VanOrden v. Bannock County et al

Filing 70

MEMORANDUM DECISION AND ORDER deeming as moot 45 Plaintiff's Motion for Additional Time to Complete Factual Discovery; denying 48 Plaintiff's Motion for Disqualification; denying 49 Plaintiff's Motion for Stay of Proceedings. Signed by Judge Ronald E. Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)

Case 4:14-cv-00303-REB Document 70 Filed 06/27/16 Page 1 of 6

UNITED STATES DISTRICT COURT
DISTRICT OF IDAHO

JASON VANORDEN,
Plaintiff,

Case No.: 4:14-cv-00303-REB
MEMORANDUM DECISION AND
ORDER RE:

vs.
BANNOCK COUNTY, SHERIFF’S
DEPARTMENT, CITY OF POCATELLO,
SHERIFF LOREN NIELSEN, CAPTAIN KEVIN
FONNSEBECK, CAPTAIN ELLE PETERSON,
DEPUTY SHANNON BLOXHAM, DEPUTY
IFEREIMI TABAKECE, DEPUTY SHELTON,
DEPUTY JARROD PHILLIPS, DEPUTY HOFF,
DETECTIVE ALEX HAMILTON, DEPUTY
KATHLEEN BALLARD, SCOTT MARCHAND,
SERGEANT ERICK ANDERSON, OFFICER
MATT SHUTES, SERGEANT BILL COLLINS,
OFFICER TRAVIS EVANS, OFFICER DARREN
DANIELS, AND JOHN DOES 1-20,

PLAINTIFF’S MOTION FOR
ADDITIONAL TIME TO
COMPLETE FACTUAL DISCOVERY
(Docket No. 45)
PLAINTIFF’S MOTION FOR
DISQUALIFICATION
(Docket No. 48)
PLAINTIFF’S MOTION FOR STAY
OF PROCEEDINGS
(Docket No. 49)

Defendants.

Now pending before the Court are Plaintiff’s (1) Motion for Additional Time to
Complete Factual Discovery (Docket No. 45), (2) Motion for Disqualification (Docket No. 48),
and (3) Motion for Stay of Proceedings (Docket No. 49). Having carefully reviewed the record
and otherwise being fully advised, the undersigned enters the following Memorandum Decision
and Order concerning each of these Motions.
A.

Plaintiff’s Motion for Additional Time to Complete Factual Discovery
The Court has been advised that the underlying factual circumstances which gave rise to

this Motion no longer exist, and therefore the Court concludes that the Motion is moot.

MEMORANDUM DECISION AND ORDER - 1

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B.

Plaintiff’s Motion for Disqualification
Idaho Local Civil Rule 83.5(a) prescribes that:
All members of the bar of the District Court and the Bankruptcy Court for the
District of Idaho (hereafter the “Court”) and all attorneys permitted to practice in this
Court must familiarize themselves with and comply with the Idaho Rules of
Professional Conduct of the Idaho State Bar and decisions of any court interpreting
such rules. These provisions are adopted as the standards of professional conduct for
this Court but must not be interpreted to be exhaustive of the standards of
professional conduct. No attorney permitted to practice before this court will engage
in any conduct which degrades or impugns the integrity of the Court or in any
manner interferes with the administration of justice therein.

Dist. Idaho Loc. Civ. R. 83.5(a). In turn, Rule 1.7 of the Idaho Rules of Professional Conduct
discusses conflicts of interest among current clients:
(a)

Except as provided in paragraph (b), a lawyer shall not represent a client if
the representation involves a concurrent conflict of interest. A concurrent
conflict of interest exists if:
(1)

(2)

(b)

the representation of one client will be directly adverse to another
client; or
there is a significant risk that the representation of one or more clients
will be materially limited by the lawyer’s responsibilities to another
client, a former client or a third person or by the personal interests of
the lawyer, including family and domestic relationships.

Notwithstanding the existence of a concurrent conflict of interest under
paragraph (a), a lawyer may represent a client if:
(1)

the lawyer reasonably believes that the lawyer will be able to provide
competent and diligent representation to each affected client;

(2)

the representation is not prohibited by law;

(3)

the representation does not involve the assertion of a claim by one
client against another client represented by the lawyer in the same
litigation or other proceedings before a tribunal; and

(4)

each affected client gives informed consent, confirmed in writing.

IRPC 1.7.
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From all of this, Plaintiff argues that Defendants’ counsel’s role as attorney of record for
the Bannock County Defendants as well as the City of Pocatello Defendants “creates a nonconsentable conflict of interest and as such would result in delay and duplication of discovery,
unnecessary appeals or other disputes when one or all of the Defendants revoke consent to the
conflict.” Mot. for Disq., p. 2 (Docket No. 48). According to Plaintiff:
It is an inevitable consequence of this type of litigation, where multiple individuals
from multiple agencies are being represented by the same lawyer, some of the
codefendants will break down and point fingers of culpability against one another.
For Plaintiff to have to endure the inevitable fallout of having to deal with new
counsel late in the discovery process is not only unnecessary but unethical. Should
there be divergent testimony which leads Defense Counsel to cross examine one or
more of his own clients, this would lead to direct adverse conflicts of interest.
Should counsel decide not to aggressively cross examine his own client, he would
be doing a disservice to his other clients.
Id. at pp. 3-4. The decision to grant or deny a motion to disqualify counsel is within this Court’s
discretion. Such motions are “viewed with caution” for obvious reasons, and on this record the
Plaintiff has not established a conflict of interest warranting a court order requiring
disqualification of Defendants’ counsel. See, e.g., Weaver v. Millard, 819 P.2d 110, 114-15 (Id.
Ct. App. 1991) (“The decision to grant or deny a motion to disqualify counsel is within the
discretion of the trial court [and] the moving party has the burden of establishing grounds for the
disqualification. . . . . [W]here . . . the motion to disqualify comes not from a client or former
client of the attorney, but from an opposing party, the motion should be viewed with caution.”)
(internal citations omitted).
This case follows an August 15, 2013 stand-off between Jason Van Orden and officers
from the City of Pocatello Police Department, followed by his arrested and transport to Portneuf
Medical treatment before being booked in the Bannock County Jail. Two weeks later, deputies
at the Bannock County Jail found Mr. Van Orden dead in his cell – he had apparently taken his
MEMORANDUM DECISION AND ORDER - 3

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own life by hanging himself with bed linens. Plaintiff’s Complaint raises claims against two
different sets of defendants, identified and grouped by their respective involvements at two
different points in time. First, the City of Pocatello Defendants in relation to Mr. Van Orden’s
August 15, 2013 arrest (Plaintiff’s Section 1983 excessive force claim); and second, the Bannock
County Defendants in relation to Mr. Van Orden’s August 29, 2013 death in the Bannock
County Jail (Plaintiff’s Section 1983 failure to protect claim).
However, the claims against the two different groups of defendants – while related to a
degree – do not converge to the point of creating any conflict between the City of Pocatello
Defendants and the Bannock County Defendants. The Court previously granted the City of
Pocatello Defendants’ motion for summary judgment,1 and in so ruling the Court specifically
emphasized the demarcation between the city and county involvement with Mr. Van Orden:
Here, neither the City of Pocatello, nor the Pocatello Police Department, has any
control over the policies, procedures, or operations of the Bannock County Jail. It
is Bannock County that owns and operates Bannock County Jail. That is to say that,
once Mr. Van Orden was delivered to the Bannock County Jail on August 15, 2013,
the City of Pocatello Defendants were no longer involved in his custody and care
from that point forward. Therefore, the City of Pocatello Defendants were not (or
even could have been) deliberately indifferent to a substantial risk of serious harm
in the days or moments leading up to Mr. Van Orden’s August 29, 2013 death. See
Van Smith v. Franklin, 286 Fed. Appx. 373, 374-75 (9th Cir. 2008) (upholding
summary judgment in favor of defendants on plaintiff’s Section 1983 failure to
protect claim where defendants “had no official influence over the conditions of
[p]laintiff’s confinement”).
As a result, to the extent a Section 1983 failure to protect claim has been alleged
against the City of Pocatello Defendants, it cannot stand. The City of Pocatello
Defendants’ Motion for Summary Judgment is granted in this respect.

1

Whether the City of Pocatello Defendants’ dismissal on summary judgment (after
Plaintiff filed the instant Motion) ipso facto resolves any question as to the potential for a
conflict of interest to exist between them and the Bannock County Defendants is not the subject
of this Memorandum Decision and Order.
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3/27/16 MDO, p. 14 (Docket No. 67) (citations to record omitted);2 see also Opp. to Mot. for
Disq., pp. 5-6 (Docket No. 51) (“This case involves allegations against separate defendants
associated with separate incidents. . . . . There is simply no overlap between the duties of the
City of Pocatello and Bannock County in this matter.”).
In short, the record now before the Court does not reveal either (1) that Defendants’
counsel’s representation of both the City of Pocatello Defendants and the Bannock County
Defendants are directly adverse to one another, or (2) that Defendants’ counsel’s responsibilities
to both the City of Pocatello Defendants and the Bannock County Defendants have been, or will
be, limited in any way. Under Rule 1.7 of the Idaho Rules of Professional Conduct, there is just
no evidence of any actual conflict of interest that warrants Defendants’ counsel’s
disqualification. See IRPC 1.7(a). Therefore, Plaintiff’s Motion for Disqualification is denied.
C.

Plaintiff’s Motion for Stay of Proceedings
Plaintiff seeks a staying of the proceedings in this matter including the scheduling order

“until a hearing a decision has been made regarding the potential problems of defense counsel . .
. in, not only representing both entities Bannock County and City of Pocatello, along with each
individual named in the suit.” Mot. for Stay, p. 2 (Docket No. 49). Because there is no basis to
disqualify Defendants’ counsel (see supra), there is likewise no basis to stay the action.
Therefore, Plaintiff’s Motion for Stay of Proceedings is denied.

2

On this point, the undersigned went on to conclude: “In reality, this claim is more
appropriately directed at the individuals and entities associated with Bannock County – other
Defendants in this action. To this end, these Defendants have separately moved for summary
judgment on this issue.” 3/27/16 MDO, pp. 14-15, n.12 (Docket No. 67).
MEMORANDUM DECISION AND ORDER - 5

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ORDER
Based on the foregoing, IT IS HEREBY ORDERED that:
1.

Plaintiff’s Motion for Additional Time to Complete Factual Discovery (Docket

No. 45) is deemed MOOT;
2.

Plaintiff’s Motion for Disqualification (Docket No. 48) is DENIED; and

3.

Plaintiff’s Motion for Stay of Proceedings (Docket No. 49) is DENIED.
DATED: June 27, 2016

Honorable Ronald E. Bush
Chief U. S. Magistrate Judge

MEMORANDUM DECISION AND ORDER - 6