United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
Honorable Candy W. Dale United States Magistrate Judge
to Fed.R.Civ.P. 12(b)(1), Defendant moves to dismiss
Plaintiff's state law claims asserted in the Amended
Complaint for failure to file a notice of tort claim with the
Idaho Secretary of State. (Dkt. 17.) The motion is now ripe.
Having fully reviewed the record, the Court finds that the
facts and legal arguments are adequately presented in the
briefs and record. Accordingly, in the interest of avoiding
delay, and because the Court conclusively finds that the
decisional process would not be significantly aided by oral
argument, this matter will be decided on the record before
this Court without a hearing. D. Idaho L. Rule
filed an Amended Complaint on July 26, 2018, which was
subject to review pursuant to 28 U.S.C. §§
1915(e)(2) and 1915A(b). (Dkt. 10.) Plaintiff alleges that,
while an inmate incarcerated at Idaho State Correctional
Center, he was hit in the groin by Correctional Officer
Thueson, an Idaho Department of Correction
(“IDOC”) employee, on June 13, 2017. In addition
to several constitutional claims, the Amended Complaint
alleges two state law claims of assault and battery. On
December 3, 2018, the Court issued a Successive Review Order,
allowing Plaintiff to proceed on an excessive force claim as
well as on the two state law claims. (Dkt. 11 at 8-9.)
Court noted that Plaintiff's state law tort claims of
assault and battery would be subject to dismissal unless
Plaintiff had complied with the Idaho Tort Claims Act
(“ITCA”), Idaho Code §§ 6-901 through
6-929, and allowed Defendant to file a motion to dismiss or a
motion for summary judgment that addressed preliminary
procedural issues rather than the merits. (Id. at
11.) Defendant now moves to dismiss the two state law claims
on the basis that Plaintiff failed to file a notice of tort
claim with the Idaho Secretary of State. (Dkt. 17.) Plaintiff
did not file a response to Defendant's motion to dismiss.
was notified by the Clerk of Court of his rights and
obligations regarding Defendant's motion to dismiss.
(Dkt. 21.) The notice informed him that a response to
Defendant's motion was required within 21 days. (Dkt.
21.) The notice also stated, in accordance with Local Civil
Rule 7.1(e)(1), that Plaintiff risked having his claims
dismissed if he failed to respond to Defendant's motion.
The Court gave Plaintiff ample opportunity to respond to the
motion, which was filed on February 1, 2019, given his
requests for appointment of counsel were denied. (Dkt. 22,
23, 25, and 28.) To date, Plaintiff has not responded to the
motion and the time for doing so is long past.
Court's Local Rule 7.1(c)(1) requires a response to a
motion within 21 days after service of the memorandum of
points and authorities supporting the motion. Further, a
party's failure to timely respond to a motion to dismiss
may be “deemed to constitute a consent to ... granting
of said motion.” Dist. Idaho Loc. Civ. R. 7.1(e)(1).
“Failure to follow a district court's local rules
is a proper ground for dismissal” if the following
factors weigh in favor of dismissal: “(1) the
public's interest in expeditious resolution of
litigation; (2) the court's need to manage its docket;
(3) the risk of prejudice to the defendants; (4) the public
policy favoring disposition of cases on their merits; and (5)
the availability of less drastic sanctions.”
Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir.1995)
(internal quotation marks omitted), cited in Cloyd v.
Brewer, No. 3:13-CV-00335-CWD, 2015 WL 3822293, at *1
(D. Idaho June 18, 2015). Having weighed these factors and
the merits of Defendant's motion to dismiss, the Court
finds it would be appropriate to dismiss Plaintiff's
state law assault and battery claims for failure to contest
Defendant's motion to dismiss.
Defendant's motion succeeds on the merits. The Court
should “grant the motion to dismiss for lack of
jurisdiction only if the material jurisdictional facts are
not in dispute and the moving party is entitled to prevail as
a matter of law.” Rosales v. United States,
824 F.2d 799, 803 (9th Cir.1987). When analyzing the
viability of the state law claims the Court is mindful that
it must apply the substantive law of Idaho, as interpreted by
the Idaho Supreme Court. See Northwest Acceptance Corp.
v. Lynnwood Equip., Inc., 841 F.2d 918, 920 (9th
Idaho Tort Claims Act establishes procedures for bringing
certain tort claims against governmental entities under Idaho
law. In particular, the Act requires, as a condition
precedent to filing suit against the State or its employees,
that the plaintiff file a notice of tort claim with the
Secretary of State. Idaho Code § 6-905; Smith v.
City of Preston, 586 P.2d 1062, 1065 (Idaho 1978). The
notice must be filed “within one hundred eighty (180)
days from the date the claim arose or reasonably should have
been discovered, whichever is later.” Id.
§ 6-905. The State then has ninety days to approve or
deny the claim, and the State's failure to act within
this 90-day period constitutes a denial of the claim.
Id. § 6-909. If the State denies the claim, the
plaintiff may file a lawsuit in district court. Id.
“[n]o claim or action shall be allowed against a
governmental entity or its employee unless the claim has been
presented and filed within the time limits prescribed
by” the Act. Id. § 6-908. The Idaho
Supreme Court “has consistently interpreted the
language of I[daho] C[ode] § 6-908-that no claim or
action shall be ‘allowed'-to mean that compliance
with the notice requirement of the Tort Claims Act is a
mandatory condition precedent to bringing an action under the
Act.” Madsen v. Idaho Dept. of Health &
Welfare, 779 P.2d 433, 436 (Idaho Ct. App.1989).
this mandatory condition precedent, the United States Court
of Appeals for the Ninth Circuit has affirmed this
Court's strict construction of the Act's notice
requirement. Butler v. Elle, 281 F.3d 1014, 1029
(9th Cir. 2002). And recent decisions by the Idaho Supreme
Court do not call this strict construction into question.
E.g., Turner v. City of Lapwai, 339 P.3d 544, 547-48
(Idaho 2014) (finding claim barred by failure to present
notice to city clerk despite city's actual notice of
claim and absence of prejudice); Alpine Village Co. v.
City of McCall, 303 P.3d 617, 622-23 (Idaho 2013)
(holding claim against city was procedurally barred by
failure to file timely notice).
case, Plaintiff filed his Prisoner Civil Rights Complaint on
July 26, 2018, alleging claims of assault and battery against
Defendant. The alleged incident occurred on June 13, 2017. A
notice of tort claim was not filed with the Idaho Secretary
of State within one hundred eighty days from the date the
claim arose. Decl. of Hall. (Dkt. 17-2.)Consequently,
Plaintiff's tort claims against Defendant are barred.
Udell v. Idaho State Bd. of Land Comm'rs By &
Through Idaho Atty. Gen., 812 P.2d 325, 327 (Idaho Ct.
App. 1991) (upholding dismissal of tort claims for failure to
file the required notice under the Act); Boren v. City of