United States District Court, D. Idaho
RHONDA LEDFORD, an individual; RAYMON GREGSTON, an individual; JO MCKINNEY, an individual; SHANE PENROD, an individual; KIM MCCORMICK, an individual; BOB ROBINSON, an individual; and GRACIE REYNA, an individual; LISA LITTLEFIELD, an individual; ADDISON FORDHAM, an individual; TOM DE KNIF, an individual, FRANK FARNWORTH, an individual, Plaintiffs,
IDAHO DEPARTMENT OF JUVENILE CORRECTIONS, an executive department of the State of Idaho; IDJC DIRECTOR SHARON HARRIGFELD, in her individual and official capacities; IDJC JUVENILE CORRECTIONS CENTER-NAMPA SUPERINTENDENT BETTY GRIMM, in her individual and official capacities; and DOES 1-20, Defendants.
MEMORANDUM DECISION AND ORDER
B. LYNN WINMILL, Chief District Judge.
The Court has before it a motion for summary judgment filed by the defendants. The Court heard oral argument on the motion on March 5, 2014, and the motion is now at issue. For the reasons, described below, the Court will grant the motion in part, dismissing Counts Four, Five, Six, and Seven. In addition, pursuant to the Eleventh Amendment, the Court will dismiss all monetary damage claims against the state agency defendant and the individual defendants sued in their official capacity. The Court will also dismiss the claim for monetary damages against the agency defendant and individual defendants - whether sued in their official capacity or individual capacity - contained in Count Two for violation of the Idaho Constitution. The remaining claims are (1) monetary damage claims under Count One (First Amendment claim) and Count Three (Idaho Whistleblower Act) against the individual defendants in their individual capacity, and (2) claims for declaratory and prospective injunctive relief under Counts One through Three against all defendants.
This is a whistleblower case. The ten plaintiffs - employees at the Nampa facility operated by the Idaho Department of Juvenile Corrections - claim they suffered retaliation when they protested unsafe conditions at the facility. They claim that the retaliation was designed to suppress their protected speech and prevent the public from finding out about deplorable conditions at the facility that placed juvenile inmates in danger.
Plaintiffs have sued (1) the agency (the Idaho Department of Juvenile Corrections); (2) the agency Director (Sharon Harrigfeld); and (3) the Superintendent of the Nampa facility (Betty Grimm). Their complaint contains seven causes of action: (1) In Count One, all plaintiffs claim their First Amendment rights were violated; (2) In Count Two, all plaintiffs claim their rights under the Idaho Constitution were violated; (3) In Count Three, all plaintiffs claim their rights under the Idaho Whistleblower Act were violated; (4) In Count Four, all plaintiffs claim that the defendants intentionally inflicted upon them emotional distress; (5) In Count Five, plaintiff Ledford alleges violations of the Family Medical Leave Act and the Americans with Disabilities Act; (6) In Count Six, plaintiff McKinney alleges violations of the Age Discrimination in Employment Act; (7) In Count Seven, plaintiff Penrod alleges violations of the Uniformed Services Employment and Reemployment Rights Act.
Defendants have moved for summary judgment on all seven claims. The Court will address each below, after resolving defendants' general claims regarding the Idaho Tort Claims Act and the Eleventh Amendment.
Idaho Tort Claims Act
Defendants argue that plaintiffs' failure to comply with the Idaho Tort Claims Act (ITCA) warrants dismissal of their state tort law claim contained in Count Four for intentional infliction of emotional distress. The ITCA requires, as a condition precedent to filing suit against the State and its officials, that a notice of tort claim be filed complying with Idaho Code §§ 6-905, 6-906. Smith v. City of Preston, 586 P.2d 1062, 1065 (Id.Sup.Ct 1978). Plaintiffs did send letters on behalf of some of the plaintiffs describing their claims, and argue that this constitutes substantial compliance with the ITCA. It is undisputed, however, that the earliest of the several letters sent by plaintiffs was dated June 27, 2012, two days before this lawsuit was filed. See Exhibit KK (Dkt. No. 55-32). Even assuming, arguendo, that the contents of these letters complies with the content required by the ITCA, the plaintiffs filed suit before providing the defendants with the required notice. The Idaho Supreme Court has held that the ITCA notice is a required condition precedent to filing suit. Smith, 586 P.2d at 1065. Because the plaintiffs failed to satisfy that condition precedent, their state tort law claim in Count Four for intentional infliction of emotional distress must be dismissed.
This analysis does not affect Count Three, the claim under the Idaho Whistleblower Act. Notice under the ITCA is not required as a condition precedent to suit under the Idaho Whistleblower Act. See Van v. Portneuf Medical Center, 212 P.3d 982, 987 (Id.Sup.Ct. 2009). The dismissal here is limited to Count Four.
Defendants argue that all compensatory damage claims against the defendants, except those against the individuals in their individual capacity, are barred by the Eleventh Amendment. The plaintiffs respond that the defendants have waived this defense by waiting too long to raise it.
Under the Eleventh Amendment, "agencies of the state are immune from private damage actions or suits for injunctive relief brought in federal court." Dittman v. California, 191 F.3d 1020, 1025 (9th Cir.1999). An exception under Ex Parte Young, 209 U.S. 123 (1908), however, allows citizens to sue state officers in their official capacities "for prospective declaratory or injunctive relief... for their alleged violations of federal law." Coal. to Defend Affirmative Action v. Brown, 674 F.3d 1128, 1134 (9th Cir.2012).
The immunity under the Eleventh Amendment may be waived. Hill v. Blind Indus. and Servs., 179 F.3d 754, 756 (9th Cir.1999). A waiver occurs "when the state's conduct during the litigation clearly manifests acceptance of the federal court's jurisdiction or is otherwise incompatible with an assertion of Eleventh Amendment immunity." Id. at 759. For example, when a state chose to defend on the merits and did not invoke its Eleventh Amendment immunity until the opening day of trial, the Circuit held that the state had waived its immunity. Id. In finding waiver, the Circuit reasoned that the state "hedged its bet on the trial's outcome" and that "[s]uch conduct undermines the integrity of the judicial system... wastes judicial resources, burdens jurors and witnesses, and imposes substantial costs upon the litigants." Id. at 756.
In another case, the Circuit found waiver where the state did not invoke immunity in its summary judgment brief, but raised it later after "listening to [the] court's substantive comments on the merits of [the] case...." In re Bliemeister, 296 F.3d 858, 862 (9th Cir. 2002). The Circuit found waiver because the state's delay in asserting immunity "was clearly a tactical decision." Id.
In the present case, there is no evidence that defendants made a tactical decision to delay invoking immunity as the state did in Bliemeister, or hedged their bets in a manner that undermined the integrity of the proceedings as the state did in Hill. Plaintiffs cite no authority finding waiver where the defendants invoked immunity in their summary judgment motion, as they did here. For all these reasons, the Court rejects plaintiffs' argument that the Eleventh Amendment immunity has been waived.
Because the Eleventh Amendment applies, the Court will dismiss all monetary damages claims against the state agency defendant and the individual defendants sued in their official capacity. Claims against the individual defendants in their individual capacity are not affected. See Pena v. Gardner, 976 F.2d 469, 473 (9th Cir.1992). All that remains are (1) monetary damage claims against the individual defendants in their individual capacity, and (2) claims for declaratory and prospective injunctive relief against all defendants.
First Amendment Claim
In Count One of their Second Amended Complaint, plaintiffs allege a cause of action for violation of their First Amendment rights. This claim - brought against state actors - should have been brought under 42 U.S.C. § 1983 but plaintiffs fail to cite that statute in their Second Amended Complaint. Defendants ask the Court to dismiss the claim for that failure. Plaintiffs respond that they ...