Putnam v. Boll et al

Filing 40

MEMORANDUM DECISION AND ORDER granting 30 Defendant's Motion for Summary Judgment; deeming as moot 22 Plaintiff's Motion to Exclude; deeming as moot 26 Defendant's Motion to Strike; deeming as moot 35 Defendant's Motion to Strike. 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
JENNIFER PUTNAM,
Case No. 4:16-cv-00013-BLW
Putnam,

MEMORANDUM DECISION AND
ORDER

v.
PETE BOLL, in his official and
individual capacities, and the CITY OF
POCATELLO
Defendant.

INTRODUCTION
The Court has before it Defendant’s Motion for Summary Judgment (Dkt. 30).
The motion is fully briefed and the Court had heard oral argument on June 14, 2017. For
the reasons explained below, the Court will grant the motion.
BACKGROUND
From November, 2011, to May 3, 2013, Jennifer Putnam was involved in a series
of contacts with Jennifer Hope and her family. These contacts included sending letters,
showing up at events, and requesting that messages be relayed to certain members of the
Hope family. Putnam Dep. 110:16–25, Dkt. 30-7; 136:15-137:9, Dkt. 30-8; 180:2-16,
Dkt. 30-8. Officer Pete Boll was responsible for investigating these allegations. Boll
compiled a report and spoke with the city prosecutors about whether the evidence
constituted probable cause for a stalking charge under I.C. 18-7906. Johnson Dep. 68:3-

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11, Dkt. 30-10; Ferris Dep. 16:24-17:15, Dkt. 30-11. The prosecutors advised Boll that
there seemed to be sufficient evidence to warrant issuing a citation for stalking. Id. Boll
then went to Putnam’s home to question her. Boll Dep. 38:3-39:3, Dkt. 30-9. At Putnam’s
residence, Boll and the Putnam engaged in a conversation. Putnam Aff., Dkt. 34-2. At the
end of the conversation, Boll charged Putnam with stalking and placed her under arrest.
Def. Stat. of Fact, at 3, Dkt. 30-20. Putnam asserts that, during their conversation, Boll
talked about a HIPAA complaint that she had filed, and that he threatened to arrest her if
she contacted her attorney. Putnam Aff., Dkt 34-2; Recording of Arrest, Dkt. 34-13.
The city charged Putnam with stalking under I.C. 18-7906. Judge Carnaroli
dismissed the charge, stating, “This is not even a weak stalking case. It is simply not a
stalking case.” Mem. in Sup. of Mot. to Exclude Expert, at 48, Dkt. 22-1.
Putnam filed this lawsuit against Boll and the City of Pocatello. Compl., Dkt. 3.
Defendants successfully moved to dismiss some of the claims, but the state and federal
malicious prosecution claims survived the motion to dismiss. Mem. Dec. & Order, Dkt.
27. Defendants have now moved for summary judgment on the remaining claims. Def.
Mot., Dkt. 30.
LEGAL STANDARD
Summary judgment is appropriate where a party can show that, as to any claim or
defense, “there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). The evidence must be viewed in the
light most favorable to the non-moving party, and the Court must not make credibility

MEMORANDUM DECISION AND ORDER - 2

findings. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255. Direct testimony of the
non-movant must be believed, however implausible. Leslie v. Grupo ICA, 198 F.3d
1152, 1159 (9th Cir. 1999). On the other hand, the Court is not required to adopt
unreasonable inferences from circumstantial evidence. McLaughlin v. Liu, 849 F.2d
1205, 1208 (9th Cir. 1988).
The moving party bears the initial burden of demonstrating the absence of a
genuine dispute as to material fact. Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir.
2001)(en banc). To carry this burden, the moving party need not introduce any
affirmative evidence (such as affidavits or deposition excerpts) but may simply point out
the absence of evidence to support the nonmoving party’s case. Fairbank v. Wunderman
Cato Johnson, 212 F.3d 528, 532 (9th Cir.2000). This shifts the burden to the nonmoving party to produce evidence sufficient to support a jury verdict in her favor.
Deveraux, 263 F.3d at 1076. The non-moving party must go beyond the pleadings and
show “by her … affidavits, or by the depositions, answers to interrogatories, or
admissions on file” that a genuine dispute of material fact exists. Celotex Corp. v.
Catrett, 477 U.S. 317, 324.
ANALYSIS
1.

§ 1983 Claim Against Pete Boll
Putnam has brought a § 1983 action for malicious prosecution against Officer

Boll. The Court finds it unnecessary to address Boll’s §1983 liability or her claim of

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qualified immunity, because the causal chain between the arrest and any claimed harm
was broken by an independent prosecutor’s charging decision.
If a prosecutor applies his independent judgment and makes the decision to charge
an individual with a crime, that decision is an intervening cause which shields the
arresting officer from liability. Hartman v. Moore, 547 U.S. 250, 262-63 (2006).
Currently, there is some uncertainty as to how the role of a prosecutor’s charging
decision is to be analyzed in a § 1983 case. Beck v. City of Upland, 527 F.3d 853 (9th
Cir. 2008). The Ninth Circuit originally articulated a framework in Smiddy v. Varney, 665
U.S. 261 (9th Cir. 1981), which began with a rebuttable presumption that prosecuting
decisions are acts of independent judgment. That presumption was rebuttable if the
arresting officer “improperly exerted pressure on the prosecutor, knowingly provided
misinformation to him, concealed exculpatory evidence, or otherwise engaged in
wrongful or bad faith conduct that was actively instrumental in causing the initiation of
legal proceedings.” Awadby v. City of Adelanto, 368 F.3d 1062, 1067 (9th Cir. 2004).
Also, the presumption does not arise if the arresting officer and the prosecutor refused to
divulge the relevant evidence about the independence of the prosecutor’s judgment under
a claim of privilege. Smiddy, 665 U.S. at 267-68.
The Supreme Court later issued an opinion which potentially calls into question
the Smiddy framework. Hartman, 547 U.S. 250. In Hartman, the Supreme Court
indicated that the presumption of independent prosecutorial judgment is rebutted by
simply showing a lack of probable cause. Hartman, 547 U.S. at 250. The Ninth Circuit

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attempted to reconcile the Smiddy and Hartman opinions in its decision in Beck v. City of
Upland, 527 F.3d 853 (9th Cir. 2008). Under the Beck analysis, an officer begins with the
rebuttable presumption that charging decisions are the result of the independent judgment
of the prosecutor. Beck, 527 F.3d at 870. If, however, a plaintiff can demonstrate that
there was no probable cause, and can meet the extra requirements of Smiddy, the burden
shifts to the defendant to show that the prosecutor’s judgment acted as an intervening
cause. Beck, 527 F.3d at 870. If the officer can provide sufficient evidence to show that
the prosecutor’s judgment was an intervening cause, the officer is shielded from liability.
Id.
Here, even if Putnam could carry her burden concerning probable cause, she has
failed to meet her burden under Smiddy. First, Boll and the prosecutors have not claimed
privilege for their conversations about the decision to charge Putnam. Rather, they have
provided ample affidavits and depositions concerning those interactions. Therefore,
Putnam is required to show that Boll “improperly exerted pressure on the prosecutor,
knowingly provided misinformation to him, concealed exculpatory evidence, or
otherwise engaged in wrongful or bad faith conduct that was actively instrumental in
causing the initiation of legal proceedings.” Awabdy, 368 F.3d at 1067. Putnam has failed
to carry that burden.
As evidence of Boll’s wrongful conduct, Putnam claims that Boll may have been
motivated to falsify his report because of the following: (1) Putnam claims that Boll
mentioned a HIPAA complaint while arresting her, and that he told her that if she called

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her attorney she was under arrest, (2) Boll had a familial connection with the Hope
family, and (3) the report that Boll filed with the prosecutors was unreasonably long or
contained misinformation. But Putnam’s allegations are insufficient or unsupported by
the evidence.
First, the audio recording of the arrest captures the entire conversation between
Boll and Putnam prior to, and immediately following, her arrest. It does not include any
statement where Officer Boll mentions a HIPAA complaint. Likewise, there is no
statement that remotely resembles a threat to arrest Putnam if she contacted her attorney.
Second, Boll’s connection with the Hope family is merely that Boll’s wife worked as a
nurse at the Pocatello Medical Center with Jennifer Hope’s sister. This highly attenuated
connection is insufficient to constitute circumstantial evidence that Boll had a personal
vendetta against Putnam. Lastly, Putnam claims that the report filed by officer Boll was
unreasonably long and that it contained misinformation. However, Putnam has neither
placed Boll’s report in the record nor provided any other evidence to support these
claims.
Thus, Putnam has failed to provide the Court with critical evidence and has
misstated the evidence that is in the record. Putnam has therefore failed to raise a genuine
issue of material fact as to whether Boll “improperly exerted pressure on the prosecutor,
knowingly provided misinformation to him, concealed exculpatory evidence, or
otherwise engaged in wrongful or bad faith conduct that was actively instrumental in
causing the initiation of legal proceedings.” Therefore, Putnam has failed to meet the

MEMORANDUM DECISION AND ORDER - 6

requirement found in Smiddy, and Boll retains the presumption that the prosecutors made
an independent charging decision. Therefore, Boll is shielded from liability, and the
request to dismiss the §1983 claim against Boll will be granted.
2.

§ 1983 Claim Against the City of Pocatello
Under Monell, municipalities and local governments are included among those

“persons” subject to liability under § 1983. Monell v. Department of Social Services of
City of New York, 436 U.S. 658, 690 (1978). To hold a municipality liable, a plaintiff
must show that “(1) she was deprived of a constitutional right; (2) the County had a
policy; (3) the policy amounted to a deliberate indifference to her constitutional right; and
(4) the policy was the moving force behind the constitutional violation.” Mabe v. San
Bernardino County, Dept. of Public Social Services, 237 F.3d 1101, 1110-11 (9th Cir.
2001) (internal quotations omitted). A plaintiff must show that the municipality was the
cause of the deprivation, “that the municipal action was taken with the requisite degree of
culpability,” and that there is a “direct causal link between the municipal action and the
deprivation of federal rights.” Board of County Com’rs of Bryan County, Okl. v. Brown,
520 U.S. 397, 404-05 (1997).
In this case, Putnam has not provided any evidence of a policy or custom of
deliberate indifference, written or unwritten; nor has she provided any evidence that her
deprivation was caused by any such policy or custom. Accordingly, there is no material
issue of fact concerning the City of Pocatello’s liability under § 1983, and the Court will
grant summary judgment in favor of the city.

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3.

State Law Claims Against Officer Boll and the City of Pocatello
The elements of a state law claim for malicious prosecution are: “(1) that there

was a prosecution; (2) that it terminated in Putnam's favor; (3) that defendant was the
prosecutor; (4) malice; (5) lack of probable cause; and (6) damages.” Rincover v. State,
Dept. of Finance, Securities Bureau, 128 Idaho 653, 659 (1996). Additionally, I.C. 6-903
and I.C. 6-904 require a showing of malice or criminal intent.
There is no disputed material issue of fact as to whether Boll or the City of
Pocatello acted with malice or criminal intent. As discussed in the analysis of the §1983
claims, the evidence that Putnam has provided concerning Boll’s wrongful intent is either
misstated or substantially overstated. The evidence of malice or criminal intent is even
more sparse. Based on this record, no reasonable jury could conclude that either Boll or
the City of Pocatello acted with malice or with criminal intent. Therefore, summary
judgment will be granted on the state law claims as well.
ORDER
IT IS HEREBYE ORDERED:
1. Defendant’s Motion for Summary Judgment (Dkt. 30) is GRANTED as to
all claims.
2. Plaintiff’s Motion to Exclude Expert (Dkt. 22) is DEEMED MOOT.
3. Defendants’ Motion to Exclude Reply (Dkt. 26) is DEEMED MOOT.
4. Defendants’ Motion to Strike (Dkt. 35) is DEEMED MOOT.

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5. The Court will enter a separate judgment in accordance with Fed. R. Civ. P.
58.
DATED: August 28, 2017
_________________________
B. Lynn Winmill
Chief Judge
United States District Court

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