The opinion of the court was delivered by: Honorable Ronald E. Bush U. S. Magistrate Judge
MEMORANDUM DECISION AND ORDER RE: DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (Docket No. 32) PLAINTIFF'S MOTION TO STRIKE PORTIONS OF THE AFFIDAVIT OF JEFF PERRY (Docket No. 36)
Currently pending before the Court are (1) Defendants' Motion for Summary Judgment (Docket No. 32), and (2) Plaintiff's Motion to Strike Portions of the Affidavit of Jeff Perry (Docket No. 36). Having carefully reviewed the record, participated in oral argument, and otherwise being fully advised, the Court enters the following Memorandum Decision and Order:
At all times relevant here, Plaintiff P.J. Curtis ("Curtis") was working as a Gooding County Emergency Medical Services ("EMS") provider; Defendant Andrew Lovell ("Lovell") was a City of Gooding Police Officer. This action relates to an altercation between Curtis and Lovell on the morning of February 27, 2008. Specifically, Curtis claims that, while he was in the process of beginning to transport a patient to the hospital, Lovell approached the ambulance, opened the door to the rear compartment, ordered Curtis to exit the ambulance, and told Curtis they "needed to talk." According to Curtis, once he exited the ambulance, Lovell threatened him, verbally abused him, and physically struck him in the chest. Curtis then climbed back into the ambulance and left for the hospital.
Later that day Curtis reported the incident to his immediate supervisor and also to Denise Gill ("Gill"), the Director of Gooding County EMS. Gill then met with Defendant Jeff Perry ("Perry"), the Gooding Chief of Police. A month later, on March 27, 2008, Perry requested that the Jerome City Police Department conduct an investigation of the incident. Lovell was later suspended, pending completion of the Jerome City Police Department's investigation. Ultimately, on July 16, 2008, Lovell resigned from the City of Gooding Police Department.
On August 6, 2008, the Jerome City Police Department issued a written report of its investigation of the February 27, 2008 episode. The Jerome City Police Department concluded that both Curtis and Lovell acted inappropriately; however, without additional witnesses or evidence, a formal finding of misconduct by either individual (beyond the admissions of both Curtis and Lovell) could not be sustained.
Lovell died on September 13, 2009 for reasons unrelated to the claims raised by Curtis about the February 27, 2008 incident.
On February 19, 2010, Curtis brought the instant lawsuit against the City of Gooding, Lovell, and Perry, asserting the following claims: (1) assault against Lovell (individually and in his capacity as an employee of the City of Gooding*fn2 ) and the City of Gooding; (2) battery against Lovell (individually and in his capacity as an employee of the City of Gooding) and the City of Gooding; (3) extortion against Perry (individually and in his capacity as an employee of the City of Gooding) and the City of Gooding; and (4) violation of 42 U.S.C. § 1983 against Lovell (individually and in his capacity as an employee of the City of Gooding), Perry (individually and in his capacity as an employee of the City of Gooding), and the City of Gooding.
On or around August 24, 2010, U.S. District Judge David O. Carter dismissed Curtis's extortion claim. See Order (Docket No. 21).
The Defendants City of Gooding, Perry, and Lovell (in his capacity as an employee of the City of Gooding only) (collectively "Defendants") now move for summary judgment, arguing that (1) Curtis's state tort claims (assault and battery) are not available pursuant to the Idaho Tort Claims Act; (2) the City of Gooding was not the moving force behind any alleged constitutional violations under § 1983; (3) Curtis has not established Perry's individual liability; (4) Perry is entitled to qualified immunity; and (5) Lovell, in his official capacity, is not liable under § 1983 because the City of Gooding was not the moving force behind any claimed constitutional violation.*fn3 See Defs.' Mem. in Supp. of Mot. for Summ. J., pp. 6-19 (Docket No. 32, Att. 2).
One of the principal purposes of the 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).
The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. See Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001). To carry this burden, the moving party need not introduce affirmative evidence (such as affidavits or deposition excerpts) but may simply point out the absence of evidence to support the nonmoving party's case. See 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 her favor. Id. at 256-57. The non-moving party must go beyond the pleadings and show "by her affidavits, or by the depositions, answers to interrogatories, or admissions on file" that a genuine issue of material fact exists. Celotex, 477 U.S. at 324. Only admissible evidence may be considered in ruling on a motion for summary judgment. Orr v. Bank of America, 285 F.3d 764, 773 (9th Cir. 2002); see also Fed. R. Civ. P. 56(e).
A. Curtis's State Tort Claims (Assault and Battery) Against Lovell (In His Capacity as an Employee of the City of Gooding) and the City of Gooding
The Idaho Tort Claims Act (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. See Hoffer v. City of Boise, 257 P.3d 1226, 1228 (Idaho 2011) (citing Grant v. City of Twin Falls, 813 P.2d 880, 887 (Idaho 1991)). The ITCA states:
Except as otherwise provided in this act, every governmental entity is subject to liability for money damages arising out of its negligent or otherwise wrongful acts or omissions and those of its employees acting within the course and scope of their employment or duties . . . where the governmental entity if a private person or entity, would be liable for money damages under the laws of the state of Idaho . . ..
I.C. § 6-903(1).*fn4 However, the ITCA also expressly exempts certain causes of action from the general rule that the governmental entity is subject to liability. See Hoffer, 257 P.3d at 1228 (citing Grant, 813 P.2d at 887-88). In this respect, the ITCA reads:
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, ...