The opinion of the court was delivered by: Honorable B. Lynn Winmill Chief U. S. District Judge
Pending before the Court in the above-entitled matter are cross motions for summary judgment and Plaintiff Keith Brown's ("Brown") motion for sanctions and motion for mediation lawyer. Having fully reviewed the record, the Court finds that the facts and legal arguments are adequately presented in the briefs and record. 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, this matter shall be decided on the record before the Court.
Brown and his wife, Tyrah Brown ("Tyrah") filed their 42 U.S.C. § 1983 civil rights Complaint on July 12, 2007. The civil rights claims were based upon an investigatory traffic stop by Defendant Jeff Jayne ("Jayne"), an Idaho State Police employee, just before midnight on September 16, 2006 and other actions by third parties to dispose of certain property the Plaintiffs claimed an interest in. The Court conducted an initial review of the Complaint and determined Plaintiffs could only proceed on their claim that excessive force was directed at Tyrah allegedly causing her to have a miscarriage. Dkt. 11.
Plaintiffs filed an Amended Complaint on December 6, 2007. Dkt. 14. Brown filed a Second Amended Complaint on June 27, 2008 (Dkt. 44) and Tyrah filed her Second Amended Complaint on June 27, 2008 (Dkt. 46). Tyrah filed a Third Amended Complaint on September 4, 2008 (Dkt. 53), but Brown did not file a Third Amended Complaint. Tyrah later stipulated to a dismissal of all her claims in this matter and the Court granted a dismissal of all Tyrah's claims against all defendants. Dkts. 76 and 77.
The Court reviewed the Second Amended Complaints, and determined that the Plaintiffs could also proceed on the claims against Defendants Rocky Watson (Kootenai County Sheriff), Elaine Savage (Bonner County Sheriff), Sergeant Teresa Cable (Bonner County Sheriff's Deputy) and Deputy Harris (Bonner County Jail Commander) for interference with Brown's First Amendment right to receive and send mail with his wife and for retaliatory transfer of his wife to another county jail as a result of his complaint about his First Amendment right violations. Dkt. 49. These First Amendment claims arose when Brown and his wife were in custody as pretrial detainees on separate criminal charges unrelated to the traffic stop by Jayne.
The Court notes that Brown's Second Amended Complaint also added an excessive force claim by Brown for a personal assault against him by Jayne on September 16-17, 2006. Dkt. 44, pp. 4-5. The Court did not discuss this claim in its review of the Second Amended Complaints, but Defendants seek to have their summary judgment motion apply to this claim, so the Court will consider the same.
The traffic stop of September 16-17, 2006, was videotaped by Jayne. The Court has reviewed the video in detail and while Brown may contest some of the events of that evening, the video is the undisputed evidence of what actually occurred that night. For instance, Brown claims a car was following him too closely, so he slowed down trying to get the car to pass and eventually pulled over to force the vehicle to pass. Brown admits the car he was driving was not registered to him or owned by him. Jayne records on the video tape his observations about the driver's conduct before he pulls over to see if the driver of the vehicle pulled off the road needs assistance. Before Jayne pulls over, he activates his lights and sees if he can be of assistance, he has noted on the video tape numerous touchings or crossings of the solid white lines on the road by the driver and is observing the car to see if the driver continues driving erratically. It is around midnight and there is no indication Jayne thinks the car is being driven by Brown (who he is familiar with from other law enforcement encounters). There is no indication from Brown's pleadings that he knew the car behind him at night was a police car until the overhead lights were activated.
The video also establishes the following facts: Jayne approaches the vehicle and the officer and the Plaintiffs immediately recognize each other. Jayne is told by Brown that Tyrah is bleeding and having a miscarriage. Jayne tells the Browns there are warrants for them, which they deny. Jayne immediately requests back up. Brown is very compliant and Jayne immediately handcuffs Brown behind his back, tells him he is going to jail for outstanding warrants which Brown says were taken care of. There is, in fact, no obvious "pat down" of Brown on the video tape as he states "just take me to jail" and is immediately handcuffed by Jayne as soon as he steps out of the car. Jayne does ask the location of Brown's wallet and is told by Brown it is in his back pocket and the wallet is removed by the officer and placed on the trunk of the vehicle.
Tyrah is upset. She informs the officer she is bleeding and having a miscarriage, is non-compliant with the officer's requests, and demands to talk with her husband. At one point Tyrah is pushed against the vehicle as Jayne is attempting to handcuff Tyrah. The level of force of the restraint is unclear from the video and the officer is able to handcuff Tyrah. She begins to calm down and become more compliant with the officer although she continues to request to speak with her husband. The officer denies the request for her to speak to her husband, contacts dispatch to determine if there are any outstanding warrants on either person, if Brown has a valid driver's license, and to confirm who is the owner of the vehicle.
Jayne's affidavit for a warrantless arrest dated September 24, 2006, Dkt. 106-1 and Jayne's memo regarding the incident to his captain dated November 28, 2007, Dkt. 106-1, establish the undisputed fact that Jayne had been informed that Plaintiffs had failed to appear on previous felony charges the day before and warrants had been issued for their arrest. The source of this information to Jayne was his wife, who is a deputy prosecutor for the county. Jayne maintains that he handcuffed Brown based on his belief there was an outstanding warrant and handcuffed Tyrah because she was a safety risk when she was upset and not complying with the officer's instructions.
After contacting dispatch, Jayne was advised there were no outstanding warrants for Tyrah and that the one warrant on file for Brown was out of Washington and was a non-extraditable warrant. Jayne also determined neither Brown, nor Tyrah had a valid drivers license. No proof of insurance could be located in the vehicle and Jayne was informed by dispatch this was Brown's second offense for driving without proof of insurance. The handcuffs were removed from the Plaintiffs. Brown was given a ticket for two misdemeanor charges (Dkt. 106-1). Jayne had Tyrah move the car further off the road, secured the car and then Jayne drove Plaintiffs to their home.
It is noted that at the time of the traffic stop, both Brown and Tyrah represented she was bleeding and suffering a miscarriage and they were driving a borrowed car at midnight to go to the hospital. Jayne asked during the traffic stop if Tyrah wanted an ambulance and she said no. Tyrah allowed Jayne to drive her home with Brown. Tyrah represented in her Second Amended Complaint that her bleeding continued, that she later had a miscarriage and that she had a history of miscarriages. Dkt. 46, p.5. There is no medical testimony before the Court establishing a correlation or causation between the alleged excessive force used by Jayne against Tyrah and the resulting miscarriage.
Brown testified in his deposition that the excessive force used by Jayne was as a result of physically inappropriate contact when he was patted down. Brown claims the officer "hit me in the balls with the edges of his hands and he ran his hands up the side of my leg because he was way -- way to aggressive for any officer of the law to do what he had done." Deposition of Keith Brown, Dkt. 117-1, p.50 -51. Brown also claims it was excessive force to handcuff him for the charges of not having a license or proof of insurance.
Defendants maintain Jayne did not use excessive force against Brown and there is no evidence relating the push of Tyrah against the car by Jayne at the time of the traffic stop to the miscarriage suffered two weeks later.
2. First Amendment Claims
In May 2007, Plaintiffs were arrested in CR 2007-2454 and charged with the first degree murder of Les Breaw and grand theft of certain property of Les Breaw. The Plaintiffs were held as pretrial detainees at the Bonner County Jail ("BCJ").*fn1 After problems with unauthorized communications between the Plaintiffs and threats against Tyrah by other inmates, Tyrah was moved to the Kootenai County Jail ("KCJ"). Based upon security concerns, most jails have policies that generally prohibit mail to or from other inmates. This policy applies to inmates being held in the same facility or inmates in two different facilities. Prior to being brought to BCJ on May 25, 2007, Tyrah had been in custody in Montana and was allowed to write to her husband being held in BCJ (since April 20, 2007), however, it was acknowledged and agreed to in writing that this inmate to inmate correspondence would be read and copied. Affidavit of Doug Harris, Exhibit B, Dkt. 108-5.
When Tyrah was brought to BCJ, the deputy in charge of the jail or Jail Commander was Doug Harris. Harris allowed the Plaintiffs to continue writing to each other under the same conditions as previously imposed and agreed to while Tyrah was in Montana -- the correspondence would be read and copied. BCJ inmate mail policy provides:
At no time will detention personnel make any type of copies of any inmates mail either incoming or outgoing unless it is deemed to be a safety or security issue for the detention facility or its staff. Any time that it is deemed necessary to copy an inmate's mail, detention personnel must have prior approval from their shift supervisor. . .
Bonner County inmates will not be allowed to correspond with other inmates being held in this facility or any other facilities without written permission from the requesting facility and this facility, directly or through a third party.
Jail Commander Harris allowed one letter per week between Brown and Tyrah and mandated the letters could not discuss other inmates in the jail, discuss the procedures inside the jail, or discuss their pending criminal case for which they were in custody. Brown and Tyrah could discuss their pending federal civil rights action, but were not allowed to communicate with each other in any manner other than this written correspondence process.
At some point, it is undisputed that the Plaintiffs began circumventing the policy and leaving notes for each other in the law library and other locations in the BCJ. These violations resulted in an increased need for observation by jail personnel due to increased security risks. In November 2007, Deputy Harris revoked Plaintiffs' correspondence privileges because of the communication violations. On November 29, 2007, Deputy Harris modified the prohibitions to authorize Plaintiffs to correspond regarding their federal civil rights, Civil Case No. 07-CV-296 filed in the United States District Court, District of Idaho. Brown maintains the alleged security threat from the inmate to inmate correspondence was minimal and does not justify that taking away of his First Amendment rights to communicate with his wife. Plaintiffs also argue the prohibition of correspondence by Harris was done without a due process hearing.
On November 21, 2007, the Court issued its Initial Review Order in this case, Dkt. 11. Plaintiff alleges that because he was allowed to proceed with an excessive force claim against Jayne and filing an Amended Complaint on December 6, 2007 alleging First Amendment violations, the Bonner County Sheriff Elaine Savage, Jail Commander Harris, Teresa Cable and Kootenai County Sheriff Rocky Watson retaliated and had Tyrah moved to the KCJ on or about December 18, 2007.
Neal Robertson, the custody commander at KCJ, filed an affidavit indicating that Tyrah was transferred to KCJ upon the request of BCJ staff because she was continually attempting to communicate with her husband which had been prohibited and because Tyrah had been receiving threats from other inmates. KCJ mail policy also prohibits inmate to inmate correspondence. Tyrah remained at KCJ until February 23, 2009. It is undisputed that Tyrah entered a plea agreement on or about February, 2009 to amended charges of accessory to felony/harboring a wanted felon and theft by receiving/possessing stolen property. Brown maintains Tyrah was returned to BCJ after her plea was entered and questions the transfer for security reasons as pretextual.
Defendants deny the transfer of Tyrah was due to the Court's Initial Review Order or the filing of the Amended Complaint, but allege the transfer of Tyrah was due instead to the ongoing unauthorized communications between inmates and threats against Tyrah. Defendants also maintain the written jail policies on inmate mail are constitutional on their face as well as applied in this particular case.
MOTION FOR DISCOVERY SANCTIONS
Brown requests that the Court impose discovery sanctions against the Defendants for not producing all relevant discovery materials. Defendants respond that they provided their initial disclosure of all relevant materials and Brown has not made any written discovery requests on Defendants. Defendants argue that absent a written discovery request for a ...