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Swenson v. County of Kootenai

United States District Court, D. Idaho

February 14, 2014


MEMORANDUM DECISION AND ORDER RE: Docket No. 52, 53, 59, 74, 90, 98 and 104 REPORT AND RECOMMENDATION RE: Docket No. 49, 62, and 70

RONALD E. BUSH, Magistrate Judge.


Currently pending before the Court are the following motions:

Docket 49 - Defendants Magistrate Scott Wayman and Magistrate Bruce E. Watson's

Motion to Dismiss and Stay Discovery;

Docket 52 - Defendants' Motion to Compel Plaintiff to Comply with Federal and Local Rules of Civil Procedure;

Docket 53 - Plaintiff Suzanne A. Swenson's Motion to Strike Impertinent, Immaterial, Scandalous Remarks, and Insufficient Defenses from Defendants Motion to Dismiss;

Docket 59 - Defendants' Motion to Compel Discovery;

Docket 62 - Plaintiff's Motion for Leave to Amend Complaint;

Docket 70 - Defendants' Kootenai County, Kootenai County Sheriff's Office, Watson, Lindblom, McHugh, Reierson, Studor, Brooks, Austin and Brandel Motion for Summary Judgment;

Docket 74 - Plaintiff's Motion for Entry of Default;

Docket 90 - Plaintiff's Motion to Strike;

Docket 98 - Plaintiff's Motion to Compel; and

Docket 104 - Plaintiff's Motion for Sanctions.

Having fully reviewed the record as to each such motion, the Court finds 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, these motions shall be decided without oral argument.


Plaintiff challenges the legal sufficiency of the Supplemental Affidavit of Shawn Lindblom in her Motion to Strike (Dkt. 90), arguing that the affidavit (Dkt. 88-1) is not in proper form. The Court has examined the Supplemental Affidavit of Shawn Lindblom and other of the affidavits relied upon by Defendants, and has concluded that several of the affidavits filed by the Defendants are not in proper form.[1] Specifically, these affidavits do not contain the essential "jurat" language required by Idaho law which confirms that the testimony in the affidavit has been sworn or affirmed under oath. See I.C. § 51-109. Instead, the affidavits carry an "acknowledgment" form, which simply is a statement made by the notary public that the person signing the affidavit is, in fact, who he or she says they are.

There is an alternative method of presenting sworn testimony for Rule 56 purposes in federal court, in the form of a "declaration, provided that the declaration meets the requirements of 28 U.S.C. § 1746. If the flawed affidavits had carried the language prescribed by 28 U.S.C. § 1746, the Court might be able to consider them sufficient under the statute dealing with declarations, but they do not have the required language.

This error is likely a scrivener's error, rather than any effort to present testimony in an unsworn form as if it were sworn. However, the Court will not presume the fact of such a scrivener's error, especially when it comes to the critical role of sworn testimony in support of a motion for summary judgment. However, in the interest of considering the motion and the related issues on their merits, the Court will allow Defendants seven (7) days from the date of this Order in which to file substituted affidavits in the proper form, if Defendants choose to do so. The Court would take the same action if the shoe were on the other foot - in other words, if Plaintiff had submitted an affidavit with the same infirmity, the Court would allow for the same opportunity to correct the infirmity. Accordingly, the Court's ruling on the motion for summary judgment is conditional and not effective until the affidavits are filed in proper form.

The substituted affidavits are not to differ in any way from the content of the original affidavits, other than to correct the format so that they are executed in proper form. If any of these affidavits are not corrected and resubmitted to the Court, Defendants shall make this aware to the Court. As a result, for these purposes, the Court will deny Swenson's motion to strike, without prejudice to her raising the motion again if the substituted affidavits carry some continuing or additional structural infirmity that Swenson would contend should preclude the Court's consideration of the same.



Plaintiff Suzanne A. Swenson ("Swenson") filed a Complaint (Dkt. 1) on January 16, 2013 and an Amendment to Complaint (Dkt. 9) on January 29, 2013 against Kootenai County, Kootenai County Sheriff's Office, Kootenai County Sheriff Rocky Watson, Deputy Shawn Lindblom, Kootenai County Prosecutor Barry McHugh, Deputy Prosecutor Jim Reierson, Deputy Prosecutor Joshua Studor, Deputy Prosecutor Ken Brooks, Deputy John Doe, Judge Barry E. Watson, Magistrate Scott Wayman, Detective Jason Austin and Deputy Jonathan Brandel.

Swenson alleges that she was wrongfully arrested in Kootenai County, Idaho for felony possession of controlled substances and misdemeanor battery, that she was mistreated by the Kootenai County Sheriff's Department in violation of her civil rights under the Fourth and Eighth Amendments, and that she was maliciously prosecuted.


I. Motion to Dismiss of Defendant Judges Wayman and Watson (Dkt. 49)

Swenson alleges that state Magistrate Judge Wayman "signed a criminal complaint that was deficient on its face, lacking an injured party or damages, " violating her Fourth and Fifth Amendment rights. Amend. Comp. ¶¶ 127, 162. She alleges that state Magistrate Judge Watson "refused to look at exculpatory evidence... [thereby] prolonging [her] detainment" and in doing so violated her Fourth and Fifth Amendment rights. Id. at ¶¶ 129, 145.[2] Swenson also alleges that when a judge acts "in any case in which he does not have subject matter jurisdiction, he is acting unlawfully" and that Judge Watson "lost any subject matter jurisdiction" when he failed to look at the exculpatory evidence. Id. at ¶¶ 143, 146. She seeks damages in the amount of $500, 000 against both Judge Wayman and Judge Watson. Id., p. 19.

Judge Wayman and Judge Watson move to dismiss the claims on the grounds of absolute immunity, statutory immunity, and failure to comply with the Idaho Tort Claims Act.

1. Standard

When reviewing a motion to dismiss, the court must accept as true all non-conclusory, factual (not legal) allegations made in the complaint, Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009); Erickson v. Pardus, 551 U.S. 89 (2007), and draw all reasonable inferences in favor of the plaintiff, Mohamed v. Jeppesen Dataplan, Inc., 579 F.3d 943, 949 (9th Cir.2009). "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atlantic Co. v. Twombly, 550 U.S. 544, 555 (2007). In addition, "[f]actual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Id. In sum, dismissal may be based on the lack of a cognizable legal theory or on the absence of sufficient facts alleged under a cognizable legal theory. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001); Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988).

2. Absolute Immunity

A judge has absolute judicial immunity for acts performed in the exercise of his judicial functions. Stump v. Sparkman, 435 U.S. 349 (1978). Judicial officers are also entitled to absolute immunity from claims for injunctive relief "unless a declaratory decree was violated or declaratory relief was unavailable." 42 U.S.C. § 1983. In other words, if declaratory relief in an action is available, absolute judicial immunity bars any claims for injunctive relief in that action. Kampfer v. Scullin, 989 F.Supp. 194, 201 (D.N.Y. 1997).[3]

To determine whether an act is judicial in nature so that immunity would apply, a court looks to "the nature of the act itself, i.e., whether it is a function normally performed by a judge, and to the expectations of the parties, i.e., whether they dealt with the judge in his judicial capacity." Sparkman, 435 U.S. at 362. If it is determined that a judge was acting in his judicial capacity, absolute immunity applies, even if "erroneous the act may have been, and however injurious... its consequences... may have proved to the plaintiff." Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir. 1986) (internal citations omitted). For example, judicial immunity is not lost by allegations that a judge conspired with one party to rule against another party. "[A] conspiracy between judge and prosecutor to predetermine the outcome of a judicial proceeding, while clearly improper, nevertheless does not pierce the immunity extended to judges and prosecutors." Id. at 1078. Absolute immunity for judicial officers "is justified and defined by the functions it protects and serves, not by the person to whom it attaches." Forrester v. White, 484 U.S. 219, 227 (1988). (Emphasis added.)

There are two circumstances in which absolute judicial immunity does not apply. First, a judge may not rely on immunity when he or she performs an act that is not "judicial" in nature. Sparkman, 435 U.S. at 360. For example, a judge's use of physical force to evict a person from the courtroom is a nonjudicial act not covered by absolute immunity. See Gregory v. Thompson, 500 F.2d 59, 63 (9th Cir. 1974).

Second, absolute immunity does not apply when a judge acts "in the clear absence of all jurisdiction." Sparkman, 435 U.S. at 356 (internal citations omitted). When immunity is at issue, the scope of a judge's jurisdiction "must be construed broadly.... A judge will not be deprived of immunity because the action he took was in error, was done maliciously, or was in excess of his authority." Id.

Swenson contends that Judge Wayman signed a criminal complaint or warrant that was "deficient on its face, " that Judge Watson "refused to look at exculpatory evidence, " and that doing so violated her Fourth and Fifth Amendment rights. Judges Watson and Wayman are entitled to judicial immunity against her complaints, for the reason that they were each performing acts that were "judicial" in nature. Sparkman, 435 U.S. at 360. Judge Wayman is alleged to have signed a criminal complaint. Swenson appeared in front of Judge Watson in court on an initial appearance. As Idaho state court magistrate judges, the following criminal and quasi-criminal proceedings are assigned to them under Idaho Code § 1-2208(3):

(a) Misdemeanor and quasi-criminal actions;
(b) Proceedings to prevent the commission of crimes;
(c) Proceedings pertaining to warrants for arrest or for searches and seizures; and
(d) Proceedings for preliminary examination to determine probable cause, commitment prior to trial or the release on bail of persons charged with criminal offenses.

Swenson argues in her response (Dkt. 54-1) that Judge Wayman and Judge Watson are not entitled to absolute immunity because by "enforcing statutes and codes" they were not functioning in a judicial capacity. She is mistaken. To determine whether an act is judicial in nature so that immunity would apply, a court looks to "the nature of the act itself, i.e., whether it is a function normally performed by a judge, and to the expectations of the parties, i.e., whether they dealt with the judge in his judicial capacity." Sparkman, 435 U.S. at 362. Both Judge Wayman and Judge Watson's acts were judicial in nature. Judge Wayman signed the criminal complaint and Judge Watson presided over Swenson's first appearance in court. Both of these fall within the realm of judicial duties specifically delineated in I.C. § 1-2208(3).

Second, Judge Wayman had jurisdiction to sign the criminal complaint pursuant to I.C. §§ 1-705, 1-2208. Under Section 1-2208(3)(c), magistrate judges preside over proceedings pertaining to warrants for arrest or for searches and seizures. In her complaint, it appears that Swenson attempts to argue that Judge Wayman did not have jurisdiction because the criminal complaint was deficient on its face. There is no legal authority for this proposition. See Sparkman, 435 U.S. at 359 ("A judge is absolutely immune from liability for his judicial acts even if his exercise of authority is flawed by the commission of grave procedural errors.") Judge Wayman clearly had jurisdiction to sign the criminal complaint.

The same analysis applies to the allegations against Judge Watson. Section 1-2208(3)(d) empowers magistrate judges to preside over proceedings for preliminary examination and to determine release on bail prior to trial, which is exactly what Judge Watson did. The difference between acting in the absence of jurisdiction and acting in excess of authority is made clear in the following example: "if a probate judge with jurisdiction over only wills and estates should try a criminal case, he would be acting in the clear absence of jurisdiction and would not be immune from liability for his action; on the other hand, if a judge of a criminal court should convict a defendant of a nonexistent crime, he would merely be acting in excess of his jurisdiction and would be immune." Sparkman, 435 U.S. at 357 (internal citation omitted). Swenson essentially alleges the latter scenario, and by the nature of such allegations there can be no doubt but that Judge Watson is entitled to absolute immunity.

Based upon the law and the facts presented in Swenson's Complaint and Amendment to the Complaint, Judges Wayman and Watson are entitled to absolute judicial immunity and the claims against them should be dismissed. Because the Court has found that Judges Wayman and Watson are entitled to absolute immunity, the Court will not address their alternative arguments seeking dismissal of such claims for failure to comply with requirements of the Idaho Tort Claims Act.

II. Swenson's Motion to Strike Impertinent, Immaterial, Scandalous Remarks and Insufficient Defenses from Defendant's Motion to Dismiss (Dkt. 53)

Swenson moves, pursuant to Fed.R.Civ.P. 12(f), to strike Defendants' motion to dismiss "in whole as an insufficient defense because it only makes vague claims and conclusions without bringing any kind of proof on the record where they were doing anything other than enforcing statutes as administrators where there is no immunity." Memorandum in Support of Motion to Strike (Dkt. 53-1), p. 1. Swenson then repeats the same arguments made in opposition to the Motion to Dismiss filed by Judges Wayman and Watson. (Dkt. 54-1) The Court has addressed the merits of these arguments, to the extent necessary, in the section above.

Rule 12(f) permits the Court to "strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Judges Wayman and Watson argue that Swenson's motion fails at its threshold, because she directs her motion at a motion, not a pleading. Rule 12(f), they contend, only applies to striking defenses from a pleading and would not be applicable to their motion to dismiss.

Because Swenson is proceeding pro se, her pleadings and motions will be construed liberally. See Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 623 (9th Cir. 1988). The leeway allowed her thereby does not go so far, however, as to remodel the particular parameters of Rule 12(f) and the Court concludes that her Rule 12(f) motion is not properly made in this context. However, even if Rule 12(f) could properly be used to challenge an opposing party's dispositive motion papers, the result is no different. Swenson repeats the arguments made in her opposition to the motion to dismiss and her arguments in that regard are not persuasive. A review of those arguments in a Rule 12(f) context does not change the Court's view of their inadequacy, and does ...

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