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Michael E. Harke v. D. Hoffman; A. Bevier; and City of Boise

March 13, 2012


The opinion of the court was delivered by: Honorable B. Lynn Winmill Chief U. S. District Judge


Pending before the Court is Defendants' Motion for Summary Judgment. (Dkt. 36.) Plaintiff has filed his Response (Dkt. 39), and Defendants have filed a Reply. (Dkt. 41.) In addition, Plaintiff has filed a Motion to Compel (Dkt. 35), and Defendants have filed a Motion to Strike (Dkt. 42). All of the motions are ripe for adjudication.

Having fully reviewed the record, the Court finds that the parties have adequately presented the facts and legal arguments in the briefs and record and that the decisional process would not be significantly aided by oral argument. Therefore, in the interest of avoiding further delay, the Court shall decide this matter on the written motions, briefs and record without oral argument. D. Idaho L. Civ. R. 7.1(d). Accordingly, the Court enters the following Order.


1. Factual Background

Shortly before his arrest, Plaintiff joined Gold's Gym, giving the gym a series of post-dated checks for the membership fees. However, the gym deposited all of the checks at once, causing them to bounce, and causing Plaintiff to lose his checking account. Plaintiff also was unable to obtain a driver's license because his court file was lost for a time. (Plaintiff's Depo., Dkt. 36-5, p. 8.) For these two reasons, he was unable to obtain another checking account.

Plaintiff obtained a social security disability settlement check for approximately $20,000. Because he had no checking account, and the bank would not allow him to be added as a signatory to the checking account of his fiancee, Sandra Jeffers, Plaintiff deposited the check into Jeffers' sole checking account. (Id., p. 8.) Jeffers was the sole signatory to that account, but Plaintiff alleges that they had an agreement that the money belonged to Plaintiff. Jeffers' statements to police indicated that she believed the money belonged to Plaintiff.

However, prior to Plaintiff's arrest, both Plaintiff and Jeffers wrote and signed checks against the money in Jeffers' account. (Id., p. 7, 9.) There was no prohibition that Jeffers not use the money in the account, and Plaintiff knew that he was Jeffers' sole source of support. Plaintiff planned to use a portion of the money to buy a house with his mother, and Plaintiff and Jeffers also used the money to buy a gun, to retrieve Jeffers' items from a pawn shop, to go on a vacation to visit Jeffers' relatives, and to pay for household bills. (Id., pp. 16-17.)

On May 6, 2008, Plaintiff and his fiancee were having relationship difficulties that became public, when Boise City police officers dispatched to their residence for a "physical domestic" incident. (Officer Dave Hofmann Affidavit, Exhibit 1, Police Narrative Report Supplement, Dkt. 36-2, p. 6.) Jeffers had fled the residence for refuge at the neighbors' house. (Id.) Several days earlier, Plaintiff, a five-time-convicted felon, had given Jeffers money to buy a 12-gauge shotgun at a pawn shop. (Id.) Jeffers had hidden the gun in the garage, allegedly because of ongoing relationship problems. (Hofmann Aff., Dkt. 36-2, Exhibit 3, Sound Recording, Dkt. 37.)

The evening the police were called, Plaintiff had called Jeffers on her cell phone at the neighbors' and left a message, saying, "You have 30 seconds to tell me where the shotgun is or I'm calling the Mafia, and you're dead." (Id.) The neighbor, Cory Carrol, went outside and heard Plaintiff yelling, "Where's my shotgun?" (Hoffman Aff., ¶ 12.) Plaintiff also told Officer Dennis Tolan that the gun was his, and he was fearful Jeffers had stolen it. (Dennis Tolman Affidavit, Dkt. 36-3.)

Plaintiff was arrested, and then Defendant Officer Hoffman accompanied Jeffers back to the residence. Jeffers found a broken plate, which had damaged the floor, and a knife stab to the drywall. Her estimate of the damage was about $200 to $300. She also relayed to Officer Hoffman details of the incident leading to Plaintiff's arrest, as well as past incidents of domestic abuse and conveyed her fear that Plaintiff might kill her. (Hofmann Aff., Dkt. 36-2, Exhibit 3, Sound Recording, Dkt. 37.)

Jeffers spoke with Officer Hoffman about Plaintiff bonding out of jail, the parties' money situation, and paying for the damage Plaintiff had caused to the rental house, as captured on the sound recordings submitted as part of the record in this case:

Jeffers: It's his social security card. . . it's his social security, but I don't want him bailing himself out; it's all in my account. . . I'll give him his money back, he can have his money, but I don't want him to have access to his money to get out.

Officer: He won't be able to get out tonight.

Jeffers: Do I have the right to keep his money to pay for all the damage here? Officer: What's the money situation?

Jeffers: He got a disability of $20,000 and he put it in my account.

Officer: He put it in your account? - hey, if he put in your account, right? I would say. ... So, what was the point of him putting the money in your account? . . . to help pay bills? Was it to help pay bills? [speaking over Jeffers].

Jeffers: Yes.

Officer: K, well, I would say he can throw a fit all he wants and tell him to sue you, it's not theft. (Hofmann Aff., Dkt. 36-2, Exhibit 3, Sound Recording, Dkt. 37.)

Plaintiff alleged in his Complaint that Detective Angie Bevier similarly advised Jeffers. However, Plaintiff has since corrected his allegations and states that Bevier did not tell Jeffers that Plaintiff's money in Jeffers' account was "fair game," but that the audiorecording shows only that Jeffers related to Bevier that Officer Hoffman told Jeffers the money was fair game. (Dkt. 39, p. 3.)

As a result of the incidents on May 6, 2008, Plaintiff was charged with felon in possession of a firearm, misdemeanor domestic battery, misdemeanor malicious injury to property, and misdemeanor possession of drug paraphernalia. (Muir Aff., Dkt. 36-5, Exhibit 9, Sound Recording, Dkt. 37.) At the time of the arrest, Plaintiff and Jeffers lived in a leased house, and both of them had signed their names on the contract of the rental house. (Plaintiff's Depo., Dkt. 36-5, p. 8.) All of the utilities were in Plaintiff's name. Plaintiff's only source of income was college grants and social security disability income. (Id., p. 10.) Jeffers depended on Plaintiff for support, and Plaintiff provided her with support. (Id., p. 7, 10.)

Plaintiff's mother, Merrie Neely, said that, after Plaintiff's arrest, Jeffers paid Plaintiff's mother, $5,000, and Jeffers had $4,000 left of the social security disability funds in her checking account. (Plaintiff's Exhibits, Dkt. 39, Sound Recording, "HARKE - Int Merrie Neely 2.wav.") Neely met with Jeffers at the rental house. Neely stated that, in addition to minor knife gouges in the wall that needed to be repaired with spackle, a sliding glass door was broken, and so Neely authorized Jeffers to "take $1,000 of the money and fix the house up." (Id.) Later, Neely noted that the repairs had not been completed, and Jeffers told Neely that she had spent the remaining money, but intended to ...

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