)
)
Defendants.
)
________________________________ )

Case No. 2:07-CV-00302-N-BLW

MEMORANDUM ORDER

Pending before the Court in the above-entitled matter are cross motions for
summary judgment and Plaintiff Keith Brown’s (“Brown”) motion for sanctions and
motion for mediation lawyer. Having fully reviewed the record, the Court finds that the
facts and legal arguments are adequately presented in the briefs and record. Accordingly,
in the interest of avoiding further delay, and because the Court finds that the decisional
process would not be significantly aided by oral argument, this matter shall be decided on
the record before the Court.
BACKGROUND
MEMORANDUM ORDER - 1

Brown and his wife, Tyrah Brown (“Tyrah”) filed their 42 U.S.C. § 1983 civil
rights Complaint on July 12, 2007. The civil rights claims were based upon an
investigatory traffic stop by Defendant Jeff Jayne (“Jayne”), an Idaho State Police
employee, just before midnight on September 16, 2006 and other actions by third parties
to dispose of certain property the Plaintiffs claimed an interest in. The Court conducted
an initial review of the Complaint and determined Plaintiffs could only proceed on their
claim that excessive force was directed at Tyrah allegedly causing her to have a
miscarriage. Dkt. 11.
Plaintiffs filed an Amended Complaint on December 6, 2007. Dkt. 14. Brown
filed a Second Amended Complaint on June 27, 2008 (Dkt. 44) and Tyrah filed her
Second Amended Complaint on June 27, 2008 (Dkt. 46). Tyrah filed a Third Amended
Complaint on September 4, 2008 (Dkt. 53), but Brown did not file a Third Amended
Complaint. Tyrah later stipulated to a dismissal of all her claims in this matter and the
Court granted a dismissal of all Tyrah’s claims against all defendants. Dkts. 76 and 77.
The Court reviewed the Second Amended Complaints, and determined that the
Plaintiffs could also proceed on the claims against Defendants Rocky Watson (Kootenai
County Sheriff), Elaine Savage (Bonner County Sheriff), Sergeant Teresa Cable (Bonner
County Sheriff’s Deputy) and Deputy Harris (Bonner County Jail Commander) for
interference with Brown’s First Amendment right to receive and send mail with his wife
and for retaliatory transfer of his wife to another county jail as a result of his complaint
about his First Amendment right violations. Dkt. 49. These First Amendment claims
MEMORANDUM ORDER - 2

arose when Brown and his wife were in custody as pretrial detainees on separate criminal
charges unrelated to the traffic stop by Jayne.
The Court notes that Brown’s Second Amended Complaint also added an
excessive force claim by Brown for a personal assault against him by Jayne on September
16-17, 2006. Dkt. 44, pp. 4-5. The Court did not discuss this claim in its review of the
Second Amended Complaints, but Defendants seek to have their summary judgment
motion apply to this claim, so the Court will consider the same.
1. Traffic Stop by Jayne
The traffic stop of September 16-17, 2006, was videotaped by Jayne. The Court
has reviewed the video in detail and while Brown may contest some of the events of that
evening, the video is the undisputed evidence of what actually occurred that night. For
instance, Brown claims a car was following him too closely, so he slowed down trying to
get the car to pass and eventually pulled over to force the vehicle to pass. Brown admits
the car he was driving was not registered to him or owned by him. Jayne records on the
video tape his observations about the driver’s conduct before he pulls over to see if the
driver of the vehicle pulled off the road needs assistance. Before Jayne pulls over, he
activates his lights and sees if he can be of assistance, he has noted on the video tape
numerous touchings or crossings of the solid white lines on the road by the driver and is
observing the car to see if the driver continues driving erratically. It is around midnight
and there is no indication Jayne thinks the car is being driven by Brown (who he is
familiar with from other law enforcement encounters). There is no indication from
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Brown’s pleadings that he knew the car behind him at night was a police car until the
overhead lights were activated.
The video also establishes the following facts: Jayne approaches the vehicle and
the officer and the Plaintiffs immediately recognize each other. Jayne is told by Brown
that Tyrah is bleeding and having a miscarriage. Jayne tells the Browns there are
warrants for them, which they deny. Jayne immediately requests back up. Brown is very
compliant and Jayne immediately handcuffs Brown behind his back, tells him he is going
to jail for outstanding warrants which Brown says were taken care of. There is, in fact, no
obvious “pat down” of Brown on the video tape as he states “just take me to jail” and is
immediately handcuffed by Jayne as soon as he steps out of the car. Jayne does ask the
location of Brown’s wallet and is told by Brown it is in his back pocket and the wallet is
removed by the officer and placed on the trunk of the vehicle.
Tyrah is upset. She informs the officer she is bleeding and having a miscarriage, is
non-compliant with the officer’s requests, and demands to talk with her husband. At one
point Tyrah is pushed against the vehicle as Jayne is attempting to handcuff Tyrah. The
level of force of the restraint is unclear from the video and the officer is able to handcuff
Tyrah. She begins to calm down and become more compliant with the officer although
she continues to request to speak with her husband. The officer denies the request for her
to speak to her husband, contacts dispatch to determine if there are any outstanding
warrants on either person, if Brown has a valid driver’s license, and to confirm who is the
owner of the vehicle.
MEMORANDUM ORDER - 4

Jayne’s affidavit for a warrantless arrest dated September 24, 2006, Dkt. 106-1 and
Jayne’s memo regarding the incident to his captain dated November 28, 2007, Dkt. 106-1,
establish the undisputed fact that Jayne had been informed that Plaintiffs had failed to
appear on previous felony charges the day before and warrants had been issued for their
arrest. The source of this information to Jayne was his wife, who is a deputy prosecutor
for the county. Jayne maintains that he handcuffed Brown based on his belief there was
an outstanding warrant and handcuffed Tyrah because she was a safety risk when she was
upset and not complying with the officer’s instructions.
After contacting dispatch, Jayne was advised there were no outstanding warrants
for Tyrah and that the one warrant on file for Brown was out of Washington and was a
non-extraditable warrant. Jayne also determined neither Brown, nor Tyrah had a valid
drivers license. No proof of insurance could be located in the vehicle and Jayne was
informed by dispatch this was Brown’s second offense for driving without proof of
insurance. The handcuffs were removed from the Plaintiffs. Brown was given a ticket
for two misdemeanor charges (Dkt. 106-1). Jayne had Tyrah move the car further off the
road, secured the car and then Jayne drove Plaintiffs to their home.
It is noted that at the time of the traffic stop, both Brown and Tyrah represented
she was bleeding and suffering a miscarriage and they were driving a borrowed car at
midnight to go to the hospital. Jayne asked during the traffic stop if Tyrah wanted an
ambulance and she said no. Tyrah allowed Jayne to drive her home with Brown. Tyrah
represented in her Second Amended Complaint that her bleeding continued, that she later
MEMORANDUM ORDER - 5

had a miscarriage and that she had a history of miscarriages. Dkt. 46, p.5. There is no
medical testimony before the Court establishing a correlation or causation between the
alleged excessive force used by Jayne against Tyrah and the resulting miscarriage.
Brown testified in his deposition that the excessive force used by Jayne was as a
result of physically inappropriate contact when he was patted down. Brown claims the
officer “hit me in the balls with the edges of his hands and he ran his hands up the side of
my leg because he was way – way to aggressive for any officer of the law to do what he
had done.” Deposition of Keith Brown, Dkt. 117-1, p.50 -51. Brown also claims it was
excessive force to handcuff him for the charges of not having a license or proof of
insurance.
Defendants maintain Jayne did not use excessive force against Brown and there is
no evidence relating the push of Tyrah against the car by Jayne at the time of the traffic
stop to the miscarriage suffered two weeks later.
2. First Amendment Claims
In May 2007, Plaintiffs were arrested in CR 2007-2454 and charged with the first
degree murder of Les Breaw and grand theft of certain property of Les Breaw. The
Plaintiffs were held as pretrial detainees at the Bonner County Jail (“BCJ”).1 After

1

Brown argues that his legal rights are different since he was a “pretrial detainee”
and not a convicted person at the time of the alleged First Amendment violations. The
Court finds while some civil rights are construed more liberally for pretrial detainees than
convicted inmates, the First Amendment rights in this case would not be any different for
pretrial detainees or convicted persons.
MEMORANDUM ORDER - 6

problems with unauthorized communications between the Plaintiffs and threats against
Tyrah by other inmates, Tyrah was moved to the Kootenai County Jail (“KCJ”). Based
upon security concerns, most jails have policies that generally prohibit mail to or from
other inmates. This policy applies to inmates being held in the same facility or inmates
in two different facilities. Prior to being brought to BCJ on May 25, 2007, Tyrah had
been in custody in Montana and was allowed to write to her husband being held in BCJ
(since April 20, 2007), however, it was acknowledged and agreed to in writing that this
inmate to inmate correspondence would be read and copied. Affidavit of Doug Harris,
Exhibit B, Dkt. 108-5.
When Tyrah was brought to BCJ, the deputy in charge of the jail or Jail
Commander was Doug Harris. Harris allowed the Plaintiffs to continue writing to each
other under the same conditions as previously imposed and agreed to while Tyrah was in
Montana -- the correspondence would be read and copied. BCJ inmate mail policy
provides:
At no time will detention personnel make any type of copies of any inmates mail
either incoming or outgoing unless it is deemed to be a safety or security issue for
the detention facility or its staff. Any time that it is deemed necessary to copy an
inmate’s mail, detention personnel must have prior approval from their shift
supervisor.
...
Bonner County inmates will not be allowed to correspond with other inmates being
held in this facility or any other facilities without written permission from the
requesting facility and this facility, directly or through a third party.

Jail Commander Harris allowed one letter per week between Brown and Tyrah and
MEMORANDUM ORDER - 7

mandated the letters could not discuss other inmates in the jail, discuss the procedures
inside the jail, or discuss their pending criminal case for which they were in custody.
Brown and Tyrah could discuss their pending federal civil rights action, but were not
allowed to communicate with each other in any manner other than this written
correspondence process.
At some point, it is undisputed that the Plaintiffs began circumventing the policy
and leaving notes for each other in the law library and other locations in the BCJ. These
violations resulted in an increased need for observation by jail personnel due to increased
security risks. In November 2007, Deputy Harris revoked Plaintiffs’ correspondence
privileges because of the communication violations. On November 29, 2007, Deputy
Harris modified the prohibitions to authorize Plaintiffs to correspond regarding their
federal civil rights, Civil Case No. 07-CV-296 filed in the United States District Court,
District of Idaho. Brown maintains the alleged security threat from the inmate to inmate
correspondence was minimal and does not justify that taking away of his First
Amendment rights to communicate with his wife. Plaintiffs also argue the prohibition of
correspondence by Harris was done without a due process hearing.
On November 21, 2007, the Court issued its Initial Review Order in this case, Dkt.
11. Plaintiff alleges that because he was allowed to proceed with an excessive force
claim against Jayne and filing an Amended Complaint on December 6, 2007 alleging
First Amendment violations, the Bonner County Sheriff Elaine Savage, Jail Commander
Harris, Teresa Cable and Kootenai County Sheriff Rocky Watson retaliated and had
MEMORANDUM ORDER - 8

Tyrah moved to the KCJ on or about December 18, 2007.
Neal Robertson, the custody commander at KCJ, filed an affidavit indicating that
Tyrah was transferred to KCJ upon the request of BCJ staff because she was continually
attempting to communicate with her husband which had been prohibited and because
Tyrah had been receiving threats from other inmates. KCJ mail policy also prohibits
inmate to inmate correspondence. Tyrah remained at KCJ until February 23, 2009. It is
undisputed that Tyrah entered a plea agreement on or about February, 2009 to amended
charges of accessory to felony/harboring a wanted felon and theft by receiving/possessing
stolen property. Brown maintains Tyrah was returned to BCJ after her plea was entered
and questions the transfer for security reasons as pretextual.
Defendants deny the transfer of Tyrah was due to the Court’s Initial Review Order
or the filing of the Amended Complaint, but allege the transfer of Tyrah was due instead
to the ongoing unauthorized communications between inmates and threats against Tyrah.
Defendants also maintain the written jail policies on inmate mail are constitutional on
their face as well as applied in this particular case.
MOTION FOR DISCOVERY SANCTIONS
Brown requests that the Court impose discovery sanctions against the Defendants
for not producing all relevant discovery materials. Defendants respond that they provided
their initial disclosure of all relevant materials and Brown has not made any written
discovery requests on Defendants. Defendants argue that absent a written discovery
request for a production of documents or to depose a witness, they have no duty to
MEMORANDUM ORDER - 9

provide further discovery.
Brown is proceeding pro se in this lawsuit. Pro se litigants are held to same
procedural rules as represented litigants. King v. Atiyeh, 814 F.2d 565, 567 (9th Cir.
1987). This Court cannot advise Brown on which discovery requests he should make. It
is up to Brown to make appropriate discovery requests as allowed by the Federal Rules of
Civil Procedure and applicable District of Idaho Local Rules. Discovery was to have
been completed by January 4, 2011 per the Case Management Order in this case, Dkt. 86.
The Court informed Plaintiff in that same Order, that discovery is exchanged between
parties, not filed with the Court. Brown has provided no evidence he made any written
discovery requests of Defendants through defense counsel. Further, before a party can
move for discovery sanctions, the parties must make a good faith effort to resolve their
discovery disputes. Dist. Idaho Loc. Civ. R. 37.1.2 No such showing has been made by
Brown. Therefore, the Court is unable to grant the requested motion for discovery
sanctions.
MOTIONS FOR SUMMARY JUDGMENT
1. Standard of Review
Summary judgment is appropriate where a party can show that, as to any claim or
2

Dist. Idaho Loc. Civ. R. 37.1 provides:
Unless otherwise ordered, the Court will not entertain any discovery motion, except
those brought pursuant to Federal Rule of Civil Procedure 26(c) by a person who is not a
party, unless the moving party through counsel or the self represented litigant, files with the
Court, at the time of filing the motion, a statement showing that the party making the motion
has made a reasonable effort to reach agreement with opposing attorneys or self represented
litigant on the matters set forth in the motion.

MEMORANDUM ORDER - 10

defense, “there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). One of the principal purposes of the
summary judgment “is to isolate and dispose of factually unsupported claims . . . .”
Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). It is “not a disfavored procedural
shortcut,” but is instead the “principal tool[ ] by which factually insufficient claims or
defenses [can] be isolated and prevented from going to trial with the attendant
unwarranted consumption of public and private resources.” Id. at 327.
“[T]he mere existence of some alleged factual dispute between the parties will not
defeat an otherwise properly supported motion for summary judgment; the requirement is
that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 247-48 (1986). Material facts are those that may affect the outcome of the case. See
id. at 248.
The moving party is entitled to summary judgment if that party shows that each
issue of material fact is not or cannot be disputed. To show the material facts are not in
dispute, a party may cite to particular parts of materials in the record, or show that the
materials cited do not establish the presence of a genuine dispute, or that the adverse party
is unable to produce admissible evidence to support the fact. Fed. R. Civ. P.
56(c)(1)(A)&(B); see T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d
626, 630 (9th Cir. 1987) (citing Celotex, 477 U.S. at 322). The Court must consider “the
cited materials,” but it may also consider “other materials in the record.” Fed. R. Civ. P.
56(c)(3).
MEMORANDUM ORDER - 11

Material used to support or dispute a fact must be “presented in a form that would
be admissible in evidence.” Fed. R. Civ. P. 56(c)(2). Affidavits or declarations submitted
in support of or opposition to a motion “must 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.” Fed. R. Civ. P. 56(c)(4).
The Court does not determine the credibility of affiants or weigh the evidence set
forth by the non-moving party. All inferences which can be drawn from the evidence
must be drawn in a light most favorable to the nonmoving party. T.W. Elec. Serv., 809
F.2d at 630-31 (internal citation omitted).
Rule 56(e)(3) authorizes the Court to grant summary judgment for the moving
party “if the motion and supporting materials–including the facts considered
undisputed–show that the movant is entitled to it.” The existence of a scintilla of evidence
in support of the non-moving party’s position is insufficient. Rather, “there must be
evidence on which the jury could reasonably find for the [non-moving party].” Anderson
v. Liberty Lobby, 477 U.S. at 252.

2. Section 1983 Actions in General and Qualified Immunity
Congress has created a cause of action against private individuals who, while
acting under color of law, violate the constitutional rights of private citizens. Section
1983 provides in pertinent part:
Every person who, under color of any statute, […] subjects, or causes to be
subjected, any citizen of the United States or other person within the
jurisdiction thereof to the deprivations of any rights, privileges or immunities
MEMORANDUM ORDER - 12

secured by the Constitution and laws, shall be liable to the party injured.
Id. In order for a plaintiff to prevail on a § 1983 claim they must show that (1) the actor
that deprived them of their rights acted under color of law and (2) the action actually
deprived them of a constitutional right.
In this case, the first requirement is not disputed by the parties. Jayne, the Bonner
County Sheriff and deputies as well as the Kootenai County Sheriff were all acting under
“color of law.” Thus, it is the second requirement for a civil rights claim that is at issue
here. Brown contends his Fourth Amendment right to be free of excessive force and his
First Amendment rights to communicate with his wife were violated. Defendants assert
that no constitutional rights were violated and even if a constitutional right was violated
the officers are entitled to qualified immunity.
While § 1983 provides a cause of action against police officers for constitutional
violations that they might have committed, they are also entitled to qualified immunity
from § 1983 claims. Qualified immunity operates to “shield an officer from personal
liability when an officer reasonably believes that his or her conduct complies with law.”
Pearson v. Callahan, 555 U.S. 223, 244 (2009). “Qualified immunity balances two
important interests – the need to hold public officials accountable when they exercise
power irresponsibly and the need to shield officials from harassment, distraction, and
liability when they perform their duties reasonably.” Id. at 231. “Qualified immunity
operates to ensure that before they [law enforcement officers] are subject to suit, officers

MEMORANDUM ORDER - 13

are on notice their conduct is unlawful.” Hope v. Pelzer, 536 U.S. 730, 739 (2002).
The qualified immunity analysis of whether an officer performed their duties
reasonably, turns on the “objective legal reasonableness of the action, assessed in light of
the legal rules that were clearly established at the time it was taken.” Wilson v. Layne,
526 U.S. 603, 614 (1999) (internal quotation marks omitted).
The court in Pearson rejected the mandatory two-step approach that it had
announced in Saucier v. Katz, 533 U.S. 194 (2001). Pearson at 236. That approach had
required courts to first decide if the defendant’s “conduct violated a constitutional right”
then decide whether the right was clearly established at the time of the alleged violation.
Saucier, 533 U.S. at 201. Courts are now free to decide either question in whatever order
is most appropriate given the circumstances.
3. Brown’s Excessive Force Claim
Brown claims Jayne used excessive force in patting him down and for handcuffing
him during the traffic stop. The appropriate area of inquiry for a claim of excessive force
incident to an arrest is the reasonableness test of the Fourth Amendment. Graham v.
Connor, 490 U.S. 386, 394 (1989). The Supreme Court has directed the excessive force
inquiry into “whether the officers’ actions are ‘objectively reasonable’ in light of the facts
and circumstances confronting them, without regard to their underlying intent or
motivation.” Id. at 397. When weighing an excessive force claim, summary judgment is
appropriate if the Court “concludes, after resolving all factual disputes in favor of the

MEMORANDUM ORDER - 14

plaintiff, that the officer’s use of force was objectively reasonable under all
circumstances.” Scott v. Henrich, 39 F.3d 912, 915 (9th Cir. 1994). Alternatively, “the
court may make a determination as to reasonableness where, viewing the evidence in the
light most favorable to [the plaintiff], the evidence compels the conclusion that [the
officers’] use of force was reasonable.” Hopkins v. Andaya, 958 F.3d 881, 885 (9th Cir.
1992). The Court can therefore find summary judgment if the force the officer used was
appropriate in any circumstance, or if the circumstances in the specific case were such
that the only conclusion is that the force was reasonable.
While considering this question the Court must be cognizant that “all
determinations of unreasonable force “must embody allowance for the fact that police
officers are often forced to make split-second judgments – in circumstances that are
tense, uncertain, and rapidly evolving – about the amount of force that is necessary in a
particular situation.” Henrich, 39 F.3d at 914 (quoting Graham, 490 U.S. at 396-97)
(internal quotations omitted). In addition, a plaintiff can succeed on an excessive force
claim only if they have suffered some compensable injury as a result of their treatment.
Graham 490 U.S. at 394.
The Graham standard requires the Court to evaluate “(1) the severity of the crime
at issue, (2) whether the suspect pose[d] an immediate threat to the safety of the officers
or others…[, and] (3) whether [he or she] [was] actively resisting arrest at the time of the
arrest.” Deorle v. Rutherford, 272 F.3d 1272, 1280 (9th Cir. 2001) (quoting Chew v.

MEMORANDUM ORDER - 15

Gates, 27 F.3d 1432, 1440-41 (9th Cir. 1994)) (referring to the three step approach in
Graham). Ultimately, the Court must weigh the interests of the government in enforcing
the law and providing for the safety of police officers and bystanders against the
individual’s right to be free from intrusive and excessive force. Graham, 490 U.S. at 396.
In this case, the facts are undisputed as the traffic stop was captured on videotape,
so the Court need only apply the known facts to the law to determine if summary
judgment is appropriate. The Court begins by finding that Brown’s claim for excessive
force in patting him down is unsupported by the record since the video clearly reveals no
pat down of Brown’s legs near his genitals. No reasonable jury could watch the video
and find the officer used excessive force in patting down Brown.
The Court must next address the argument that handcuffing Brown was excessive
force for a traffic stop. In applying the Graham factors, the Court finds in viewing the
evidence in the light most favorable to [the plaintiff], the evidence compels the
conclusion that [the officers’] use of force was reasonable.” Hopkins v. Andaya, 958 F.3d
881, 885 (9th Cir. 1992). At first glance, charges of failure to purchase a driver’s license
and failure to have proof of insurance do not seem severe enough to justify handcuffing.
However, in determining whether probable cause to arrest exists, the officer in the field
may draw reasonable inferences from the information that he has available to him. State
v. Kysar, 783 P.2d 859, 860 (1989). Jayne had the mistaken, but not unreasonable, belief
the driver and the passenger had outstanding warrants at the time he determined who the

MEMORANDUM ORDER - 16

occupants of the vehicle were. The mere denial of the warrants by the occupants of the
car does not invalidate Jayne’s belief which was based on information he had received
the day prior from a deputy prosecutor. Until the information regarding outstanding
warrants was determined to be incorrect by dispatch, the officer had a reasonable basis to
handcuff Brown.
Also, the occupants of the vehicle were clearly agitated. While Brown’s yelling
was directed more at Tyrah than the officer, the officer was without backup when he
stopped to check on the vehicle. For officer safety he was within his authority to
handcuff Brown while determining whether there were outstanding warrants, and
whether he had a valid license or insurance.
Further, Brown was cited for two misdemeanor violations and not traffic
infractions: failure to purchase a driver’s license, pursuant to Idaho Code § 49-301 and a
second violation of operating a vehicle without liability insurance pursuant Idaho Code
§ 19-1428. An officer must issue a citation rather than make an arrest unless there exist
circumstances under which an arrest is “required or permitted” under Idaho Code § 491407. Section 49-1407 provides:
Whenever any person is halted by a peace officer for any
misdemeanor violation of the provisions of this title and is not
required to be taken before a magistrate, the person shall, in
the discretion of the officer, either be given a traffic citation
or be taken without unnecessary delay before the proper
magistrate as specified in section 49-1411, Idaho Code, in the
following cases:

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(1) When the person does not furnish satisfactory evidence of
identity or when the officer has reasonable and probable
grounds to believe the person will disregard a written promise
to appear in court.
(2) When the person is charged with a violation relating to the
refusal of a driver of a vehicle to submit a vehicle to an
inspection and test.
(3) When the person is charged with a violation relating to the
failure or refusal of a driver of a vehicle to submit the vehicle
and load to a weighing or to remove excess weight therefrom.
In this case, the undisputed record supports that the first exception could apply to the
traffic stop. Jayne had reasonable and probable grounds to believe he had the right to
handcuff and arrest Brown since he had recently failed to appear on other charges.
Dispatch informed Jayne that Brown’s driver’s license had been expired for several
years, it was a second offense for driving without proof of insurance within the last five
years, and Brown had an outstanding warrant in the state of Washington. While Jayne
determined in the end he would not arrest Brown, he had the statutory authority to do so
under the particular circumstances so the use of handcuffs cannot be deemed excessive
force as handcuffing is the standard procedure when arresting a person. Moreover, there
is no claim by Brown that the application of the handcuffs caused him physical injury.
For these reasons, Jayne’s motion for summary judgment on the claim of excessive force
against Brown must be granted as no genuine issues of material fact exists and the use of
handcuffs was not excessive.
Alternatively, even if a jury determined Jayne had used excessive force, the Court
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finds Jayne would be entitled to qualified immunity for his actions because at the time of
the handcuffing he had an objectively reasonable belief there were outstanding warrants
for Brown and Tyrah and the occupants of the vehicle were upset and arguing. The
handcuffing and placing of Brown in the patrol car was not in violation of clearly
established law and a reasonable officer could have believed his conduct was lawful.
Romero v. Kitsap County, 931 F.2d 624, 627 (9th Cir. 1991).
4. Brown’s Excessive Force Claim Causing the Harm to His Unborn Baby
Tyrah has dismissed all her claims against Jayne. While Brown maintains Tyrah
did not dismiss the excessive force claim against Jayne, this is incorrect as the stipulation
for dismissal is as to all claims and against all defendants. Dkts. 76 and 77. Therefore,
while Brown may pursue his claim of excessive force that harmed his unborn child, he
has failed to produce any medical evidence in rebuttal to the motion for summary
judgment to support this claim. Mere conclusory statement that the push by Jayne caused
the miscarriage is insufficient to survive summary judgment.
It appears undisputed that Brown is not a medical expert. It is a general rule in
Idaho that a layperson is not permitted to testify regarding the cause of a medical
condition unless that medical condition is within the comprehension of the ordinary lay
person. See Cook v. Skyline Corp., 13 P.3d 857, 866 (Idaho 2000); State v. Card, 190
F.3d 930 (Idaho Ct. App. 2008). In this case, it appears Brown is alleging the undisputed
push of Tyrah against the car during the traffic stop caused her miscarriage two weeks
later. In making this claim, they apparently ignore the fact that both Brown and Tyrah
MEMORANDUM ORDER - 19

claimed she was bleeding and experiencing a miscarriage before Jayne stopped the
vehicle.
The Court will assume for purposes of the motion for summary judgment that
Tyrah did suffer a miscarriage about two weeks after the traffic stop. But the Court must
also consider Tyrah’s Second Amended Complaint where she indicated she was suffering
a miscarriage on September 16, 2011 and had a history of miscarriages. Therefore,
Brown needs to provide some medical evidence that the push by Jayne was of such force
that it was the cause of, or in some way contributed to, the miscarriage in this particular
case. Absent such medical testimony, Jayne is entitled to summary judgment on this
claim of excessive force causing harm to Brown’s unborn child. The causes of
miscarriages are not normally within the knowledge of a lay person and Brown has not
created a genuine issue of material fact by his speculation the push by Jayne caused the
miscarriage.

5. First Amendment Claim Regarding Jail Mail Policy
Brown claims the restrictive mail policies of the jails violated his First
Amendment rights to communicate with his wife. It is undisputed that the
correspondence between Brown and Tyrah was read and copied. It is also undisputed that
no hearing was held when the right to written correspondence was prohibited by Jail
Commander Harris between Brown and Tyrah. Brown does not dispute the fact that he
and Tyrah were violating the written communication policies of the BCJ when they were
hiding notes for each other in the jail. Brown does not dispute that Tyrah consented to
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her correspondence with Brown being copied when she was being held in Montana.
Brown does not dispute the conditions Harris established of allowing inmate to inmate
correspondence between the Plaintiffs at BCJ included the copying of the correspondence
and the limitation on the subject matter of the communication. Brown does not dispute
that written mail policies exist at BCJ and KCJ or that he was prohibited from receiving
legal mail from his attorney.
A. Inmate to Inmate Mail
The standards governing First Amendment claims of the incarcerated were
outlined by the United States Supreme Court in Turner v. Safley, 482 U.S. 78, 107 S.Ct.
2254 (1987). There, the Court examined the free speech issue in the context of prison
officials prohibiting correspondence between inmates residing at different state
institutions. The Court held that “when a prison regulation impinges on inmates’
constitutional rights, the regulation is valid if it is reasonably related to legitimate
penological interests.” Id. at 89. The Court identified four factors to consider when
determining whether a regulation is valid: (1) whether there is a “rational connection
between the prison regulation and the legitimate governmental interest put forward to
justify it”; (2) whether “there are alternative means of exercising the right that remain
open to prison inmates”; (3) what “impact accommodation of the asserted constitutional
right will have on guards and other inmates, and on the allocation of prison resources
generally”; and (4) whether “ready alternatives” exist. Id. at 89-90.
The principle that inmates retain at least some constitutional rights must be
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weighed against the recognition that prison authorities are better equipped than courts to
make difficult decisions regarding prison administration. Washington v. Harper, 494
U.S. 210 (1990). Accordingly, there need be only a rational connection between a prison
policy and a legitimate governmental interest put forward to justify it. Turner v. Safley,
482 U.S. 78, 89-91 (1987). The burden of proof under the Turner analysis is on the
prisoner to disprove the validity of the prison regulation at issue. Overton v. Bazzetta,
539 U.S. 126, 132 (2003).
In examining the inmate to inmate mail policies of both BCJ and KCJ, the Court
finds there is a rational connection between the prison regulation and the legitimate
governmental interest put forward to justify the policies. Harris and Robertson set forth
in their affidavits the security risks associated with inmate to inmate communications: the
communication of escape plans, coordinating movement of contraband in and out of the
facility, coordinating violent acts against jail personnel, developing and maintaining
informal organizations, tracking the movements of corrections staff and/or other inmates,
and the use of coded messages which make it difficult for jail personnel to determine
whether a letter between inmates poses a risk. Dkts. 108-4 and 108-5. Alternatives for
communication were provided to the Plaintiffs by Harris. They could write a letter once a
week that would be read and copied and could not discuss certain issues. The conditions
were necessary to protect all inmates since there had been threats against Tyrah and the
Plaintiffs faced serious charges of first degree murder. It is undisputed by Brown that he
and his wife violated the conditions of correspondence and at least one of them attempted
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to leave notes in different locations in the jail. Because there was a rational basis for the
mail policies and Plaintiffs’ actions led to the loss of the alternative means to
communicate, the First Amendment cannot proceed as Brown has not carried his burden
to disprove the validity of the prison regulations at issue.

B. Failure to Provide a Hearing.
While not included in the Second Amended Complaint, Brown now tries to add a
claim that he was denied a due process hearing when his inmate to inmate mail privileges
were terminated. The Court notes Brown failed to file a Third Amended Complaint when
granted leave to do so by the Court. The jail mail policies do not provide for a due
process hearing and the inmates are on notice of the policies that generally prohibit
inmate to inmate correspondence for safety reasons. Moreover, before a plaintiff can
bring a claim for a violation of due process rights he needs to establish he has exhausted
administrative remedies at the jail for relief.
Pursuant to the Prison Litigation Reform Act of 1995 (PLRA),3 a prisoner is
required to exhaust all administrative remedies within the prison system before he can
bring a civil rights lawsuit challenging the conditions of his confinement. 42 U.S.C. §
1997e(a). “There is no question that exhaustion is mandatory under the PLRA and that
unexhausted claims cannot be brought in court.” Jones v. Bock, 549 U.S. 199, 211 (2007).
The Jones v. Bock Court noted the important policy concern behind requiring

3

110 Stat. 1321-71, as amended, 42 U.S.C. § 1997e, et seq.

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exhaustion is that it “allows prison officials an opportunity to resolve disputes concerning
the exercise of their responsibilities before being haled into court.” Id. at 204. In addition,
the Jones v. Bock Court cited with approval the observation that "the primary purpose of a
grievance is to alert prison officials to a problem, not to provide personal notice to a
particular official that he may be sued; the grievance is not a summons and complaint that
initiates adversarial litigation." Id. at 219 (internal citation omitted).
Where there is an “informal[]” and “relative[ly] simpl[e]” prison grievance system,
prisoners must take advantage of it before filing a civil rights complaint. Woodford v.
Ngo, 548 U.S. 81, 103 (2006). “Proper” exhaustion of administrative remedies is
required, meaning that “a prisoner must complete the administrative review process in
accordance with the applicable procedural rules, including deadlines, as a precondition to
bringing suit in federal court.” Id. at 85. Proper exhaustion is "defined not by the PLRA,
but by the prison grievance system itself." Jones v. Bock, 549 U.S. at 218. Therefore, the
"level of detail necessary in a grievance to comply with the grievance procedures" will be
defined by the prison's own grievance policy. Id.
In Rhodes v. Robinson, 621 F.3d 1002 (9th Cir. 2010), the United States Court of
Appeals for the Ninth Circuit clarified that if a plaintiff wishes to add new claims to an
existing lawsuit by raising them in an amended or supplemental complaint, the district
court is to look to the timing of the submission of the claims to determine whether the
newly-added claims were timely exhausted. The Rhodes Court held that “a prisoner must
exhaust his administrative remedies for the claims contained within his complaint before
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that complaint is tendered to the district court.” Id. at 1005. Particularly, the Court agreed
that inmate Rhodes correctly argued that “the new claims in his second amended
complaint should not have been dismissed, because they were properly exhausted before
he tendered his second amended complaint to the district court for filing.” Id. (emphasis
in original).4
Rhodes does not overrule United State Supreme Court precedent requiring
exhaustion before a claim is brought in federal court. Rather, construed together, these
cases dictate that, if a claim was included in the original complaint before the claim was
exhausted, the claim cannot be exhausted during the pendency of the lawsuit and pursued
in an amended complaint, but, rather, such claims must be dismissed without prejudice.
To permit Rhodes to override § 1997e(a)’s exhaustion-first rule would contradict the
letter and spirit of Woodford v. Ngo, 548 U.S. 81, 103 (2006), which held that “proper”
exhaustion of administrative remedies under § 1997e(a) means that “a prisoner must
complete the administrative review process in accordance with the applicable procedural
rules, including deadlines, as a precondition to bringing suit in federal court.” Id. at 85
(emphasis added). Such a rule would also encourage inmates to disregard the exhaustion-

4

In Rhodes, the inmate asked for authorization to file a second amended complaint
to add new claims that arose after the original complaint was filed. This Court does not
read Rhodes so narrowly as to require that claims must have arisen after the filing date of
the original complaint to be eligible for later amendment. See id., 621 F.3d at 1006-07.
Rather, the Court will consider permitting amendment so long as the claim was exhausted
at the time it was first presented to the Court in a pleading for inclusion in the case,
regardless of whether it arose before or after the filing date of the original Complaint.
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first rule, resulting in the thwarting of the purpose of administrative exhaustion–to resolve
problems without filing suit.

In this case, Brown has not provided any evidence he exhausted the grievance
procedure of BCJ or KCJ regarding his complaints for terminating inmate to inmate
correspondence with his wife, so the Court will not expand Brown’s claims to include a
due process claim at this stage in the litigation.
6. Retaliation Claim for Transfer of Tyrah to KCJ After Amending Complaint
Brown alleges after the Court issued its Initial Review Order allowing the case to
proceed and Plaintiffs amending their complaint, the Defendants Savage, Harris, Cable
and Watson all retaliated against he and his wife by transferring his wife to KCJ.
Defendants deny the transfer was based on the amended complaint being filed. The
parties do not dispute that written communications had been prohibited prior to the
transfer due to violations of the communication policies of BCJ.
To prevail on a retaliation claim, an inmate must bring forward evidence
demonstrating that (1) a state actor took some adverse action against the inmate (2)
because of (3) the inmate's protected conduct (such as the exercise of free speech), and
that such action (4) chilled the inmate’s exercise of his First Amendment rights, and (5)
the action did not reasonably advance a legitimate correctional goal. Rhodes v. Robinson,
408 F.3d 559, 567-68 (9th Cir. 2005). A “chilling effect on First Amendment rights” is
enough to state an injury. Gomez v. Vernon, 255 F.3d 1118, 1127 (9th Cir. 2001).
When the government has submitted evidence of a legitimate penological purpose,
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a plaintiff must present evidence of a retaliatory motive in order to avoid dismissal or
summary judgment. See Pratt v. Rowland, 65 F.3d 802, 808-10 (9th Cir. 1995); Davis v.
Valdes, 462 F.Supp. 2d 1084, 1096 (D.Ca. 2006) (plaintiff’s own bare statements
insufficient); Hurd v. Garcia, 454 F.Supp. 1032, 1050 (D.Ca. 2006). Courts should
“afford appropriate deference and flexibility to prison officials in the evaluation of
proffered legitimate penological reasons for conduct alleged to be retaliatory.” Pratt, 65
F.3d at 807. However, prison officials “may not defeat a retaliation claim on summary
judgment simply by articulating a general justification for a neutral process when there is
a genuine issue of material fact as to whether the act was taken in retaliation for the
exercise of a constitutional right.” Bruce v. Ylst, 351 F.3d 1283, 1289 (9th Cir. 2003).
Timing can be circumstantial evidence of retaliatory intent, but timing alone is
insufficient to create a genuine issue of material fact regarding retaliatory motive. Pratt,
65 F.3d at 808. Timing can be combined with other circumstantial evidence to defeat
summary judgment, for example, an officer’s statement suggesting an improper motive,
and that officers relied on stale evidence to support their allegedly legitimate reason for
the adverse action. Bruce v. Ylst, 351 F.3d at 1288-89.

To begin with, Defendant Watson, the Sheriff of Kootenai County, testifies in his
affidavit he had no knowledge of the transfer of Tyrah to KCJ until the Second Amended
Complaint was filed and he had nothing to do with the decision to transfer Tyrah so the
retaliation claim is not applicable to him. Brown has not rebutted this evidence by
Watson. Therefore, the Court agrees that Defendant Watson should be granted summary
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judgment on the claim for retaliation.
As to the Bonner County Sheriff and deputies, the factor at issue for the Court to
decide is whether the action of transferring Tyrah to KCJ did or did not reasonably
advance a legitimate correctional goal. The security risks associated with inmate to
inmate correspondence are legitimate penological concerns and it is undisputed that
Brown and Tyrah violated the rules of correspondence allowed by the BCJ Jail
Commander and written policies. Moreover, Brown has not refuted the Jail
Commander’s affidavit that threats against Tyrah had been received. Therefore, the
transfer of Tyrah did advance a legitimate correctional security goal.
While it is true the timing of the transfer was shortly after the Court issued its
Initial Review Order allowing the claim to proceed against Jayne, the original Complaint
did not include a First Amendment violation allegation and does not involve the mail
policies at the county jails. So the Court allowing the claim against Jayne to proceed in
the Initial Review Order cannot be the basis for any retaliation against Brown or Tyrah by
the Bonner County Sheriff and jail deputies as Brown speculates.
While it is true the transfer occurred in December of 2007 after Harris had
terminated the inmate to inmate correspondence between the Plaintiffs in November and
after the Plaintiffs had filed their Amended Complaint on December 6, 2007, which
included a claim for violation of First Amendment rights to correspond, the timing alone
does not support the finding of a constitutional violation where a penological reasons for
the transfer have not been rebutted by Brown. Brown’s conclusory statements that the
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claimed security risk did not exist does not create a genuine issue of material fact on this
issue. Brown presents no case law that supports his position that because he and his
spouse were in jail, they have the unlimited First Amendment right to correspond and
communicate with each other. The fact Brown and Tyrah were married does not create
special inmate to inmate mail privileges. The Court finds there is no genuine issue of
material fact regarding whether the transfer advanced a legitimate correctional goal of
increased security and the Defendants are entitled to summary judgment on this claim.
Alternatively, even if the transfer could be shown to be an alleged constitutional
violation, the Bonner County Sheriff and deputies would be entitled to qualified
immunity as their actions in transferring Tyrah were not in violation of clearly established
law and reasonable officers could have believed their conduct was lawful. Romero v.
Kitsap County, 931 F.2d 624, 627 (9th Cir. 1991).
7. Conclusion
After reviewing the record in this matter and viewing the facts in a light most
favorable to Brown, the Court finds genuine issues of material fact do not exist that would
prevent summary judgment from being entered as a matter of law in Defendants' favor.

ORDER
IT IS ORDERED:
1. Plaintiff Keith Brown’s Motion for Summary Judgment (Dkt. 114) is DENIED.
2. Defendants Savage, Harris, Cable and Watson’s Motion for Summary
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Judgment (Dkt. 108) is GRANTED and all claims against these Defendants are
DISMISSED IN THEIR ENTIRETY.
3. Defendant Jayne’s Motion for Summary Judgment (Dkt. 104) is GRANTED
and all claims against this Defendant are DISMISSED IN THEIR ENTIRETY.
4. Plaintiff Keith Brown’s Motion for Discovery Sanctions (Dkt. 98) is DENIED.
5. Plaintiff Keith Brown’s Motion for Mediation Lawyer (Dkt. 102) is DENIED
AS BEING MOOT.

DATED: September 28, 2011

Honorable B. Lynn Winmill
Chief U. S. District Judge

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