Thomas v. Cassia County et al

Filing 91

MEMORANDUM DECISION AND ORDER - Thomas Motion for Reconsideration (Dkt. 71 ) is GRANTED in PART and DENIED in PART consistent with the above analysis. However, the Court once again GRANTS the Defendants Motions for Summary Judgment (Dkt. 23 ; Dk t. 24 ) on Thomas malicious prosecution claim and ITCA claims. Thomas Motion for Entry of Final Judgment (Dkt. 72 ) is DENIED WITHOUT PREJUDICE. Akers Motion for Reconsideration (Dkt. 82 ) is STAYED for ninety (90) days after entry of this order . Thomas Motion for Discovery (Dkt. 84) is GRANTED. Thomas Motion Requesting Oral Argument (Dkt. 85 ) is DENIED. Signed by Judge David C. Nye. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jd)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
DEREK THOMAS,

Case No. 4:17-cv-00256-DCN

Plaintiff,

MEMORANDUM DECISION AND
ORDER

v.
CASSIA COUNTY, IDAHO, a political
subdivision of the State of Idaho, JAY M.
HEWARD, and MICHAEL AKERS,
Defendants.
I. OVERVIEW
Pending before the Court is Plaintiff Derek Thomas’ (“Thomas”) Motion for
Reconsideration (Dkt. 71); Motion  for Entry of Judgment under Rule 54(b) (Dkt. 72);
Motion for Discovery (Dkt. 84); and Motion Requesting Oral Argument (Dkt. 85).
Defendant Michael Akers’ (“Akers”) has also filed a Motion for Reconsideration (Dkt. 82).
Having reviewed the record and briefs, the Court finds that the facts and legal
arguments are adequately presented. Accordingly, in the interest of avoiding further delay,
and because the Court finds that the decisional process would not be significantly aided by
oral argument, the Court will address the motions without oral argument. Dist. Idaho Loc.
Civ. R. 7.1(d)(1)(B). Accordingly, Thomas’ Motion Requesting Oral Argument (Dkt. 85)
is DENIED.
For the reasons outlined below, the Court also finds good cause to GRANT in PART
MEMORANDUM DECISION AND ORDER –1

and DENY in PART Thomas’ Motion for Reconsideration (Dkt. 71), DENY Thomas’
Motion for Entry of Judgment (Dkt. 72), STAY Akers’ Motion for Reconsideration (Dkt.
82) for ninety days, and GRANT Thomas’ Motion for Discovery (Dkt. 84).
II. BACKGROUND
The background of this case is set forth in the Court’s prior order (Dkt 70). The
Court incorporates that background by reference here. Following the Court’s order on
Defendants’ Motions for Summary Judgment (Dkt. 70), Thomas filed a Motion for
Reconsideration (Dkt. 71), and, alternatively, a Motion for Entry of Judgment under Rule
54(b) (Dkt. 72). Shortly thereafter, Akers filed a Motion for Reconsideration in light of the
Supreme Court’s decision in Nieves v. Bartlett, 139 S. Ct. 1715 (2019).
III. LEGAL STANDARD
Thomas asks the Court to reconsider its decision under Federal Rule of Civil
Procedure 59(e). This Rule does “permit[] a district court to reconsider and amend a
previous order,” but the Ninth Circuit instructs that the Rule offers an “extraordinary
remedy, to be used sparingly in the interests of finality and conservation of judicial
resources.” Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir. 2003) (quoting 12 James Wm.
Moore et al., Moore’s Federal Practice § 59.30[4] (3d ed. 2000)). “[T]here are four limited
grounds upon which” a district court may grant a motion for reconsideration: “(1) the
motion is necessary to correct manifest errors of fact or law; (2) the moving party presents
newly discovered evidence; (3) reconsideration is necessary to prevent manifest injustice;
or (4) there is an intervening change in the law.” Coffelt v. Yordy, No. 1:16-CV-00190CWD, 2016 WL 9724059, at *1 (D. Idaho Nov. 30, 2016) (citing Turner v. Burlington N.
MEMORANDUM DECISION AND ORDER –2

Santa Fe R.R. Co., 338 F.3d 1058, 1063 (9th Cir. 2003)). “A losing party cannot use a Rule
59(e) motion to relitigate old matters or to raise arguments that could have been raised
before the entry of judgment.” Id. (citing Sch. Dist. No. 1J, Multnomah Cty. v. ACandS,
Inc., 5 F.3d 1255, 1263 (9th Cir. 1993)).
This Court has previously explained:
A motion to reconsider an interlocutory ruling requires an analysis of two
important principles: (1) Error must be corrected; and (2) Judicial efficiency
demands forward progress. The former principle has led courts to hold that a
denial of a motion to dismiss or for summary judgment may be reconsidered
at any time before final judgment. Preaseau v. Prudential Insurance Co., 591
F.2d 74, 79-80 (9th Cir. 1979). While even an interlocutory decision becomes
the “law of the case,” it is not necessarily carved in stone. Justice Oliver
Wendell Holmes concluded that the “law of the case” doctrine “merely
expresses the practice of courts generally to refuse to reopen what has been
decided, not a limit to their power.” Messinger v. Anderson, 225 U.S. 436,
444 (1912). “The only sensible thing for a trial court to do is to set itself right
as soon as possible when convinced that the law of the case is erroneous.
There is no need to await reversal.” In re Airport Car Rental Antitrust
Litigation, 521 F.Supp. 568, 572 (N.D. Cal. 1981) (Schwartzer, J.).
The need to be right, however, must co-exist with the need for forward
progress. A court's opinions “are not intended as mere first drafts, subject to
revision and reconsideration at a litigant’s pleasure.” Quaker Alloy Casting
Co. v. Gulfco Indus., Inc., 123 F.R.D. 282, 288 (N.D. Ill. 1988).
Lancaster v. Kordsiemon, 1:15-CV-00239-BLW, 2016 WL 6471428, at *1 (D.
Idaho Oct. 31, 2016).
“As long as a district court has jurisdiction over the case, then it possesses
the inherent procedural power to reconsider, rescind, or modify an interlocutory
order for cause seen by it to be sufficient.” City of L.A. v. Santa Monica BayKeeper,
254 F.3d 882, 885 (9th Cir. 2001) (quoting Melancon v. Texaco, Inc., 659 F.2d 551,

MEMORANDUM DECISION AND ORDER –3

553 (5th Cir. 1981)).
IV. ANALYSIS
A. Motions to Reconsider
In their competing motions to reconsider, Thomas and Akers ask the Court to
reconsider numerous holdings in its prior order. The Court considers each request in turn:
1. Finding that a reasonable officer could have found probable cause existed to
arrest Thomas
First, Thomas claims that the Court committed error when it held that a reasonable
officer could have found probable cause existed to arrest Thomas. Thomas accuses the
Court of “neglect[ing] a profusion of exculpatory evidence negating probable cause, as
well as evidence of fabrication and mischaracterization of evidence by defendant Akers.”
Dkt. 71, at 6. This is incorrect. While the Court’s order may not have specifically discussed
everything it considered in reaching its conclusions, the Court considered the entire record,
including every theory, argument, and piece of potentially exculpatory evidence presented
by Thomas. Simply, reaching a different conclusion than Thomas would have liked is not
error.
Thomas raises a number of items he contends the Court ignored or disregarded. See
Dkt. 71-1, at 3-9. As an initial matter, the Court notes that in reaching its decision on the
Motions for Summary Judgment, it considered every one of these theories and pieces of
evidence. Regardless, in an effort to be as clear as possible, the Court will briefly discuss
a few of the items Thomas specifically raises in his Motion to Reconsider.
First, Thomas contends that the Court ignored inconsistencies between Akers’

MEMORANDUM DECISION AND ORDER –4

probable cause affidavit and S.K.’s deposition testimony—which he contends serve as
evidence that Akers falsified his probable cause affidavit. Specifically, Thomas states that
“Akers attributed the following identical, verbatim recitations of the following events from
both S.K. and Povlsen: “Mr. Thomas’ blue Chevrolet pickup truck accelerat[ed] away to
the east at 45-50 MPH.” Dkt. 71-1, at 4. Thomas claims that later, “against his own interests
S.K. denied under oath that he ever said this to Akers.” Id.
This, however, misconstrues S.K.’s later testimony. At his deposition, S.K. was
asked whether he made a statement to Deputy Akers regarding Thomas’ speed when
leaving the scene of the accident. S.K. said “I told [Akers] he went from 35 to 45.” Dkt.
52-12, at 27. Shortly thereafter, S.K. clarified that he may have given Akers an estimation
up to 50 miles per hour. Id. at 28. This is the exact portion of S.K.’s deposition that Thomas
cites in support of his contention that S.K. “denied under oath that he ever said this to
Akers.” Construing this as a denial of S.K.’s prior statement is a mischaracterization of his
deposition testimony and does nothing to persuade the Court.
Similarly, Thomas contends that Akers falsified his probable cause affidavit by
attributing a statement to S.K.’s grandfather that he never made. Specifically, in his
probable cause affidavit, Akers wrote that Povlsen told him he was inside his house when
he “heard the sound of a vehicle rapidly accelerating” and then stepped outside and “saw a
blue Chevrolet pickup truck accelerate to the east at 45-50 MPH.” Dkt. 52-21, at 2. Thomas
contends that Povlsen actually said he “didn’t see anything.” Dkt. 71-1, at 5.
Thomas bases this theory on a statement Povlsen made to another officer (Officer
Higley) a few days after his initial interview with Akers. Office Higley informed Povlsen
MEMORANDUM DECISION AND ORDER –5

that he was there to talk to him about the incident, and Povlsen replied “I actually told the
officer that come out there the first time, you know, I actually didn’t see anything.” Dkt.
52-20, at 2. Later, he told Officer Higley “the actual incident I did not see.” Id. at 6.
However, in his deposition testimony, Povlsen was asked about this statement.
Specifically, Plaintiff’s Counsel said: “[W]hen [Officer Higley] came out the first time,
you told him that you didn’t see anything.” Dkt. 52-14, at 6. Povlsen replied “I did not see
the accident.” Id. Plaintiff’s Counsel sought clarification from Povlsen regarding the
meaning of that statement, to which Povlsen replied “I didn’t see the accident—the
impact.” Id.
Nothing in these subsequent statements are inconsistent with Povlsen’s initial
statement to Akers that he “heard the sound of a vehicle rapidly accelerating” and then
stepped outside and “saw a blue Chevrolet pickup truck accelerate to the east at 45-50
MPH.” Dkt. 52-21, at 2. In fact, at his deposition, Pavlsen once again affirmed that he saw
Thomas’ truck driving away from the scene of the alleged incident. The Court is unsure
why Thomas continues to mischaracterize these statements, but it considered these theories
in reaching its decision on the Motions for Summary Judgment and found them
unpersuasive.
Next, Thomas argues that Akers ignored “substantial evidence negating any
suggestion that [S.K.’s damages tire and slime on S.K.’s clothes] was caused by a collision
from behind, much less an intentional one.” Dkt. 71, at 8. Thomas raises a number of
concerns in this area that the Court fully considered in reaching its prior decision. The
Court also carefully reviewed the photographs of S.K., his bike, and Thomas’ truck that
MEMORANDUM DECISION AND ORDER –6

Akers took the day of the incident underlying this case. The photographs clearly show
green tire slim sprayed on S.K.’s clothes (Dkt. 52-6, at 1) and on his bike (Dkt. 52-6, at 3;
Dkt. 52-7, at 1-3). They also show an area of his tire that had sustained damage (Dkt. 527, at 2). While the Court recognizes that this evidence presents some oddities (such as
S.K.’s tire holding air after the alleged incident and the lack of slime on Thomas’ truck),
there are reasonable explanations for these oddities besides S.K. fabricating the incident.
Ultimately, the Court considered all this evidence and Thomas’ various theories and held
that a reasonable officer in Akers’ position could have found probable cause to arrest.
That said, Thomas correctly highlights poor phrasing used by the Court in its prior
order. In discussing the lack of slime on Thomas’ truck, the Court said “[t]his oddity,
standing alone, is not enough to overcome a finding of probable cause.” Dkt. 70, at 10.
Based upon this sentence, Thomas contends that the Court applied an erroneous
legal standard in determining whether probable cause existed. As Thomas correctly argues,
probable cause determinations are based upon the “totality of the circumstances.” The
Court understands Thomas’ concern, and agrees that the wording of this sentence could
potentially cause confusion. However, the Court also notes that—despite its poor choice of
words—it still applied the correct legal standard. This is clear when the Court’s discussion
of probable cause is read in its entirety.
For example, in discussing the applicable legal standard, the Court said that it must
look to the “totality of the circumstances.” Dkt. 70, at 7. At the outset of its analysis, the
Court stated that “[i]n viewing the totality of circumstances known to Akers at the time of
the arrest, a prudent officer could have believed Thomas was guilty of leaving the scene of
MEMORANDUM DECISION AND ORDER –7

an accident.” Id. at 9. Finally, when summarizing its decision on the matter, the Court said
“[i]n sum, the Court finds that—based upon the information known to Akers at the time—
a reasonable officer could have found probable cause to arrest Thomas for hit and run.” Id.
at 12.
As these statements demonstrate (and as the Court’s analysis–when viewed it its
entirety–makes clear), the Court took into account all of the evidence, including potentially
exculpatory evidence, when determining whether a reasonable officer could have found
probable cause to arrest Thomas. Thomas’ Motion for Reconsideration isolates a poorly
worded sentence that the Court agrees should have been more carefully crafted. That said,
the Court’s analysis clearly applied the correct legal standard, and the Court stands by its
prior decision regarding probable cause to arrest.
Thomas highlights another sentence that the Court is less concerned about. When
discussing concerns over S.K.’s credibility, the Court said “[w]hile Akers was at least
somewhat familiar with S.K. and Thomas prior to the events in question—and may have
even known of their strained relationship—that does not automatically delegitimize his
finding of probable cause.” Dkt. 70, at 10-11.
In response to this statement, Thomas states that he “has not made such an argument
and need not establish this. It is just one brick among many others in a wall, which were
ignored by Akers and not considered by the Court, clearly establishing a genuine issue of
material fact.” Dkt. 71, at 13 (emphasis in original). However, the very next sentence of
the Court’s order states: “S.K.’s reliability was simply one relevant consideration in Akers’
investigation.” Dkt. 70, at 11. Clearly, the Court did not ignore concerns over S.K.’s
MEMORANDUM DECISION AND ORDER –8

credibility and considered those concerns along with all of the other “bricks” that made up
the totality of the circumstances known to Akers at the time of the arrest. However, the
Court reached a different conclusion than Thomas advocated for. While that is undoubtably
disappointing for Thomas, it is not error.
The Court understands that Akers’ statements made after the arrest are concerning
and cast doubt over his motivations. Yet the Court has a duty to apply the law fairly and
objectively. Unfortunately for Thomas, the law does not allow the Court to consider Akers’
subjective intent when determining whether probable cause existed. Based upon the
objective evidence that makes up the totality of the circumstances (and after thorough
consideration of any potentially exculpatory evidence known or not pursued by Akers), the
Court held that a reasonable officer in Akers’ position could have found probable cause to
arrest him. The Court stands by its decision on this matter.
As such, Thomas’ Motion for Reconsideration is DENIED in PART as it relates to
the Court’s finding that a reasonable officer in Akers’ position could have found probable
cause to arrest.
2. Failure to Consider whether probable cause existed to charge Thomas with
Aggravated Assault
Next, Thomas contends that even if there was probable cause to arrest Thomas for
misdemeanor hit and run, the Court should have considered whether probable cause existed
for the crime of aggravated assault, since Thomas was ultimately charged with committing
that crime. Thomas points out that in this case “Akers concedes that although he initially

MEMORANDUM DECISION AND ORDER –9

arrested Mr. Thomas for misdemeanor hit-and-run, he booked and held Mr. Thomas in jail
solely on felony charges of aggravated assault.” Dkt. 71-1, at 12.
Thomas claims the Court committed error by granting summary judgment on his
malicious prosecution claim, because the Court reached this conclusion as a result of its
finding that probable cause existed to arrest Thomas. The Court’s prior order states:
Since the Court has now determined that Akers had probable cause to arrest
Thomas, Thomas cannot establish the required elements of malicious
prosecution. Accordingly, the Court GRANTS summary judgment on this
claim. See Beck v. City of Upland, 527 F.3d 853, 865 (9th Cir. 2008) (“[I]t is
necessary, if not sufficient, that a plaintiff seeking to sue non-prosecutorial
officials alleged to be responsible post-complaint for the arrest or prosecution
show the absence of probable cause.”).
Dkt. 70, at 17.
Upon review of relevant caselaw, the Court agrees with Thomas that simply finding
probable cause existed to arrest him did not automatically doom his malicious prosecution
claim. Instead, the Court should have asked whether Thomas was subsequently prosecuted
without probable cause. Awabdy v. City of Adelanto, 368 F.3d 1062, 1066 (9th Cir. 2004)
(“In order to prevail on a § 1983 claim of malicious prosecution, a plaintiff must show that
the defendants prosecuted him . . . without probable cause.”).
As the District of Arizona has explained:
[A] malicious prosecution claim is treated differently from one for false
arrest: whereas probable cause to believe that a person has
committed any crime will preclude a false arrest claim, even if the person
was arrested on additional or different charges for which there was no
probable cause, . . . probable cause as to one charge will not bar a malicious
prosecution claim based on a second, distinct charge as to which probable
cause was lacking.
Donahoe v. Arpaio, 986 F. Supp. 2d 1091 (D. Ariz. Dec. 5, 2013) (emphasis in original).
MEMORANDUM DECISION AND ORDER –10

Accordingly, Thomas’ Motion to Reconsider is GRANTED in PART as it relates to
this determination, and the Court now reconsiders the merits of Thomas’ malicious
prosecution claim.
To prevail on a malicious prosecution claim brought under §1983, Thomas must
show that (1) the defendants prosecuted him with malice, (2) the defendants lacked
probable cause, (3) the prosecution was done for the purposes of denying equal protection
or other constitutional rights and (4) that the underlying criminal case was terminated in
Thomas’ favor. Awabdy v. City of Adelanto, 368 F.3d 1062, 1066, 1068 (9th Cir. 2004).
Malicious prosecution claims are cognizable against police officers and other investigating
officials in some instances, particularly where the officer maliciously or recklessly makes
false reports to the prosecuting authority. Blankenhorn v. City of Orange, 485 F.3d 463,
482 (9th Cir. 2007).
Here, even if the Court assumes the first factor is met, the same evidence and
analysis that supported a finding of probable cause to arrest Thomas for hit and run also
supports a finding of probable cause to charge Thomas with felony aggravated assault.
Idaho Code Section 18-901 “defines assault in two, alternative ways.” Ward v.
United States, No. 1:11-CR-00142-EJL-1, 2017 WL 2216394, at *10 (D. Idaho May 18,
2017). These are:
(a) An unlawful attempt, coupled with apparent ability, to commit a violent
injury on the person of another; or
(b) An intentional, unlawful threat by word or act to do violence to the person
of another, coupled with an apparent ability to do so, and doing some act
which creates a well-founded fear in such other person that such violence is
imminent.
MEMORANDUM DECISION AND ORDER –11

Idaho Code § 18-901.
Idaho Code Section 18-905 “defines aggravated assault in three, alternative ways.”
Ward, 2017 WL 2216394, at *10. An aggravated assault is an assault “(a) With a deadly
weapon or instrument without intent to kill; or (b) By any means or force likely to produce
great bodily harm. [;or] (c) With any vitriol, corrosive acid, or a caustic chemical of any
kind. Idaho Code § 18-905.
At the outset, the Court notes that S.K.’s allegation that Thomas purposely struck
him with his vehicle could clearly be considered an “unlawful attempt . . . to commit a
violent injury on the person of another.” Likewise, attempting to strike another person with
a motor vehicle may constitute aggravated assault. See State v. Detwiler, 2015 Ida. App.
Unpub. LEXIS 125, *8-10 (Idaho Ct. App. March 18, 2015). Clearly a motor vehicle can
be used as a deadly weapon, and at the very least, striking someone with a vehicle could
be considered a “force likely to produce great bodily harm.” The Court also finds that
S.K.’s allegation that Thomas followed closely behind him, and then rapidly accelerated
just prior to striking his back tire could reasonably suggest Thomas intentionally struck
S.K.
Accordingly, the Court must simply determine whether there was probable cause to
believe S.K’s allegations were true. The Court’s prior analysis (Dkt. 70, at 9-13) remains
relevant to this question, and the Court now incorporates that analysis by reference here
(but applied to the crime of aggravated assault). Likewise, the Court incorporates by
reference its above discussion regarding Thomas’ Motion to Reconsider its decision
regarding probable cause to arrest.
MEMORANDUM DECISION AND ORDER –12

After considering all of the evidence known to Akers and Doug Abenroth (the
prosecutor) at the time Thomas with charged with aggravated assault, as well as all
potentially exculpatory evidence and alibis, the Court finds that the same facts and analysis
that supported a finding of probable cause to arrest Thomas for misdemeanor hit and run
also support filing charges (and prosecuting Thomas) for aggravated assault.
Further, the Court also finds that the prosecutor acted independently when he
determined that probable cause existed. This is important because even if the Court had
found that Akers sought to maliciously prosecute Thomas, summary judgment may still be
proper if the Court finds the prosecutor acted independently in determining that probable
cause existed. See Beck, 527 F.3d at 862 (“A prosecutor’s independent judgment may break
the chain of causation between the unconstitutional actions of other officials and the harm
suffered by a constitutional tort plaintiff.”). “[T]he prosecutor’s independent decision can
be a superseding or intervening cause of a constitutional tort plaintiff’s injury, precluding
suit against the officials who made an arrest or procured a prosecution.” Id.
In the Ninth Circuit, a presumption exists “that the prosecutor filing [a criminal]
complaint exercised independent judgment in determining that probable cause for an
accused’s arrest exist[ed], thereby breaking the chain of causation between an arrest and
prosecution and immunizing investigating officers . . . from damages suffered after the
complaint was filed.” Id. (internal citations and punctuation omitted).1

1
The plaintiff in Beck brought a “false arrest” claim. However, the Ninth Circuit explained that the
presumption of prosecutorial independence set forth in Smiddy I, has been applied in both false arrest and
malicious prosecution cases, and the distinction makes no analytical difference. See Beck, 527 F.3d at 861
n.7.

MEMORANDUM DECISION AND ORDER –13

This presumption “may be rebutted if the plaintiff shows that the independence of
the prosecutor’s judgment has been compromised.” Id. (citing Smiddy I, 665 F.2d at 26667). The Ninth Circuit has provided examples of circumstances in which the presumption
will be considered rebutted, however, the list is illustrative, rather than exhaustive. Id.
These examples include “situations in which the prosecutor was pressured by police or was
given false information, the police act[ed] maliciously or with reckless disregard for the
rights of an arrested person, the prosecutor relied on the police investigation and arrest
when he filed the complaint instead of making an independent judgment on the existence
of probable cause for the arrest, or the officers otherwise engaged in wrongful or bad faith
conduct that was actively instrumental in causing the initiation of legal proceedings.” Beck,
527 F.3d at 862-63 (internal quotation marks and citations omitted). “Once ‘the plaintiff
has introduced evidence to rebut the presumption, the burden remains on the defendant to
prove that an independent intervening cause cuts off his tort liability.’” Id. at 863 (quoting
Smiddy I, 665 F.2d at 267).
Here, Thomas has failed to rebut the presumption of prosecutorial independence.
He claims that Akers “fabricate[d] some evidence and bur[ied] exculpatory evidence . . . .
falsely swore that both S.K. and Pavlesen said that they saw Mr. Thomas drive away . . . at
45-50 MPH, which they both flatly denied . . . [and] deliberately withheld information from
the prosecutor in order to obtain probable cause approval from the prosecutor.” Dkt. 24,
at 12-13. The Court finds these arguments unconvincing. The claim that S.K. and Pavlesen
“flatly denied” seeing Thomas drive away misconstrues their statements and disregards the
fact that Akers’ original version of events remains largely consistent with the testimony
MEMORANDUM DECISION AND ORDER –14

that S.K. and Pavlesen provided at more recent depositions.
Thomas’ claim that Akers deliberately withheld information and buried exculpatory
evidence is also unavailing. Thomas is particularly concerned with Akers’ statement to
fellow officers (captured by the body camera) that nobody else was in Thomas’ truck at
the time of the incident, despite Thomas—at the time of his arrest—telling him he had a
witness. While Akers contends that he did not understand Thomas to mean a witness was
actually in the car with him at the time of the event, this misunderstanding is immaterial as
it appears any confusion on this point was resolved by January 3, 2017, when prosecutor
Doug Abenroth reviewed the Charge Request and supporting documents submitted by
Akers. Thomas’ witness, Cole Blauer, submitted his written statement on January 2, 2017,
the day before Abenroth decided to charge Thomas with felony aggravated assault.
Abenroth himself maintains that he independently determined that there was probable
cause to bring that charge, and Thomas has failed to show otherwise. Accordingly, the
Court once again GRANTS Defendants’ Motions for Summary Judgment on this claim.
3. Unreasonable detention without probable cause determination
In his Motion for Reconsideration, Thomas (for the first time) contends that his
rights were violated because he did not receive a judicial determination of probable cause
within 48 hours of his arrest. This claim was not contained in Thomas’ Complaint, nor was
it argued in the parties’ briefing at the summary judgment stage. In fact, this issue was not
discussed at all until the Court raised it sua sponte at oral argument. Regardless, Thomas
cannot use a Motion for Reconsideration to assert a claim that he never brought in the first
place. See  Riley v. Tallerico, 2017 U.S. Dist. LEXIS 71487, at *3  (“A motion for
MEMORANDUM DECISION AND ORDER –15

reconsideration is not the appropriate way to add . . . a new claim to a complaint. If Plaintiff
wishes to add additional factual allegations and a [new] claim . . . to his complaint, he needs
to file a motion for leave to amend his complaint.). Accordingly, his Motion is DENIED
in PART as it relates to this request.
4. Plaintiff’s Fourteenth Amendment Claim
Thomas concedes that “[t]he Court correctly noted in its [order] that Plaintiff in his
summary judgment response did not address this 14th amendment claim that he raised in
his complaint. Although the Court may have the authority to deem it waived, it is not
required to do so.” Dkt. 71, at 20. Thus, Thomas asks the Court to reconsider its holding
that Thomas waived his Fourteenth Amendment Claim.
The Court declines to do so. As already noted, reconsideration is an “extraordinary
remedy, to be used sparingly in the interests of finality and conservation of judicial
resources.” Carroll, 342 F.3d at 945. Here, Thomas concedes that his summary judgment
response did not address his 14th amendment claim. By failing to do so, the Court correctly
held that he had waived the claim. Thus, Thomas’ Motion for Reconsideration is DENIED
in PART as it relates to his Fourteenth Amendment Claim.
5. Plaintiff’s First Amendment Retaliation Claim
Akers recently filed a Motion to Reconsider based on the United States Supreme
Court’s decision in Nieves v. Bartlett, 139 S. Ct. 1715 (2019). Dkt. 82. In Nieves, the
Supreme Court held that a “plaintiff pressing a retaliatory arrest claim must plead and prove
the absence of probable cause for the arrest.” 139 S. Ct. at 1724. This holding abrogates
the validity of Ford v. Yakima, 706 F.3d 1188 (9th Cir. 2013), upon which this Court’s
MEMORANDUM DECISION AND ORDER –16

analysis previously relied, allowing Thomas’ First Amendment retaliation claim to survive
summary judgment. Dkt. 70.
As stated above, a plaintiff alleging a retaliatory arrest claim must “plead and prove
the absence of probable cause for the arrest.” Nieves, 139 S. Ct. at 1724. The Supreme
Court explained further that the absence of probable cause will “generally provide weighty
evidence that the officer’s animus caused the arrest, whereas the presence of probable cause
will suggest the opposite.” Id. This is because “probable cause speaks to the objective
reasonableness of an arrest.” Id.
The Supreme Court did identify a narrow exception to this rule in Nieves. It
explained that “the no-probable-cause requirement should not apply when a plaintiff
presents objective evidence that he was arrested when otherwise similarly situated
individuals not engaged in the same sort of protected speech had not been.” Id. at 1727.
Since the Court has determined probable cause existed for Thomas’ arrest, Thomas
cannot prevail on his First Amendment retaliation claim unless the exception set forth in
Nieves applies. As will be explained more fully below, the Court will reopen discovery for
ninety (90) days on this limited issue. As such, the Court STAYS Akers’ Motion for
Reconsideration for ninety-days as well.2 At the close of this ninety-day discovery period,
Thomas must file a supplemental response to Akers’ Motion for Reconsideration (not
exceeding twenty (20) pages) presenting any evidence that suggests the Nieves exception

2
The Court “has broad discretion to stay proceedings as an incident to its power to control its own docket.”
Clinton v. Jones, 520 U.S. 681, 706-707 (1997) (citing Landis v. N. Am. Co., 299 U.S. 248, 254 (1936)).
This same principle grants the Court broad discretion to stay individual motions.

MEMORANDUM DECISION AND ORDER –17

should apply. Defendants (including Cassia County and Jay Heward) will then have
fourteen (14) days to reply to this supplemental response (not to exceed ten (10) pages
each).
6. Plaintiff’s Second Amendment Retaliation Claim
As the Court explained in its prior order, case law regarding Second Amendment
retaliation claims is sparse and thus drawing from First Amendment retaliation cases is
appropriate. Dkt. 70, at 21-22. As a result, the Court analyzed Thomas’ Second
Amendment retaliation claim under a standard adapted from the Ninth Circuit’s approach
to First Amendment retaliation claims. Id. at 21-25. Because this First Amendment
retaliation standard has now been abrogated by Nieves, Akers argues that the Court should
apply the Nieves analysis to Thomas’ Second Amendment retaliatory arrest claim as well.
Akers contends that, in light of Nieves, a probable cause finding should defeat a claim for
retaliatory arrest “for the exercise of any constitutional right.” Dkt. 82, at 4.
Although Nieves dealt with a First Amendment retaliatory arrest claim, the same
logic, analysis, and principles apply to a Second Amendment retaliatory arrest claim as
well. The Supreme Court used broad language applicable to any retaliatory arrest claim
when it said “[t]he plaintiff pressing a retaliatory arrest claim must plead and prove the
absence of probable cause for the arrest.” 139 S. Ct. at 1724.
There are also important policy considerations that apply equally well to both First
and Second Amendment retaliation claims. In Nieves, the Supreme Court explained that in
retaliatory arrest cases, it is “particularly difficult to determine whether the adverse
government action was caused by the officer’s malice or the plaintiff’s potentially criminal
MEMORANDUM DECISION AND ORDER –18

conduct.” Id. Obviously, a subjective inquiry into the mental state of an arresting officer is
problematic. Id. at 1725. There are also “overwhelming litigation risks” and the Supreme
Court “generally review[s] [police officer] conduct under objective standards of
reasonableness” to “ensure that officers may go about their work without undue
apprehension of being sued.” Id.
Based on the similar legal standards that apply to both First and Second Amendment
retaliation claim, as well as policy concerns that apply equally well to both situations, the
Court intends to apply the Nieves holding to the merits of Thomas’ Second Amendment
retaliation claim.
However, as just noted, the Court will reopen discovery for ninety (90) days on the
limited issue of whether evidence exists that triggers the Nieves exception. Once this
discovery window has closed, and the parties have filed their supplemental briefing, the
Court will address the merits of Akers’ Motion for Reconsideration.
7. Section 1983 Claims against Cassia County
Thomas brought federal claims against Cassia County and Sherriff Jay Heward. The
Court ultimately granted summary judgment in favor of the Defendants on these claims.
Thomas now asks the Court to reconsider its dismissal of his Monell claim against Cassia
County (based upon Sherriff Heward’s alleged ratification of Akers’ conduct). However,
Thomas has not presented any new arguments that warrant reconsideration.
Although ratification is ordinarily a question for the jury, “as with any jury question,
a plaintiff must establish that there is a genuine issue of material fact regarding whether a
ratification occurred.” Christi v. Iopa, 176 F.3d 1231, 1238-39 (9th Cir. 1999). “To show
MEMORANDUM DECISION AND ORDER –19

ratification a plaintiff must prove that the ‘authorized policymakers approve a
subordinate’s decision and the basis for it.’” Id. at 1239 (quoting City of St. Louis v.
Praprotnik, 485 U.S. 112, 127 (1988)). The Court already determined that no reasonable
juror could find that Sherriff Heward ratified Akers’ alleged misconduct, and it stands by
that ruling today.
Accordingly, Thomas’ Motion for Reconsideration is DENIED in PART as it relates
to this request.
8. ITCA claim against Akers
Thomas asks the Court to clarify that Thomas’ claims brought under the Idaho Tort
Claims Act (“ITCA”) against Akers are not dismissed on summary judgment. The Court
takes this opportunity to clarify and explain that it properly dismissed the ITCA claims
against Akers.
“The ITCA establishes that governmental entities are subject to liability for their
own negligent or wrongful acts, and those of their employees who were acting within the
course and scope of their employment.” Hoffer v. City of Boise, 257 P.3d 1226, 1228 (Idaho
2011). However, the ITCA statute provides that neither “[a] governmental entity” nor “its
employees while acting within the course and scope of their employment and without
malice or criminal intent shall be liable for” certain claims, including false imprisonment,
false arrest, malicious prosecution, and abuse of process. Idaho Code § 6–904(3) (2010).
In ITCA context, “malice” has been defined as “the intentional commission of a
wrongful or unlawful act without legal justification or excuse, whether or not the injury
was intended.” James v. City of Boise, 376 P.3d 33, 51 (Idaho 2016). Likewise, “criminal
MEMORANDUM DECISION AND ORDER –20

intent” means “the intentional commission of what the person knows to be a crime.” Id.
Thus, if an employee of a governmental entity, acting within the course and scope of his
employment, intentionally commits a crime or a wrongful or unlawful act without legal
justification or excuse, section 6–904(3) will not shield him.
Here, Thomas contends that Akers acted with malice. Dkt. 52, at 16. He bases his
contention on the same evidence used to support the claims the Court has just thoroughly
examined. Id. There is no need for the Court to regurgitate that analysis here. Suffice it to
say Akers did not commit a crime, nor did he commit a wrongful or unlawful act without
legal justification or excuse because there was probable cause for Thomas’ arrest and
detention. Thus, Akers did not act with malice.
Even if the Court were to find that Akers acted with malice, such a finding would
not solidify Akers’ liability. All it would do is remove the immunity barrier between
Thomas and Akers. The ITCA is not itself a separate cause of action, but a mechanism that
allows a plaintiff to bring a cause of action against an otherwise immune governmental
entity. Idaho Code § 6–903 (2010). To maintain an ITCA claim, a plaintiff must assert a
cause of action cognizable under Idaho law. Id.
Here, as the Court has previously explained, all Thomas’ state claims substantively
fall short. With no underlying causes of action, the Court must dismiss the ITCA claims
against Akers. Though Thomas’ First and Second Amendment claims survived, he has not
alleged that he can bring these claims under Idaho law. Even if he were to make that
allegation, however, “no Idaho authority suggests the existence of statutory or direct causes
of action for violations of the Idaho Constitution.” Campbell v. City of Boise, 345 Fed.
MEMORANDUM DECISION AND ORDER –21

Appx. 299, 300 (9th Cir. 2009) (“To prevail . . . Campbell would have had to convince the
Idaho courts to recognize, for the first time, either a direct cause of action for constitutional
violations or an unprecedented reading of the Idaho Tort Claims Act.”). Thus, even if Akers
had acted with malice, the Court finds there is no basis for a valid ITCA claim against him.
Accordingly, Thomas’ Motion for Reconsideration is DENIED in PART as it relates to
this request.
9. ITCA claim against the County
Thomas correctly points out that the Court mistakenly relied on Idaho Code section
6-903(3) when considering his ITCA claim. As noted by Thomas, the Idaho Supreme
Court’s decision in Hoffer abrogated their holding in Sprague v. City of Burley, 710 P.2d
566 (1985), upon which this Court relied. Accordingly, the Court GRANTS in PART
Thomas’ Motion for Reconsideration, and will now reconsider his ITCA claim under the
correct standard.
Rather than looking to Idaho Code section 6-903(3), the Court should have looked
to section 6-904. Regardless, summary judgment is still proper. In Hoffer, the Idaho
Supreme Court explained:
[T]he ITCA also expressly exempts certain causes of action from the general
rule that the entity is subject to liability. . . . Relevant here is I.C. § 6-904(3).
That section states: “A governmental entity and its employees while acting
within the course and scope of their employment and without malice or
criminal intent shall not be liable for any claim which . . . [a]rises out of
assault, battery, false imprisonment, false arrest, malicious prosecution,
abuse of process, libel, slander, misrepresentation, deceit, or interference
with contract rights.” The plain language of the first clause of that section
exempts governmental entities from liability for the torts it lists, whether or
not there has been an allegation of malice or criminal intent.

MEMORANDUM DECISION AND ORDER –22

Hoffer, 257 P.3d at 1228. See also Bates v. 3B Detention Center, Case No. 4:14-cv-359BLW, 2016 WL 1755404 at *3-4 (D. Idaho May 2, 2016) (“The result of this interpretation
is that Idaho governmental entities ha[ve] complete immunity for the listed torts even if
their employees committed the tort with malice or criminal intent.”).
Thus, even if the Court allowed Thomas’ relevant claims to proceed, the ITCA
expressly excludes governmental entities from liability for these torts, whether there have
been allegations of malice or not. Accordingly, the Court once again GRANTS
Defendants’ Motion for Summary Judgment on Thomas’ ITCA claims.
B. Motion for Discovery (Dkt. 85)
In light of the exception set forth in Nieves,3 Thomas asks the Court to reopen
discovery to determine if the exception applies in this case.
Once the deadline for completing discovery set forth in the Case Management Order
has passed, a party must show good cause to justify reopening discovery. Fed. R. Civ. P.
16(b). “Rule 16(b)’s ‘good cause’ standard primarily considers the diligence of the party
seeking the amendment. The district court may modify the pretrial schedule ‘if it cannot
reasonably be met despite the diligence of the party seeking the extension.’” Johnson v.
Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir.1992) (quoting Fed. R. Civ. P. 16
advisory committee’s notes (1983 amendment)). “If the party seeking the modification was
not diligent, the inquiry should end and the motion to modify should not be granted.”

3
As discussed above, “the no-probable-cause requirement should not apply when a plaintiff presents
objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the
same sort of protected speech had not been.” Nieves,139 S. Ct. at 1727.

MEMORANDUM DECISION AND ORDER –23

Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002) (citation and internal
quotation marks omitted). “[T]he existence or degree of prejudice to the party opposing the
modification might supply additional reasons to deny a motion,” but the Court should focus
its inquiry ‘upon the moving party’s reasons for seeking modification.” Johnson, 975 F.2d
at 609.
Thomas argues that good cause exists here, because:
[The] Nieves “no-probable-cause requirement” and its exception are, of
course, brand new to constitutional law and Section 1983. As such, [Thomas]
had no reason to believe that he would be required to prove that “he was
arrested when otherwise similarly situated individuals not engaged in the
same sort of protected speech had not been,” and therefore had no reason to
conduct discovery in that regard.
Dkt. 83, at 6.
In many cases, an intervening change in the law would constitute good cause to
reopen discovery. See Ave. 6e Invs., LLC v. City of Yuma, 2017 U.S. Dist. LEXIS 179494,
at *6 (D. Ariz. Oct. 28, 2017) (indicating that a change in the law may have constituted
good cause). Regardless, Defendants argue that the undisputed facts of this case
demonstrate that there are no “similarly situated” individuals, and therefore, the Nieves
exception does not apply.
Defendants seem to argue that another individual would only be “similarly
situated,” if S.K. also alleged that they hit him on his bike. This view is far too narrow.
Instead, the Court deems it proper to look to the actual crime Thomas was arrested for (hit
and run). If Thomas can present objective evidence that in other encounters, probable cause
existed to arrest others for hit and run yet those individuals were treated differently, the

MEMORANDUM DECISION AND ORDER –24

Nieves exception may apply. The Court will make that determination if such evidence is
presented. Accordingly, Thomas’ Motion to Reopen Discovery is GRANTED. Discovery
is only reopened on this narrow issue, and only for a period of ninety (90) days after the
entry of this order.
C. Motion for Entry of Judgment (Dkt. 72)
Rule 54(b) gives the Court discretion to grant a final judgment as to one or more,
but fewer than all, claims if “there is no just reason for delay.” This inquiry asks whether
(1) certification would result in successive appeals on the same facts or legal issues; (2) the
adjudicated claims are independent of the remaining claims; (3) future developments in the
case might moot the appeal; and (4) delay in the entry of the judgment would cause
financial harm. Wood v. GCC Bend, LLC, 422 F.3d 873, 878-82 (9th Cir. 2005).
“Analyzing a Rule 54(b) judgment requires a pragmatic approach with focus on
severability and efficient judicial administration.” S.E.C. v. Platforms Wireless Int’l Corp.,
617 F.3d 1072, 1084 (9th Cir. 2010).
In light of this legal standard, and having considered the current state of this case
and the arguments of the parties, the Court DENIES Thomas’ Motion for Entry of Final
Judgment. If Thomas is unable to show the Nieves exception applies, summary judgment
will be granted on his remaining claims. Allowing him to immediately appeal most of his
claims, when his remaining retaliation claims may be ready for trial or appeal within a few
months is not efficient judicial administration. However, this denial is WITHOUT
PREJUDICE. If Thomas shows the Nieves exception does apply, and his retaliation claims

MEMORANDUM DECISION AND ORDER –25

are allowed to proceed, he may once again ask the Court for entry of final judgment on his
unsuccessful claims.4
V. ORDER
IT IS HEREBY ORDERED THAT:
1. Thomas’ Motion for Reconsideration (Dkt. 71) is GRANTED in PART and
DENIED in PART consistent with the above analysis. However, the Court once
again GRANTS the Defendants’ Motions for Summary Judgment (Dkt. 23; Dkt.
24) on Thomas’ malicious prosecution claim and ITCA claims.
2. Thomas’ Motion for Entry of Final Judgment (Dkt. 72) is DENIED WITHOUT
PREJUDICE.
3. Akers’ Motion for Reconsideration (Dkt. 82) is STAYED for ninety (90) days
after entry of this order.
4. Thomas’ Motion for Discovery (Dkt. 84) is GRANTED. Discovery is reopened
for ninety (90) on the limited issue set forth above. At the close of this ninety-day
period, Thomas must file a supplemental response to Akers’ Motion for
Reconsideration (not exceeding twenty pages) presenting any evidence that
suggests the Nieves exception should apply. Defendants (including Cassia County
and Jay Heward) will then have fourteen days to reply to this supplemental

4
The Court does not mean to imply that it will certainly grant a future motion for entry of final judgment.
It simply notes that it will consider such a motion in the future.

MEMORANDUM DECISION AND ORDER –26

response (not to exceed ten pages each).5 The Court will then address Akers’
Motion for Reconsideration.
5. Thomas’ Motion Requesting Oral Argument (Dkt. 85) is DENIED.  

DATED: October 17, 2019

_________________________
David C. Nye
Chief U.S. District Court Judge

5
Although Cassia County and Jay Heward technically did not file a motion for reconsideration, they did
file a Motion of Supplemental Authority (Dkt. 81) asking the Court to apply Nieves to Thomas’ First and
Second Amendment retaliation claims. As such, the Court will allow them to reply to Thomas’
supplemental response as well.

MEMORANDUM DECISION AND ORDER –27