The opinion of the court was delivered by: Honorable Ronald E. Bush U. S. Magistrate Judge
MEMORANDUM DECISION AND ORDER
Pending before the Court is Defendants' Motion for Summary Judgment (Dkt. 21). Defendants argue that Plaintiff has no claims that can survive summary judgment stemming from (1) his registration in Idaho as a sexual offender from 2004 to 2008 or (2) a December 2007 arrest. Having carefully reviewed the record, considered oral arguments, and otherwise being fully advised, the Court enters the following Memorandum Decision and Order:
On March 3, 1997, Plaintiff Marc Yocum was convicted of attempted second degree sexual assault in Alaska. Compl., ¶ 7 (Dkt. 1); Mumford Aff., Ex. A (Dkt. 21-6). Plaintiff alleges that the judge who entered his conviction told Plaintiff he did not have to register as a sex offender in Alaska because attempted sexual assault is not a registerable offense. Compl.*fn1 , ¶ 7; Pl.'s Aff., ¶ 6 (Dkt. 24-2). After his conviction, Plaintiff moved to Eugene Oregon, where he was required to register as a sex offender. Defs.' St. of Fact, p.1 (Dkt. 21-1). In October 2003, Plaintiff moved from Oregon to Idaho where he began residing with his parents in Kootenai County. Compl., ¶ 7; Defs.' St. of Fact, p.2.
Plaintiff's parole officer, Cindy Boyle, informed the Kootenai County Sheriff's Department that Plaintiff had an active warrant from Oregon for failure to register as a sex offender. Defs.' St. of Fact, p.2. Here, the facts diverge. Plaintiff alleges that, when he arrived in Idaho, Officer Boyle told him to check in with the Kootenai County Sheriff's Office to determine whether he was required to register as a sex offender. Compl. at ¶ 8; Mumford Aff., Ex. C, p.79 (Dkt. 21-6). He alleges that he was referred to the Idaho Department of Transportation, but when he reviewed the list of registerable sex offenses, Plaintiff felt that none of the offenses resembled the attempted sexual assault crime he had been convicted of. Id. Defendant Kent Johnston, a Kootenai County Sheriff's Department Sergeant, avers that Plaintiff told him he was unaware that he was required to register as a sex offender and that he was never instructed to do so by Officer Boyle. Defs.' St. of Fact, p.3. Plaintiff's Affidavit opposing summary judgment is silent on whether his parole officer informed him that he should register. See Dkt. 24-2.
Sergeant Johnston told Plaintiff he had to register as sex offender,
after Plaintiff was brought to the Kootenai County Public Safety
Building by a deputy sheriff following Johnston's
review of Idaho's Sexual Offender Registration Notification and
Community Right-to-Know Act, Idaho Code 18-8301, et seq, (the
"Registration Act"). Compl at ¶ 9; Defs.' St. of Fact, p.3; Pl.'s
Aff., ¶ 7. Idaho's sexual offender registration requirement applies to
"a person who has been convicted of any crime [or attempt] . . . to
commit a crime in another state, territory, commonwealth, or other
jurisdiction of the United States, that is 'substantially equivalent'
to one of the offenses in the state of Idaho that require
registration." Idaho Code § 18-8304(1)(b). Sergeant Johnston's duties
included enforcing provisions of the Registration Act and he reviewed
Plaintiff's National Crime Information Center report and concluded
that Plaintiff's Alaska conviction was substantially equivalent to an
Idaho crime that required sexual offender registration.*fn2
Defs.' St. of Fact, p.2. According to Plaintiff, he explained
to Johnston that his Alaska conviction did not match an offense on the
list of registerable offenses, but Johnston told Plaintiff he would be
charged with a felony if he did not register. Compl. at ¶ 9; Pl.'s
Aff., ¶¶ 7-8.
Thereafter, Plaintiff registered as a sex offender in Idaho from late 2003 or early 2004 until 2008. Compl. at ¶ 9; Defs.' St. of Fact, p.3; Pl.'s Aff., ¶ 9. Plaintiff alleges he received "regular phone calls" from Deputy Dale Johnson accusing Plaintiff of failing to submit quarterly reports and that, in December 2008, Deputy Johnson called and accused Plaintiff of battery and burglary. Compl., ¶¶ 11, 13; see also Pl.'s Aff., ¶¶ 11, 13. Each year Plaintiff contacted the Idaho Department of Transportation to ask that it review his status as an offender required to register.*fn3 Compl. at ¶ 10; Pl.'s Aff. at ¶ 10. On May 23, 2008, Plaintiff received a letter from the Idaho State Police, Department of Idaho Central Sex Offender Registry, which advised Plaintiff that he did not have to register as a sex offender in Idaho. Compl. at ¶ 12; Defs.' St. of Fact, p.3. Plaintiff alleges claims related to these events, and also stemming from a December 2007 arrest. The claims appear to be tied together by Plaintiff's claim that he was discriminated against because of his criminal history and sexual offense registration in Idaho.
In December 2007, Kootenai County Deputy Charles Sciortino pulled Plaintiff over for speeding and arrested Plaintiff for driving without privileges and driving under the influence. Defs.' St. of Fact, p.3; Pl.'s Aff., ¶ 15. Deputy Sciortino removed Plaintiff's personal items during the arrest. Defs.' St. of Fact, p.3. Plaintiff alleges that Deputy Sciortino allowed a passenger in Plaintiff's car to keep a $100 bill that belonged to Plaintiff and that Sciortino stopped by Plaintiff's home on the way to the jail and told Plaintiff's neighbors that Plaintiff is a "child molester." Pl.'s Aff., pp. 4-5. Defendants assert that Plaintiff had $137.74 in cash and coin in his person and that Deputy Sciortino did not take any money from Plaintiff at the time of his arrest. Defs.' St. of Fact, pp. 3-4. Plaintiff also alleges that Sciortino sexually harassed Plaintiff, verbally and physically, after his arrest. Id., at pp. 5-6.
Plaintiff brings claims under 42 U.S.C. §§ 1983 and 1988, for violations of his rights to due process and equal protection and his rights under the Constitution. Compl., ¶ 1. Defendants have moved for summary judgment on all claims.
A. Summary Judgment Standards
Summary judgment is appropriate where "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). One of the principal purposes of summary judgment "is to isolate and dispose of factually unsupported claims . . . ." Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). It is "not a disfavored procedural shortcut, but is instead the principal tool[ ] by which factually insufficient claims or defenses [can] be isolated and prevented from going to trial with the attendant unwarranted consumption of public and private resources." Id. at 327. "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). Material facts are those that may affect the outcome of the case. Id. at 248.
The moving party bears the initial burden demonstrating the absence of a genuine issue of 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, but may simply point out the absence of evidence to support the non-moving party's case. Fairbank v. Wunderman Cato Johnson, 212 F.3d 528, 532 (9th Cir. 2000). This shifts the burden to the non-moving party to produce evidence sufficient to support a jury verdict in his or her favor. Id. The non-moving party must go beyond the pleadings and show by affidavits or by discovery or disclosure materials that a genuine issue of material fact exists. Fed. R. Civ. P. 56(c); see also Celotex, 477 U.S. at 324.
At the hearing of this matter, Plaintiff's counsel advised that Plaintiff would not continue to pursue claims against Kootenai County and the Kootenai County Sheriff, Rocky Watson. Accordingly, all of the claims against the County and Sheriff are dismissed, with prejudice. Plaintiff's claims, therefore, will be discussed only in relation to the three remaining Defendants: Officers Kent Johnston, Dale Johnson, and Charles Sciortino.
C. Claims Under 42 U.S.C. § 1983
Under 42 U.S.C. § 1983, a person may bring an action against a government employee who, acting under color of law, "subjects or causes to be subjected any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws . . . ." Fontana v. Haskin, 262 F.3d 871, 878 (9th Cir. 2001). Defendants acknowledge that they are state actors for ...