United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
Lynn Winmill, United States District Court Chief Judge.
before the Court is Defendants City of Pocatello, Scott
Marchand, Brian Blad and Roger Schei’s Motion to
Dismiss (Dkt. 11). Defendants seek to dismiss plaintiff John
Walker’s state law claims (Counts III-VI) against
Defendants Scott Marchand and Roger Shei for failure to post
bond under I.C. § 6-610, and seeks to dismiss the
Negligent Infliction of Emotional Distress (NIED) claims set
forth in Count VI for failure to state a claim for relief.
For the following reasons, the Court will grant the motion in
part and deny the motion in part.
John Walker brings federal and state claims against the
defendants regarding their treatment of him in their capacity
as supervisors within the Pocatello Police Department
(“PPD”), as well as the defendants’ alleged
interference with Walker’s efforts to procure
employment outside of the PPD. See generally, Am.
Compl. (Dkt. 3).
has worked as a police officer with PPD since September 1996.
Id. at ¶ 11, Dkt. 3. Defendant Marchand is the
Pocatello Chief of Police, and Defendant Schei is a PPD
Captain who supervised Walker. Although Walker suggests that
a number of adverse employment actions were unfairly taken
against him since June 2012, Walker’s claims primarily
stem from the individual defendants’ alleged
interference with Walker’s efforts to be hired as the
Director of Public Safety at Idaho State University.
Id. at ¶ 51- 58, Dkt. 3.
alleges that the defendants’ actions violated his First
Amendment rights to Freedom of Speech and Fourteenth
Amendment rights to Due Process. See Id. at ¶
61-74, Dkt. 3. Additionally Walker asserts that the
defendant’s conduct was tortious under Idaho law.
Id. at ¶ 75-89, Dkt. 3.
Defendants’ Motion to Dismiss under I.C. §
seek to dismiss Walker’s state law claims against
defendants Marchand and Schei for a failure to post bond
under Idaho Code § 6-610. Under Idaho law, “[b]efore
any civil action may be filed against any
law enforcement officer or service of civil process on
any law enforcement officer, ”
plaintiffs are required to post bond prior to or
simultaneously with the filing of the Complaint. See
I.C. § 6-610(2) (emphasis added). Although not a
jurisdictional requirement, posting bond is
“mandatory” and a failure to post bond requires
the trial court judge to dismiss the claims immediately
without prejudice. I.C. § 6-610(5); see also Monson
v. Boyd, 348 P.2d 93, 97 (Idaho 1959). It is undisputed
that plaintiff failed to post bond in this case.
response, Walker argues that I.C. § 6-610 does not apply
because the alleged claims do not arise from Marchand and
Schei’s “duty” as law enforcement officers.
Under the statutory language relevant here, the bond
requirement only applies when the action “arises
out of, or in the course of the performance of his
duty. . . .” I.C. § 6-610(2) (emphasis
added). Walker contends that a law enforcement officer is
only acting within “the course of the performance of
his duty, ” when he or she is involved in the
enforcement of Idaho’s criminal laws. Under this view,
the bond requirement imposed by the statute would not apply
here, where Walker’s claims are unrelated to Marchand
and Schei’s law enforcement activities, and focus
solely on their actions in supervising him and interfering
with his efforts to obtain other employment.
making this argument, Walker relies upon the language of I.C.
§6-610(1) which defines “law enforcement
officer” for purposes of the statute as follows:
. . . a “law enforcement officer” shall be
defined as any court personnel, sheriff, constable, peace
officer, state police officer, correctional, probation or
parole official, prosecuting attorney, city attorney,
attorney general, or their employees or agents, or any other
person charged with the duty of enforcement of the criminal,
traffic or penal laws of this state or any other law
enforcement personnel or peace officer as defined in chapter
51, title 19, Idaho Code.
Id. (emphasis added). Plaintiff’s reliance on
Idaho Code § 6-610(1) is misplaced. While the statute
does define the term “law enforcement officer, ”
with reference to an officer’s duty to enforce the
state’s criminal laws, it does not use that language in
defining or explaining the phrase, ...