Dotson et al v. Funderburg et al

Filing 58

MEMORANDUM DECISION AND ORDER. Having carefully considered the filings of all the parties and entire record in this case, and for the reasons stated herein, IT IS HEREBY ORDERED that Defendants Motion for Summary Judgment 42 is GRANTED and Pla intiff Amber Dotson's federal claims against Jim Gorges, Doug Giddings and Idaho County are dismissed in their entirety, with prejudice. 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 (st)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

JOHN DOTSON, TONYA DOTSON,
and AMBER DOTSON,
Plaintiffs,

Case No. 3:14-CV-00159-EJL-REB
MEMORANDUM DECISION AND
ORDER

v.
DANIEL L. FUNDERBURG, JIM
GORGES, DOUG GIDDINGS, IDAHO
COUNTY, and DOES 1-10,
Defendants.

INTRODUCTION
Pending before the Court in the above-entitled matter is a Motion for
Summary Judgment by Defendants Jim Gorges, Doug Giddings, and Idaho County
(“Defendants”). (Dkt. 42.) The parties have submitted briefing on the motion and
the matter is now ripe for the Court’s review. Having fully reviewed the record
herein, 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, the motions shall be decided on the record
before this Court without oral argument.
ORDER - 1

For the reasons stated below, the Court enters the following Order granting
summary judgment in favor of Defendants on Defendants’ federal claims.
FACTUAL AND PROCEDURAL BACKGROUND
Unless otherwise noted, the following facts are taken from Plaintiff’s
Amended Complaint (Dkt. 16). On December 5, 2012, Daniel Funderburg
(“Funderburg”) was charged with one count of Sexual Battery on a Minor 16 to 17
Years of Age, in violation of I.C. § 18-1508(A)(1)(a). At the time of the events
leading to the arrest, Funderburg was a deputy with Idaho County. During his
employment, Funderburg had a relationship and a son with a woman named Shelby
Parks. (Dkt. 42-2, ¶¶6-7.) Plaintiff Amber Dotson (“Dotson”) spent time with
their son, as he was often babysat by Dotson’s older sister, Michelle Childers. (Dkt.
42-2, ¶7.)
Plaintiff first met Funderburg at Ms. Childers’ house, and she later obtained
Funderburg’s phone number when he gave it to her over Facebook in August of
2012. (Dkt. 45-1, ¶9.) By the end of that month, Dotson and Funderburg’s
relationship had become sexual. At that time, Dotson was 16 years old and
Funderburg was 31 years old.

ORDER - 2

Although Dotson does not contend that the two engaged in sexual intercourse
while Funderburg was on duty, she does argue that Funderburg initiated the
relationship while on duty. The parties dispute when the relationship ended, but the
last point of contact between the two occurred when Funderburg texted plaintiff,
“you need to leave me alone” on November 6, 2012. (Dkt. 42-2, ¶21.)
In the meantime, Funderburg was on his supervisors’ radar for other personal
issues. (Dkt. 45-1, ¶19.) For instance, the Idaho County Sheriff’s office had
received complaints about Funderburg constantly being on his phone while on duty.
(Id.) Funderburg also displayed performance issues while on the job, and was
working with his supervisor, Sergeant Martinez, to improve. (Dkt. 42-2, ¶19.)
Funderburg was even downgraded in his performance review in several categories,
including for his failure to engage with youth in the community. (Dkt. 45, p. 4.)
Moreover, Funderburg’s supervisors were also aware that Funderburg was
displaying signs of depression. (Dkt. 45-1, ¶19.) On November 6, 2012,
Undersheriff Jim Gorges (“Gorges”) paid a visit to Funderburg in order to address
Funderburg’s depressed behavior. (Id.) Gorges denies learning of Funderburg’s
sexual relationship with Dotson at that meeting. (Dkt. 42-1, p. 4.) Instead, Gorges
alleges Funderburg only confessed to speaking with plaintiff regarding a sexual
relationship she had with a boyfriend who was 18 years old. (Id.) Gorges claims

ORDER - 3

Funderburg was fearful that Dotson’s mom was upset Funderburg had given her
daughter legal advice pertaining to that issue. (Id.) Gorges further alleges he then
told Sheriff Doug Giddings (“Giddings”) that a mother may have a complaint
against Funderburg for spending too much time with an underage girl. (Id.)
However, Dotson contends that Funderburg confessed to having a sexual
relationship with her to Gorges at the November 6, 2012 meeting. (Dkt. 45-1, ¶21.)
Dotson does not contend that Gorges shared this knowledge with Giddings, but
claims Gorges told Funderburg he would inform Giddings of the relationship. (Id.)
Because there is a genuine issue of material fact regarding the events of this meeting,
the court will accept Dotson’s version of the facts for purposes of this motion.
The parties agree that Gorges responded in part by offering to speak with
Dotson’s mother to learn if she wanted to file a complaint. (Dkt. 45-1, ¶¶22-23.)
Gorges then approached Dotson’s mother at her place of work, but she did not file a
complaint at that time. (Id.) On December 3, 2012, Giddings learned that the
Clearwater County prosecuting attorney received an independent tip that
Funderburg had been in a sexual relationship with Dotson. On that date, Giddings
arranged for Funderburg to be put on administrative leave. (Dkt. 42-2, ¶25.)
Funderburg was terminated from his employment at the end of December 2012.
(Id.)

ORDER - 4

On January 10, 2013, Funderburg pleaded guilty to the felony charge of
Sexual Battery on a Minor 16 to 17 Years of Age. Thereafter, on April 25, 2014,
Dotson brought the instant suit against the Idaho County Sheriff, Doug Giddings, his
Undersheriff, Jim Gorges, and Funderburg’s previous employer, Idaho County
(“Defendants”). (Dkt. 1.) In her Amended Complaint, Dotson brings the
following claims:
1. Denial of Due Process in her right to bodily integrity in violation of the
14th Amendment to the U.S. Constitution by Funderburg and Gorges;
2. Denial of Due Process in her right to bodily integrity in violation of the
14th Amendment to the U.S. Constitution by Gorges and Giddings for
failure to intervene to end the relationship when they had knowledge of the
improper relationship;
3. Denial of Due Process in her right to bodily integrity in violation of the
14th Amendment to the U.S. Constitution by Gorges and Giddings for
failure to train and supervise Funderburg when they had knowledge of the
improper relationship;
4. Municipal liability against Idaho County and Giddings for failure to train
and supervise Funderburg and Gorges resulting in a deliberate indifference
to her constitutional rights under the U.S. Constitution;
5. Invasion of Privacy in Violation of the 5th Amendment to the U.S.
Constitution by Gorges and Giddings by disclosing constitutionally
protected personal information without a proper government interest;
6. Conspiracy between Gorges and Funderburg to enter into an agreement to
violate her civil rights and that they committed an overt act in furtherance
of the conspiracy by attempting to conceal and cover-up Funderburg’s
crimes; and
7. State negligence claims against Idaho County.

ORDER - 5

(See Dkt. 16, pp. 8-12; Dkt. 42-1, p. 6.) Defendants have filed the instant
Motion for Summary Judgment as to Dotson’s remaining claims against them.
(Dkt. 42, p. 2.) The Court finds as follows.

STANDARD OF REVIEW
Motions for summary judgment are governed by Rule 56 of the Federal Rules
of Civil Procedure. Rule 56 provides that the court shall grant summary judgment
if the movant shows that there is no genuine dispute as to any material fact and that
the movant is entitled to judgment as a matter of law.
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 non-moving 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, “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.
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”

ORDER - 6

if it affects the outcome of the litigation. S.E.C. v. Seaboard Corp., 677 F.2d 1289,
1293 (9th Cir. 1982). 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 of
Arizona 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, 374 (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 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 the light most favorable to the non-moving party. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986); Hughes v. U.S., 953 F.2d 531, 541 (9th
Cir.1992).

ORDER - 7

ANALYSIS
1. Motion for Summary Judgment
Defendants’ Motion for Summary Judgment seeks dismissal of all claims
raised against Jim Gorges, Doug Giddings, and Idaho County in the Amended
Complaint. (Dkt. 42.) In her response brief, Ms. Dotson has not disputed that
Judgment should be entered for Defendants on claims 5 and 6. To survive
summary judgment, Dotson “cannot rest on the pleadings but must show some
evidence from which the Court could reasonably infer the critical elements of [her]
claim.” Miller v. Idaho State Patrol, 252 P.3d 1274, 1288 (Idaho 2011) (citation
omitted). Summary judgment is accordingly granted on Dotson’s conspiracy and
invasion of privacy claims.
2. 42 U.S.C. § 1983 Claims
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[.]
42 U.S.C. § 1983. “Section 1983 does not create any substantive rights, but is
instead a vehicle by which plaintiffs can bring federal constitutional and statutory
ORDER - 8

challenges to actions by state and local officials.” Anderson v. Warner, 451 F.3d
1063, 1067 (9th Cir. 2006) (citing Cholla Ready Mix, Inc. v. Civish, 382 F.3d 969,
978 (9th Cir. 2004)). “The purpose of § 1983 is to deter state actors from using the
badge of their authority to deprive individuals of their federally guaranteed rights.”
Id. (citation omitted).
To establish a prima facie case under 42 U.S.C. § 1983, Plaintiffs “must
adduce proof of two elements: (1) the action occurred ‘under color of law’ and (2)
the action resulted in a deprivation of a constitutional right or a federal statutory
right.” Souders v. Lucero, 196 F.3d 1040, 1043 (9th Cir.1999) (citing Parratt v.
Taylor, 451 U.S. 527, 535 (1981)).
The parties in this case dispute whether Funderburg acted under color of law
when violating Plaintiff’s constitutional right to bodily integrity. For purposes of
this motion, the Court will assume Funderburg acted under color of law, and that
Funderburg violated Dotson’s constitutional right to bodily integrity.1 Even so,
however, there can be no liability for the remaining Defendants under 42 U.S.C. §
1983 without evidence that their own actions deprived Dotson of a constitutional or
a federal statutory right.

1  Dotson has obtained a default judgment against Funderburg. (Dkt. 27.) Her claims against
Funderburg are not at issue for purposes of the instant motion. 

ORDER - 9

A. Failure to Intervene in Violation of the 14th Amendment to the U.S.
Constitution
The Due Process Clause to the Fourteenth Amendment “does not impose a
duty on the state to protect individuals from third parties.” Henry A. v. Willden, 678
F.3d 991, 998 (9th Cir. 2012) (citing Patel v. Kent Sch. Dist., 648 F.3d 965, 971 (9th
Cir.2011)). The Ninth Circuit, however, has recognized the two general
exceptions: (1) the “special relationship” doctrine; and (2) the “state-created danger”
doctrine. Id. Dotson here has only raised a claim under the “state-created danger”
doctrine, which arises where the state officials took affirmative actions that
“create[d] or expose[d] an individual to a danger which he or she would not have
otherwise faced.” Kennedy v. City of Ridgefield, 439 F.3d 1055, 1061 (9th Cir.
2006) (citing DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189,
197, 201 (1989)). “To determine whether an official affirmatively placed an
individual in danger, [the Court] ask[s]: (1) whether any affirmative actions of the
official placed the individual in danger [s]he otherwise would not have faced; (2)
whether the danger was known or obvious; and (3) whether the officer acted with
deliberate indifference to that danger.” Willden, 678 F.3d at 1002.
Dotson contends Defendants’ actions meet all the elements of the
“state-created danger” exception. Dotson alleges Defendants affirmatively placed
her in a danger which she would not have otherwise faced by requiring Funderburg
ORDER - 10

to interact with youth in the community as part of his official duty. Dotson further
argues Funderburg’s signs of depression constituted a mental and emotional
condition that posed an obvious danger to the community. Finally, Dotson claims
Defendants acted with deliberate indifference to this danger by continuing to require
Funderburg to interact with community youth, despite his known mental and
emotional condition.
Defendants counter that the “state-created danger” doctrine applies only when
the state took an affirmative act to put the plaintiff in risk of danger she would not
have otherwise faced. Defendants claim that no affirmative acts taken by Gorges or
Giddings caused Funderburg to engage in sexual relations with Dotson.
Defendants further contend that there was no known or obvious danger that would
require intervention. Specifically, Defendants highlight there is no evidence
Funderburg or other officers previously engaged in any inappropriate behavior when
interacting with community youth. Finally, Defendants claim Dotson’s contention
that Funderburg posed a general danger to community youth is insufficient to
establish liability, and that Dotson was not a foreseeable victim of Funderburg’s
illegal conduct. Therefore, Defendants conclude there is not enough evidence to
support a finding of deliberate indifference.

ORDER - 11

The Ninth Circuit has held that for purposes of the state-created danger
exception, “deliberate indifference requires a culpable mental state,” and thus, “[t]he
state actor must recognize an unreasonable risk and actually intend to expose the
plaintiff to such risks without regard to the consequences to the plaintiff.” Patel v.
Kent Sch. Dist., 648 F.3d at 974 (citation and internal quotation omitted). The
Ninth Circuit has allowed questions of deliberate indifference to proceed to trial, but
has emphasized that these types of cases are highly fact-specific. Id. at 974-75. In
cases where the deliberate indifference inquiry has survived summary judgment, the
facts have involved a state actor’s affirmative action directing danger toward the
particular plaintiff at hand. See, e.g., Penilla v. City of Huntington Park, 115 F.3d
707 (9th Cir.1997) (two police officers’ affirmative actions placed plaintiff in a more
dangerous position than the one they found him in when they found plaintiff to be in
need of medical attention, moved him inside his house, locked the door, and left);
Kennedy v. City of Ridgefield, 439 F.3d (police officer affirmatively created danger
by notifying Michael Burns—a person with known violent tendencies—that
plaintiff had reported him for molesting plaintiff’s daughter, resulting in Mr. Burns
shooting and killing plaintiff’s husband, and shooting and severely wounding
plaintiff).

ORDER - 12

By contrast, the deliberate indifference inquiry has not survived summary
judgment where the facts involved a state actor’s affirmative action directing danger
to the public at large. See, e.g., Ketchum v. County of Alameda, 811 F.2d 1243 (9th
Cir. 1987) (as a member of the general public, plaintiff had no constitutional right to
be protected by county where she was raped by inmate who escaped from a
minimum security facility); Martinez v. State of Cal., 444 U.S. 277 (1980)
(15-year-old decedent had no constitutional right to be protected by state officials
from sex-offender parolee, even though state officials knew it was likely parolee
would commit another violent crime). Thus, the state-created danger exception
requires not just the state actor’s failure to act, but also “some contact or connection
with the injured party that creates a causal connection between the state actor’s
conduct and the increased danger.” Schmidt v. Hoover, 2009 WL 1011715, at *7
(N.D. Cal. 2009) (citation omitted).
Here, the state-created danger exception does not apply. Dotson contends
Defendants affirmatively placed her in danger by encouraging Funderburg to
interact with community youth despite his clear signs of depression. The facts
alleged do not establish that Defendants had sufficient contact with Dotson to create
the necessary causal connection between Defendants’ conduct and the alleged
increased danger caused by encouraging deputies to interact with community youth.

ORDER - 13

Schmidt, 2009 WL 1011715, at *8. The Ninth Circuit’s application of the
state-created danger exception supports the conclusion that there must be
“affirmative action by the state actor directed toward the particular plaintiff who is
suing under § 1983—not just inaction that generally affects the public at large (or
even a particular segment of the public).” Id.
Here, Dotson does not allege that Defendants had any knowledge of
Funderburg and Dotson’s relationship until after it had terminated.2 Moreover,
Dotson does not allege a history of deputies engaging in illegal sexual activity with
minors as a result of either depression or of being encouraged to interact with youth
in the community. Flores v. County of Los Angeles, 758 F.3d 1154, 1156 (9th Cir.
2014). The facts alleged are insufficient to establish that Defendants affirmatively
placed Dotson in danger with deliberate indifference to that danger, thereby
depriving Dotson of her constitutional rights. Thus, the facts do not establish that
the state had a duty to protect Dotson as a result of a state-created danger. Based on
the foregoing, summary judgment is granted on this claim.

2 Dotson argues Defendants should have discovered Funderburg was using his cell phone
to exchange sexually explicit texts with a minor throughout the day and while on duty.
(Dkt. 45-1, ¶35). The Court has been unable to locate, and Dotson fails to cite, any case
imposing liability on an official for failure to intervene under § 1983 for that official’s
failure to monitor a third-party’s private interactions, such as those over a phone.
ORDER - 14

B. Failure to Train and Supervise with Supervisory Liability Against
Giddings and Gorges
In order to hold Giddings and Gorges liable for failure to train and supervise
under 42 U.S.C. § 1983, Dotson must establish that Defendants were “deliberately
indifferent to the need to train subordinates, and the lack of training actually caused
the constitutional harm or deprivation of rights.” Id. at 1158-59 (9th Cir. 2014)
(citing Connick v. Thompson, 563 U.S. 51, 58 (2011)). There are no material issues
of fact to establish that any lack of supervision of Funderburg, after Gorges became
aware of Dotson’s existence, caused a violation of Dotson’s constitutional rights.
See Snyder v. City and County of San Francisco, 288 Fed.Appx. 346 (9th Cir. 2008)
(summary judgment appropriate where plaintiffs failed to establish causal link
between defendant’s supervisory actions and plaintiff’s injuries). Even assuming
Funderburg disclosed to Gorges the full nature of his relationship with Dotson at the
November 6, 2012 meeting, and even assuming Gorges tried to hide that information
for Funderburg, Dotson’s alleged constitutional violation had already occurred.
Thus, Dotson’s failure to intervene claim fails for lack of causation.
Similarly, there are no material issues of fact to establish that any lack of
supervision of Funderburg, before Giddings and Gorges became aware of Dotson’s
existence, caused a violation of Dotson’s constitutional rights. Van Ort v. Estate of
ORDER - 15

Stanewich, 92 F.3d 831 (9th Cir. 1996) (that deputy’s disciplinary record displayed
history of unwarranted violence in making arrests was not enough to establish
county liability under § 1983). Here, Funderburg’s performance issues were being
worked on with Sgt. Martinez, and Funderburg’s signs of depression due to his
personal problems could not have led Gorges or Giddings to foresee that Funderburg
would engage in sexual relations with a minor. Id. at 837.
Thus, even viewing the evidence in the light most favorable to the
non-moving party, the facts are insufficient to support the finding that Defendants
were deliberately indifferent to the need to train Funderburg, or that any lack of
training actually caused the constitutional harm to Dotson.
Because Dotson cannot establish deliberate indifference with respect to either
her failure to intervene or failure to train claims, her due process claims against
Giddings and Gorges must fail.
C. Failure to Train and Supervise Municipal Liability of Idaho County
Liability of governmental entities and supervisors in their official capacities
under 42 U.S.C. § 1983, “is limited to deprivations of federally protected rights
caused by action taken ‘pursuant to official municipal policy of some nature.’”
Pembaur v. City of Cincinnati, 475 U.S. 469, 471 (1986) (quoting Monell v. Dep’t of
Soc. Servs. of City of New York, 436 U.S. 658, 691 (1978)). Because the theory of

ORDER - 16

respondeat superior precludes a municipality itself from being held vicariously
liable for the acts of its employees, the plaintiff must establish “a direct causal link
between a municipal policy or custom and the alleged constitutional deprivation.”
City of Canton v. Harris, 489 U.S. 378, 385 (1989). Ultimately, the discretionary
actions of municipal employees, even if unconstitutional, generally do not generate
municipal liability under 1983. Gillette v. Delmore, 979 F.2d 1342, 1347 (9th Cir.
1992).
As Dotson notes, a plaintiff may establish municipal liability under § 1983 in
one of three ways. Id. at 1346-47. First, a plaintiff may establish that the
municipal employee committed the constitutional violation pursuant to a policy or
longstanding custom of the local government entity (“official policy theory”). Id.
at 1346. Second, a plaintiff may prove the municipal employee who committed the
constitutional violation was an official with final policymaking authority
(“policymaker theory”). Id. Third, a plaintiff may establish that an official with
final policy-making authority ratified a subordinate’s unconstitutional action
(“ratification”). Id. Plaintiff alleges that all three avenues of municipal liability
apply here. (Dkt. 45, p. 12.)

ORDER - 17

1. Official Policy Theory
Dotson first contends the Idaho County Sheriff’s Office had a formal policy
requiring all deputies to spend time with community youth, and alleges the County
failed to provide adequate training or supervision of Funderburg’s execution of that
policy. (Id.) Thus, Dotson alleges, the implementation of the policy caused
Funderburg to commit sexual battery against Dotson, a community youth. (Id.)
With regards to the official policy theory, the Supreme Court has concluded a
plaintiff must show that “the need for more or different training is so obvious, and
the inadequacy so likely to result in the violation of constitutional rights, that the
policymakers of the city can reasonably be said to have been deliberately indifferent
to the need.” Canton, 489 U.S. at 390. “[D]eliberate indifference is a stringent
standard of fault, requiring proof that a municipal actor disregarded a known or
obvious consequence of his action.” Bd. of County Comm’rs v. Brown, 520 U.S.
397, 410 (1997).
While Dotson has established Giddings was aware of Funderburg’s
performance and depression issues, there is no evidence the sexual battery of a
minor was a known or obvious consequence of the county policy requiring
interaction with youth. In Flores v. County of Los Angeles, the Ninth Circuit

ORDER - 18

determined there is no basis to support a conclusion that the “unconstitutional
consequences of failing to train police officers not to commit sexual assault are so
patently obvious” as to show that the County or the Sheriff acted with deliberate
indifference. 758 F.3d at 1160. See also Pauls v. Green, 816 F.Supp.2d 961, 971
(D. Idaho 2011) (“many courts have held that no training is required to teach
employees not to commit sexual assaults”); Doe v. Dickenson, 615 F.Supp.2d 1002,
1009 (D. Ariz. 2009) (“a municipality is not deliberately indifferent in failing to
train law enforcement officers to not sexually assault those with whom they come
into contact.”). Dotson has thus failed to establish a genuine issue of material fact
as to whether the County’s policy of encouraging deputies to interact with
community youth, without further supervision or training on relationship barriers
with minors, constituted deliberate indifference. Thus, Dotson has failed to meet
the requirements to establish § 1983 municipal liability under the “official policy
theory.”
2. Policymaker Theory
Alternatively, Dotson alleges Giddings and Gorges were policymakers with
respect to the training, supervision, and discipline of deputies within the Idaho
County Sheriff’s Office, and that Giddings and Gorges made deliberate choices with
respect to the challenged training, supervision, and discipline of Funderburg. (Dkt.

ORDER - 19

45, p. 14.) Dotson further contends that because Giddings and Gorges did not
direct Funderburg’s counseling, fit for duty evaluation, enhanced supervision, or
termination, Giddings and Gorges opened the door to municipal liability for failure
to train and supervise as Idaho County policymakers. (Id. at 13-15.)
While a single decision by a policymaker may constitute an act of official
government policy for purposes of § 1983 municipal liability, not every decision by
municipal officers subjects the municipality to liability. Pembaur, 475 U.S. at 481.
“The fact that a particular official—even a policymaking official—has discretion in
the exercise of particular functions does not, without more, give rise to municipal
liability based on an exercise of that discretion. The official must also be responsible
for establishing final government policy respecting such activity before the
municipality can be held liable.” Id. at 481-83 (internal citation omitted). Thus,
the Supreme Court has held municipal liability under § 1983 attaches only where the
official responsible for establishing final policy with respect to the subject matter in
question makes a deliberate choice from among various alternatives. Id. at 483. In
Pembaur, the Court found § 1983 municipal liability attached under the policymaker
theory where the county prosecutor violated plaintiff’s Fourth Amendment rights by
directing officers to break down plaintiff’s office door and enter plaintiff’s office.
Id.at 484-85. The Court highlighted, however, a contrasting example that applies

ORDER - 20

here. In Pembaur, the Court pointed out that where an official’s discretionary
decisions are constrained by policies not of that official’s making—such as a Sheriff
exercising discretion to hire and fire employees as per an employment policy created
by a board or commission—only the board or commission could be the policymaker
who opens the door to § 1983 municipal liability. Id. at 483 n. 12. In that
example, the Sheriff’s exercise of discretion—even if unconstitutional—would not
expose the County to liability if the policy set by the board was otherwise
constitutional. Id.
Dotson has not alleged that the employment policy itself was
unconstitutional. As discussed above, the policy of encouraging deputies to
interact with community youth—even absent further training on relationship
barriers with minors—was not an unconstitutional policy. Thus, Sheriff Giddings’s
exercise of discretion in allowing Funderburg to interact with youth absent further
training and supervision does not expose the County to liability for the constitutional
policy.
Moreover, even if negligent hiring or supervision is proscribed under Monell,
such negligence still must be the proximate cause of the injuries suffered in order to
establish municipal liability. Van Ort, 92 F.3d at 837. As Funderburg admitted to
being fully aware that his relationship with Dotson was wrong, there is no reason to

ORDER - 21

believe that any additional training or supervision of Funderburg would have
prevented the constitutional violation. (Dkt. 45-7, ¶14.) Thus, even if a jury were
to find that Giddings and Gorges were policymakers with respect to the training,
supervision, and discipline of deputies within the Idaho County Sheriff’s Office, and
that Giddings and Gorges made deliberate choices with respect to the challenged
training, supervision, and discipline of Funderbug, Dotson fails to establish that
Giddings’s discretion proximately caused the constitutional violation.
3. Ratification
Finally, Dotson claims municipal liability under § 1983 through Giddings and
Gorges’s alleged ratification of Funderburg’s actions. Under the ratification
doctrine, “[i]f the authorized policymakers approve a subordinate’s decision and the
basis for it, their ratification would be chargeable to the municipality because their
decision is final.” St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988).
In order for § 1983 liability to attach to the municipality, however, “the
plaintiff must show that the triggering decision was the product of a ‘conscious,
affirmative choice’ to ratify the conduct in question.” Haugen v. Brosseau, 351
F.3d 372, 393 (9th Cir. 2003) overruled on other grounds by Brosseau v. Haugen,
543 U.S. 194 (2004) (quoting Gillette, 979 F.2d at 1347).

ORDER - 22

Here, Dotson has made no such showing. Dotson has provided no evidence
that Giddings or Gorges knew of Funderburg’s actions until after the constitutional
violations ceased. See Christie v. Iopa, 176 F.3d 1231, 1239 (9th Cir. 1999).
Instead, Dotson alleges that Giddings and Gorges ratified Funderburg’s actions
because (1) there existed extreme facts in the case, and (2) their approval of
Funderburg’s actions was based upon an inadequate investigation containing glaring
deficiencies, showing a reckless disregard for the constitutional rights of Dotson.
(Dkt. 45, p. 15.)
As to Dotson’s first contention of “extreme facts,” the Court has failed to
locate, and Dotson fails to cite, any authority that allows a finding of “extreme facts”
to supersede the ratification requirement that the policymaking official had
knowledge of the constitutional violation. Even assuming that Giddings’s failure to
recognize Funderburg’s illegal relationship constituted an “extreme factual
situation,” Dotson never contends that Giddings made the “conscious, affirmative
choice” to allow that affair to continue. Haugen, 351 F.3d at 393. In fact, Dotson
does not even contend that Giddings or Gorges had any knowledge of the affair until
after it had ended. Thus, even if there is an extreme factual situation as Dotson
alleges, the required criteria for ratification are not met.

ORDER - 23

Dotson also fails to establish ratification on her second theory that Giddings
and Gorges approved of Funderburg’s actions through an inadequate investigation
that contained glaring deficiencies. The Ninth Circuit has found municipal liability
attaches through ratification where a policymaker’s “grossly inadequate
investigation” contained “glaring deficiencies.” Fuller v. City of Oakland, 47 F.3d
1522, 1535 (9th Cir. 1995). In Fuller, a former police officer filed suit against the
City of Oakland under § 1983 for its failure to properly investigate her complaints of
sexual harassment against her fellow officers. Id. at 1525. The investigation at
issue took place after the plaintiff reported being the victim of sexual harassment,
and contained such glaring deficiencies as: investigative delays; the failure to credit
the testimony of witnesses supporting the plaintiff; an attempt to close the
investigation without even speaking with the alleged perpetrator; and one-sided
resolution of all factual disputes. Id. at 1535. The Ninth Circuit concluded there
was sufficient evidence that the police chief ratified the plaintiff’s constitutional
violation through his approval of the deficient investigation into the plaintiff’s
complaints. Id.
This case is plainly distinguishable from Fuller. Unlike in Fuller, where the
defendants had knowledge of the alleged violation and then failed to properly
investigate the complaint, here there was never any complaint for Defendants to

ORDER - 24

investigate. Morrison v. Bd. of Trs., 529 F.Supp.2d 807, 825 (S.D. Ohio 2007)
(“[d]efendants cannot be said to have a policy ratifying unconstitutional conduct by
failing to properly investigate a complaint when no complaint was made.”). Even
assuming Gorges learned of the relationship at the November 6, 2012 meeting,
Giddings placed Funderburg on administrative leave and shortly thereafter launched
an independent investigation. (Dkt. 42-3, ¶10.) Further, Dotson does not present
any evidence that the resulting investigation was deficient. Thus, Dotson has failed
to establish a material issue of fact as to whether Giddings and Gorges conducted a
“grossly inadequate investigation” containing “glaring deficiencies.” Dotson
cannot establish municipal liability under the ratification doctrine.
Viewing the evidence in the light most favorable to Dotson, the Court
concludes Dotson has failed to raise a genuine issue of material fact as to whether
the County or Giddings, in his official capacity, were deliberately indifferent in
training or supervising Funderburg. The Court therefore must grant Defendants’
motion for summary judgment on Dotson’s § 1983 claims against the municipality.
In issuing this Order, the Court does not seek to minimize Dotson’s misfortune or
the abuse she suffered. While the Court deeply sympathizes with Dotson and her
family, liability cannot be established as a matter of law under the facts alleged here.

ORDER - 25

D. State Law Claims
Absent any federal claims to support further jurisdiction over this action, the
Court declines to exercise ancillary jurisdiction over Dotson’s state law claims.
Where, as here, the Court has determined prior to trial that all federal claims shall be
dismissed, “the balance of factors . . . will point toward declining to exercise
jurisdiction over the remaining state-law claims.” Acri v. Varian Associates, 114
F.3d 999, 1001 (9th Cir. 1997) (en banc) (quoting Carnegie-Mellon Univ. v. Cohill,
484 U.S. 343, 350 n. 7 (1988)). Thus, in accordance with the direction provided by
case law, and consistent with 28 U.S.C. § 1367(c)(3), the Court declines to exercise
its discretion to hear the state law claims and will dismiss the claims without
prejudice to the Plaintiffs’ right to refile them in state court. For these reasons, the
Court will not address the negligence claims against Idaho County.
ORDER
Having carefully considered the filings of all the parties and entire record in
this case, and for the reasons stated herein, IT IS HEREBY ORDERED that
Defendants’ Motion for Summary Judgment (Dkt. 42) is GRANTED and Plaintiff
Amber Dotson’s federal claims against Jim Gorges, Doug Giddings and Idaho
County are dismissed in their entirety, with prejudice.
June 10, 2016

ORDER - 26