Timothy v. Oneida County et al

Filing 23

MEMORANDUM DECISION AND ORDER. Defendants Motion for Partial Dismissal (Dkt. 13 ) is GRANTED in part and DENIED in part. Timothy may file an amended complaint within 30 days of this Order. The parties' unopposed Motions for Leave to File Excess Pages (Dkts. 12 , 17 ) are GRANTED. 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 (jp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

HEATHER S. TIMOTHY, an individual,
Case No. 4:14-cv-00362-BLW
Plaintiff,

MEMORANDUM DECISION AND
ORDER

v.
ONEIDA COUNTY, a political
subdivision of the State of Idaho;
DUSTIN W. SMITH, individually and in
his capacity as Prosecuting Attorney for
Oneida County, Idaho; SHELLEE
DANIELS, DALE F. TUBBS and MAX
C. FIRTH, individually and in their
capacities as Oneida County
Commissioners,
Defendants.

INTRODUCTION
Before the Court is defendants’ Motion for Partial Dismissal (Dkt. 13). For the
reasons explained below, the Court will grant the motion in part, and deny it in part.
BACKGROUND
In November 2005, plaintiff Heather Timothy began working as a legal secretary
for Oneida County. Her supervisor was Oneida County Prosecutor Dustin Smith.

MEMORANDUM DECISION AND ORDER - 1

In January 2012, Timothy discovered that Smith was having checks issued to
himself “from the part-time secretary portion of the Prosecutor’s Office budget.” Am.
Comp., Dkt. 9, ¶ 23. Timothy knew the prosecutor’s office did not employ a part-time
secretary, so she reported her concerns to Oneida County Sheriff Jeff Semrad. Sheriff
Semrad began investigating Smith for misappropriating or misusing public funds.
In November 2013, Sheriff Semrad met with the Oneida County Commissioners –
defendants Shellee Daniels, Dale Tubbs, and Max Firth. Semrad told the Commissioners
about the checks Smith had been receiving for part-time secretarial help. The
Commissioners told Semrad that in December 2011, Smith had asked if the County could
pay him directly to compensate his wife for filling in for his fulltime secretary (plaintiff
Timothy). The Commissioners approved the arrangement, but said they had understood
this arrangement was for infrequent, part-time help – not regular monthly help, with
regular monthly checks issued to Smith. Id. ¶ 30. (In November 2012, Smith received a
monthly check for $166. In 2013, he received monthly checks for $100.)
After his November 2013 meeting with the Commissioners, Sheriff Semrad asked
the Idaho State Police (ISP) to investigate Smith for “billing the county for a part-time
Secretary that does not exist.’” Id. ¶ 32 (quoting Ex. B, Sheriff Semrad letters). The
police commenced an investigation, which included interviewing the Commissioners and
plaintiff Heather Timothy.
Ultimately, the case ended in April 2014. Smith repaid roughly $3,000 to Oneida
County and was not charged with any criminal conduct. Smith issued a press release,

MEMORANDUM DECISION AND ORDER - 2

saying he was pleased to learn he had been exonerated. Am. Comp., Dkt. 9, ¶ 52.
Earlier, however, while the ISP investigation was underway, Smith terminated
Timothy’s employment. He began the process on February 4, 2014 (a few days after the
Idaho State Police interviewed Timothy), by sending Timothy a Notice of Pending
Personnel Action. Ex. F to Am. Comp., Dkt. 9-6. The notice enumerated various forms
of alleged misconduct. (During her previous eight years of employment, Timothy had
not received any negative evaluations from Smith.) The notice also informed Timothy
that she could meet with Smith on February 10, 2014 to respond to the notice “and/or”
respond to the notice in writing.

Id.

Timothy did not respond directly to Smith upon receiving this notice. Instead, on
February 7, 2014, her lawyers sent a letter to the Oneida County Board of
Commissioners, asking them to assist Timothy by “immediately withdrawing the
[February 4, 2014] Notice . . . .” See Ex. G to Am. Comp., Dkt. 9-7, at 2. The
Commissioners did not respond to this letter, but shortly after this letter was sent to the
Commissioners, Smith sent a letter to Timothy, suspending her without pay and
postponing the February 10, 2014 meeting “until further notice.” Feb. 10, 2014 Notice,
Dkt. 9-8.
A month later, on March 10, 2014, Smith sent another Notice of Pending
Personnel Action to Timothy. See Dkt. 9-9. He terminated her one week later. See Dkt.
9-12.
In August 2014, Timothy filed this lawsuit. The amended complaint names

MEMORANDUM DECISION AND ORDER - 3

Oneida County, Smith, and Commissioners Daniels, Tubbs, and Firth as defendants. It
pleads the following claims:
Count I

Injunctive and Declaratory Relief for First and Fourteenth
Amendment Violations

Count II

Monetary Damages for Retaliatory Discharge in Violation of
42 U.S.C. § 1983

Count III Denial of Due Process in Violation of 42 U.S.C. § 1983
Count IV Termination of Public Employment in Violation of Idaho
Law
Count V

Negligent Infliction of Emotional Distress

Count VI 1 Termination of Private Employment in Violation of Public
Policy
Count VII Intentional Infliction of Emotional Distress (IIED)
See Am. Comp., Dkt. 9
Defendants move for a “partial dismissal” of the amended complaint. Defendants
argue that one of the counts – Count VII for IIED, should be dismissed outright.
Otherwise, they are mainly arguing that individual defendants should be dismissed from
various claims.
THE GOVERNING LEGAL STANDARD
Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement
of the claim showing that the pleader is entitled to relief,” in order to “give the defendant

1

Counts VI and VII are not numbered correctly in the amended complaint.

MEMORANDUM DECISION AND ORDER - 4

fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007). While a complaint attacked by a Rule
12(b)(6) motion to dismiss “does not need detailed factual allegations,” it must set forth
“more than labels and conclusions, and a formulaic recitation of the elements of a cause
of action will not do.” Id. at 555. To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to “state a claim to relief that is
plausible on its face.” Id. at 570. A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged. Id. at 556. The plausibility standard is not akin to a
“probability requirement,” but it asks for more than a sheer possibility that a defendant
has acted unlawfully. Id. Where a complaint pleads facts that are “merely consistent
with” a defendant's liability, it “stops short of the line between possibility and plausibility
of ‘entitlement to relief.’ ” Id. at 557.
The Supreme Court identified two “working principles” that underlie Twombly in
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). First, the court need not accept as true, legal
conclusions that are couched as factual allegations. Id. Rule 8 does not “unlock the
doors of discovery for a plaintiff armed with nothing more than conclusions.” Id. at 67879. Second, to survive a motion to dismiss, a complaint must state a plausible claim for
relief. Id. at 679. “Determining whether a complaint states a plausible claim for relief
will . . . be a context-specific task that requires the reviewing court to draw on its judicial
experience and common sense.” Id.

MEMORANDUM DECISION AND ORDER - 5

A dismissal without leave to amend is improper unless it is beyond doubt that the
complaint “could not be saved by any amendment.” Harris v. Amgen, Inc., 573 F.3d 728,
737 (9th Cir. 2009) (issued two months after Iqbal). The Ninth Circuit has held that “in
dismissals for failure to state a claim, a district court should grant leave to amend even if
no request to amend the pleading was made, unless it determines that the pleading could
not possibly be cured by the allegation of other facts.” Cook, Perkiss & Liehe, Inc. v. N.
Cal. Collection Serv., Inc., 911 F.2d 242, 247 (9th Cir. 1990). The issue is not whether
plaintiff will prevail but whether he “is entitled to offer evidence to support the claims.”
Diaz v. Int’l Longshore & Warehouse Union, Local 13, 474 F.3d 1202, 1205 (9th Cir.
2007) (citations omitted).
DISCUSSION
Before addressing the more difficult substantive issues presented by this motion,
the Court will attempt to clear up some confusion surrounding Counts I, II, and II.
Defendants complain that these claims are confusingly drawn, and Timothy herself
concedes that certain allegations are confusing or duplicative, and, further, that some of
her claims should be construed more narrowly than drafted.
Backing up for a moment, Timothy’s first three claims revolve around allegations
that the defendants violated her rights under the First and Fourteenth Amendments.
Specifically, in Count II, Timothy alleges that she was wrongly terminated for having
engaged in protected speech, in violation of her First Amendment rights. In Count III,
Timothy alleges that defendants violated her procedural due process rights under the

MEMORANDUM DECISION AND ORDER - 6

Fourteenth Amendment by disciplining, and then firing, her without conducting an
administrative hearing before an impartial and disinterested decisionmaker. Also within
Count III, Timothy attempts to allege a Fourteenth Amendment liberty-interest claim
based on her allegation that defendants failed to provide her with a post-termination
name-clearing hearing.
Defendants “do not dispute that, overall, Timothy has pled a Fourteenth
Amendment procedural due process claim and a First Amendment retaliatory discharge
claim against the County and Smith individually (but not the commissioners).” Motion
Mem., Dkt. 20, at 2. Ultimately, then, the key issue regarding these constitutional claims
is whether Timothy has adequately alleged claims against the Commissioners in their
individual capacity. The Court will take up that question below. But first, there is a more
obvious question: What purpose does Count I serve?
1.

Count I – Injunctive and Declaratory Relief
Count I is captioned as a claim for “Injunctive and Declaratory Relief for First and

Fourteenth Amendment Violations.” Am. Comp., Dkt. 9, at 20. Timothy says this count
is necessary because it seeks prospective relief for the claims she asserts in Counts II and
III. She thus assumes that she can state an independent claim for “injunctive relief.”
This is not so. Injunctive relief is a remedy – not a stand-alone claim. See e.g., Jensen v.
Quality Loan Serv. Corp., 702 F. Supp. 2d 1183, 1201 (E.D. Cal. 2010) (“An injunction
is a remedy, not a separate claim or cause of action.”); Henke v. ARCO Midcon, L.L.C.,
750 F. Supp. 2d 1052, 1059-60 (E.D. Mo. 2010) (“Injunctive relief . . . is a remedy, not

MEMORANDUM DECISION AND ORDER - 7

an independent cause of action.”); Motley v. Homecomings Fin., LLC, 557 F. Supp. 2d
1005, 1014 (D. Minn. 2008) (no independent cause of action for injunction exists). While
it is theoretically possible that Timothy may be entitled to injunctive relief on some of her
claims, she cannot properly plead “injunction” as an independent claim. Rather, she may
seek this relief in her prayer for relief.
Timothy also includes a request for “declaratory relief” within Count I. But in
seeking such relief, she is relying on defendants’ past wrongs – i.e., the alleged retaliatory
discharge and the alleged failure to provide her with hearings before a neutral hearing
officer. See Am. Comp., Dkt. 9, ¶¶ 79-80. As other courts have observed, if plaintiffs are
relying on past wrongs in seeking declaratory relief, “a claim under the Declaratory
Relief Act is improper and in essence duplicates Plaintiffs’ other causes of action.”
Marzan v. Bank of Am., 779 F. Supp. 2d 1140, 1146-47 (D. Haw. 2011) (abrogated on
other grounds by Compton v. Countrywide Fin. Corp., 761 F.3d 1046 (9th Cir. 2014)).
Given Timothy’s other allegations in the complaint, the “declaratory relief” claim
asserted in Count I is not cognizable as an independent claim. See id. (citing Seattle
Audubon Soc. v. Moseley, 80 F.3d 1401, 1405 (9th Cir. 1996) (“A declaratory judgment
offers a means by which rights and obligations may be adjudicated in cases brought by
any interested party involving an actual controversy that has not reached a stage at which
either party may seek a coercive remedy and in cases where a party who could sue for
coercive relief has not yet done so.” (citation and quotation signals omitted)).
For all these reasons, the Court will dismiss Count I without leave to amend

MEMORANDUM DECISION AND ORDER - 8

because it duplicates plaintiffs’ other claims. Granted, defendants did not ask the Court
to dismiss Count I outright. They just asked the Court to narrow Count I to a procedural
due process claim against Smith and Oneida County. But Timothy is already alleging a
procedural due process claim in Count III, which renders Count I superfluous. So the
more logical course is to dismiss Count I altogether. The Court will, however, allow
Timothy an opportunity to amend her complaint to the extent she believes it is necessary
to (1) use the allegations currently set forth in Count I to support Count III, and (2)
include or modify any request for injunctive relief as part of her prayer for relief.
2.

Count II – Retaliatory Discharge in Violation of the First Amendment
Next up is Count II. All parties agree that this Count alleges a First Amendment

retaliatory discharge claim. 2 Oneida County acknowledges that Timothy has adequately
pleaded this claim as to it. The individual defendants (Smith and the Commissioners),
however, contend that this claim should be dismissed as to them.
A.

Qualified Immunity

Smith and the Commissioners first argue that they are entitled to qualified
immunity. This argument is relatively limited in scope, as they do not ask the Court to
dismiss the entire claim against them. Rather, they say Timothy’s First Amendment

2

Timothy concedes that “any due process claim asserted in Count II should be dismissed as
duplicative of the due process claims set forth in Count III.” Response Br., Dkt. 18, at 3. Timothy further
states that she has “no objection to construing Count II of the Amended Complaint as asserting a claim
for monetary damages arising only from Defendants’ retaliatory discharge of Timothy in violation of the
First Amendment . . . .” Id. at 10. In other words, Timothy is willing to drop the procedural due process
claim from Count II, as it is pled elsewhere.

MEMORANDUM DECISION AND ORDER - 9

claim is based on two separate factual components: (1) Timothy’s speech regarding
Smith’s misuse of public funds; and (2) Timothy’s participation in an interview with the
police. Then, having so separated the claim, the individual defendants explain their
current strategy:
At this point, Defendants do not seek qualified immunity as to this part
of Timothy’s First Amendment claim as to the reporting of misuse of
public funds only, but reserve the right to raise it, if necessary, once the
record is more fully developed. However, Defendants still maintain that
Timothy’s claims as to participation in the ISP interview must be
dismissed.
Reply, Dkt. 20, at 2-3 (emphasis added).
Implicitly, then, the individual defendants appear to be conceding (at least for
purposes of this motion) that it was clearly established that a public employee reporting a
misuse of public funds is engaging in protected speech. See Robinson v. York, 566 F.3d
817, 822 (9th Cir. 2009). Or, put differently, they concede that a reasonable government
official could not have reasonably believed Timothy could be fired for reporting a
supervisor’s misuse of public funds.
Under these circumstances, the Court will deny the motion for a “partial
dismissal” of the retaliatory discharge on qualified-immunity grounds. The Court is not
persuaded that Timothy’s First Amendment claim should be segmented into two separate
components, as suggested by the defendants. Rather, based on a fair reading of the
complaint, Timothy is generally complaining that she was terminated for reporting her
supervisor’s misuse of public funds by her supervisor. Her participation in the ISP
interview is alleged as part of that larger process. The Court will therefore deny the

MEMORANDUM DECISION AND ORDER - 10

motion to dismiss the individual defendants based on qualified immunity.
Lane v. Franks, 134 S. Ct. 2369 (2014), which defendants discuss in their brief,
does not change the analysis. In Lane, the Supreme Court held that the First Amendment
protects a public employee who provided truthful sworn testimony, compelled by
subpoena, outside the course of his ordinary job responsibilities. Id. at 2379-80. Lane
also held, however, that because this issue had not been “clearly established” in the
Eleventh Circuit, the individual defendants were entitled qualified immunity. Id. at 2383.
Lane is not on point because Timothy was not providing testimony under force of
a subpoena; she was voluntarily speaking out regarding her supervisor’s alleged misuse
of public funds. Further, even before Lane, it was already clear in the Ninth Circuit that a
public employee reporting a misuse of public funds is engaging in protected speech. See
Robinson, 566 F.3d at 822. A grant of qualified immunity would thus be improper. Cf.
Boyd v. Benton Cty., 374 F.3d 773, 781 (9th Cir. 2004) (“If the right is clearly established
by the decisional authority of the Supreme Court or this Circuit, our inquiry should come
to an end.”) (emphasis added); Rivero v. City and Cnty. of S.F., 316 F.3d 857, 865 (9th
Cir. 2002) (a circuit split did not render the law unclear in the Ninth Circuit before the
Supreme Court resolved the split; the Supreme Court’s resolution of the split merely
confirmed already clear law in the Ninth Circuit). The Court will therefore deny the
individual defendant’s motion to dismiss on the basis of qualified immunity.
B.

Personal Involvement

The Commissioners next argue that they should be dismissed as defendants on the

MEMORANDUM DECISION AND ORDER - 11

First Amendment claim because were not personally involved in Timothy’s termination.
As Timothy has correctly observed, however, “‘personal participation is not the only
predicate for section 1983 liability.” Dahlia v. Rodriguez, 735 F.3d 1060, 1078 n.22 (9th
Cir. 2013) (internal quotation marks and citations omitted). Rather, anyone who
“‘causes’ any citizen to be subjected to a constitutional deprivation is also liable.’” Id.
“The requisite causal connection can be established not only by some kind of direct
personal participation in the deprivation, but also by setting in motion a series of acts by
others which the actor knows or reasonably should know would cause others to inflict the
constitutional injury.” Id.
The Commissioners argue that Timothy’s amended complaint affirmatively shows
they were not involved in Timothy’s termination. Motion Mem., Dkt. 1-31, at 9-10. For
example, they point out that it was Smith who sent each of the disciplinary
communications to Timothy. Timothy’s responding brief is extremely brief and general.
See Response Br., Dkt. 18, at 12-14. She does not, for example, meaningfully discuss
any specific factual allegations in the complaint that would support her position that the
Commissioners personally involved themselves in the decision to terminate Timothy.
See id. Instead, after reciting the relevant legal standard, she just says this:
At a minimum, Timothy has pled facts that “plausibly suggest[]” Daniels,
Tubbs and Firth may have set in motion a series of acts by Prosecutor
Smith which they either knew or reasonably should have known would
cause Prosecutor Smith to terminate Timothy and deny her a post
termination hearing in retaliation for her having reported his misuse of
public funds to the county sheriff.
Id.; see also id. at 13 (stating that “Timothy has pled facts that plausibly suggests that

MEMORANDUM DECISION AND ORDER - 12

Daniels, Tubbs and Firth did affirmative acts, participated in the affirmative acts of
Prosecutor Smith and/or failed to perform acts that they were legally required to do that
caused the deprivation of Timothy’s constitutional rights.”). These sorts of conclusory
statements are not sufficient. Cf. Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210
(10th Cir. 2011) (dismissing County commissioners from as defendants on a § 1983
claim where plaintiff failed to show that the commissioners were involved in the
underlying violation). The Court will therefore dismiss the First Amendment claims
against the Commissioners, but will allow Timothy the opportunity to amend her
complaint to state a claim against the Commissioners individually. Any amended
complaint should clearly set forth the facts Timothy intends to rely upon to support her
ultimate conclusion that the Commissioners “may have set in motion a series of acts by
Prosecutor Smith which they either knew or reasonably should have known would cause
Prosecutor Smith to terminate Timothy and deny her a post termination hearing in
retaliation for her having reported his misuse of public funds to the county sheriff.”
Response Br., Dkt. 18, at 13-14.
The parties also disagree as to whether the Commissioners are constitutionally
permitted to supervise or otherwise exercise authority over the Oneida County
Prosecutor’s personnel decisions. The Commissioners argue that Idaho’s separation-ofpowers doctrine prohibits them from doing so. Idaho’s expression of the separation-ofpowers doctrine is found in Article 2, § 1 of the Idaho Constitution, which provides:
The powers of the government of this state are divided into three
distinct departments, the legislative, executive and judicial; and no

MEMORANDUM DECISION AND ORDER - 13

person or collection of persons charged with the exercise of power
properly belonging to one of these departments shall exercise any
powers properly belonging to either of the others, except as this
constitution expressly directed or permitted.
Under this article, the Commissioners may not exercise powers properly belonging to the
judicial branch. See Crooks v. Maynard, 732 P.2d 281, 286 (Idaho1987). This logically
means that the Commissioners cannot properly supervise judicial officials in their hiring
and firing practices. Cf. Estep v. Comm’rs of Boundary Cnty., 834 P.2d 862, 864 (Idaho
1992) (“a judicial officer . . . is not governed by an order of the Commissioners
regarding her hiring policies”).
County prosecutors are judicial officials. See Idaho Const., Art. 5, § 16; State v.
Wharfield, 236 P. 862 (Idaho 1925) (prosecutor is a judicial official, cited with approval
in Crooks, 732 P.2d at 284). And when Smith hires and fires staff to assist him in
carrying out his judicial duties, he is acting as a judicial official and thus cannot properly
be supervised by the County Commissioners – notwithstanding Idaho statutes that may
suggest otherwise. See Estep, 834 P.2d at 864. The Court thus concludes that the
Commissioners will not be liable for the county prosecutor’s actions absent a showing
that, regardless of any constitutional constraints, the Commissioners nevertheless inserted
themselves into the Prosecutor’s personnel decisions. Any amended complaint seeking to
hold the Commissioners individually liable should therefore contain specific factual
allegations supporting a conclusion that, notwithstanding the Idaho constitution, the
Commissioners supervised or otherwise involved themselves in the Prosecutor’s
personnel decisions.

MEMORANDUM DECISION AND ORDER - 14

3.

Count III – Procedural Due Process
Timothy concedes that Count III should be construed “as asserting a claim for

monetary damages arising only from Defendants’ denial of Timothy’s procedural due
process rights in violation of the Fourteenth Amendment.” Id. at 10.
A Section 1983 claim based upon procedural due process contains two elements:
(1) a deprivation of liberty or property interest protected by the Constitution; and (2) a
denial of adequate procedural protections. See Brewster v. Bd. of Educ., 149 F.3d 971,
982 (9th Cir. 1998) (emphasis added). As defendants point out, Timothy is attempting to
allege both a liberty-interest and a property-interest claim within Count III. The Court
will discuss the sufficiency of each claim in turn.
A.

The Property-Interest Claim

Turning first to the property-interest claim, Timothy alleges that she had a
property interest in her employment with Oneida County, which entitled her to an
administrative hearing before an impartial decisionmaker. Defendants Smith and Oneida
County concede that Timothy has sufficiently pleaded this claim as to them. The
Commissioner defendants argue that Timothy failed to allege that they were personally
involved in this deprivation of Timothy’s constitutional rights.
For the same reasons discussed above, in connection with Timothy’s First
Amendment claim, the Court concludes that Timothy has not sufficiently alleged that the
Commissioners either (a) personally participated in the decision to deprive Timothy of a
hearing before an impartial decisionmaker, or (b) otherwise “caused” this alleged

MEMORANDUM DECISION AND ORDER - 15

deprivation. The Court will, however, allow Timothy the opportunity to amend her
complaint.
B.

The Liberty-Interest Claim

Timothy’s liberty-interest claim is based on her allegation that the defendants
publicized stigmatizing information about her in connection with her termination. To
establish such a claim, often referred to as a “stigma-plus” claim, plaintiff must show: (1)
the public disclosure of a stigmatizing statement; (2) the accuracy of the stigmatizing
statement is contested; and (3) the stigmatizing statement is made in connection with the
denial of a tangible interest, such as employment, or the alteration of a right or status
recognized by state law. Tibbetts v. Kulongoski, 567 F.3d 529, 536-37 (9th Cir.2009);
Ulrich v. City & Cnty. of S.F., 308 F.3d 968, 982 (9th Cir. 2002). A plaintiff must also
demonstrate that she was deprived of her liberty interest in her reputation without due
process of law; in other words, “the availability of adequate process defeats a stigma-plus
claim.” Segal v. City of New York, 459 F.3d 207, 213 (2d Cir. 2006).
In this case, Timothy was terminated on March 17, 2014. She has not alleged that
defendants published the fact of her termination (or the reasons for her termination) at
that point. Instead, she is effectively arguing that the defendants made these disclosures
within a May 1, 2014 newspaper article. Within this article, she points to two separate
statements – one by the Commissioners and the other by Smith.
First, the Commissioners released this statement, which was quoted in the
newspaper article:

MEMORANDUM DECISION AND ORDER - 16

The Oneida County Commissioners are aware of the decision made by
special prosecutor Mark Hiedeman not to bring criminal charges against
Oneida County Prosecutor Dustin Smith. The commissioners fully
believe in the importance of an independent investigative agency and
special prosecutor handling the case, given the circumstances.
Subsequent to the special prosecutor’s decision, Mr. Smith has
voluntarily repaid the funds to the county and the commissioners
consider this matter closed.
Dkt. 9, ¶ 50; Dkt. 9-5.
Second, defendant Smith released the following May 1, 2014 press release, which
was also quoted in article:
Oneida County Prosecuting Attorney, Dustin W. Smith, is pleased to learn
that he has been exonerated, that no charges will be brought against him,
and that the investigation of him is concluded.
Mr. Smith believes that truth and justice has prevailed in this matter.
Mr. Smith thanks and compliments the Idaho State Police and the special
prosecutor who reviewed the allegations against him for their efforts and
their professionalism. This experience has reaffirmed Mr. Smith's
confidence in the justice system.
Mr. Smith possesses no animosity, malice or ill will toward anyone. Instead
of speculating about the reasons, the motives, and the timing of the
accusations against him, Mr. Smith feels that it is better to simply forgive,
forget and move on. Let us put any division behind us, and move forward
with optimism, rededication and commitment to doing our job, and doing it
well[.]
Dkt. 9, ¶ 52; Dkt. 9-5.
Neither of these statements is sufficient to trigger the requirement that Timothy be
afforded a name-clearing hearing. As noted above, for such a hearing to be necessary,
the defendants must publicize the fact that the employee was terminated along with the
reasons for that termination. The above statements do not refer to Timothy by name.

MEMORANDUM DECISION AND ORDER - 17

They do not say that Timothy – or any other employee – was terminated. And, thus, they
do not give the reasons for any employee’s termination.
Timothy attempts to get around these difficulties by suggesting that a person
reading this article would necessarily infer: (1) that she had been fired; and (2) that she
had been fired for falsely accusing Smith of misusing public funds. The Court is not
persuaded. As the Ninth Circuit has explained, “[w]hen reasons [for an employee’s
dismissal] are not given, inferences drawn from dismissal alone are simply insufficient
to implicate liberty interests.” Bollow v. Fed. Reserve Bank of S.F., 650 F.2d 1093, 1101
(9th Cir. 1981). In short, Timothy’s liberty-interest claim fails as a matter of law
because she has not sufficiently alleged that defendants publicized her termination or the
reasons for it. The Court will therefore dismiss this claim without leave to amend. Any
conspiracy claim based on this alleged constitutional violation is also dismissed without
leave to amend, as Timothy cannot allege the underlying constitutional violation.
4.

Conspiracy
The last of Timothy’s constitutional claims are the conspiracy claims tied to (1)

her First Amendment claim, and (2) her Fourteenth Amendment, property interest claim.
See Am. Comp., Dkt. 9, ¶¶ 4, 118.
Preliminarily, “[c]onspiracy is not itself a constitutional tort under § 1983. Lacey
v. Maricopa Cnty., 693 F.3d 896, 935 (9th Cir. 2012). As the Ninth Circuit has
explained, an alleged conspiracy “does not enlarge the nature of the claims asserted by
the plaintiff, as there must always be an underlying constitutional violation. Conspiracy

MEMORANDUM DECISION AND ORDER - 18

may, however, enlarge the pool of responsible defendants by demonstrating their causal
connections to the violation . . . .” Id.
And so it is here. Timothy has adequately alleged two constitutional claims
against Smith and Oneida County – her First Amendment retaliatory discharge claim and
her Fourteenth Amendment procedural due process claim (the property-interest claim).
With her conspiracy claims, she is seeking to enlarge the pool of responsible defendants
to include the three individual Commissioners.
To state a conspiracy claim under § 1983, a plaintiff must show (1) an agreement
between the defendants to deprive the plaintiff of a constitutional right, (2) an overt act
in furtherance of the conspiracy, and (3) a constitutional deprivation. Gilbrook v. City of
Westminster, 177 F.3d 839, 856-57 (9th Cir. 1999). “To be liable, each participant in the
conspiracy need not know the exact details of the plan, but each participant must at least
share the common objective of the conspiracy.” United Steelworkers of Am. v. Phelps
Dodge Corp., 865 F.2d 1539, 1541 (9th Cir. 1989). Because conspiracies are secret
agreements, “[a] defendant’s knowledge of and participation in a conspiracy may be
inferred from circumstantial evidence and from evidence of the defendant’s actions.”
Gilbrook, 177 F.3d at 856-57. Nevertheless, the Ninth Circuit requires a plaintiff
alleging a conspiracy to violate civil rights to state specific facts to support the existence
of the claimed conspiracy. Burns v. Cnty. of King, 883 F.2d 819, 821 (9th Cir. 1989)
(“To state a claim for conspiracy to violate one’s constitutional rights under § 1983, the
plaintiff must state specific facts to support the existence of the claimed conspiracy.”).

MEMORANDUM DECISION AND ORDER - 19

As presently drafted, the conspiracy claims fail because Timothy has not alleged
specific facts from which an agreement to deprive Timothy of her constitutional rights
can be inferred. Instead, the amended complaint mentions the terms “conspire” or
“conspiracy” just three times, in short, conclusory paragraphs. See Am. Comp., Dkt. 9,
¶ 4, 118, 119. Such conclusory allegations are insufficient, and Timothy’s complaint
does not otherwise adequately explain which facts she is relying upon to support the
alleged conspiracies. Likewise, Timothy has not adequately explained the factual basis
for the alleged conspiracy in her responding brief.
In responding to the motion to dismiss, Timothy’s lead argument is that she
adequately alleged a conspiracy simply by alleging that defendants “Daniels, Tubbs and
Firth were the Oneida County Commissioners and Prosecutor Smith was the Oneida
County Prosecutor when Timothy, who was an Oneida County employee, was (1)
terminated and (2) denied a hearing to contest her termination, . . . .” Response Br., Dkt.
18, at 18 (emphasis in original). The Court is not persuaded. Based on the governing
legal standard described above, Timothy must do more than just point out that each
individual held a position with Oneida County at the time an Oneida County employee
was terminated.
Otherwise, Timothy mainly argues that she adequately alleged a conspiracy by
alleging facts demonstrating that the alleged conspirators plausibly shared a common
motive: to get rid of Timothy. More specifically, Timothy points out that her speech was
damaging not only to Smith, but to the Commissioners as well. The Commissioners had

MEMORANDUM DECISION AND ORDER - 20

approved a deal – hiring Smith’s wife as a part-time secretary – that may have violated
that County’s anti-nepotism policy. Still, though, Timothy must do more than allege that
the conspirators had common interests or motivations; she must point to facts showing
that these defendants reached an agreement to deprive her of her constitutional rights. As
currently drafted, Timothy’s complaint does not do this.
The Court will therefore dismiss the conspiracy claims, but will allow Timothy the
opportunity to amend her complaint. Any amended complaint must either allege new
facts supporting the existence of an agreement, or Timothy must more specifically
identify which alleged facts support an inference that the conspirators not only shared a
common motive with Smith, but that they reached an agreement.
5.

Count IV – Whistleblower Claim
Count IV alleges that all defendants violated the Idaho Protection of Public

Employees Act, Idaho Code §§ 6-2101 et seq. This Act – commonly referred to as the
whistleblower statute – “seeks to protect the integrity of the government ‘by providing a
legal cause of action for public employees who experience adverse action from their
employer as a result of reporting waste and violations of a law, rule or regulation.’”
Patterson v. State Dept. of Health & Welfare, 256 P.3d 718, 724 (Idaho 2011) (quoting
Van v. Portneuf Med. Ctr., 212 P.3d 982, 987 (Idaho 2009)).
The individual defendants (Smith and the Commissioners) argue that this claim
should proceed only against Oneida County only. In response, Timothy says she is not
seeking to recover from the individual defendants “in their individual capacity; but as

MEMORANDUM DECISION AND ORDER - 21

individuals acting in their official capacity.” Response Br., Dkt. 18, at 22. The upshot is
that all parties apparently concede that the individual defendants will not be personally
liable on this claim if Timothy prevails; only the County would be liable.
Timothy insists she has the right to sue these individuals in their official capacity,
but does not explain why she needs to engage in the redundancy of naming the
individuals and the County. The Court will dismiss this claim against the individuals as
redundant. Cf. Juncewicz v. Patton, No. 01-CV-0519E (SR), 2002 WL 31654957, at *5
(W.D.N.Y. 2002) (dismissing § 1983 claim against county commissioners in their official
capacity as being redundant).
The Court observes that dismissing the individual defendants from this claim is in
keeping with Idaho Rule of Civil Procedure 3(b). With some exceptions, this rule
instructs plaintiffs suing governmental units to designate only the governmental unit
itself, not the “individuals constituting the officers of the governing boards of
governmental units . . . .” Idaho R. Civ. P. 3(b). Nevertheless, the Court is not persuaded
by defendants’ ultimate argument that this Court is bound to apply this state procedural
rule. See generally United States for Use of Acme Granite & Tile Co. v. F.D. Rich Co.,
441 F.2d 1143, 1144 (9th Cir. 1971) (district court bound by Federal Rules of Civil
Procedure, not state procedural rules). Rather, as noted, the Court dismissed the claims
against the individuals due to redundancy.
6.

Count V – Negligent Infliction of Emotional Distress (NIED)
The parties seemingly concede that if the Commissioners were not personally

MEMORANDUM DECISION AND ORDER - 22

involved in Timothy’s termination, they will not be liable on the claim for negligent
infliction of emotional distress. The Court will therefore dismiss the Commissioners as
defendants on this claim. As with the other claims, Timothy will be afforded an
opportunity to amend this claim in an effort to state a claim against the Commissioners
individually. If she chooses to amend, Timothy should lay out the elements of the claim
more plainly than she has done in her current complaint. See, e.g., Am. Comp., Dkt. 9, ¶
131 (alleging only that the defendants “are liable for the negligent infliction of emotional
distress caused by their action and inaction as detailed hereinabove and experienced by
Timothy”); see generally Johnson v. McPhee, 210 P.3d 563, 574 (Idaho Ct. App. 2009)
(elements of NIED are: (1) duty; (2) breach; (3) causal connection between the conduct
and injury; and (4) actual loss or damage).
7.

Count VII – Intentional Infliction of Emotional Distress (IIED)
Finally, the Court will dismiss Timothy’s claim for intentional infliction of

emotional distress. In Idaho, “an action for intentional infliction of emotional distress
will lie only where there is extreme and outrageous conduct coupled with severe
emotional distress.” Walston v. Monumental Life Ins. Co., 923 P.2d 456, 464 (Idaho
1996) (citation omitted). To prevail on this cause of action a plaintiff must show: (1) that
the defendant acted intentionally or recklessly; (2) that the defendant’s conduct was
extreme and outrageous; (3) that there was a causal connection between the defendant’s
conduct and the plaintiff’s emotional distress; and (4) that the plaintiff's emotional
distress was severe. Id.

MEMORANDUM DECISION AND ORDER - 23

To qualify as “extreme and outrageous,” the defendant’s conduct must be more
than merely objectionable or unreasonable: it must be “‘atrocious’ and ‘beyond all
possible bounds of decency’ that would cause an average member of the community to
believe it was ‘outrageous.’” Edmondson v. Shearer Lumber Prod., 75 P.3d 733, 741
(Idaho 2003). Examples of conduct that have been deemed sufficiently extreme and
outrageous by Idaho courts include: an insurance company speciously denying a grieving
widower’s cancer insurance claim while simultaneously impugning his character and
drawing him into a prolonged dispute; 3 prolonged sexual, mental, and physical abuse
inflicted upon a woman by her co-habiting boyfriend; 4 recklessly shooting and killing
someone else’s donkey that was both a pet and a pack animal; 5 and real estate developers
swindling a family out of property that was the subject of their lifelong dream to build a
Christian retreat. 6
Here, Timothy generally relies on the facts surrounding her termination to show
extreme and outrageous behavior. These general allegations are not sufficient to support
an IIED claim. Timothy has also alleged that Smith yells and throws chairs around the
office. No more specific details are provided. Obviously, yelling and throwing chairs is

3

Walston, 923 P.2d at 464-65.

4

Curtis v. Firth, 850 P.2d 749, 756-57 (Idaho 1993).

5

Gill v. Brown, 695 P.2d 1276, 1277-78 (Idaho Ct. App. 1985).

6

Spence v. Howell, 890 P.2d 714, 724-25 (Idaho 1995).

MEMORANDUM DECISION AND ORDER - 24

not exemplary behavior. But the Court needs more detail to determine whether Smith’s
behavior was atrocious and beyond all possible bounds of decency. If he did this sort of
thing every day, as a matter of course in dealing with office staff, then his conduct would
be considered extreme and outrageous. But the Court would be less likely to reach this
conclusion if Smith threw a chair on one or two occasions over the course of many years.
Given the lack of detail regarding Smith’s allegedly “extreme and outrageous”
behavior, the Court concludes that Timothy has failed to state a claim for intentional
infliction of emotional distress. The Court will therefore dismiss this claim, but it will do
so without prejudice. Timothy may amend her claim to provide additional factual detail
regarding Smith’s allegedly extreme and outrageous behavior.
The Court is not persuaded by defendants’ argument that Timothy failed to
sufficiently allege “severe” emotional distress. Idaho courts often quote the following
commentary to the Restatement of Torts in describing how “severe” the emotional
distress must be:
Emotional distress passes under various names, such as mental
suffering, mental anguish, mental or nervous shock, or the like. It
includes all highly unpleasant mental reactions, such as fright, horror,
grief, shame, humiliation, embarrassment, anger, chagrin,
disappointment, worry, and nausea. It is only where it is extreme that
the liability arises. Complete emotional tranquility is seldom attainable
in this world, and some degree of transient and trivial emotional distress
is a part of the price of living among people. The law intervenes only
where the distress inflicted is so severe that no reasonable man could be
expected to endure it. The intensity and the duration of the distress are
factors to be considered in determining its severity.

MEMORANDUM DECISION AND ORDER - 25

Restatement (Second) of Torts § 46 cmt. j (1965) (as quoted in Alderson v. Bonner, 132
P.3d 1261, 1269 (Idaho Ct. App. 2006)). Additionally, in evaluating whether the alleged
distress is sufficiently severe, Idaho courts consider whether plaintiffs “incurred any
physical damage or were hampered in the performance of their daily functions ... [or]
suffered a severely disabling emotional response.” Alderson, 132 P.3d at 1269 (quoting
Davis v. Gage, 682 P.2d 1282, 1288 (Idaho Ct. App. 1984)).
Timothy alleges that she “has suffered and continues to suffer severe emotional
distress, including, but not necessarily limited to depression, sleep disorders, reduced
libido, fatigue, crying, loss of appetite, and emotional instability.” Am. Comp., Dkt. 9,
¶ 144. Notably, the intensity and duration of the distress are factors to be considered in
determining its severity. As a result, the Court is not persuaded by defendants’ argument
that plaintiff has alleged only garden-variety distress. If the reactions described in her
complaint were intense and lasted for a lengthy period, then they could rise to the level of
severity required to succeed on the tort. See Davis, 682 P.2d at 1288.
ORDER
IT IS ORDERED that:
1. Defendants’ Motion for Partial Dismissal (Dkt. 13) is GRANTED in part and
DENIED in part as follows:
a. Count I (Injunctive and Declaratory Relief) is dismissed without leave to
amend, though Timothy may continue to seek injunctive relief in connection
with other independent claims, as explained above.
b. Count II (First Amendment) is dismissed, with leave to amend, as to the
Commissioner defendants.

MEMORANDUM DECISION AND ORDER - 26

c. Count III (Fourteenth Amendment): The liberty-interest claim alleged within
Count III is dismissed without leave to amend. The property-interest claim
alleged within Count III is dismissed, with leave to amend, as to the
Commissioner defendants (Daniels, Tubbs, and Firth).
d. The conspiracy claim based on the alleged liberty-interest claim is dismissed
without leave to amend. The remaining two conspiracy claims are dismissed
with leave to amend.
e. Count IV (Whistleblower) is dismissed, without leave to amend, as to the
individual defendants.
f. Count V (Negligent Infliction of Emotional Distress) is dismissed, with leave
to amend, as to the Commissioner defendants.
g. Count VII (Intentional Infliction of Emotional Distress), alleged against Smith
only, is dismissed with leave to amend.
2. Timothy may file an amended complaint within 30 days of this Order.
3. The parties’ unopposed Motions for Leave to File Excess Pages (Dkts. 12, 17) are
GRANTED.
DATED: April 30, 2015

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

MEMORANDUM DECISION AND ORDER - 27