Lorenz v. Longo et al

Filing 36

AMENDED MEMORANDUM ORDER granting 24 First MOTION for Summary Judgment on behalf of Defendants by filed by Gregory Moore, Tim Hanna, City of Coeur d'Alene, Wayne Longo. Case dismissed in its entirety. 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)

L o r e n z v. Longo et al

D o c . 36

U N I T E D STATES DISTRICT COURT F O R THE DISTRICT OF IDAHO

J A S O N LEE LORENZ, C a s e No. 2:09-CV-405-EJL Plaintiff, v. T H E CITY OF COEUR D'ALENE, et al Defendant. A M E N D E D MEMORANDUM ORDER

INTRODUCTION P e n d in g before the Court in the above-entitled matter is Defendants City of Coeur d 'A le n e Police Chief Wayne Longo, City of Coeur d'Alene, Officer Gregory Moore, and O f f ic e r Tim Hanna's Motion for Summary Judgment. (Collectively referred to as " D e f e n d a n ts" ) (Mot. for Summ. J., Dkt. 24.) The motion is made pursuant to Federal Rule o f Civil Procedure 56. The matter is ripe for the Court's consideration. Having fully rev iew ed the record herein, the Court finds that the facts and legal arguments are a d e q u ate ly represented in the briefs and record. Accordingly, and in the interest of a v o id in g further delay, and because the Court conclusively finds that the decisional

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p ro c e ss would not be significantly aided by oral argument, this motion shall be decided o n the record before this Court without oral argument. F A C T U A L AND PROCEDURAL BACKGROUND T h e complaint in this action alleges violations of 42 U.S.C. § 1983 in connection w ith the arrest, incarceration, and prosecution of Jason Lee Lorenz ("Lorenz") by the D ef en d an ts . It is undisputed that on March 14, 2009 Karen Lorenz ("Ms. Lorenz"), L o re n z 's ex-wife, invited Lorenz over to her house for dinner. (Pl.'s Separate Statement o f Undisputed Material Facts in Opp. to Defs.' Mot. for Summ. J. at 3, Dkt. 28.) The m e e tin g was ostensibly for the purpose of discussing their relationship, and both soon b e g a n to consume alcohol. Id. at 4. The pair grew more intimate and went to Ms. Lorenz' b e d ro o m for the purpose of sexual intercourse. Id. However, sexual intercourse did not ta k e place. (Compl. and Demand for Jury Trial at 2, Dkt. 1.) A n argument arose between Lorenz and Ms. Lorenz which resulted in Lorenz return ing to the house and passing out while Ms. Lorenz went to the garage. (Pl.'s S e p a ra te Statement at 4.) Ms. Lorenz placed a call to 911 from the garage. Once police o f f ice rs arrived Ms. Lorenz told them that she had been arguing with Lorenz about their re la tio n s h ip . Id. She further stated that she had allowed Lorenz to sleep on the couch g iv e n his state of intoxication. Id. Ms. Lorenz claimed that Lorenz followed her into her b e d ro o m and attempted to remove her clothing and have sexual intercourse with her. Id. S h e claimed that she repeatedly told Lorenz "no" and that she had to fight him off in

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o rd e r to escape to the garage and call police. Id. at 5. After calling the police Ms. Lorenz s ta te d that she had searched through Lorenz' things after he had passed out under the k itc h e n table. Id. She discovered a knife in his backpack. Id. When questioned by police L o re n z stated that they had only been making out on the bed and that he had stopped w h e n asked. Id. Based on these statements Officer Gregory Moore and Officer Tim H a n n a arrested Lorenz and took him to Kootenai County Jail. Id. L o re n z remained in Kootenai County Jail from the time of his arrest until July 13, 2 0 0 9 , when the Kootenai County Assistant Prosecutor moved to dismiss the charges a g a in s t him. Id. at 6. Ms. Lorenz eventually recanted her story. Id. Lorenz remained in jail f o r that period of time because he did not post bail. (Compl. at 3.) O n August 21, 2009, Lorenz filed his Complaint and Demand for Jury Trial in the U n ite d States District Court for the District of Idaho. Id. Lorenz alleges four counts: C o u n t I: 42 U.S.C. § 1983 Action for Deprivation of Civil Rights, which alleges th a t Lorenz was unlawfully arrested, maliciously prosecuted and unlawfully in c a rc e ra te d . C o u n t II: 42 U.S.C. § 1985 Action for Conspiracy to Interfere with Civil Rights, w h ic h alleges that there was a conspiracy among the Defendants to deprive L o r e n z of his constitutional rights. (T h ere is no Count III)

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C o u n t IV: 42 U.S.C. § 1983 Failure to Adequately Train & Supervise Police O f f ic e rs , which alleges that the City of Coeur d'Alene is liable for the a c tio n s of its officers. C o u n t V: 42 U.S.C. § 1983 Negligent Hiring, Retention and Failure to Discipline o r Take Necessary Corrective Action, which alleges the same as Count IV. O n April 16, 2010, the Defendants moved for summary judgment on all counts. S T A N D A R D OF REVIEW M o tio n s for summary judgment are governed by Rule 56 of the Federal Rules of C iv il Procedure. Rule 56 provides, in pertinent part, that judgment "shall be rendered f o rth w ith if the pleadings, depositions, answers to interrogatories, and admissions on file, to g e th e r with the affidavits, if any, show that there is no genuine issue as to any material f ac t and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 5 6 (c). T h e Supreme Court has made it clear that under Rule 56 summary judgment is m a n d a te d if the non-moving party fails to make a showing sufficient to establish the e x is te n c e of an element which is essential to the non-moving party's case and upon which th e non-moving party will bear the burden of proof at trial. See, Celotex Corp. v. Catrett, 4 7 7 U.S. 317, 322 (1986). If the non-moving party fails to make such a showing on any e ss e n tial element, "there can be no `genuine issue of material fact,' since a completely

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f a ilu r e of proof concerning an essential element of the nonmoving party's case n e c es s a rily renders all other facts immaterial." Id. at 323.
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M o re o v e r, under Rule 56, it is clear that an issue, in order to preclude entry of su m m a ry judgment, must be both "material" and "genuine." An issue is "material" if it a f f e c ts the outcome of the litigation. An issue, before it may be considered "genuine," m u st be established by "sufficient evidence supporting the claimed factual dispute . . . to re q u ire a jury or judge to resolve the parties' differing versions of the truth at trial." Hahn v . Sargent, 523 F.3d 461, 464 (1st Cir. 1975) (quoting First Nat'l Bank v. Cities Serv. Co. In c ., 391 U.S. 253, 289 (1968)). The Ninth Circuit cases are in accord. See, e.g., British M o to r Car Distrib. V. San Francisco Automotive Indus. Welfare Fund, 883 F.2d 371 (9th C ir. 1989). A cc o rd in g to the Ninth Circuit, in order to withstand a motion for summary ju d g m e n t, a party (1 ) must make a showing sufficient to establish a genuine issue of fact with re sp e c t to any element for which it bears the burden of proof; (2) must show th a t there is an issue that may reasonably be resolved in favor of either p a rty; and (3) must come forward with more persuasive evidence than w o u l d otherwise be necessary when the factual context makes the nonm o v in g party's claim implausible.

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See also, Rule 56(3) 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 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.
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Id . at 374 (citation omitted). O f course, when applying the above standard, the court must view all of the e v id e n c e in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, In c ., 477 U.S. 242, 255 (1986); Hughes v. United States, 953 F.2d 531, 541 (9th Cir. 1 9 9 2 ). D IS C U S S IO N 1 . Count I: 42 U.S.C. § 1983 Claims C o n g re ss has created a cause of action against private individuals who, while a c tin g under color of law, violate the constitutional rights of private citizens. Section 1 9 8 3 provides in pertinent part: Every person who, under color of any statute, [...] subjects, or causes to be s u b je c te d , any citizen of the United States or other person within the ju ris d i c ti o n thereof to the deprivations of any rights, privileges or im m u n it ie s secured by the Constitution and laws, shall be liable to the party in ju re d . Id . In order for a plaintiff to prevail on a § 1983 claim they must show that (1) the actor th a t deprived them of their rights acted under color of law and (2) the action actually d e p riv e d them of a constitutional right. In this case the first requirement is not disputed by e ith e r of the parties. Police officers carrying out their duties act under color of law. Thus it is the second requirement that is at issue here. Lorenz contends that the constitutional rig h ts which were violated in this case are the right to be free from unlawful arrest,

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m aliciou s prosecution and wrongful incarceration. Defendants assert that no rights were v io la te d . W h ile § 1983 provides a cause of action against police officers for constitutional v io latio n s that they might have committed, they are also entitled to qualified immunity f ro m § 1983 claims. Qualified immunity operates to "shield an officer from personal lia b ility when an officer reasonably believes that his or her conduct complies with law." P e a rs o n v. Callahan, 129 S.Ct. 808 (2009). The court in Pearson rejected the mandatory tw o -s te p approach that it had announced in Saucier v. Katz, 533 U.S. 194 (2001). Id. at 8 1 8 . 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 th e alleged violation. Saucier, 533 U.S. at 201. Courts are now free to decide either q u e s tio n in whatever order is most appropriate given the circumstances. The Court is satisfied that the rights Lorenz claims were violated are guaranteed by th e federal Constitution in the Fourth and Fourteenth Amendment guarantees against u n la w f u l seizure and due process. Any reasonable government actor would have shaped th e ir conduct to preserve them. What is at issue here is whether those constitutional rights w e r e violated and thus whether the officers were entitled to qualified immunity. These q u estio n s are appropriate for summary judgment since the doctrine, if applicable, confers im m u n ity from the suit itself. Pearson, 129 S.Ct. at 815 (citing Anderson v. Creighton, 4 8 3 U.S. 635, 640 (1987); Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)).

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A . Unlawful Arrest A n officer will not be held to have committed a violation of a defendant's Fourth A m e n d m e n t right to be free from unlawful arrest if the arrest was carried out with p ro b a b le cause. Grant v. City of Long Beach, 315 F.3d 1081, 1089 (9th Cir. 2002) (" C o u rts have long held that the Fourth Amendment requires probable cause before an o f f ic e r may arrest an individual.") (citing Beck v. Ohio, 379 U.S. 89, 91 (1964)). In order to assess whether probable cause exists a court must inquire "if `at the moment the arrest w a s made . . . the facts and circumstances within [the officer's] knowledge and of which [ h e ] had reasonably trustworthy information were sufficient to warrant a prudent man in b e lie v in g ' that the suspect had violated a criminal law." Id. at 1085 (quoting Orin v. B a r c la y , 272 F.2d 1207, 1218 (9th Cir. 2001)). The Ninth Circuit requires an objective sta n d a rd whereby the district court is to evaluate whether "a `reasonable officer' would h a v e made the arrest based on the totality of the circumstances." Id. at 1089. This is a fact sp e c if ic inquiry. As required, the Court will view all evidence in the light most favorable to the plaintiff to determine if there is a genuine issue of material fact for trial. (1 ) Attempted Rape H e re Lorenz was arrested for attempted rape. Under Idaho law, in pertinent part: " R a p e is defined as the penetration, however slight, of the oral, anal or vaginal opening w ith the perpetrator's penis accomplished with a female under any one (1) of the f o llo w in g circumstances: [...] (4) Where she resists but her resistance is overcome by

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f o rc e or violence." Idaho Code § 18-6101. In addition, the Idaho Code provides that " [ e]v e ry person who attempts to commit any crime, but fails, or is prevented or interce p ted in the perpetration thereof" is subject to punishment. Idaho Code § 18-306. In Id a h o an attempt consists of: "(1) an intent to do an act [...] which would in law amount to a crime; and (2) an act in furtherance of that intent which, as it is most commonly put, g o e s beyond mere preparation." State v. Grazian, 164 P.3d 790, 796 (Idaho 2007) (q u o tin g State v. Otto, 629 P.2d 646, 647 (1981)). In order to find probable cause to arrest L o re n z , a reasonable officer would have had to have a basis to believe that Lorenz had ta k e n an action beyond mere preparation to penetrate Ms. Lorenz against her will and that s h e resisted this attempt. This basis need not be proven accurate at a later date, the proper f r a m e of reference is what a reasonable officer could have believed at the time the arrest w a s made. Grant, 315 F.3d at 1089. T h e re is no substantial disagreement over what was represented to the Defendant O f f ice rs at the time of the arrest. Ms. Lorenz stated she had gotten into an argument with L o re n z and that he had gotten drunk. (Pl.'s Separate Statement at 4.) Ms. Lorenz claims to have offered Lorenz the couch because he could not drive home, and that during the n ig h t he attempted to remove her clothing and have sexual intercourse with her. Id. at 5. M s . Lorenz told the Defendant Officers that she had to fight Lorenz off, that she called 9 1 1 and then discovered a knife in Lorenz' bag. Id. When the Defendant Officers arrived th e y noticed that Ms. Lorenz, though refusing medical treatment, appeared emotional and

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th a t Lorenz was naked and intoxicated. Id. Based on these facts the Defendant Officers a rre ste d Lorenz. It is clear that, on the basis of Ms. Lorenz statements, a reasonable o f f ice r could have concluded that Lorenz had taken an action beyond mere preparation to h a v e sexual intercourse with Ms. Lorenz and that her having to fight him off constituted s u f f ic ie n t resistance for the purposes of the rape statute. L o re n z does not dispute that these were the facts that were represented to the D e f en d a n t Officers. Lorenz instead argues that the officers had a duty to perform further in v e stig a tio n before arresting him. While police officers are allowed significant discretion in weighing the veracity of evidence offered by witnesses prior to making an arrest, they d o have a duty to "investigate into the basis of the witness' report." Fuller v. M.G. J e w e lr y , 950 F.2d 1437, 1444 (9th Cir. 1991) (citing Merriman v. Walton, 856 F.2d 1333, 1 3 3 5 (9th Cir. 1988)). In the Merriman case the defendant had been arrested for k id n a p p in g even after police had received reports that the supposed victim had returned h o m e and the she did not want to press charges. Similarly, in Grant v. City of Long B e a c h , 315 F.3d 1081 (9th Cir. 2002), the police relied on an inexperienced tracking dog a n d contradictory eye-witnesses, who had claimed to be able to identify the defendant a f te r very brief exposure under stressful circumstances, to arrest the defendant for nine ra p e s . The Ninth Circuit found that the police lacked probable cause in both cases. Lorenz cites a pair of Eighth Circuit cases to support his claim that the Defendant O f f ic e rs did not perform a sufficient investigation before arresting him. In United States

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v . Everroad, 704 F.2d 403 (8th Cir. 1983), the plaintiff was arrested in connection with a d ru g deal. The court found that the police relied on only two facts, that the plaintiff a c c o m p a n ied a suspect under investigation and that he was staying at a hotel room within a half-hour radius of where the suspected drug deal was to take place. Id. at 406. The c o u rt held that because there was "no other unlawful or suspicious conduct by any party in v o lv e d " , there was not probable cause to arrest. Id. at 407. Everroad is cited in passing in United States v. Woolbright, 831 F.2d 1390 (8th Cir. 1987), for essentially the same p r o p o s itio n . In that case the court did find that there was probable cause for an arrest w h e re an overwhelming amount of evidence implicated the plaintiff in the death by o v e rd o s e of a local woman. Id. at 1391-92. Neither case is analogous to the present s itu a tio n . L o ren z's central contention is that there was not a sufficient investigation before h e was arrested. Lorenz claims that had police investigated they would have discovered th a t Ms. Lorenz was not a reliable witness. (Pl.'s Brief in Opp. at 6.) It is not clear what o th e r investigation that Lorenz argues that the Defendant Officers should have u n d e rta k e n . It would be unreasonable to impose a duty on police to perform a medical e x a m in a tio n in every alleged case of rape before there is probable cause to arrest. Here, th e re were no witnesses other than Lorenz and Ms. Lorenz. In contrast to Everroad, L o re n z was not arrested for mere suspicion of being associated with a suspect but on the d ire c t accusation of the purported victim of a crime. In essence what Lorenz is asking the

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D e f en d a n t Officers to have done is credit his statements more than Ms. Lorenz's. The D e f en d a n t Officers were under no duty to do so, and a reasonable officer could have co n clud ed based on Lorenz' intoxicated state and some facts which corroborated her story (s u c h as the knife in the backpack) that he was less reliable than Ms. Lorenz. Given the to ta lity of the circumstances known to the officers at the time of the arrest, Lorenz has not e sta b lish e d any genuine material facts warranting a trial to determine whether his Fourth A m e n d m e n t right was violated. Viewing the facts in the light most favorable to Lorenz, th e Defendant Officers had probable cause to arrest and summary judgment is appropriate o n this claim. T h e Defendants did not violate Lorenz's constitutional rights. Even if they had, the D e f e n d a n t Officers would be entitled to qualified immunity. B. Malicious Prosecution In order to prevail on a § 1983 malicious prosecution claim "a plaintiff `must show th a t the defendants prosecuted [him] with malice and without probable cause, and that th e y did so for the purpose of denying [him] equal protection or another specific c o n stitu tio n a l right.'" Lassiter v. City of Bremerton, 556 F.3d 1049, 1054 (9th Cir. 2009) (q u o tin g Freeman v. City of Santa Ana, 68 F.3d 480, 489 (9th Cir. 1995) (alterations in o rig in a l). Regardless of whether Lorenz alleges malice on the part of the Defendants or th a t the prosecution was for the purpose of denying him his constitutional rights, the th re sh o ld question is whether there was probable cause to initiate the prosecution. The

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N in th Circuit has held that "probable cause is an absolute defense to malicious p ro s e c u tio n ." Id. at 1054. It is not dispositive for probable cause that the prosecution in q u e s tio n ended in Lorenz's favor. Freeman, 68 F.3d at 1189 ("[T]he mere fact a p rose cu tio n was unsuccessful does not mean it was not supported by probable cause."). In Id a h o it is a question of law whether probable cause existed when, as here, the facts s u rro u n d in g the investigation before filing and pursuing the lawsuit are undisputed. S h a n n a h a n v. Gigray, 962 P.2d 1046, 1051 (Idaho 1998). W h ile Lorenz disputes the veracity of Ms. Lorenz's statements, the actual c irc u m s ta n c es of the arrests and the facts known to the Defendant Officers at the time the a rre sts were made are not disputed. In Lassiter, the Ninth Circuit found that a prosecutor re lyin g on signed statements by police officers who had had probable cause to arrest the d e f en d a n t was entitled to qualified immunity because those signed statements created s u f f ic ie n t probable cause to initiate the proceedings. Lassiter, 556 F.3d at 1054. Similarly, o n c e the Court has found that the officers in this case had probable cause to arrest Lorenz, th e n it necessarily follows that a prosecution stemming from those arrests had probable c a u se as well. Lorenz's argument explicitly relies on the arrests which gave rise to the p ro s e c u tio n being unlawful. (Pl.'s Brief in Opp. at 8.) Because the Court has found p ro b a b le cause exists for both the arrest and prosecution. No constitutional right was v io la te d . Therefore it is not necessary to address the other elements of a malicious p ro s e c u tio n action.

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T h e Defendants have established the absence of any genuine issue of material fact th a t would preclude the Court from finding as a matter of law in favor of the Defendants o n this claim. Viewing the facts in the light most favorable to Lorenz, the Defendants had p ro b a b le cause to initiate the prosecution against him and summary judgment is a p p ro p ria te on this claim. C . Wrongful Incarceration T h e Ninth Circuit has noted that the "Supreme Court has recognized that an in d iv id u a l has a liberty interest in being free from incarceration absent a criminal c o n v ic tio n ." Oviatt v. Pearce, 954 F.2d 1470, 1473 (1992) (citing Baker v. McCollan, 443 U .S . 137 (1979)). This liberty interest stems from "the Fourteenth Amendment's p ro te c tio n against deprivations of liberty without due process of law." Baker, 443 U.S. at 1 4 2 . Lorenz contends that his detention in the Kootenai County Jail constituted a c o n stitu tio n a l violation of this liberty interest because his arrest was invalid and he was u ltim a te ly released when the charges against him were dropped.
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E v e n though the Court has found that there was probable cause to arrest Lorenz th is does not end the inquiry. The Ninth Circuit found that "even detention pursuant to a v a lid warrant but in the face of repeated protests of innocence will, after a lapse of time, d e p riv e the accused of a constitutional liberty." Fairley v. Luman, 281 F.3d 913, 917 (9th
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The Court recognizes that Kootenai County is not a named party in this lawsuit and notes that the Defendants p o in te d this out in their briefing. (Mem. in Supp. at 8-9.) The record is not sufficiently developed to indicate who h a d control over Lorenz' custody, and the Court notes that the Motion to Dismiss the charges against Lorenz were file d by the Kootenai County Deputy Prosecutor. (Aff. of Larry D. Purviance in Opp. to Defs.' Mot. for Summ. J. at E x . B, Dkt. 27.) Defendants have not, however, indicated that they were not the prosecuting party. In light of this u n c e r t a in t y, the Court will nevertheless address Lorenz' claim on the merits.

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C ir. 2002). In Fairley a man was arrested on a warrant issued for his twin brother and s p e n t twelve days in jail. Id. at 915. Similarly, in Baker, a man was arrested on an o u ts ta n d in g warrant for his brother who had claimed to be him on his driver's license and o th e r documents. Baker, 443 U.S. at 141. The Ninth Circuit also found liability for w ro n g f u l incarceration where a man had been mistakenly dropped from the arraignment d o c k e t which significantly extended his time in jail. Oviatt, 954 F.2d at 1472. Here L o re n z does not contend that he was subject to a case of mistaken identity or that a p ro c e d u ra l failure caused him to be incarcerated without due process. Lorenz essentially co n tend s that because the charges against him were ultimately dropped and because there w a s no probable cause for the arrest that his incarceration was wrongful. (Compl. at 3.) F r o m the record it appears that the only thing preventing Lorenz from being released from p ris o n was his inability to post bail. Id. Lorenz cannot state a cause of action for wrongful incarceration because he cannot p o in t to any right or due process that was violated. In Oviatt, the Ninth Circuit noted that th e liberty interest that may be compromised by wrongful incarceration can arise from the f e d era l constitution or from state law, and in that case Oregon had a law which placed a s ix ty day limit on pre-trial detention. Oviatt, 954 F.2d at 1475. There is no such law in Ida h o , and Lorenz has not pointed to any federal source for what amounts to a right for a re h e a rin g on the merits of his detention before trial. The Supreme Court explicitly re je c te d such a right in Baker v. McCollan, 443 U.S. 137 (1979). There the Court held

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th a t "since the probable cause standard for pretrial detention is the same as that for arrest, a person arrested pursuant to a warrant issued by a magistrate [judge] or a showing of p ro b a b le -c a u se is not constitutionally entitled to a separate judicial determination that th e re is probable cause to detain him pending trial." Id. at 143. While the Supreme Court h e ld that the Baker plaintiff's innocence would be relevant for a tort proceeding for false im p ris o n m e n t, it "is largely irrelevant to his claim of deprivation of liberty without due p ro c e ss of law." Id. at 146. Lorenz may have an argument that his detention was o v e rlo n g , but he cannot claim a constitutional violation based on the fact of his im p ris o n m e n t and resulting dismissal of his charges. As the Court in Baker noted, this is m o re properly a speedy trial claim which is not raised here. Id. at 144. Because Lorenz has not established a right which was violated by the Defendants, there is no genuine issue of material fact that would warrant trial on this claim. In a d d itio n , because Lorenz has failed to establish any constitutional violation, the D e f e n d a n t Officers are entitled to qualified immunity from suit. 2 . Count II: 42 U.S.C. § 1985 Conspiracy Claims E v e n if no violation of a plaintiff's constitutional rights can be shown, Congress h a s created a § 1985 cause of action to punish conspiracies to deprive those rights. S u b sec tio n (3) of the statute provides that there shall be liability where two or more p e rs o n s conspire "for the purpose of depriving, either directly or indirectly, any person or c la ss of persons of the equal protection of the laws, or of equal privileges and immunities

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u n d e r the laws." 42 U.S.C. § 1985 (3). There are multiple subsections of § 1985 and L o r e n z fails to specify which section his claim falls under. Subsection (3) is the most lik ely, however, since subsection (1) is designed to allow government officers to perform th e ir duties and subsection (2) is designed to protect parties, witnesses and jurors from in tim id a tio n . Neither is at issue in this case. The Supreme Court has interpreted § 1985 s u c h that "the language requiring intent to deprive of equal protection, or equal privileges a n d immunities, means that there must be some racial, or perhaps otherwise class-based, in v id io u s ly discriminatory animus behind the conspirator's action." Griffon v. B r e c ke n rid g e , 403 U.S. 88, 102 (1971). In their motion for summary judgment, D e f en d a n ts point out that Lorenz is not a member of a protected class for the purposes of e q u a l protection. Lorenz contends that there is discriminatory intent on the basis of his g e n d e r and himself as a class of one. L o r e n z cites Craig v. Boren, 429 U.S. 190 (1976) and Miss. Univ. for Women v. H o g a n , 458 U.S. 718 (1982), for the proposition that gender classifications must pass an in te rm e d ia te scrutiny test in order to be constitutional. While this is certainly true, Lorenz h a s provided no evidence of a gender based classification. In those cases cited by Lorenz, th e re were explicit statutory and policy based gender classifications against men. While it is true that only men can commit the crime of rape in Idaho, courts have routinely upheld " ra p e statutes which are not gender neutral [...] as not violating equal protection rights." U n ited States v. Davis, 785 F.2d 610, 614 (8th Cir. 1986) (citing Country v. Parratt, 684

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F .2 d 588, 593 (8th Cir. 1982) (holding that there are unique harms to a female that would ju s tif y a rape statute which is not gender neutral). Lorenz has provided no evidence or a lleg a tio n beyond his own arrest that the Idaho statutes were applied here with a disparate im p a c t, or that such impact is a result of discriminatory intent as required to show a v io la tio n of equal protection. Navarro v. Block, 72 F.3d 712, 716 (9th Cir. 1995). Lorenz further contends that even if he is not found to be a member of a protected c la ss that he may be found to be part of a class of one for the purposes of equal p ro te c tio n . This concept was recently recognized by the Supreme Court which found that " o u r cases have recognized successful equal protection claims brought by a `class of one,' w h ere the plaintiff alleges that [he] has been intentionally treated differently from others s im ila rly situated and that there is no rational basis for the difference in treatment." Vill. o f Willowbrook v. Olech, 528 U.S. 562 (2000) (citations omitted). The Ninth Circuit, h o w e v e r, has indicated that such actions are disfavored because they threaten to "provide a federal cause of action for review of almost every executive or administrative g o v e rn m e n t decision." Engquist v. Or. Dept. of Agric., 478 F.3d 985, 993 (9th Cir. 2007) (d is c u ss in g a case alleging employment discrimination by the government). In this case, L o ren z has failed to provide any evidence that he has been treated differently from others w h o are similarly situated. Lorenz has shown no evidence of how others accused of a tte m p te d rape have been treated, and how his treatment differs from theirs. As such, L o re n z has not met his burden in establishing that he is a member of a class of one.

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B e c au s e Lorenz cannot demonstrate as a matter of law that he is a member of any c la ss protected by § 1985, there are no genuine issues of material fact for trial based on th is claim and summary judgment should be granted. 3 . Counts IV and V: Municipal Liability L o re n z seeks damages against the Chief of Police Longo and the City of Coeur d 'A le n e . The Supreme Court has held in Monell v. Dept. of Soc. Serv. of City of New Y o r k , 436 U.S. 658 (1978) that "local governing bodies [...] can be sued directly under § 1 9 8 3 for monetary, declaratory, or injunctive relief where [...] the action that is alleged to b e unconstitutional implements or executes a policy, statement, ordinance, regulation, or d e c is io n s officially adopted and promulgated by that body's officers." Id. at 690. The C o u rt made clear that "a municipality cannot be held liable solely because it employs a to rtf e as o r." Id. at 691 (emphasis in original). The burden is on Lorenz to show a policy or c u sto m on the part of the City of Coeur d'Alene, which can be proven by the m u n ic ip a l ity' s negligence in training or failure to respond to constitutional violations. G ile tte v. Delmore, 979 F.2d 1342, 1349 (9th Cir. 1992). The Defendants have a p p ro p ria te ly pointed to a lack of such evidence. W h e re there is no violation by a city's police officers, however, there can be no m u n icip al liability. The Supreme Court has held that no principle "authorizes the award o f damages against a municipal corporation when [...] the officer inflicted no c o n stitu tio n a l harm." City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986). This rule

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a p p lie s regardless of what the municipality's policies actually are. Id. ("If a person has s u f f ere d no constitutional injury at the hands of the individual police officer, the fact that th e departmental regulations might have authorized the use of constitutionally excessive f o rc e is quite beside the point.") (emphasis in original). Because the Court has already c o n c lu d e d that no constitutional injury was suffered by Lorenz in connection with any of h is claims, it is proper for the Court to conclude that the municipal defendants are entitled to immunity. C O N C L U SIO N T h e re was probable cause to arrest Lorenz because of the direct statements of the p u rp o rte d victim and the lack of other witnesses. Because there was probable cause to a rre st Lorenz there are no genuine material facts that would support a claim for malicious p ro s e c u tio n . Lorenz also cannot sustain a claim for wrongful incarceration because he has f a ile d to identify any right to have his detention reviewed before trial. Having found this, th e Court is satisfied that the Defendant Officers are entitled to qualified immunity from s u it. Further, because Lorenz is not a member of a protected class he has failed to state a c la im for § 1985 conspiracy to deprive him of his constitutional rights. Finally, the m u n icip a l defendants are entitled to immunity from the suit. ORDER N O W THEREFORE IT IS HEREBY ORDERED:

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1 ) Defendants' Motion for Summary Judgment (Dkt. No. 24) is GRANTED and th e case is dismissed in its ENTIRETY.

DATED: August 2, 2010

Honorable Edward J. Lodge U. S. District Judge

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