Nordholm v. Barkell et al
ORDER DISMISSING CASE. Motion for partial summary judgment 66 DENIED. Motion for summary judgment 60 GRANTED on all counts. Signed by Magistrate Judge Jeremiah C. Lynch on 4/4/2019. Mailed to Nordholm (TAG) Modified on 4/5/2019: forwarded to USMS (TAG).
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
WILLIAM J. NORDHOLM,
Cause No. CV 17-11-BU-JCL
TIM BARKELL, et al.,
Trial of this case is set for April 22, 2019. Currently pending are Plaintiff’s
motion for partial summary judgment on Count 1 of his amended complaint and
Defendants’ motion for summary judgment on all claims.
I. Summary Judgment Standards
A party is entitled to summary judgment if it shows “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 party seeking summary judgment bears the initial burden of proving, on
both the facts and the law, that it is entitled to judgment in its favor. See Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party meets its burden,
the burden shifts to the non-moving party to “set forth specific facts showing that
there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
At this stage of the proceedings, the judge does not weigh the evidence or
determine the truth of matters at issue but only determines whether there is a
genuine issue of fact to be tried. Only disputes over facts that might affect the
outcome of the suit under the governing law are material; irrelevant or unnecessary
disputes are not considered. If the documentary evidence permits only one
conclusion, or if evidence submitted in opposition is merely colorable or not
significantly probative, summary judgment may be granted. See Anderson, 477
U.S. at 248–50.
A. Count 1
Nordholm’s first claim for relief alleges that Defendants Anaconda-Deer
Lodge County (“ADLC”) and Tim Barkell, the police chief, “have a policy and
custom of charging booking fees and bonding fees” which “deprive[d] me of my
money without notice or hearing.” Am. Compl. (Doc. 9) at 5. He claims this
deprivation occurred on three occasions when he was arrested and released:
December 20, 2015, to January 7, 2015; February 27 to February 29, 2016; and
March 4 to March 16, 2016. Nordholm also claims the Defendants impose the fees
inconsistently. See id.
1. Undisputed Facts
The parties agree Nordholm was assessed a $25 booking fee on each of three
arrests and a $70 bonding fee1 when he was released from custody, resulting in
total fees of $285. See, e.g., Nordholm Decl. (Doc. 67-1) at 2–3 ¶¶ 3–10.
Defendants say, “On December 20, 2015, William Nordholm was charged a
booking fee of $25.00 associated with his arrest on that date, of which he paid
$23.00.” Defs. Statement of Undisputed Facts (“SUF”) (Doc. 64) at 3 ¶ 7.
Nordholm basically agrees, but he puts it differently. He says, “Without notice or
hearing, ADLC’s jail took my $23 and converted it to the County’s use.”
Nordholm Decl. (Doc. 67-1) at 2 ¶ 5. The parties agree he (or a bonding company)
paid the “outstanding $2 booking fee from 12-20-15,” as well as $70 in bonding
fees, when he was released on January 7, 2016. See Defs. Statement of Disputed
Facts (Doc. 69) (“SDF”) at 2 ¶ 4; Nordholm Decl. (Doc. 67-1) at 2 ¶ 6.
Nordholm was again arrested on February 27, 2016, taken to jail, and
charged a $25 booking fee. On that occasion, he “did not arrive with any cash for
them to take.” He paid the booking and bonding fees when he was released on
February 29, 2016. The same facts occurred when Nordholm was arrested on
March 4 and released on March 16, 2016. See, e.g., Nordholm Decl. (Doc. 67-1) at
Defendants explain that this fee consists of a $20 fee charged to the inmate and a $50
fee charged to the bail bond company. See Sather Aff. (Doc. 64) at 2 ¶ 4. For present purposes,
the Court will assume the bail bond company passed these costs on to Nordholm.
2–3 ¶¶ 7–10.
When Nordholm was booked into the ADLC jail in October 2016, he was
not charged a booking fee. See id. at 4 ¶ 18. Because he entered the jail to begin
serving a sentence, he did not bond out and did not incur a bonding fee. See Defs.
SUF at 5 ¶¶ 15–16.
2. The Fees and What Nordholm Claims About Them
By resolution, the ADLC county commissioners authorized the sheriff to
impose booking and bonding fees. Fees are authorized for other things, too, for
example, producing an affidavit ($50), serving a summons ($50), serving a writ of
execution ($50 per account), or holding or rescheduling a sheriff’s sale ($150 or
$50, respectively). The fees are intended to “offset operational costs of the Law
Enforcement Department” and “to recover the costs of services provided by the
Anaconda-Deer Lodge County Law Enforcement Department.” See Sather Aff.
Ex. A (Doc. 64-1 at 2) (“Resolution No. 11-07”).
Intuitively, “[b]eing arrested is not a ‘service’ to the person arrested!”
Markadonatos v. Village of Woodridge, 760 F.3d 545, 551 (7th Cir. 2014) (en
banc) (per curiam) (Posner, J., concurring in the judgment). But the Fourth
Amendment says persons suspected of crimes may be arrested on probable cause,
and the Fourteenth Amendment says arrestees must be protected from undue risks
to their persons and health. At booking, an arrestee is identified so as not to get
“lost” or be confused with others who have perhaps done worse things. He is
placed in a safe location, may request and obtain medical attention, may call a
friend or family member or lawyer, and receives jail-issue clothing and maybe a
shower for sanitary reasons. Doing these things is far more beneficial to the
arrestee and to other inmates than not doing them, whether the arrest is justified or
not. Many people do not “choose” to incur a need to serve summonses or
subpoenas or to obtain copies of police reports, but, like booking, such services
may prevent or ameliorate harms caused by others. 2 And fees for these services,
provided they are fairly indexed with actual costs, reasonably require consumers of
the services to pay a little above and beyond the taxes everyone pays for law and
Still, booking and bonding fees are different from the other listed fees,
because they allow a law enforcement officer to generate the need for further law
enforcement services. If fees exceed costs, an unscrupulous officer or county
might redress temporary shortfalls in county funds by decreeing a flurry of arrests,
and that may lead to arrests not supported by probable cause.
That is the real rub of the booking and bonding fees: the problem of an
Judge Posner distinguishes between a booking fee and a bonding fee on the grounds
that “[t]o be released on bail, whether having been arrested falsely or not, is a benefit that the
Village of Woodridge confers on the people whom its police officers arrest.” Markadonatos,
760 F.3d at 546. But surely the same can be said about booking: to be identified and protected is
a benefit conferred on people arrested, whether they are falsely arrested or not.
unjustified arrest. Why should someone have to pay booking and bonding fees to
an entity whose officers never should have arrested him in the first place?
Defendants seek summary judgment by arguing that Nordholm was not
entitled to a hearing under Mathews v. Eldridge, 424 U.S. 319 (1976). “[T]o
determine whether a pre-deprivation hearing is required and what specific
procedures must be employed at that hearing,” Mathews “balances three factors:
(1) the private interest affected; (2) the risk of erroneous deprivation through the
procedures used, and the value of additional safeguards; and (3) the government’s
interest, including the burdens of additional procedural requirements.” Shinault v.
Hawks, 782 F.3d 1053, 1057 (9th Cir. 2015). As to a person who challenges the
legitimacy of an arrest, these factors may favor a hearing.
But Nordholm is not in a position to make that claim. He does not claim that
ADLC may not impose booking or bonding fees at all. He does not claim the fees
are punitive in nature. He alleges only that he was deprived of his money “without
notice or hearing.” Am. Compl. (Doc. 9) at 5. Thus, the only question is whether
Nordholm was entitled to individualized notice of the booking and bonding fees
and to a hearing at which someone would decide whether he should pay them.
As to notice, the fee schedule was enacted by ADLC county commissioners.
See Sather Aff. Ex. A (Doc. 64-1 at 2) (Resolution No. 11-07 (Feb. 1, 2011)). It is
“legislative in nature,” and generally, “due process is satisfied when the legislative
body performs its responsibilities in the normal manner prescribed by law.” Hotel
& Motel Ass’n of Oakland v. City of Oakland, 344 F.3d 959, 969 (9th Cir. 2003)
(quoting Halverson v. Skagit County, 42 F.3d 1257, 1260 (9th Cir. 1995)).
If the fees were so high as to be confiscatory, or were grossly
disproportionate to the services provided, or if harsh consequences were imposed
on nonpayment, or if a fee was seemingly directed at a few specific individuals,
then the notice might be inadequate and the fee itself might be objectionable. See,
e.g., Lambert v. California, 355 U.S. 225 (1957) (holding that defendant was
entitled to actual notice of registration requirement where failure to register was
punishable as a felony). There is no indication of that here. Montana law requires
that county commissioners’ meetings and decisions be publicly accessible, see,
e.g., Mont. Code Ann. §§ 7-5-2122, -2123, -2125, -2129, -2131, and Nordholm has
neither alleged nor shown that the legislative process that led to the fee schedule
departed from the norms. “[G]eneral notice as provided by law [was] sufficient.”
Halverson, 42 F.3d at 1261.
As to a hearing, Nordholm has never identified a legal or equitable defense
to the fees. He does not explain what he would have said at a hearing. He does not
claim his cash was taken clandestinely or against his will on December 20, 2015,
or that he did not turn it over in partial payment of the booking fee. He does not
allege he was arrested without probable cause. He does not allege he was held in
custody on unfounded charges. He does not allege he had to spend additional time
in custody because he was unable to pay either the booking or the bonding fee.
“[T]he Constitution does not protect procedure for procedure’s sake. . . .
Unless a person asserts some basis for contesting a governmental deprivation of . .
. property, he is not injured by defective procedures he has no occasion to invoke.”
Rector v. City and County of Denver, 348 F.3d 935, 943–44 (10th Cir. 2003).
Even under Nordholm’s “own reckoning of the facts, the hearing would not have
vindicated any rights” and “[t]here was nothing for the hearing to accomplish.” Id.
Rector distinguished two procedural due process cases the Supreme Court
decided a year apart. In Carey v. Piphus, 435 U.S. 247 (1978), the plaintiffs
“denied the substance of the underlying allegations” that led to their suspension
from school without a hearing. The district court dismissed the complaint because
it found the underlying allegations were true and a hearing would not have made a
difference. The Supreme Court reversed, holding that the plaintiffs were entitled
to nominal damages because they disputed the allegations and so were entitled to a
hearing before they were suspended, “even if . . . the suspensions were fully
justified under the school’s rules and policies.” Rector, 348 F.3d at 944 (citing
Carey, 435 U.S. at 266).
By contrast, in Codd v. Velger, 429 U.S. 624 (1977) (per curiam), the
plaintiff argued he should have had a hearing before damaging information was
placed in his personnel file, but he “did not challenge the substantial truth of the
damaging material.” Rector, 348 F.3d at 944. The Court held the plaintiff was not
entitled to a hearing because “there must be some factual dispute between an
employer and a discharged employee which has some significant bearing on the
underlying deprivation.” Codd, 429 U.S. at 627, quoted in Rector, 348 F.3d at 944
(internal brackets omitted). Similarly, in Rector, the plaintiffs admitted they had
parked illegally and did not claim they wanted to challenge their tickets, so the
court dismissed their claims that the tickets’ deceptive warnings about late fees
unfairly pressured them to forego challenging the tickets. See Rector, 348 F.3d at
Nordholm does not contest anything about the booking or bonding fees or
about his arrest. He claims nothing but a right to a hearing. A right to a hearing
would arise because there is “some factual dispute” that has “some significant
bearing” on an arrestee’s liability for the fees. Nordholm’s case is like Codd and
Rector rather than Carey. He was not entitled to have a hearing merely for the
sake of having a hearing.
5. Inconsistency in Charging the Booking Fee
Finally, Nordholm contends the booking fee, at least, is imposed
inconsistently. Having considered all of Nordholm’s submissions, the Court can
only conclude he has not made out any case regarding alleged “inconsistency” in
imposing the fees. He says he was booked into jail on October 26, 2016, but was
not charged a fee. See Nordholm Decl. (Doc. 67-1) at 4 ¶ 18. He does not explain
why he was not charged a fee on that occasion, or why he thinks it was not
charged, or why not incurring a charge was significant. He does not contend the
fee is imposed or not imposed on some impermissible basis, such as the race or
gender of the person arrested, or a chummy relationship between the arrestee and
the booking officer. Maybe the county’s costs are covered by the State when
someone enters jail to serve a sentence, or maybe the fee does not apply when the
person has already been booked on the charge they come in on, or maybe the
booking officer just forgot. Regardless, no genuine legal issue is presented, and no
material fact requires trial.
There are no outstanding material questions of fact. Defendants are entitled
to summary judgment on Count 1. There is no need to consider their argument
concerning exhaustion of administrative remedies.
B. Count 2
Nordholm’s second claim alleges that Richard Pasha, a police officer, and
John Doe, a detention officer, conspired against him to file a false criminal
complaint alleging criminal mischief in connection with damage to a mattress at
the detention center. Nordholm claims the conspiracy occurred on or about
February 28, 2016. The charge was dismissed on April 18, 2017. See Am. Compl.
at 10. No material facts are disputed.
Defendants assert they had probable cause to believe Nordholm damaged the
mattress. Probable cause is not established by one officer’s report of another
officer’s conclusory statement that Nordholm damaged a mattress. That is all
Defendants have shown. A mere accusation does not set forth any “facts or
circumstances” warranting a “prudent” inference that either the statement or the
report of it is accurate. See Hart v. Parks, 450 F.3d 1059, 1065–66 (9th Cir. 2006),
cited in Defs. Br. in Supp. (Doc. 61) at 17–18.
Even so, to prevail on Count 2, Defendants need only refute Nordholm’s
claim of false statements and conspiracy. They do so by pointing to a lack of
evidence showing a conspiracy to lie. To oppose the motion, Nordholm must at
minimum produce evidence someone lied. The evidence he points to, however, is
not significantly probative. See Anderson, 477 U.S. at 248–50.
Nordholm refers to Detention Center Manual § 15.10.07, which states that
“[s]tandard bedding will be issued and a receipt obtained from the detainee,”
Nordholm Decl. Ex. A (Doc. 71-2 at 8), but he does not claim he provided a
receipt saying the mattress was damaged. He also points out that Officer Durkin
destroyed the mattress without documenting where the mattress was or what
condition it was in before it wound up in Nordholm’s cell or after the officer
discovered the supposed damage. If he also pointed to evidence that photographs
are routinely taken when jail property is destroyed or that the placement and
condition of inmates’ mattresses is routinely tracked and inventoried, Officer
Durkin’s contrary action on this occasion might have some significance. But
Nordholm has not pointed to any evidence that is more consistent with conspiracy
or falsehood than with carelessness or mistake.
Lack of evidence to support the officers’ allegations led to dismissal of the
criminal complaint. See, e.g., Nordholm Decl. Ex. G (Doc. 71-7 at 1) (purporting
to be letter from deputy county attorney stating that “the Detention Supervisor
stated the damage to the mattress may have been there prior to Mr. Nordholm’s
stay.”). That same lack of evidence does not support Nordholm’s claim that one or
both officers lied. Defendants are entitled to summary judgment in their favor on
C. Count 3
Nordholm’s third and final claim alleges that Defendants Barkell, Sather,
Durkin, and Staley conspired to retaliate against him for filing a lawsuit or
otherwise troubling officers. A retaliation claim contains five elements: “(1) An
assertion that a state actor took some adverse action against an inmate (2) because
of (3) that prisoner’s protected conduct, and that such action (4) chilled the
inmate’s exercise of his First Amendment rights, and (5) the action did not
reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d
559, 567–68 (9th Cir. 2005).
No material facts are disputed. The Court assumes Nordholm’s allegations
1. Service of Process
Nordholm alleges that Defendants Barkell and Durkin evaded Nordholm’s
attempt to have a fellow inmate serve process on Barkell in connection with a
separate lawsuit filed in state court. Barkell later asserted insufficient service of
process as a defense to that suit. See Nordholm Decl. (Doc. 71-1) at 6–8 ¶¶ 23–26.
This Court perceives no claim for relief that could arise on these alleged facts. The
First Amendment does not require public officials to accept service of process.
2. Destruction of Dental Services Request
Nordholm contends that, on December 31, 2016, he submitted a “kite” to
Defendant Staley requesting dental services. When he had not heard anything
about it, he asked Vera Hoshied, a jail staff member, to look for it. She did not
find it and gave Nordholm another request form, “entirely different from the one
given to me by Staley on December 31, 2016.” Nordholm Decl. (Doc. 71-1) at 9 ¶
31. Nordholm also asked Defendant Staley to look for the original kite. On
January 28, 2017, Nordholm asked Staley whether he had located it. Staley
responded “no,” “with a sneer,” and said that “since it came from [Nordholm] . . .
it probably made its way to the paper shredder like the rest.” See id. at 9–10 ¶¶
Defendant Staley’s actions and statements would not deter a person of
ordinary firmness from submitting kites or grievances.
3. Failure to Provide Forms and Copies and Forward a Letter
Between February 28, 2016, and January 22, 2017, Nordholm submitted
more than 20 grievances and also sent letters to state and federal officials about the
conditions at the detention center. Nordholm contends that Defendant Sather
responded to only two of his grievances. On January 25, 2017, Nordholm asked
Defendant Durkin to make copies of the December 31 dental kite and a grievance.
In response, Durkin removed Nordholm from his pod into the hallway and told him
that Defendants Sather and Barkell had said, “No more copies for Nordholm.”
When Nordholm asked whether his lawsuit against Barkell was the reason, Durkin
told him the lawsuit was “not all the trouble you cause” and refused to provide any
more grievances or copies. See Am. Compl. at 10–12.
On February 1, 2017, Nordholm was transported from ADLC to the jail in
Powell County in connection with the execution of his sentence. See Nordholm
Decl. (Doc. 71-7) at 10 ¶ 34; Defs. SUF (Doc. 62) at 3 ¶ 7; Sather Aff. (Doc. 64) at
5 ¶ 16. Nordholm did not receive a letter sent by the Montana Judicial Standards
Commission to his ADLC address, but he obtained from the Commission a copy of
that letter. See Nordholm Decl. at 10–11 ¶ 35.
Taking all these allegations as true, Nordholm shows that Defendants did not
respond to his grievances in a responsible or consistent fashion, refused to give
him additional forms or copies of documents for about a week before he left
ADLC, and failed to forward a letter to him. But lack of cooperation or response
to grievances would not deter a “person of ordinary firmness” from filing
grievances in the first place. The facts Nordholm describes are not remotely
comparable to the real consequences imposed on Jones, a Muslim inmate who
complained about having to handle pork in his assigned kitchen job, see Jones v.
Williams, 791 F.3d 1023, 1029, 1035–36 (9th Cir. 2015), or the humiliation and
confiscation or destruction of property suffered by Rhodes when he complained
about damage to his typewriter, see Rhodes, 408 F.3d at 563–65, or any of the
consequences Watison suffered, whether it was having a gun cocked and pointed at
him, being threatened with a punch in the mouth, or being deprived of breakfast,
see Watison v. Carter, 668 F.3d 1108, 1115–17 (9th Cir. 2012).
4. Conclusion: Count 3
Defendants are entitled to summary judgment on Count 3.
Based on the foregoing, the Court enters the following:
1. Plaintiff’s motion for partial summary judgment (Doc. 66) is DENIED.
2. Defendants’ motion for summary judgment (Doc. 60) is GRANTED on
3. Defendants’ motion for leave to allow use of personal electronics (Doc.
81) is DENIED AS MOOT.
4. The amended complaint (Doc. 9) is DISMISSED WITH PREJUDICE.
5. All pretrial and trial deadlines are VACATED. The transport order and
writ of habeas corpus issued on March 13, 2019, are VACATED and DISMISSED.
6. The clerk shall enter judgment, by separate document, in favor of
Defendants and against Plaintiff.
DATED this 4th day of April, 2019.
/s/ Jeremiah C. Lynch
Jeremiah C. Lynch
United States Magistrate Judge
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