Swenson v. County of Kootenai et al

Filing 138

ORDER ON REPORT AND RECOMMENDATIONS The Memorandum Decision and Order and Report and Recommendation (Dkt. 114 ) shall be INCORPORATED by reference and ADOPTED by this Court. Defendant Wayman and Watson's Motions to Dismiss (Dkt. 49 ) is GRA NTED. Plaintiff's Motion to Amend Complaint (Dkt. 62 ) is DENIED. Defendants Kootenai County, Kootenai County Sheriff's Office, Watson,Lindblom, McHugh, Reierson, Studor, Brooks, Austin and Brandel's Motion for Summary Judgment (Dkt. 70 ) is GRANTED IN PART and DENIED IN PART. Only the excessive force claim against Defendant Lindblom shall be allowed to proceed to trial. Plaintiff's Objections (Dkt. 120 and Dkt. 129 ) are DENIED. Plaintiff's Objection regarding th e tax return disclosure (Dkt. 121 ) is GRANTED IN PART. Plaintiffs Motion for Judicial Notice and Demand for Jury Trial (Dkt. 123 and 124 ) are DENIED AS MOOT as a jury trial is set on the claim for excessive force which has not been dismissed. P laintiff's Motions to Show Cause Why Defendants Should Not be Charged, Tried and Convicted of Perjury (Dkt. 130 ) and (Dkt. 132 ) are DENIED as beyond the scope of this civil litigation. The Court will withdraw the reference on Plaintiff' s Motion to Modify Scheduling Order (Dkt. 93 ) and said Motion is GRANTED IN PART consistent with this Order. The trial set for 7/22/14 is VACATED and the trial is RESET for 9/16/14 at 9:30 a.m. at the Federal Courthouse in Coeur d' Alene, Idaho to allow for the expert discovery to be completed. 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 (jp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

SUZANNE A. SWENSON,
Case No. 2:13-CV-0026-EJL
Plaintiff,
v.
COUNTY OF KOOTENAI, KOOTENAI
COUNTY SHERIFF’S OFFICE,
KOOTENAI COUNTY SHERIFF
ROCKY WATSON, DEPUTY SHAWN
LINDBLOM, KOOTENAI COUNTY
PROSECUTOR BARRY McHUGH,
DEPUTY PROSECUTOR JIM
REIERSON, DEPUTY PROSECUTOR
JOSHUA STUDOR, DEPUTY
PROSECUTOR KEN BROOKS,
DEPUTY JOHN DOES, et al., JUDGE
BARRY E. WATSON, MAGISTRATE
SCOTT WAYMAN, DETECTIVE
JASON AUSTIN, and DEPUTY
JONATHAN BRANDEL,

ORDER ON REPORT AND
RECOMMENDATION AND
OBJECTION ON MOTION TO
COMPEL TAX RETURNS AND
MOTION TO MODIFY
SCHEDULING ORDER

Defendants.

OBJECTIONS
On February 14, 2014, United States Magistrate Judge Ronald E. Bush issued a
Report and Recommendation in this matter. (Dkt. 114.) Pursuant to 28 U.S.C.
§ 636(b)(1), the parties had fourteen days in which to file written objections to the Report
and Recommendation. On February 28, 2014, objections (Dkts. 120 and 121) were filed
ORDER - 1

by the Plaintiff.1 Defendant filed new affidavits in accordance with the Report and
Recommendation on February 20, 2014, but no responses to Plaintiff’s objections were
filed. Plaintiff also filed an objection to the resubmitted affidavits on March 10, 2014
(Dkt. 129). The matter is now ripe for the Court’s consideration.
DISCUSSION
Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court may accept, reject, or modify, in
whole or in part, the findings and recommendations made by the magistrate judge. Where
the parties object to a report and recommendation, this Court shall make a de novo
determination of those portions of the report which objection is made. Id. Where,
however, no objections are filed the district court need not conduct a de novo review. In
United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003), the court interpreted
the requirements of 28 U.S.C. § 636(b)(1)(C):
The statute [28 U.S.C. § 636(b)(1)(C)] makes it clear that the district judge
must review the magistrate judge's findings and recommendations de novo
if objection is made, but not otherwise. As the Peretz Court instructed, “to
the extent de novo review is required to satisfy Article III concerns, it need
not be exercised unless requested by the parties.” Peretz, 501 U.S. at 939
(internal citation omitted). Neither the Constitution nor the statute requires a
district judge to review, de novo, findings and recommendations that the
parties themselves accept as correct. See Ciapponi, 77 F.3d at 1251
(“Absent an objection or request for review by the defendant, the district
court was not required to engage in any more formal review of the plea
1

The Plaintiff filed objections to the recommended portions of the Report and
Recommendation in Dkt. 120. Plaintiff filed an objection (or appeal) of Judge’s Bush’s order on
the Defendants’ motion to compel production of certain tax returns in Dkt. 121. The standard of
review for an objection to a magistrate judge order is different than the standard of review for an
objection to a report and recommendation on dispositive motions. The Court will set forth the
standard of review for the objection to the order in a separate section of this Order.
ORDER - 2

proceeding.”); see also Peretz, 501 U.S. at 937-39 (clarifying that de novo
review not required for Article III purposes unless requested by the parties)
....
See also Wang v. Masaitis, 416 F.3d 993, 1000 & n.13 (9th Cir. 2005). Furthermore, to
the extent that no objections are made, arguments to the contrary are waived. See Fed. R.
Civ. P. 72; 28 U.S.C. § 636(b)(1) (objections are waived if they are not filed within
fourteen days of service of the Report and Recommendation). “When no timely objection
is filed, the Court need only satisfy itself that there is no clear error on the face of the
record in order to accept the recommendation.” Advisory Committee Notes to Fed. R.
Civ. P. 72 (citing Campbell v. United States Dist. Court, 501 F.2d 196, 206 (9th
Cir.1974)). In this case, the objections were filed, so the Court is required to conduct a de
novo determination to the objected parts of the Report and Recommendation.
Swenson alleges that she was wrongfully arrested in Kootenai County, Idaho for
felony possession of controlled substances and misdemeanor battery, that she was
mistreated by the Kootenai County Sheriff’s Department in violation of her civil rights
under the Fourth and Eighth Amendments, and that she was maliciously prosecuted.
Magistrate Judge Bush recommended granting Defendants Wayman and Watson’s
motion to dismiss based on judicial immunity and granting the summary judgment motion
of Kootenai County, Kootenai County Sheriff’s Office, and the following individual
Defendants Watson, McHugh, Reierson, Studor, Brooks, Austin and Brandel. Judge
Bush recommended allowing Plaintiff’s claim of excessive force related to Defendant

ORDER ON REPORT AND RECOMMENDATION - 3

Lindblom’s placing of handcuffs on Plaintiff to proceed to trial.
Plaintiff once again objects to Judge Bush not recusing himself from this case and
not applying the applicable statutes and the Constitution. The Court finds these continual
attacks on Judge Bush to be meritless. Judge Bush has already ruled on Plaintiff’s motion
to recuse and found no basis for his recusal from this case. This Court has also reviewed
the allegations of Plaintiff and finds them to be without merit. Just because a judge does
not rule in a party’s favor, does not mean that judge is not applying the law correctly or is
biased. Plaintiff has the option to appeal the rulings if she believes the Court was in error
on the law.
In an abundance of caution, the Court has again specifically reviewed the
requirements of 28 U.S.C. § 144 and finds no factual support for the appearance of or
actual bias or prejudice by the undersigned judge or Judge Bush. The Court has also
reviewed the requirements of 28 U.S.C. § 455 and finds there are no applicable statutory
requirements that the undersigned judge or Judge Bush recuse themselves from this case.
Moreover, Plaintiff’s argument she should be able to have any person speak on her
behalf in federal court is incorrect. The District of Idaho does not allow non-attorneys to
represent individuals in federal court. Dist. Idaho Loc. Civ. R. 83.7. Simply put, in order
to represent another person in federal court, that person must be a licensed attorney
admitted to practice in the District of Idaho. Plaintiff is free to represent herself, but she
cannot select someone who is not admitted to practice in this court to represent her

ORDER ON REPORT AND RECOMMENDATION - 4

interests. This is not a violation of Plaintiff’s Constitutional rights to have restrictions on
who may practice law in the District of Idaho.
Plaintiff objects to the recommendation to dismiss the claims against all defendants
except the excessive force claim against Defendant Lindblom. As to the objections, the
Court has reviewed the law and facts and finds the analysis by Judge Bush is wellfounded in the law. State magistrate judges are entitled to absolute judicial immunity for
their alleged actions in this case. Stump v. Sparkman, 435 U.S. 349 (1978).
An officer will not be held to have committed a violation of a defendant’s Fourth
Amendment right to be free from unlawful arrest if the arrest was carried out with
probable cause. Grant v. City of Long Beach, 315 F.3d 1081, 1089 (9th Cir. 2002)
(“Courts have long held that the Fourth Amendment requires probable cause before an
officer 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
was made . . . the facts and circumstances within [the officer’s] knowledge and of which
[he] had reasonably trustworthy information were sufficient to warrant a prudent man in
believing’ that the suspect had violated a criminal law.” Id. at 1085 (quoting Orin v.
Barclay, 272 F.2d 1207, 1218 (9th Cir. 2001).). The Ninth Circuit requires an objective
standard whereby the district court is to evaluate whether “a “reasonable officer” would
have made the arrest based on the totality of the circumstances.” Id. at 1089. This is a fact
specific inquiry.

ORDER ON REPORT AND RECOMMENDATION - 5

Here the undisputed facts and law support a finding that probable cause was
established for Plaintiff’s arrest, so the arrest was not wrongful as a matter of law. The
officer who arrested Plaintiff completed an investigation which satisfied the probable
cause requirement and the officer did not need to have been an eyewitness in order to
have probable cause to arrest Plaintiff on a battery charge under Idaho Code § 18-903.
Battery is a misdemeanor since the maximum punishment does not exceed six months
imprisonment. Idaho Code § 18-904. Plaintiff’s reliance on a domestic dispute statute are
misplaced. The officer had statutory authority to arrest for a charge of battery pursuant to
Idaho Code § 19-603.
Plaintiff has failed to establish the requisite requirements to sue a municipality for
a violation of civil rights. See Monell v. Sept. of Soc. Serv. of City of New York, 436 U.S.
658 (1978). There is simply no evidence that a county policy or custom caused the
alleged constitutional deprivation of rights.
The Sheriff’s office is not a "political subdivision" as that term is defined under
Idaho law and is therefore not a party that can be sued for tort liability. See Idaho Code
§ 6-902.
The Plaintiff has failed to prove “malice” on the part of the prosecutors who are
also entitled to prosecutorial immunity for their actions in this case. See Awabdy v. City of
Adelanto, 368 F.3d 1062 (9th Cir. 2004); Imbler v. Pachtman, 424 U.S. 409 (1976).
The Court agrees the excessive force claim should be allowed to proceed to trial.

ORDER ON REPORT AND RECOMMENDATION - 6

Lalonde v. County of Riverside, 204 F.3d 947, 960 (9th Cir. 2000). The amount of time
Swenson was in handcuffs, the details of the tightness of the handcuffs and Swenson’s
requests to loosen the handcuffs as well as any actual injury sustained from the handcuffs
will have to be determined by the jury after they hear the testimony of all the witnesses.
Plaintiff’s Eighth Amendment’s cruel and unusual punishment allegations fail as
she was not imprisoned after a conviction on the charges. Graham v. Conner, 490 U.S.
386, 393 (1989).
Simply stated, the Court finds the objections to the Report and Recommendation
are without merit and must be dismissed based on the law as correctly set forth and
applied by the Magistrate Judge. The Court adopts by reference Judge Bush’s detailed
analysis of each of Plaintiff’s claims and agrees with his recommendation on the motion
to dismiss and the motion for summary judgment.
As to the objection to Judge Bush’s order to disclose certain tax returns, the Court
finds the standard of review for this objection is to show the magistrate judge’s ruling was
“clearly erroneous or is contrary to law.” Fed. R. Civ. P. 72(a). Plaintiff claims it is
improper to order the disclosure of tax returns where she is not claiming damages relating
to a loss of income due to the alleged actions of Defendants. Disclosure of tax returns is
only proper when there is a compelling need for them.
Plaintiff states in her objection she is not making any claim of loss income due to
alleged injury to her wrists from the handcuffing. While the Court finds Judge Bush’s

ORDER ON REPORT AND RECOMMENDATION - 7

ruling proper under the law, Plaintiff’s concession she will not seek any loss of income in
damages casts a new light on the motion for disclosure. Therefore, the Court agrees that a
compelling need for disclosure of the income tax returns has not been shown at this stage
in the litigation. The Plaintiff is ordered to have the tax returns present with her at the
time of trial and if the Court finds based on the Plaintiff’s testimony such documents have
become relevant, the Plaintiff will have to disclose such documents to defense counsel at
trial. Additionally, based on Plaintiff’s arguments about the tax returns, she is prohibited
from seeking any damages related to a loss of ability to earn income due to her alleged
wrist injury from the handcuffs. This objection is granted in part subject to possible
disclosure at trial.
As to Plaintiffs’ Objections to the resubmitted affidavits, the Court finds Plaintiff
is merely restating her earlier arguments which have been addressed by Judge Bush and
this Court. At trial, Swenson may be able to examine the affiants who also testify
regarding their prior sworn statements in their affidavits. However, for purposes of the
motion to summary judgment, the Court finds the resubmitted affidavits contain
admissible evidence that the Court may consider in resolving the motion for summary
judgment. These objections are denied.

ORDER ON REPORT AND RECOMMENDATION - 8

MOTION TO MODIFY SCHEDULING ORDER
Plaintiff moves the Court to extend the discovery deadline by 90 days to allow her
to name her doctor as an expert witness and to list her doctor’s record keeper as a witness
to verify the business records already submitted as evidence. Defendants object to the
motion as being untimely and prejudicial. The Court is going to withdraw the reference
to Judge Bush on this particular motion because it ultimately impacts who will be allowed
to testify at the trial.
The Court’s review of the motion to modify scheduling order is undertaken with
an eye on Ninth Circuit standards regarding pro se litigants. Tucker v. Carlson, 925 F.2d
330 (9th Cir. 1991). However, the Court reminds Swenson that pro se litigants are held to
same procedural rules as counseled litigants. King v. Atiyeh, 814 F.2d 565, 567 (9th Cir.
1987). Here, Plaintiff failed to disclose any expert witnesses by the deadline of May 31,
2013, therefore Defendants did not retain any experts. Then with three days before the
discovery cutoff deadline of November 30, 2013, Plaintiff moves to modify the
scheduling order to allow for her to name an expert and a custodian of records as a fact
witness.
A scheduling order can be modified “upon a showing of good cause.” Fed. R. Civ.
P. 16(b)(4); Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 608 (9th Cir. 1992).
The Court agrees that testimony from Plaintiff’s doctor is critical in Swenson being able
to make a case for her alleged injuries. The Court also finds the disclosure of her doctor

ORDER ON REPORT AND RECOMMENDATION - 9

as an expert at this stage in the litigation is prejudicial to Defendants who were not aware
of the doctor’s expected expert testimony and did not identify their own expert. The
Court also agrees Plaintiff was not diligent in complying with the rules when she waited
until five months after the expert disclosure deadline to move to add an expert. The Court
agrees that Plaintiff should have known she would need medical testimony to substantiate
her claim of alleged nerve damage from the handcuffs and should have disclosed her
expert within the deadline set by the Court. However, the Court also finds Defendants
could have anticipated when they received the medical records from Plaintiff in July of
2013, that a treating doctor might be called as a witness in this matter.
In the interests of justice and fairness, the Court will allow Plaintiff to name one
treating doctor as a testifying expert witness in this matter based on Fed. R. Evid. 702.
The doctor’s expert testimony will be limited in scope to the treatment, diagnosis, and
prognosis of Swenson. If her doctor does not file an expert report that complies with all
the requirements of Fed. R. Civ. P. 26(a)(2)(B), then at a minimum Swenson needs to
provide to Defendants a statement prepared by and signed by the treating doctor setting
forth the requirements of Fed. R. Civ. P. 26(a)(2)(C). The expert report or statement must
be provided to Defendants within thirty (30) days of the date of this Order. Failure to
provide a written expert report or statement within this deadline may result in Plaintiff
being unable to call her treating doctor as a witness at trial.

ORDER ON REPORT AND RECOMMENDATION - 10

Upon receipt of an expert report or statement, Defendants shall have thirty (30)
days to depose said treating doctor. After the deposition of the treating doctor, Defendants
shall have an additional thirty (30) days to name an expert and provide an expert report to
Plaintiff. Plaintiff will then have thirty (30) days to conduct a deposition of Defendants’
expert. No additional experts will be allowed in this matter. These delays for discovery
related to experts will necessarily result the trial in this matter being reset.
The Court also finds Plaintiff’s request to name one medical records custodian as a
witness to testify at trial will be granted. Defendants will suffer no prejudice as the
medical records have previously been disclosed. The Court reserves its ruling on whether
or not specific medical records are admissible under the Federal Rules of Evidence.

ORDER
NOW THEREFORE IT IS HEREBY ORDERED that the Memorandum
Decision and Order and Report and Recommendation (Dkt. 114) shall be
INCORPORATED by reference and ADOPTED by this Court.
IT IS FURTHER ORDERED as follows regarding the dispositive motions:
1.

Defendant Wayman and Watson’s Motions to Dismiss (Dkt. 49) is
GRANTED.

2.

Plaintiff’s Motion to Amend Complaint (Dkt. 62) is DENIED.

ORDER ON REPORT AND RECOMMENDATION - 11

3.

Defendants Kootenai County, Kootenai County Sheriff’s Office, Watson,
Lindblom, McHugh, Reierson, Studor, Brooks, Austin and Brandel’s
Motion for Summary Judgment (Dkt. 70) is GRANTED IN PART and
DENIED IN PART. Only the excessive force claim against Defendant
Lindblom shall be allowed to proceed to trial.

4.

Plaintiff’s Objections (Dkt. 120 and Dkt. 129) are DENIED. Plaintiff’s
Objection regarding the tax return disclosure (Dkt. 121) is GRANTED IN
PART.

IT IS FURTHER ORDERED that miscellaneous motions of Plaintiff will be
summarily denied as being moot or meritless to avoid the waste of limited judicial
resources:
5.

Plaintiff’s Motion for Judicial Notice and Demand for Jury Trial (Dkt. 123
and 124) are DENIED AS MOOT as a jury trial is set on the claim for
excessive force which has not been dismissed. The Court will not
reconsider its rulings on the dismissal of the other claims.

6.

Plaintiff’s Motions to Show Cause Why Defendants Should Not be
Charged, Tried and Convicted of Perjury (Dkt. 130) and (Dkt. 132) are
DENIED as beyond the scope of this civil litigation. Perjury is a criminal
charge and can only be brought by a prosecutor, not a private citizen.

ORDER ON REPORT AND RECOMMENDATION - 12

IT IS FURTHER ORDERED that:
7. The Court will withdraw the reference on Plaintiff’s Motion to Modify
Scheduling Order (Dkt. 93) and said Motion is GRANTED IN PART consistent with
this Order.
8. The trial set for July 22, 2014 is VACATED and the trial is RESET for
Tuesday, September 16, 2014 at 9:30 a.m. at the Federal Courthouse in Coeur d’Alene,
Idaho to allow for the expert discovery to be completed.
DATED: March 25, 2014

Honorable Edward J. Lodge
U. S. District Judge

ORDER ON REPORT AND RECOMMENDATION - 13