Timothy v. Oneida County et al

Filing 39

MEMORANDUM DECISION AND ORDER. Plaintiff Heather S. Timothys Motion to Reconsider (Dkt. 24 ) is DENIED. Defendants Oneida County, Dustin Smith, Shelle Daniels, Dale Tubbs, and Max Firths Motion for Partial Dismissal (Dkt. 28 ) is 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 (cjs)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

HEATHER S. TIMOTHY, an individual,

Plaintiff,

Case No. 4:14-cv-00362-BLW
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.

Before the Court are the following motions: (1) Plaintiff Heather S. Timothy’s
Motion to Reconsider (Dkt. 24); and (2) Defendants Oneida County, Dustin Smith, Shelle
Daniels, Dale Tubbs, and Max Firth’s Motion for Partial Dismissal (Dkt. 28). For the

MEMORANDUM DECISION AND ORDER - 1

reasons set forth below, the Court will deny Timothy’s motion to reconsider and grant
Defendants’ motion for partial dismissal.
ANALYSIS
1. Motion to Reconsider
In the Court’s previous decision on Defendants’ Motion to Dismiss, the Court
dismissed, without leave to amend, Timothy’s “liberty interest” due process claim based
on her allegation that Defendants publicized stigmatizing information in connection with
her termination. MDO dated April 30, 2015, p. 16, Dkt. 23. In dismissing this claim, the
Court found that Defendants never publicized the fact that Timothy was terminated along
with the reasons for her termination. The Court based this finding on the fact that the
allegedly offending article published on May 1, 2014, which supposedly contained the
stigmatizing statements, never mentioned Timothy by name, never said she had been
terminated, and did not identify any reasons for her termination. The Court dismissed
Timothy’s liberty-interest due process claim without leave to amend.
Now, however, Timothy asks the Court to reconsider its dismissal of the libertyinterest due process claim on the grounds that Timothy has discovered new evidence,
which was not available at the time she filed her First Amended Complaint. This new
evidence, according to Timothy, shows that Prosecutor Dustin Smith publicized her
termination and the reasons for it.
Although motions for reconsideration are not specifically addressed in the Federal
Rules of Civil Procedure, they are generally allowed under Rule 59(e). 389 Orange Street
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Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999). Reconsideration of a court’s prior
ruling under Federal Rule of Civil Procedure 59(e) is appropriate “if (1) the district court
is presented with newly discovered evidence, (2) the district court committed clear error
or made an initial decision that was manifestly unjust, or (3) there is an intervening
change in controlling law.” S.E.C. v. Platforms Wireless Int’l Corp., 617 F.3d 1072,
1100 (9th Cir. 2010) (citation omitted). Timothy argues that reconsideration is
appropriate in this case on the basis that she presents newly discovered evidence.
Timothy argues that she has uncovered new evidence showing that (1) Smith
complained to his friend, Kristin Smith, about Timothy; (2) Smith complained about
Timothy in front of three sheriff’s deputies, and (3) Smith disclosed to other members of
the community that he intended to fire Timothy.
The first allegedly stigmatizing statements that Timothy identifies were set forth in
two emails Smith sent to his friend, Kristine Smith, who works at a local newspaper. In
the February 5, 2015, Smith contacted Kris Smith to ask for advice about how to handle a
text message he had inadvertently received from Timothy in which she bad mouthed and
poked fun at him. Sec. Am. Compl., Ex. R Dkt. 25-23. In the second email sent on
February 10, Smith vented to his friend about what was happening regarding the
investigation into him and a potential lawsuit by Timothy.
Defendants argue that these statements were not publicly disclosed as they were said
in confidence to a friend in a private email. “Unpublicized accusations do not infringe
constitutional liberty interests because, by definition, they cannot harm good name,
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reputation, honor, or integrity.” Bollow v. Fed. Reserve Bank of San Francisco, 650 F.2d
1093, 1101 (9th Cir. 1981) (internal quotation marks omitted).
It questionable whether Smith’s sending emails to his friend “seeking advice” and
“venting” would constitute public disclosure. “The defamatory statement must be
sufficiently public to create or threaten a stigma; hence, a statement made only to the
plaintiff, and only in private, ordinarily does not implicate a liberty interest.” Velez v.
Levy, 401 F.3d 75, 87 (2d Cir. 2005). On the other hand, Kris Smith did not work in the
prosecutor’s office and was technically a member of the public. Smith had no business
reason to disclose Timothy’s work status to his friend, and Kris Smith had no obligation
to keep Smith’s statements in confidence. Therefore, for purposes of this motion, the
Court will consider the statements “published.” C.f. See Restatement (Second) of Torts §
577 (2006) (“Publication of defamatory matter is its communication intentionally or by a
negligent act to one other than the person defamed.”).
However, neither Smith’s statements in his emails to Kris Smith nor any other
statement Timothy identifies rise to the level of stigmatizing Timothy in the
constitutional sense. The stigma imposed must be severe and genuinely debilitating
before the discharge can rise to a level of constitutional concern. Bollow v. Fed. Reserve
Bank of San Francisco, 650 F.2d 1093, 1101 (9th Cir. 1981). In Bollow, the Ninth Circuit
“described the stigma that infringes liberty interests as that which “seriously damages a
person's reputation or significantly forecloses his freedom to take advantage of other
employment opportunities.” Id. (emphasis added) (internal quotations marks omitted.).
MEMORANDUM DECISION AND ORDER - 4

This boundary has been set by the Ninth Circuit “at accusations of ‘moral turpitude,’ such
as dishonesty or immorality, [and] charges that do not reach this level of severity do not
infringe constitutional liberty interests.” Id.
In his emails to Kris Smith, Smith sought advice from Ms. Smith regarding a text
message Smith received from Timothy by accident. In the text, Timothy “bad-mouthed”
and “poked fun” at Smith. According to Smith, he confronted Timothy about the text
message, and she defended it as “the truth,” but Smith told Timothy he could not trust her
and was ready to fire her. Feb. 5, 2014 Email from Smith to Kristine Smith, Ex. R, Dkt.
25-23. In another email in which Smith “vented” to Kris Smith, Smith expressed
concerns about the investigation concerning his use of public funds and stated that
Timothy was the “wrong-doer.” Feb. 10, 2014 Email from Smith to Kristine Smith, Ex. K,
Dkt. 25-11. Smith’s statements accusing Timothy of being the wrongdoer, saying mean
things about him, and suggesting that he could no longer trust her are insufficiently
egregious to activate the protections of the Due Process Clause. These are not the types of
charges of immorality or dishonesty that can cripple an individual’s ability to earn a
living.
With respect to statements Timothy apparently made to three sheriff’s deputies,
Timothy does not identify the content of those statements. Timothy merely alleges that
Smith “complained” about her to the deputies, criticized her association with Sheriff
Semrad, and falsely accused Sheriff Semrad of trying to get Timothy moved to his

MEMORANDUM DECISION AND ORDER - 5

department. Nothing in Timothy’s allegations suggests that Smith’s statements to the
deputies were so severe as to prevent Timothy from earning a living.
Likewise, Timothy’s allegations about the public having general knowledge regarding
Smith’s plans to terminate Timothy do not give rise to a Due Process claim. Timothy
presents no evidence that Smith himself disseminated the information to the community.
And, as Defendants point out, Smith cannot control the local rumor and gossip mill and
has no constitutional duty to control rumors. See, e.g., Hughes v. City of Garland, 204
F.3d 223, 227-228 (5th Cir. 2000) (casual gossip and rumors in the community about
events leading up to plaintiff's termination insufficient to constitute public disclosure).
Accordingly, Timothy’s motion to reconsider is denied on both the liberty-interest due
process claim against Smith and the attendant conspiracy claim against the
Commissioners.
2. Motion to Dismiss
On April 30, 2016, the Court issued a decision granting in part and denying in part
Defendants’ first motion to dismiss. The Court allowed Timothy leave to amend the
majority of claims it dismissed, with the exception of the liberty-interest due process
claim discussed above. On June 17, 2015, Timothy filed her Second Amended Complaint
and Demand for Jury Trial. Defendants now seek to dismiss the following claims realleged in the most recent amended complaint: (1) the First Amendment retaliation claims
against the individual Commissioners; (2) the Fourteenth Amendment procedural due

MEMORANDUM DECISION AND ORDER - 6

process claim against the individual Commissioners’ (3) the related conspiracy claim;
and (4) the state whistleblower claim against Smith.
A. First Amendment Retaliation Claim, Due Process Claim, and Related
Conspiracy Claim
In its earlier decision on Defendants’ first motion to dismiss, the Court dismissed
Timothy’s First Amendment retaliation claim, the due process claim, and related
conspiracy claim against the individual Commissioners on the grounds that Timothy
failed to allege facts suggesting that the Commissioners participated in the decision to
fire Timothy or somehow set in motion a series of events that they reasonably should
have known would have led to Timothy’s dismissal. MDO dated April 30, 2015, p. 1314, Dkt. 23.
Timothy argues that she has adequately pleaded claims for First Amendment
retaliation and Fourteenth Amendment Due Process violations, and the related conspiracy
claims, because:
Defendants have failed to provide any explanation for why Commissioners
Daniels, Tubbs, and Firth did the following:
a. agreed to pay Prosecutor Smith – rather than pay his wife – for work
his wife was allegedly going to do in the Prosecutor’s office,
b. approved direct payments to Prosecutor Smith for his wife’s alleged
work in the Prosecutor’s office based upon unsigned warrants in
February, March, April, May, June, July and August of 2012,
c. continued to approve direct payments to Prosecutor Smith for his
wife’s alleged work in the Prosecutor’s office based upon unsigned
warrants though January of 2014,
d. continued to approve payments to Prosecutor Smith for his wife’s
alleged work in the Prosecutor’s office even after Sheriff Semrad
disclosed his investigation into the legality of those payments,
MEMORANDUM DECISION AND ORDER - 7

e. offered to pay Timothy to voluntarily resign her position and
therefore waive any right she may have had to continued employment in
the Prosecutor’s office,
f. accepted repayment of money paid to Prosecutor Smith allegedly for
his wife’s secretarial services (approximately $2900) on or about April
25, 2014, and
g. ended the Idaho State Police investigation into payments to
Prosecutor Smith for his wife’s services before that investigation was
complete.
Pl.’s Resp. Br., p. 5-6, Dkt. 37. From these facts, Timothy asks the Court to infer that the
Commissioners had a reason to want her fired, that they were actually involved in the
decision to fire her, and conspired to get her fired.
There is no doubt that Timothy has alleged sufficient facts indicating that the
individual Commissioners were complicit in the arrangement to pay Smith directly for
part-time secretarial services that Smith intended to pay his wife in order to circumvent
the County’s anti-nepotism policy. But Timothy has alleged no facts to suggest that the
individual Commissioners were complicit in Smith’s decision to fire Timothy, or that
they somehow set in motion a series of acts by Prosecutor Smith, which they reasonably
should have known would cause Smith to terminate Timothy and deprive her of a posttermination hearing. While it is possible that the Commissioners would have conspired
with Smith to fire Timothy for speaking out for Timothy’s voicing her concerns about
Smith’s use of public funds, it is equally possible that the Commissioners would not
wanted to compound an arguably bad decision to approve the payment arrangement by
conspiring with Smith to get rid of Timothy for speaking out. Indeed, none of the alleged

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facts suggest that the individual Commissioners had anything to gain from Timothy’s
dismissal.
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. Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007). 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. Here, Timothy has failed to allege facts
that would bring her claims against the Commissioners across the line from mere
possibility to plausibility; therefore the First Amendment retaliation claim and the due
process, as well as the related conspiracy claim, must be dismissed.
At this juncture, the Court will not grant Timothy leave to amend a second time on
these claims, but the Court would entertain a motion for leave to amend if Timothy
comes across evidence suggesting the Commissioners did have something to do with the
decision to terminate her employment.
B. State Whistleblower Claim
Timothy has conceded that she is not seeking to recover from the individuals in their
individual capacities, and the Court dismissed them in their official capacities as
redundant. MDO dated April 30, 2015, p. 21-22, Dkt. 23. However, Timothy’s Second
Amended Complaint still identifies Smith as a defendant in this claim. The Court
assumes the continued inclusion of Smith as a defendant to the claim was an oversight.
Regardless, to clarify, Timothy cannot proceed on this claim against any individual for
the reasons already stated by the Court.
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ORDER
IT IS ORDERED that:
1. Plaintiff Heather S. Timothy’s Motion to Reconsider (Dkt. 24) is DENIED; and
2. Defendants Oneida County, Dustin Smith, Shelle Daniels, Dale Tubbs, and Max
Firth’s Motion for Partial Dismissal (Dkt. 28) is GRANTED.
DATED: November 10, 2015

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

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