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Mark Stephen Wicklund v. Idaho Department of Corrections

March 16, 2012


The opinion of the court was delivered by: Honorable Edward J. Lodge U. S. District Judge


On November 22, 2011, Chief United States Magistrate Candy W. Dale issued a Report and Recommendation (Dkt. 40) in this matter. Pursuant to 28 U.S.C. § 636(b)(1), the parties had fourteen days in which to file written objections to the Report and Recommendation. Objections were filed by Defendants. No objection nor a response to Defendants' objections were filed by Plaintiff. The matter is now ripe for the Court's review of the objections.

Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court "may accept, reject, or modify, in whole or in part, the findings and recommendations made by the magistrate judge." Moreover, this Court "shall make a de novo determination of those portions of the report which objection is made." Id. In United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003), the court interpreted the requirements of 28 U.S.C. 636(b)(1)(C):

The statute [28 U.S.C. § 636(b)(1)(C)] makes it clear that the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise. As the Peretz Court instructed, "to the extent de novo review is required to satisfy Article III concerns, it need not be exercised unless requested by the parties." Peretz, 501 U.S. at 939 (internal citation omitted). Neither the Constitution nor the statute requires a district judge to review, de novo, findings and recommendations that the parties themselves accept as correct. See Ciapponi, 77 F.3d at 1251 ("Absent an objection or request for review by the defendant, the district court was not required to engage in any more formal review of the plea proceeding."); see also Peretz, 501 U.S. at 937-39 (clarifying that de novo review not required for Article III purposes unless requested by the parties) . . . .

See also Wang v. Masaitis, 416 F.3d 993, 1000 & n.13 (9th Cir. 2005).

Before the Court is the Motion for Summary Judgment (Dkt. 34) filed by Defendants Idaho Department of Correction ("IDOC"); the Idaho Commission of Pardon and Parole ("ICPP"); the State of Idaho; and state employees Ken Bennett, Director of Probation and Parole; Moira Lynch, supervisor of Probation and Parole; William C. Young, Commissioner for Idaho Commission for Pardon and Parole; and Brandon Sutherland, a probation officer (collectively, the "State Defendants"). The State Defendants seek judgment as a matter of law on all of the claims presented by Plaintiff in his Complaint.

In the Report and Recommendation, Judge Dale recommends that summary judgment be granted in favor of State Defendants on all claims except for the First Amendment claim under § 1983, brought against the individually named State Defendants, with the exception of Defendant William C. Young (who should be dismissed from the lawsuit). Stated another way, Judge Dale recommends Plaintiff may proceed with his damage claims asserted under the First Amendment against State Defendants Ken Bennett ("Bennett"), Moria Lynch ("Lynch") and Brandon Sutherland ("Sutherland") in their individual capacities.

State Defendants object to the failure of Judge Dale to recommend Wicklund's § 1983 First Amendment claims also be dismissed against the State Defendants Bennett, Lynch and Sutherland. The State Defendants base this objection on several different arguments. Each of which will be addressed by this Court.


While acknowledging that State Defendants' objections include some objections to Judge Dale's inclusion of certain facts, the Court incorporates Judge Dale's factual background from pages 2-5 of the Report and Recommendation, Dkt. 40, as a basis for evaluating the objections:

On May 8, 2001, Plaintiff Wicklund was charged by information with a felony and he later entered a plea of guilty on August 27, 2001, to the charge of sexual battery of a minor child age 16/17 years of age. (Aff. of Bennett Ex. 1, Dkt. 34-6.) Idaho State District Judge Thomas Neville entered a judgment of conviction, an order suspending execution of the judgment, and an order of probation on November 15, 2001. (Id.) The state court sentenced Wicklund to incarceration for a term of seven years, with two years fixed and five years indeterminate, which sentence was suspended and a seven year probationary period imposed instead. (Id.) As a condition of probation, Wicklund was required to successfully complete a SANE Solutions structured sex offender treatment program. (Id.) In January of 2008, Wicklund was charged with a probation violation, and found to have violated the terms of his probation. (Aff. of Bennett Ex. 3,4 Dkt. 34-8, 34-9.) As a result, Wicklund's term of probation was extended through November 13, 2011, and he was required to continue with his treatment at SANE Solutions as a continued condition of his probation. (Id. Ex. 5, Dkt. 34-10.) Wicklund has lodged several claims against the Ada County Prosecuting Attorney's office and polygrapher James Page surrounding the litigation of his probation violation, and voiced his concerns about his allegations of misconduct during his SANE Solutions therapy sessions. (Aff. of Artiach Ex. 1, Dkt. 34-4); see also Wicklund v. Page, Case No. 1:09-cv-00671-EJL-CWD; Wicklund v. Ada County, 1:09-cv-00673-CWD; Wicklund v. State of Idaho, 1:10-cv-00057-EJL-CWD; and Wicklund v. Hunstman, 1:10-cv-00341-WBS, all of which were filed in this Court.

Wicklund's complaint in this case relates to a meeting that occurred among him and the individually named State Defendants which, according to the Complaint, occurred on or about February of 2009. Defendant Melissa Mezo, an employee of Terry Reilly Heath Services and a participant of the SANE Solutions program, produced business records indicating the meeting occurred on January 26, 2009, which fact was not disputed by Wicklund. (Aff. of Mezo ¶ 9, Dkt. 34-3.) Wicklund has affirmed the meeting occurred in January of 2009. (Aff. of Wicklund ¶ 1, Dkt. 35-1.) According to the State Defendants, SANE Solutions notified the Probation and Parole Department that Wicklund was disrupting therapy sessions with his criticisms of the prosecutor's office, polygrapher James Page, and the judicial system. (Id. ¶¶ 7-8.) A meeting was scheduled, which took place at the Fourth District probation office. (Compl. ¶18 Dtk. 1; Aff. of Bennett ¶5, Dkt. 34-5.) During the meeting, the individuals present allegedly addressed Wicklund's disruptive behavior, and thereafter he did not repeat the disruptive behavior during SANE Solutions therapy sessions. (Aff. of Mezo ¶¶ 9-10.) Wicklund was told to refrain from commenting about his grievances and to participate in group therapy, and informed that failure to satisfactorily complete the program would constitute a probation violation. (Aff. of Bennett ¶ 7, Ex. 6, Dkt. 34-5.) As of May 11, 2011, Wicklund was continuing with his probation and had not been cited for any probation violations after the January 25, 2009 meeting. (Id. ¶ 8.)

Wicklund, however, paints a different picture of the meeting, which he claims was "secretive, coercive and threatening." (Compl. ¶17, Dkt. 1.) Wicklund contends that the State Defendants "demanded" he stop his investigation regarding Page, and he was "ordered" not to take legal action against the Ada County Prosecutor's Office or the polygrapher, James Page, otherwise he "would go to jail that day." (Compl.

¶¶ 19-20.) Wicklund also avers he was informed that, if a lawsuit was filed in the future, he "would be jailed pursuant to discretionary time," and was told to "stand down." (Compl. ¶¶ 21-23.)

Wicklund filed a Notice of Tort Claim with the Idaho Secretary of State on August 19, 2009, containing details about the meeting described in his Complaint, although the Notice alleged that the meeting occurred in 2008. (Aff. of Artiach ¶1, Ex. 1, Dkt. 34-4.)

Wicklund filed a three count complaint with the Court on December 22, 2009, against the named Defendants for violation of his constitutional rights under the First, Fifth, and Fourteenth Amendment under 42 U.S.C. § 1983, as well as for negligence and intentional infliction of emotional distress. Wicklund contends that the State Defendants' threats violated his First Amendment right to free speech, because the State Defendants threatened to incarcerate him if he spoke of his investigations and the alleged improper conduct he was investigating. Wicklund seeks "nominal and actual damages" for the constitutional violation.

In addition, Wicklund alleges the State Defendants were negligent because they breached their duty of care by "calling the meeting, intimidating the Plaintiff, threatening to jail [Plaintiff], and depriving him of his liberty when they knew or should have known their conduct was unreasonable." The third count alleges intentional infliction of emotional distress, claiming that the State Defendants' threats and conduct were intentional and that Wicklund suffered "extreme emotional distress" as a result of the State Defendants' conduct. Wicklund seeks damages under the state law claims.


1. Standards for Motions for Summary Judgment

The Court agrees that the correct standard for summary judgment motions was applied by Judge Dale. Motions for summary judgment are governed by Rule 56 of the Federal Rules of Civil Procedure. Rule 56 provides, in pertinent part, that judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c).

Rule 56 makes it is clear that an issue, in order to preclude entry of summary judgment, must be both "material" and "genuine." An issue is "material" if it affects the outcome of the litigation. An issue, before it may be considered "genuine," must be established by "sufficient evidence supporting the claimed factual dispute . . . to require a jury or judge to resolve the parties' differing versions of the truth at trial." Hahn v. Sargent, 523 F.2d 461, 464 (1st Cir. 1975) (quoting First Nat'l Bank v. Cities Serv. Co. Inc., 391 U.S. 253, 289 (1968)). The Ninth ...

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