Brown v. Savage

Filing 55

MEMORANDUM ORDER denying 34 Motion for Summary Judgment; granting 35 Motion for Summary Judgment; granting 38 Motion for Summary Judgment; denying 43 Motion to grant summary judmgnet agains dft Ingram for failure to responsd ; granting 45 M otion for Leave to File memorandum opposing pla's motion for summary judgment; denying 50 Motion to Strike Pleadings. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by dks)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

KEITH A. BROWN,

)
)
Plaintiff,
)
)
vs.
)
)
ELAINE SAVAGE, TONY
)
INGRAHM, and KEVIN DUNTON,
)
)
Defendants.
)
_________________________________)

Case No. CV-08-382-N-EJL
MEMORANDUM ORDER

Pending before the Court in the above-entitled matter are cross motions for summary
judgment, a motion for leave to file a late response and related motion to grant summary
judgment based on a failure to respond, and a motion to strike pleadings. 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 conclusively finds that the decisional process would not be significantly
aided by oral argument, this matter shall be decided on the record before this Court without
oral argument.

MEMORANDUM ORDER - 1

BACKGROUND
Plaintiff Keith Brown (“Brown”) filed his civil rights Complaint in September of
2008. Dkt. 1. The Court conducted an initial review of the Complaint and determined
Brown could proceed with his false arrest and false imprisonment claims against Bonner
County’s Sheriff’s Detective Tony Ingram (“Ingram”) and Federal Bureau of Investigations
(“FBI”) Special Agent Kevin Dunton (“Dunton”). Dkt. 5. All other claims were dismissed
by the Court. Id. The claims against Ingram are pursuant to 42 U.S.C. § 1983 and the claims
against Dunton are pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau
of Narcotics, 403 U.S. 388 (1971) which is analogous to § 1983 claims for federal actors.
The facts are generally undisputed. On or about February 5, 2007, Bonner County
Sheriff’s office responded to notification of an abandoned vehicle. The abandoned vehicle
was determined to belong to Mr. Leslie Breaw (“Breaw”). The investigating officers were
concerned about the status of Breaw as it was winter and the temperatures were cold and
there were numerous valuable items in the abandoned vehicle as well as empty beer cans and
the keys to the vehicle were clipped to the truck.
Ingram was the detective working with other sheriff’s office deputies to try to figure
out what had happened to Breaw. They went to the address on file with the U.S. Post Office
for Breaw and entered the two residences located at the address in order to conduct a welfare
check on Breaw. No one answered at the first house and when officers entered the residence
they determined based on mail and other items located in the house that the residence was

MEMORANDUM ORDER - 2

not Breaw’s but the residence of Keith and Tyrah’s Brown and Rebekah Harding (Tyrah
Brown’s mother). So the officers left the residence and went next to the house next door.
No one answered. The officers entered and determined it was Breaw’s residence, but it did
not appear that anyone had been home for a period of time. The officers talked with
neighbors who informed them they had not seen Breaw for at least a week or more and one
neighbor said they had noticed the Browns packing their vehicle in a hurried manner and had
not seen the Browns since then.
Detective Ingram talked to Phyllis Scott, Breaw’s mother, and she agreed her son was
missing as he had told her he would get back to her after their phone call about Breaw
coming to visit. The phone call occurred on or about January 14-15, 2007 and she had not
heard from him since then.
Ingram also got subpoenas from the court for the financial records from Breaw’s
banks. First State Bank indicated he had a balance of $1,100 and that there had been no
activity since January 15, 2007. Ingram had noticed a missing check (and carbon duplicate)
in the checkbook found in the truck, but that check number had not cleared the bank.
Panhandle State Bank confirmed the last account activity was on January 25, 2007
and there had been several uses of the debit card associated with the account. Ingram
investigated the debit charges from Mac’s Gas and Grocery in the Coolin area on January
18, 2007. The surveillance video from the store revealed it was Keith Brown (“Brown”)
who had used the debit card on January 18, 2007 for gas and other items. Ingram made the

MEMORANDUM ORDER - 3

determination it was Keith Brown based on a booking photo of Brown from a prior arrest
which he compared to the video.
The debit applied by the bank on January 25th was for The Tamarack store in Priest
Lake for $92.37 and was for diesel fuel at 1246 p.m. A receipt was found that tied to this
amount in the personal items of Breaw. The store owners confirmed they had not recently
seen Breaw.
Ingram was also aware that Breaw’s dogs were found unfed and running loose. The
investigation revealed that a clerk at Coolin Corners bar-restaurant knew Breaw, as well as
Keith and Tyrah Brown and they had been in for burgers and beer a couple of weeks ago.
The clerk indicated Breaw was a regular but had not seen him since the last visit a couple
of weeks ago.
Late on February 6, 2007, the prosecutor decided Ingram had enough evidence to
establish probable cause to request an arrest warrant for Brown’s use of Breaw’s debit card
and for a search warrant of Breaw’s and the Browns’ residences. Ingram testified for the
warrants before state court Magistrate Judge Barbara Buchanan. Judge Buchanan was
familiar with Keith Brown and found there was probable cause to issue an arrest warrant and
to issue the search warrants on the two residences.
After the arrest warrant and search warrants were issued, the investigation continued.
Ingram discovered that Brown had a friendship with Breaw and that Rebekah Harding was
Tyrah Brown’s mother and had been living with the Browns. One person recalled Breaw

MEMORANDUM ORDER - 4

and Brown having a disagreement. There was a report that Keith and Tyrah Brown had
personally collected rent from Breaw’s renters and this appeared to be without Breaw’s
consent when a renter told officers Breaw called one renter asking why they had not paid
their rent and they told him they had paid the rent to Keith and Tyrah Brown.
A moving truck showed up to move the contents of the Brown’s house. Tyrah Brown
had not come back to work to get her paycheck. Ingram had a phone conversation with
Rebekah Harding who was in Montana and she indicated statements were made by the
Browns indicating they thought Breaw had a lot of money (his mother had confirmed Breaw
had received a large inheritance) and that they felt like they would not get a fair shake from
the system and they decided to run. Rebekah Harding would not disclose where the Browns
were located. It was also discovered that an escrow account of Breaw’s had more than
$50,000 removed by the Browns. Other restaurant owners indicated Breaw was a regular
but had not been seen since January.
On February 21, 2007, Agent Dunton requested a federal Unlawful Flee to Avoid
Prosecution (“UFAP”) warrant from United States Magistrate Judge Mikel H. Williams
based on Dunton’s belief from information provided by the Bonner County Sheriff’s office
that Brown had fled the state to avoid prosecution on the alleged unlawful use of Breaw’s
debit card. A UFAP warrant was granted on that same day.1

1

The Court takes judicial notice of its own court records in United States v. Brown, 07MJ-6188-MHW, Dkt. 2.

MEMORANDUM ORDER - 5

Sometime on March 19, 2007, a body was found in the woods. At around noon on
March 20, 2007, Brown was arrested in Florida on the federal UFAP warrant and was
transferred to Idaho. The discovery of Brown in Florida was based on independent
information from a Montana car dealer being asked by Tyrah Brown to mail something to
her at a Florida address. It is unclear from the record when Brown was returned on the
warrant to Idaho.
The charges for grand theft in criminal case number 2007-0621involving the debit
card were dismissed on May 2, 2007. On or about May 3, 2007, Brown was charged in state
criminal case no. CRF-2007-2454 with the murder in the first degree of Breaw, grand theft
by possession of stolen property involving $56,000 in an escrow account, and being a felon
in possession of a firearm. Brown’s counsel in state court filed a motion to suppress
evidence arguing there was no probable cause for the arrest warrant on February 6, 2007.
The state district court ruled probable cause existed for the warrant for arrest and, in the
alternative, Brown could have been arrested without a warrant.
Brown pled guilty to voluntary manslaughter and aiding and abetting grand theft. An
Amended Judgment was filed On November 15, 2010 in state court indicating Brown was
sentenced to 15 years (10 years fixed) on the manslaughter count and 5 years fixed on the
grand theft charge, to run concurrent. The Court finds the criminal case is on appeal
according to the Idaho Supreme Court Data Repository2 (“Repository”) and the Court takes

2

https://www.idcourts.us/repository/caseHistory.do?(visited on September 19, 2011).

MEMORANDUM ORDER - 6

judicial notice of the certain facts from the Repository. See Lee v. City of Los Angeles, 250
F.3d 668, 688-89 (9th Cir. 2010) (explaining that court may take judicial notice of matters
of public record).

It is unclear from the record when the body in the woods located on March 19, 2007
was identified as Breaw’s, but Plaintiff claims Breaw’s debit card (that Ingram thought had
been unlawfully used by Brown to justify the arrest warrant for grand theft) was found on
the body of Breaw. Brown claims Ingram and Dunton had a duty to go back to the
magistrate judges who issued the warrants and inform them that probable cause regarding
the grand theft charges related to alleged unlawful use of the debit card no longer existed
when: 1) the debit card was found on Breaw; 2) additional information proved Brown had
used the debit card of Breaw’s with permission on other occasions; and 3) Breaw used his
debit card after the surveillance film of Brown buying gas and other items at Mac’s so the
assumption by officers should have been Brown had permission to use the debit card earlier
in January at Macs Gas and Grocery. Brown also argues Ingram and Dunton had a duty to
conduct further investigations before seeking warrants and that once exculpatory evidence
was discovered regarding the grand theft charge, Ingram and Dunton should have requested
the warrants be vacated by the issuing judges. Brown claims Ingram and Dunton violated
his constitutional rights to be free from an unlawful arrest and false imprisonment based on
the alleged unlawful arrest. Defendants deny they violated Plaintiff’s constitutional rights.

MEMORANDUM ORDER - 7

Motion to Strike Pleadings
Brown seeks to have the Court strike the pleadings filed by Seann Mumford claiming
he is not an attorney of record for Bonner County. Mr. Mumford is associated with Mr.
Erbland and both attorneys are attorneys of record in this matter. Furthermore, another
attorney in the firm in which Mr. Erbland practices is allowed to sign pleadings on behalf of
Mr. Erbland. Accordingly, the motion to strike is denied.

Motion to Grant Summary Judgment Against Defendant Ingram for Failure to Respond
and Defendant Ingram’s Motion for Leave to File a Memorandum Opposing Plaintiff’s
Motion for Summary Judgment
Plaintiff seeks the Court to grant his motion for summary judgment since Defendant
Ingram did not timely file his response to Plaintiff’s motions. Defendant Ingram also seeks
leave of the Court to file his response to Plaintiff’s motion for summary judgment less than
twenty-four hours after the deadline. The Court denies Plaintiff’s motion as a court cannot
grant a motion for summary judgment merely because the opposing party failed to respond to
the motion. See Marshall v. Gates, 44 F.3d 722, 725 (9th Cir. 1995) (summary judgment may
not be granted simply because opposing party violated a local rule, if movant did not meet the
burden of demonstrating absence of genuine issue for trial). Accordingly, the Court will
evaluate the motion for summary judgment on the merits and deny the Plaintiff’s request to

MEMORANDUM ORDER - 8

summarily grant his motion summary judgment due to an untimely response by Defendant
Ingram.
District Courts may establish local rules of procedure that have the force of law. Fed.
R. Civ. P. 83(a)(1). Attorneys practicing in a federal district court are charged with knowledge
of the local rules the same as they are charged with knowledge of the Fed. R. Civ. P. Local
Rule 7.1 controls when a response must be filed to a motion. Pursuant to D. Idaho L. Civ. R.
7.1(c), the responding party must file its response within twenty-one days after service upon
the party of the motion and memorandum by the moving party.3 The Local Rules provide that
failure to respond to a motion may be deemed consent to the granting of the motion. D. Idaho
L. Civ. R. 7.1(f). Moreover, pursuant to Fed. R. Civ. P. 6(d), three days are added to the
response period of twenty-one days, so the response in this case (as confirmed by the deadline
on the docket sheet for Plaintiff’s motion for summary judgment, Dkt. 34) was due on January
13, 2011. The motion for leave to file a response was filed on January 14, 2011, so
Defendant’s request to file one day late is an accurate representation.
Further, Plaintiff has not shown he suffered any prejudice from the request by
Defendant Ingram to file his response one day late. The Court notes Ingram had filed his own
3

D. Id. L. Civ. R. 7.1(c)(1) provides in part:

The responding party must serve and file a response brief . . . . The
responding parties must serve and file with the response brief any
affidavits, copies of all photographs, and documentary evidence on which
the responding party intends to rely. (Emphasis added.)

MEMORANDUM ORDER - 9

cross motion for summary judgment on January 12, 2011 (Dkt. 38) which was well before the
motions deadline of May 31, 2011 per the scheduling order, Dkt. 32. So Ingram was not
avoiding addressing the Plaintiff’s allegations and the one day extension for the response is
in the interests of justice in resolving the pending motions after hearing from all parties, not
just one party. Therefore, the Court will grant Ingram’s motion for leave to file a late response
and will consider the four page response attached to the motion for leave as his response to
Plaintiff’s motion for summary judgment.

Motions for Summary Judgment
1. Standard of Review
Motions for summary judgment are governed by Rule 56 of the Federal Rules of Civil
Procedure. Rule 56 provides, in pertinent part, that judgment "shall be rendered forthwith if
the pleadings, depositions, answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c).
The Supreme Court has made it clear that under Rule 56 summary judgment is
mandated if the non-moving party fails to make a showing sufficient to establish the existence
of an element which is essential to the non-moving party's case and upon which the nonmoving party will bear the burden of proof at trial. See, Celotex Corp v. Catrett, 477 U.S. 317,
322 (1986). If the non-moving party fails to make such a showing on any essential element,

MEMORANDUM ORDER - 10

"there can be no `genuine issue of material fact,' since a complete failure of proof concerning
an essential element of the nonmoving party's case necessarily renders all other facts
immaterial." Id. at 323.4
Moreover, under Rule 56, it is clear that an issue, in order to preclude entry of summary
judgment, must be both "material" and "genuine." An issue is "material" if it affects the
outcome of the litigation. An issue, before it may be considered "genuine," must be
established by "sufficient evidence supporting the claimed factual dispute . . . to require a
jury or judge to resolve the parties' differing versions of the truth at trial." Hahn v. Sargent,
523 F.2d 461, 464 (1st Cir. 1975) (quoting First Nat'l Bank v. Cities Serv. Co. Inc., 391 U.S.
253, 289 (1968)). The Ninth Circuit cases are in accord. See, e.g., British Motor Car Distrib.
v. San Francisco Automotive Indus. Welfare Fund, 882 F.2d 371 (9th Cir. 1989).
According to the Ninth Circuit, in order to withstand a motion for summary judgment,
a party
(1) must make a showing sufficient to establish a genuine issue of fact with
respect to any element for which it bears the burden of proof; (2) must show that
there is an issue that may reasonably be resolved in favor of either party; and (3)
must come forward with more persuasive evidence than would otherwise be
4

See also, Rule 56(e) which provides, in part:

When a motion for summary judgment is made and supported as provided
in this rule, an adverse party may not rest upon the mere allegations or
denials of the adverse party's pleadings, but the adverse party's response, by
affidavits or as otherwise provided in this rule, must set forth specific facts
showing that there is a genuine issue for trial. If the adverse party does not
so respond, summary judgment, if appropriate, shall be entered against the
adverse party.
MEMORANDUM ORDER - 11

necessary when the factual context makes the non-moving party's claim
implausible.
Id. at 374 (citation omitted).
Of course, when applying the above standard, the court must view all of the evidence
in a light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986); Hughes v. United States, 953 F.2d 531, 541 (9th Cir. 1992).
2. 42 U.S.C. § 1983 or Bivens 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 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 the case of alleged unlawful acts by a federal
law enforcement officer, the claims are brought under the authority of Bivens v. Six
Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). The
analysis is basically the same for a § 1983 action or a Bivens claim.
In this case, the first requirement is not disputed by the parties. Bonner County
sheriffs’ deputies and detectives and FBI agents carrying out their duties investigating a

MEMORANDUM ORDER - 12

missing person and/or an alleged crime of grand theft by a third party, or arresting a person
pursuant to a warrant are acting under “color of law.” Thus, it is the second requirement for
a civil rights claim that is at issue here. Plaintiff contends this Fourth Amendment rights
regarding false arrest and false imprisonment were violated. Defendants assert that no
constitutional right was violated and even if a Fourth Amendment 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 and Bivens 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
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).

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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. Claims Against Ingram
A. False Arrest
Brown argues the officers investigating the disappearance of Breaw withheld facts
before the magistrate judge and the arrest warrant was issued based on false, incomplete or
misleading information. As to the use of the debit card, Brown argues he had permission,
and did not forge Breaw’s name but used his own. The question is not what actually
happened with the debit card usage, but did the facts known to law enforcement and
disclosed to the state magistrate judge on February 6, 2007 support a finding of probable
cause for the issuance of a warrant on grand theft charges related to what law enforcement
believed was fraudulent use of a financial access card.
The elements of § 1983 case grounded upon the Fourth Amendment for false arrest
are as follows: “(1) that the police officer knowingly and deliberately, or with a reckless
disregard for the truth, made false statements or omissions that create a falsehood in

MEMORANDUM ORDER - 14

applying for a warrant; and (2) that such statements or omissions are material, or necessary,
to the finding of probable cause.” Wilson v. Russo, 212 F.3d 781, 7878 (3rd. Cir.
2000)(internal citation and punctuation omitted).
“The Fourth Amendment requires that arrest warrants ‘be based upon probable
cause, supported by Oath or affirmation.” Katrina v. Fletcher, 522 U.S. 118, 129 (1997)
(quoting Gerstein v. Pugh, 420 U.S. 103, 117 (1975)). Probable cause exists where the
“facts and circumstances [are] sufficient to warrant a prudent man in believing that the
[suspect] had committed or was committing and offense.” Gerstein, 420 U.S. at 111.
Where an arrest is made pursuant to a warrant, the arrest violates the Fourth Amendment if
“a reasonably well-trained officer in [defendant’s] position would have known that his
affidavit failed to establish probable cause and that he should not have applied for the
warrant.” Malley v. Briggs, 475 U.S. 335, 35 (1986).
In this case, the Court has the opportunity to consider the transcript including the
testimony of Ingram in the hearing before the state court magistrate judge who issued the
search and arrest warrants related to the grand theft allegations in CR 2007-621, the
relevant written police reports, portions of the transcript of the Franks hearing before the
state district court in CR 2007-2754, portions of the deposition of Ingram (the complete
deposition was provided to the state district court in consideration of the Franks hearing).
Arguably, this issue has already been decided by the state court when it issued its
opinion after the Franks hearing. This Court agrees with the state district judge that at the

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time of the request for the search and arrest warrants related to the alleged unlawful use of
the credit/debit card on February 6, 2007, the Court finds there is no evidence to support
that “(1) that Ingram knowingly and deliberately, or with a reckless disregard for the truth,
made false statements or omissions that created a falsehood in applying for a warrant; or
(2) that Ingram’s alleged false statements or omissions were material, or necessary, to the
finding of probable cause.”
Applying 20/20 hindsight, the Court acknowledges Plaintiff may be correct in his
assertion that certain facts were misconstrued by law enforcement, but when the request for
warrants was made to the magistrate judge, reasonable inferences from the known facts
supported a finding of probable cause to issue the arrest warrant. Moreover, at the Franks
hearing the state district judge concluded “[although there is evidence that another officer
had information that Breaw had used the [credit/debit] card after the defendant used it,
there is no evidence that, at the warrant hearing, Ingram knew about Breaw’s subsequent
use.” Moreover, although Breaw may have used his credit/debit card after Brown used the
card, there was no evidence that the use by Brown was authorized by Breaw on the date he
used it at Macs. Therefore, the Court finds there is no evidence Ingram knowingly and
deliberately, or with a reckless disregard for the truth, made false statements or omissions
that created a falsehood in applying for warrants.
In addition to the arrest warrant for grand theft, the investigating officers
acknowledged they wanted Brown found for questioning regarding the missing person

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investigation regarding Breaw. The magistrate judge who issued the warrants stated on the
record she also wanted to find out about Brown’s knowledge regarding the circumstances
of Breaw’s disappearance. Just because a secondary reason exists that law enforcement
officers want to interview a person of interest does not mean a valid arrest warrant
supported by probable cause cannot legally be issued.
So the next question becomes, did Ingram withhold information and/or fail to return
to the issuing magistrate judge after a body was found in the woods on March 19, 2007?
Again, the answer is no. It is undisputed that although some of the law enforcement
officers thought the body found was that of Breaw, the determination by the examiner as to
the identification was not made until after the arrest of Plaintiff on March 20, 2007 at
around 12:30 Eastern Time.
Plaintiff maintains Ingram knew that Breaw had authorized prior uses of his debit
card by Brown, therefore, the known facts did not support a finding of probable cause in
March 2007 before Brown was arrested in Florida. While it is clear from the record that
law enforcement wanted to question Brown about Breaw’s disappearance, the discovery of
the body with the debit card does not as a matter of law establish that the probable cause
for the arrest of Brown on the grand theft charges no longer existed. The facts regarding
the late January debit card usage differed from the previous authorized uses. Brown and
Tyrah had allegedly left in a hurry, Breaw had been found dead, Tyrah left without picking
up her last check, statements made to Rebekah Harding that they fled because they did not

MEMORANDUM ORDER - 17

think they would get a fair shake. All these facts result in probable cause for the grand
theft charges remaining valid even though the debit card had been located. Furthermore,
the escrow account withdrawals by the Browns were discovered and that supported a
probable cause inference that other financial transactions may have been improper.
The threshold for probable cause is not high and exists where the “facts and
circumstances [are] sufficient to warrant a prudent man in believing that the [suspect] had
committed or was committing and offense.” Gerstein v. Pugh, 420 U.S. 103, 111 (1975).
In this case, the record is clear the officer investigation of the missing person and the grand
theft charges continued after the search warrants were issued. Law enforcement had facts
and circumstances that warranted a prudent person into believing Keith and Tyrah Brown
had committed some wrongful uses of the debit card, the rent collected monies and monies
in a certain escrow account. Brown has provided no evidence that the additional
investigation and discovery on the pending grand theft charges and the newly discovered
escrow account withdrawals were ended after Brown’s arrest. The record supports that
further investigation was necessary and completed on the overall investigation of Brown’s
involvement with Breaw’s finances and his death. Therefore, while the investigation
continued and until the charges were dismissed the Court finds there is no evidence of an
unlawful arrest or a duty on the officer to return to the magistrate judge who issued the
arrest warrant.

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At some point the prosecutor determined he would dismiss the grand theft charges
in CR2007-0621 and proceed instead on the murder and grand theft charges in CR20072454. Again, the motion to dismiss the charges in s CR2007-0621 does not establish as a
matter of law that false or misleading statements had been made to the magistrate judge or
that probable cause no longer existed on the charges.
For all the above reasons, Brown’s conclusory statements and theories are not
supported by the facts. When the nonmoving party relies only on its own declarations to oppose
summary judgment, it cannot rely on conclusory allegations unsupported by factual data to create
an issue of material fact. Hansen v. United States, 7 F.3d 137, 138 (9th Cir.1993). Brown

has not established a genuine issue of material fact regarding that (1) Ingram knowingly
and deliberately, or with a reckless disregard for the truth, made false statements or
omissions that created a falsehood in applying for a warrants; or (2) that Ingram’s alleged
false statements or omissions were material, or necessary, to the finding of probable
cause.” The claim for false arrest must be dismissed.
Alternatively, the Court finds that Ingram would be entitled to qualified immunity
for his actions in testifying for a search and arrest warrant in CR2007-00621. While it is
true that Ingram may not have been aware of all the facts gathered by all the officers
involved in investigating the disappearance of Breaw and the use of his debit card, the
record is undisputed that a reasonable officer knowing the facts Ingram knew and testified

MEMORANDUM ORDER - 19

about would have believed his testimony to the state magistrate judge was not a violation
of clearly established law. Wilson v. Layne, 526 U.S. 603, 614 (1999)

B. False Imprisonment
Where a detention occurs as the result of a false arrest, then a false imprisonment
claim arises under the Fourteenth Amendment protection against deprivations of liberty
without due process. See Baker v. McCollan, 443 U.S. 137, 142 (1979). Under § 1983, a
plaintiff must meet the elements of common law false imprisonment and establish that the
imprisonment resulted in a violation of due process rights under the Fourteenth
Amendment. Oretega v. Christian. 85 F.3d 1521, 1526 (11th Cir. 1996). The elements of
common law false imprisonment are: (1) intent to confine, (2) acts resulting in
confinement, and (3) consciousness of the victim of confinement or resulting harm.
Ortega at 1526, n.2. The plaintiff also needs to show that the persons detaining him were
involved in or aware of the wrongful nature of the arrest. Id. at 1526-27.
In this case, the Court has determined the claim for false arrest must be dismissed so
the imprisonment associated with the arrest until the dismissal of the charges was not false
imprisonment. Stated another way, because the finding of probable cause was proper, law
enforcement continued to have a basis to keep Brown in custody on the pending charges
for grand theft and the claim for a violation of constitutional rights on this basis is denied.

MEMORANDUM ORDER - 20

Alternatively, the Court would find that Ingram would be entitled to qualified
immunity as his actions did not violate clearly established constitutional rights of which a
reasonable person would have known. Hope v. Pelzer, 536 U.S. 730, 739 (2002). Stated
another way, a reasonable officer knowing all that Ingram knew would not have thought
probable cause did not exist for the grand theft charges and because probable cause existed,
Brown was not falsely imprisoned.
4. Claims Against Dunton
In general, Plaintiff claims Dunton violated his rights by providing false information
to, and withholding exculpatory information from, the federal magistrate judge in
connection with the request for the UFAP warrant in February 2007.
A. False Arrest
The Court begins with the undisputed fact that Agent Dunton did not arrest Plaintiff.
Plaintiff was arrested in Florida by other officers of the FBI. Vicarious liability (
attempting to hold Dunton liable for the actions of other unnamed FBI agents) is not
applicable to Bivens actions. Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1948 (2009).
These arresting FBI officers are not named defendants in this case. Therefore, it is legally
impossible for Dunton to be found to have falsely arrested Plaintiff and the claim must be
dismissed.

MEMORANDUM ORDER - 21

Second, a plaintiff challenging the validity of an arrest warrant by alleging an
officer submitted false testimony or a false affidavit to a court must satisfy a two-part test
based on Franks v. Delaware, 438 U.S. 154, 155-56 (1978): 1) the officer knowingly and
deliberately, or with reckless disregard for the truth, made false statements or omissions
that create a falsehood in applying for a warrant; and 2) that such statements or omissions
are material, or necessary, to the finding of probable cause. In applying for warrants,
officers are “entitled to rely on information obtained from fellow law enforcement
officers.” Motley v. Parks, 432 F.3d 1072, 1081 (9th Cir. 2005). “[U]nder the ‘collective
knowledge doctrine,’ probable cause may be based on ‘the collective knowledge of all the
officers involved in the investigation and all of the reasonable inferences that may be
drawn therefrom.’” Id. (citing United States v. Jensen, 425 F.3d 698, 705(9th Cir. 2005)).
In this case, the Complaint for the UFAP warrant on February 21, 2007 stated:
On February 7, 2007, a warrant was issued by the First Judicial
District of the State of Idaho for the County of Bonner, Idaho,
charging Keith A. Brown with Grand Theft. Det. Tony Ingram
from Bonner County has learned that Brown’s neighbors have
not seen him [for] several days and believed that Brown has
packed all of his belongings and left the area. Det. Ingram has
also received three sightings of Brown in the St. Regis,
Montana area. The investigation has revealed that Brown has
several ties to Montana, Oregon, and Washington. Repeated
attempts to locate Brown in Bonner County have failed. It is
believed that Brown has fled the State of Idaho to avoid
prosecution.
Plaintiff’s Complaint at 13.

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Brown claims Dunton should have done a further investigation instead of just
relying on what he was told by local law enforcement officers, but the law does not require
Dunton to conduct an independent investigation. True, additional information was
discovered after the arrest warrant from the state court was obtained, but a reasonable
officer could have interpreted the additional facts and circumstances (i.e., Brown and
Tyrah leaving in a hurry, Tyrah not coming back for her paycheck from her employer,
statements to her mother that they fled thinking they would not get a fair shake) all support
that the additional facts did not eviscerate the probable cause finding even though there
was some evidence that Brown had used the debit card in the past with Breaw’s
authorization.
The standard for probable cause for a UFAP warrant is different and significantly
easier to meet than the standard for the underlying crime. Meuse v. Freeh, 421 F. Supp.2d
365, 3690-70 (D. Mass. 2006). This makes sense as the purpose of a UFAP is to permit
federal law enforcement agents to apprehend state fugitives, not try them on the underlying
state charges. Probable case for a UFAP warrant may be established solely by the fact that
a state arrest warrant has been issued. Commonwealth v. Lewis, 398 A. 2d 1016, 1018
(1979). Applying this standard, the Court finds the Complaint adequately sets forth facts
to support that Brown appears to have fled the State of Idaho to avoid prosecution. The
Court further finds none of the facts presented have been established to be not true or
misleading due to omissions. Finally, as discussed earlier, an officer is entitled to qualified

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immunity if the officer’s reliance on the information provided by Bonner County law
enforcement officers was objectively reasonable. Motley 432 F.3d 1072, 1082 (9th Cir.
2005). For all these reasons, Dunton’s motion for summary judgment on the claim of false
arrest by Dunton must be granted.
B. False Imprisonment
Because the Court finds there was no false arrest by Dunton, there can be no claim
for false imprisonment. The FBI returned Brown to Idaho and it was the local state
charges of grand theft, not the UFAP warrant that resulted in Brown’s detention until the
grand theft charges were dismissed in May. Accordingly, there is no genuine issue of
material fact and this claim must also be dismissed.
5. Conclusion
The Court finds Defendants are entitled to summary judgment as Plaintiff has failed
to establish a genuine issue of material fact regarding the probable cause finding for the
issuance of the state arrest warrant for grand theft. Plaintiff has failed to satisfy the legal
two requirements for false arrest. Plaintiff’s objections to the testimony by Ingram are
primarily conclusory statements that Ingram’s testimony was false. The question is not
whether Brown thinks there was probable cause to issue the warrants, but whether under
the facts and circumstances known to the officer at the time the warrant was issued, the
probable cause finding was lawful. Some of Ingram’s conclusions during the investigation
may have been incorrect inferences, but that does not rise to the level of a constitutional
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violation when the warrant was issued. This ruling is also consistent with the state district
court that held a Franks hearing on the same issues. Finally, the Court has to consider the
big picture and all the facts good and bad that were discovered after the warrant was issued
that could continue to support a finding of probable cause. In considering these undisputed
facts, there was no duty for Ingram to return to the magistrate judge. Having found not
false arrest by Ingram or Dunton, the claims for false imprisonment also fail.
Alternatively, the Court would find even if a constitutional violation had been put at
issue with disputed facts, the Defendants would be entitled to qualified immunity for their
actions in this case.
Order
Being fully advised in the premises, the Court hereby orders:
1. Plaintiff’s Motion to Strike Pleadings (Dkt. 50) is DENIED.
2. Plaintiff’s Motion to Grant Summary Judgment Against Defendant Ingram for
Failure to Respond (Dkt. 43) is DENIED.
3. Defendant Ingram’s Motion for Leave to File Memorandum Opposing Plaintiff’s
Motion for Summary Judgment (Dkt. 45) is GRANTED and the Court will consider the
four page response attached as Exhibit A to the motion as Ingram’s response to Plaintiff’s
motion for summary judgment filed nunc pro tunc as of January 14, 2011.
4. Plaintiff’s Motion for Summary Judgment (Dkt. 34) is DENIED.

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5. Defendant Ingram’s Motion for Summary Judgment (Dkt. 38) is GRANTED and
all claims against Defendant Ingram are DISMISSED.
6. Defendant Dunton’s Motion for Summary Judgment (Dkt. 35) is GRANTED and
all claims against Defendant Dunton are DISMISSED.
DATED: September 30, 2011

Honorable Edward J. Lodge
U. S. District Judge

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