Smalley v. Spirit Lake Police Department et al

Filing 20

SUCCESSIVE REVIEW ORDER BY SCREENING JUDGE re 18 Amended Complaint filed by Phillip R Smalley. IT IS ORDERED that the Amended Complaint (Dkt. 18 ) and this entire action are DISMISSED with prejudice. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (ckh)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

PHILLIP R. SMALLEY,
Case No. 3:18-cv-00181-BLW
Plaintiff,
vs.
SPIRIT LAKE POLICE
DEPARTMENT and SERGEANT
JEREMY McMILLEN,

SUCCESSIVE REVIEW ORDER BY
SCREENING JUDGE

Defendants.

The Court issued an Initial Review Order in this Action requiring Plaintiff Phillip

R. Smalley to file an amended complaint to clarify his causes of action and correct
deficiencies. (Dkt. 9.) Plaintiff was provided with the standards of law needed to file an
amendment. (Id.) The Court has reviewed Plaintiff’s Amended Complaint to determine
whether summary dismissal is appropriate. See 28 U.S.C. §§ 1915(e) and 1915A.
Having reviewed the record, the Court enters the following Order dismissing this
case with prejudice for failure to state a claim upon which relief can be granted.

REVIEW OF AMENDED COMPLAINT
Plaintiff’s claims arise from criminal charges that were brought against him when
he worked at an assisted living facility in Spirit Lake, Idaho. He originally was charged
with two felony counts of sexual abuse and exploitation of a vulnerable adult regarding

victim D.H. On October 1, 2015, the state magistrate judge presiding over the case
dismissed the charges for lack of probable cause. At some point in time, which Plaintiff
has not identified, D.H. passed away. On November 10, 2015, Defendant Sergeant
Jeremy McMillen filed a new complaint and obtained a warrant for Plaintiff’s arrest on
misdemeanor charges of abuse and neglect of a vulnerable adult regarding the same
alleged incidents involving D.H. Plaintiff proceeded to trial on the charges and was
acquitted on April 27, 2016.1
Plaintiff asserts that Sergeant McMillen violated his Fourth Amendment rights by
filing the second criminal complaint. A claim under § 1983 for false arrest or false
imprisonment is grounded in the Fourth Amendment guarantee against unreasonable
seizure. Dubner v. City and County of San Francisco, 266 F.3d 959, 964 (9th Cir. 2001).
To maintain false arrest claims under § 1983, a plaintiff must show that the arresting
officer lacked probable cause to make the arrest. Id. at 965. “Probable cause exists when,
under the totality of the circumstances known to the arresting officers (or within the
knowledge of the other officers at the scene), a prudent person would believe the suspect
had committed a crime.” Id. at 966 (citing United States v. Garza, 980 F.2d 546, 550 (9th
Cir. 1992)).
Plaintiff seems to be asserting that Sergeant McMillen did not have probable cause
to file the misdemeanor complaint on the same factual allegations simply because the

1

Plaintiff was contemporaneously charged with and convicted of two other counts involving a different
patient at the same assisted living center. See Kootenai County District Court Cases CR 2015-13598 and
CR2015-13598. He is now serving his sentences on those convictions.

felony charges were dismissed for lack of probable cause. Because not all of the elements
of each cause of action are the same, Plaintiff’s allegations do not support a claim that
Sergeant McMillen acted without probable cause on the second complaint. A felony
charge requires that the circumstances of the crime be such that they are “likely to
produce great bodily harm or death,” and a misdemeanor charge involves circumstances
“other than those likely to produce great bodily harm or death.” Idaho Code § 181505(1)&(2).
Moreover, on November 5, 2015, Plaintiff was arraigned and had his first
appearance.2 He entered a “not guilty” plea. Idaho Criminal Rule 5(c) provides that “[a]t
or before the first appearance of a defendant who is arrested without a warrant or appears
pursuant to a summons, the magistrate must determine there is probable cause as defined
in Rule 4(a) before the defendant is retained, ordered into custody or required to post
bond.” Plaintiff has not alleged that the magistrate judge failed to find probable cause on
that date. Plaintiff would not have had to enter a plea or proceed to trial had there been no
finding of probable cause.
Without additional facts showing why Plaintiff believes there was no probable
cause for the misdemeanor charge, the current allegations are “merely consistent with ...
defendant’s liability,” but do not amount to a claim for relief that is plausible on the face
of the pleading. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (punctuation altered).

2

The Court takes judicial notice of the register of actions in Plaintiff’s state criminal case, CR-201517901. See https://mycourts.idaho.gov/odysseyportal/Home/WorkspaceMode?p=0.

Therefore, Plaintiff cannot proceed on a Fourth Amendment claim. For the same reasons,
he also has not stated a plausible Fourteenth Amendment due process claim. Rather, the
record makes it clear that he received the process that he was due with his probable cause
hearing.
Plaintiff further asserts that he was deprived of the Sixth Amendment right to
confront D.H. on the allegations, because she had passed away. Plaintiff’s reasoning is
fallacious. If a victim had to be alive in order for a criminal case to proceed, it would be
impossible for any homicide case to be prosecuted. Plaintiff has no facts supporting a
Sixth Amendment Confrontation Clause claim, and it is subject to dismissal.
Plaintiff also sues the Spirit Lake Police Department. Plaintiff alleges that
Sergeant McMillen committed the violations “while executing an official policy or
unofficial custom.” (Dkt. 18, p. 6.) However, Plaintiff provides no facts to show which
policy or custom was involved, or how it caused Sergeant McMillen to wrongfully file
the second complaint.
Plaintiff was provided with the required elements to state a claim against a
municipality in the Initial Review Order. However, his Amended Complaint contains no
facts supporting a Fourth, Sixth, or Fourteenth Amendment claim against the police
department. He includes only a bare recitation of the legal standard for a policy-based
claim. Under Iqbal, that is not enough. “Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.” 556 U.S. at 678.
Accordingly, the Court concludes that Plaintiff has not remedied the deficiencies
in his pleadings as to any claim or any defendant. Further opportunities for amendment

would be futile because Plaintiff has been provided with the necessary legal standards of
law and has had nearly four years to develop the facts supporting his claims. This entire
action is subject to dismissal with prejudice.
ORDER
IT IS ORDERED that the Amended Complaint (Dkt. 18) and this entire action
are DISMISSED with prejudice.

DATED: March 11, 2020

_________________________
B. Lynn Winmill
U.S. District Court Judge