United States District Court, D. Idaho
DENNIS H. HUNZEKER, Plaintiff,
GREG BUTLER, in his official and individual capacities; ANITA PANKO, in her official and individual capacities; and the CITY OF MONTPELIER, an Idaho political subdivision, Defendants.
MEMORANDUM DECISION AND ORDER
B. LYNN WINMILL, Chief District Judge.
Before the Court is a motion for summary judgment filed by Defendants Greg Butler, Anita Panko, and the City of Montpelier, an Idaho political subdivision. See Dkt. 25. Defendants have also moved to strike the affidavits of Rosa Susana Hunzeker and Adam Whitmore. See Dkt. 34. For the reasons explained below, the Court will: (1) grant in part and deny in part the Defendants' motion for summary judgment; (2) grant in part and deny in part Defendants' motion to strike the affidavit of Adam Whitmore; and (3) deny Defendants' motion to strike the affidavit of Rosa Susana Hunzeker.
The following facts are undisputed or, when disputed, taken in the light most favorable to Dennis Hunzeker, the plaintiff and non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (stating the district court's obligation to construe the record in the light most favorable to the non-moving party).
In June 2010, Rosa Hunzeker called the Montpelier Police Department after she and her husband, Dennis Hunzeker, got into an argument. Rosa Hunzeker Aff., ¶ 8 (Dkt. 31). During the argument, Mrs. Hunzeker kicked Mr. Hunzeker in the testicles and tried to hit him. Mr. Hunzeker then restrained Mrs. Hunzeker. Id. When the 911 operator answered, Mrs. Hunzeker hung up because she only speaks Spanish, and does not speak English. Rosa Hunzeker Aff., ¶ 8 (Dkt. 31). A Spanish-speaking operator called back; however, Mrs. Hunzeker declined to speak with him. Id. This particular incident occurred in the presence of Mrs. Hunzeker's son, Aaron Rivera. Panko Aff., ¶ 7 (Dkt. 19-2).
In August 2010, Greg Butler, Chief of Police for the Montpelier Police Department, asked Anita Panko, the Victims Assistant Unit Coordinator for the Montpelier Police Department, to contact Mrs. Hunzeker to inquire about the circumstances surrounding her June 2010 altercation with her husband. Panko Aff., ¶ 7 (Dkt. 19-2).
Ms. Panko, along with an interpreter, met with Mrs. Hunzeker on August 13, 2010. Id .; Hall Aff., Ex. B, p. 4 (Dkt. 19-3). At this meeting, Mrs. Hunzeker stated that she was never afraid that Mr. Hunzeker would hurt her physically; rather she was afraid he would divorce her and take custody of their daughter. Rosa Hunzeker Aff., ¶¶ 12-15 (Dkt. 31). Mrs. Hunzeker further stated the only reason she met with Ms. Panko was so she could contact a divorce attorney. Id. at ¶ 21.
On August 20, 2010, Mrs. Hunzeker contacted Cynthia Johnson, the interpreter, to get in touch with Ms. Panko to obtain information on a divorce attorney. Rosa Hunzeker Aff., ¶¶ 22-23 (Dkt. 31). Ms. Johnson told Mrs. Hunzeker to go to the hospital where Chief Butler would escort her to the police station. Id. at ¶ 24. While at the police station, Ms. Panko stated that a protection order was necessary to protect Mrs. Hunzeker from her husband. Rosa Hunzeker Aff., ¶¶ 26 (Dkt. 31). However, the protection order was not granted. The Judge determined that because the argument took place in June and Mrs. Hunzeker continued to live in the home, she was not in any immediate danger. Hall Aff., Ex. C, p. 7 (Dkt. 19-3).
While Mrs. Hunzeker and Ms. Panko were at the courthouse, Chief Butler and Officer Adam Whitmore served Mr. Hunzeker with a citation for domestic violence in the presence of a child. Hall Aff., Ex. C, p. 7 (Dkt. 19-3); Whitmore Aff., ¶ 7 (Dkt. 29). Mr. Hunzeker was arrested, and was not released from jail until August 23, 2010. Dennis Hunzeker Aff., ¶ 12 (Dkt. 30).
Shortly after Mr. Hunzeker's release from jail, Ms. Panko informed Mrs. Hunzeker that she needed to distance herself from her husband. Rosa Hunzeker Aff., ¶ 32 (Dkt. 31). Further, Ms. Panko warned Mrs. Hunzeker that if she and Mr. Hunzeker were in a certain distance of one another, the police would arrest Mr. Hunzeker. Id. On the night of Mr. Hunzeker's release, Ms. Panko, along with three police officers, took Mrs. Hunzeker and her belongs and moved her into an apartment in Montpelier. Id. at ¶ 33; Dennis Hunzeker Aff., ¶ 15 (Dkt. 30).
Mrs. Hunzeker continued to live apart from her husband for approximately six months, until March 2011. Rosa Hunzeker Aff., ¶ 35 (Dkt. 31). During this time, Mr. and Mrs. Hunzeker spoke in private, and visited each other at night to avoid the consequences Ms. Panko threatened. Id .; Dennis Hunzeker Aff., ¶ 17 (Dkt. 30). During her separation from her husband, Mrs. Hunzeker said she felt suffocated by Ms. Panko and Ms. Johnson. Id. at ¶ 36. Mrs. Hunzeker moved back into her home on or about March 25, 2011. Dennis Hunzeker Aff., ¶ 18 (Dkt. 30).
MOTION FOR SUMMARY JUDGMENT
I. STANDARD OF REVIEW
Summary judgment is appropriate where a party can show that, as to any claim or defense, "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). 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." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). There must be a genuine dispute as to any material fact - a fact "that may affect the outcome of the case." Id. at 248.
The evidence must be viewed in the light most favorable to the non-moving party, and the Court must not make credibility findings. Id. at 255. Direct testimony of the non-movant must be believed, however implausible. Leslie v. Grupo ICA, 198 F.3d 1152, 1159 (9th Cir. 1999). On the other hand, the Court is not required to adopt unreasonable ...