MEMORANDUM DECISION AND ORDER
I.
Introduction
Plaintiff Michael Osborn alleges that Defendants Kevin Bulter, Gary Deulen, and Steve Hopkins violated his procedural due process rights by falsifying a polygraph examination and failing to correct the mistake, and that others relied upon the false polygraph report to Plaintiffs detriment at his parole hearing in 2004 and a sentencing hearing in 2007. There are three motions pending before the Court. First, Defendants Bulter, Deulen, and Hopkins moved for summary judgment with respect to Plaintiffs civil rights claims brought against them pursuant to 42 U.S.C. § 1983. (Docket No. 32.) Second, Plaintiff seeks to strike exhibits from the Court’s consideration on Defendants’ Motion for Summary Judgment. (Docket No. 42.) And finally, Plaintiff has filed his own motion seeking partial summary judgment on the issue of Defendant Butler’s liability on Count One of Plaintiffs Complaint.
The Court conducted a hearing on the motions on April 29, 2010. During the hearing, Plaintiff conceded that the claims against Defendant Hopkins should be dismissed, and the Court granted Plaintiffs motion. (Minutes, Docket No. 64.) After carefully considering the parties’ briefs, evidence, and oral argument, Defendants’ Motion for Summary Judgment will be granted and Plaintiffs Motion for Partial Summary Judgment will be denied. Plaintiffs Motion to Strike will be granted in part, and Exhibit One to the Affidavit of Skinner, as well as the statements of fact based upon Exhibit One, will be stricken. The reasons for the Court’s decision are explained below.
II.
Undisputed Material Facts 1
On or about February 5, 2003, Plaintiff Michael Osborn (“Osborn”) plead guilty to aiding and abetting the discharge of a firearm at an occupied building. He was incarcerated beginning in June of 2003 at the Cottonwood correctional facility. Ada County Prosecutor Roger Bourne (“Prosecutor Bourne”) prosecuted Osborn for the crime.
The Jacobsen Letter
While incarcerated at Cottonwood, a fellow inmate named Ty Jacobsen (“Jacob-sen”) alleged that he heard Osborn utter threats against Prosecutor Bourne and Prosecutor Bourne’s daughter. Jacobsen wrote a letter (the “Jacobsen Letter”) to his attorney in or about June 2003, alleging that he knew Prosecutor Bourne and his family, and that he heard Osborn state: “I’m going to kill Roger Bourne when I get out! But first I’m going to rape his daughter----” (Overson Aff. Ex. 1, Docket No. 44-7 at 19.) The Jacobsen Letter was forwarded to Prosecutor Bourne, who on August 7, 2003, forwarded the letter to Fourth District Judge Joel Horton, the judge presiding over Osborn’s rider review hearing scheduled for September 3, 2003. (Overson Aff. Ex. A, Docket No. 44-6 at
The Sexual Assault Investigation and the Polygraph
While incarcerated at ISMSI, another prisoner sexually assaulted Osborn. (Aff. of Laura Osborn ¶¶ 5-6, Docket No. 44-3.) Mrs. Osborn notified authorities about the sexual assault on her son. An investigation ensued, lead by Deputy Attorney General (“DAG”) Jay Rosenthal and criminal investigator Gary Deulen, an employee of the Office of the Attorney General at that time. (Aff. of Laura Osborn ¶ 7, Docket No. 44-3; Overson Aff. Ex. B, Deulen Depo. at 11, Docket No. 44-7 at 4.) During the course of the investigation, Mrs. Osborn gave DAG Rosenthal a copy of the Jacobsen Letter. (Aff. of Laura Osborn ¶¶ 15-16.) DAG Rosenthal requested a polygraph examination to determine Jacobsen’s veracity. (Overson Aff. Ex. B, Deulen Depo. at 14, Docket No. 44-7 at 4.) Defendant Deulen contacted the Idaho State Police and arranged for Defendant Butler, an experienced polygrapher, to conduct a polygraph examination. (Id., Deulen Depo. at 16-18, Docket No. 44-7 at 4-5; Pl.’s Response to Defs.’ Statement of Facts ¶ 6.)
On August 3, 2004, Defendant Butler administered a polygraph examination to Jacobsen. Defendant Deulen was present when Jacobsen was transported to the polygraph examination. Other than transporting Jacobsen, Defendant Deulen did not participate during the examination, did not aid in scoring the polygraph, and did not interpret the data from the polygraph.
As part of the examination, Defendant Butler asked Jacobsen two relevant questions: “Are you lying about Osborn saying he was going to rape Meagan [Bourne]” and “Are you lying about Osborn saying he was going to hurt or kill Roger [Bourne]?” (Overson Aff. Ex. A, Butler Depo. Ex. B, Docket No. 44-6 at 27.) Jacobsen replied “No” to each question. (Id.) In his report (the “Polygraph Report”), Defendant Butler wrote that he determined Jacobsen responded truthfully to the question about Roger Bourne and scored “deceptive” to the question about Meagan. (Id.) Defendant Butler wrote a narrative as part of his report, explaining that the deceptive score “should be viewed with caution” based upon his training and experience. (Id.)
Once Defendant Butler submitted the Polygraph Report to the Attorney General’s Office, he “had no understanding of how they were going to use it .... My only participation in the whole thing was that they wanted me to provide an opinion on whether or not Michael Osborn had, in fact, made those threats. Where it went from there, I have no idea.” (Depo. of Butler at 103, Docket No. 44-6.) After Defendant Butler submitted the Polygraph Report to the AG’s Office, he had no further contact, communication, or involvement with the investigation or the polygraph on any level until Mrs. Osborn filed a complaint against him in November of 2007.
Once the polygraph examination concluded, Defendant Deulen submitted the Polygraph Report to DAG Rosenthal. Defendant Deulen did not submit the Polygraph Report to anyone else. Jacobsen then admitted to Defendant Deulen that he had lied about the threats Osborn alleged
The Parole Hearing
Osborn became eligible for parole in August of 2004, and on August 5, 2004, Prosecutor Bourne wrote to Olivia Craven, the Executive Director of the Commission on Pardons and Parole, stating that Osborn had threatened him and his family. (Aff. of Overson Ex. I, Craven Depo. at 29-30, Docket No. 44-8.) On August 13, 2004, DAG Rosenthal wrote Craven as well, and attached Defendant Butler’s Polygraph Report along with a letter stating that there was “a basis to assume that the threat was in fact made.” (Aff. of Overson Ex. H, Docket No. 44-8.) On August 18, 2004, a parole hearing was held. The Parole Commission possessed the Jacobsen Letter, the letters from Prosecutor Bourne and DAG Rosenthal, and Defendant Butler’s Polygraph Report. Osborn was denied parole. Neither Defendant Butler nor Defendant Deulen were present during the parole hearing.
Olivia Craven confirmed that the Parole Commission had received both the letter from Prosecutor Bourne dated August 5, 2004, about the threats Osborn allegedly made against him, and the Polygraph Report from DAG Rosenthal under cover of Rosenthal’s letter dated August 13, 2004. (Craven Depo. at 27-31, Docket No. 44-8 at 14; Ex. C, Rosenthal Depo., Docket No. 44-8 at 7.) Craven believed, but was not certain, that she copied the Polygraph Report for the Parole Commission’s consideration. (Craven Depo. at 31, Docket No. 44-8 at 15) (“I have to assume possibly that was from us, and that we did make a copy for the Commission.”) Craven, however, denied that the Polygraph Report was the sole basis upon which the Parole Commission decided to deny Osborn parole. (Craven Depo. at 31-33, Docket No. 44-8.) Craven explained that the Parole Commission looks at the “wholistic [sic] case, what’s really going on with the inmate, and what would be best for the safety of the public and for the rehabilitation of the inmate.... Polygraphs are not something that the Commission relies a whole lot on for anything.” (Craven Depo. at 33-34, Docket No. 44-8.)
At the time of his rider review hearing on September 3, 2003, Osborn was aware of the Jacobsen Letter and the threats he was accused of making against Prosecutor Bourne and his family. (Aff. of Osborn, Docket No. 44-2.) However, Osborn did not know that Jacobsen had submitted to a polygraph examination regarding the threats described in his letter, and Osborn was not given a copy of the Polygraph Report. He also did not know that the Polygraph Report had been included in his file for review by the Parole Commission. (Id.) In September of 2004, Osborn learned that DAG Rosenthal would not be prosecuting Osborn’s assailant. Throughout the remainder of his incarceration, Osborn feared for his safety. On December 8, 2005, Osborn was granted parole and released from prison.
The Sentencing Hearing
After his release from prison, Osborn had another brush with the law and he was arrested and tried for being an accessory
At the continued sentencing hearing held on March 29, 2007, Osborn’s counsel represented that he had reviewed additional materials included in the presentence report, including the Polygraph Report, and that with the exception of a report from Intermountain Hospital, he confirmed that he had “adequate time to review the materials.” (Aff. of Overson Ex. K, Mar. 29 2007 Tr. at 2, Docket No. 44-8 at 36.) The hearing was continued to April 6, 2007, and on that date, the only objection made to the contents of the presentence report was to a psychiatric report prepared when Osborn was thirteen. (Aff. of Overson Ex. K, Apr. 6, 2007 Tr. at 22, Docket No. 44-8 at 34.) Defendant Deulen testified at the April 6, 2007 hearing that Jacobsen admitted to lying about Osborn threatening Prosecutor Bourne’s daughter as part of a plea negotiation in his own case. (Aff. of Overson Ex. K, Apr. 6, 2007 Tr. at 27, Docket No. 44-8.) However, Fourth District Judge Wetherell, who presided over the sentencing hearing, expressed concern that Osborn denied making threats against Prosecutor Bourne. On April 20, 2007, Judge Wetherell sentenced Osborn to serve ten years fixed, with fifteen years indeterminate.
Although Defendant Deulen testified at the sentencing hearing on April 20, 2007, he did not submit the Polygraph Report to the presentence investigator. Defendant Butler was not aware of the 2007 sentencing hearing or the fact that the presentence report included his Polygraph Report. (Aff. of Overson Ex. A, Butler Depo. at 81, Docket No. 44-6 at 19) (“I hadn’t heard anything about Ty Jacobsen or Michael Osborn from the day I administered the polygraph examination until ... over three years later when Mrs. Osborn filed a complaint against me.”).
Osborn moved under Idaho Criminal Rule 35 for a reduction in his sentence. On September 14, 2007, Judge Wetherell issued a memorandum decision and order denying the motion. In the memorandum, Judge Wetherell explained that his decision was, in part, based upon Jacobsen’s allegations that Osborn “threatened to kill an Ada County prosecutor and sexually assault his wife and daughter. While the other prisoner apparently recanted his statements as to the threats against the prosecutor’s wife and daughter, he stood by his statements as to the threats against the prosecutor.” (Aff. of Overson Ex. J, Docket No. 44-8 at 56.) Judge Wetherell explained also that Osborn was “on parole for participating in a drive-by shooting when he committed the robbery in this case” and he was found “guilty by a unanimous jury.” (Id.) Therefore, Judge Wetherell believed that Osborn needed to be incarcerated to “protect society from additional acts of violent criminal behavior” and he was not persuaded to reduce Osborn’s sentence. (Id.)
After the sentencing hearing, Mrs. Osborn believed that something was amiss regarding the Polygraph Report because she learned, for the first time, that Jacob-sen was motivated by a plea deal in his own case. (Aff. of Laura Osborn ¶ 33, Docket No. 44-3 at 7.) Mrs. Osborn believed that if Jacobsen was motivated to
In October of 2007, Mrs. Osborn filed a complaint with the ISP against Defendant Butler based upon the audio of the Jacob-sen polygraph, and Defendant Hopkins reviewed the Polygraph Report. (Aff. of Laura Osborn ¶ 45, Docket No. 44-3.) Defendant Hopkins in turn informed Mrs. Osborn that Jacobsen had failed the polygraph examination, that Defendant Butler had incorrectly administered and scored the examination, and that Defendant Butler should not have included the explanation in his report as to why Jacobsen scored deceptive to the second question. (Id. ¶ 45.) Mrs. Osborn also retained a polygraph expert who evaluated the polygraph data and the Polygraph Report. (Id. ¶ 50.) The expert Mrs. Osborn retained similarly concluded Defendant Butler’s scoring of the polygraph was incorrect and “not in accordance with AAPP Standards.” (Id.)
On October 15, 2008, the State filed a motion to correct the record indicating that it had reason to believe the Polygraph Report should not have been part of the record during the sentencing hearing. In the order for resentencing, Judge Wetherell explained that the court “did rely upon the informant’s statements and polygraph finding of a lack of deception by the informant as to the threats against the prosecutor to the extent that they gave the Court reason to doubt the Defendant’s veracity when he continued to insist the polygraph tests had confirmed the informant lied as to both matters. The State has now advised the Court that the polygraph examination was not conducted in accordance with proper procedures and is, therefore, not reliable.” (Aff. of Overson Ex. J, Order for Resentence; Ex. K, Tr. at 703-704, Docket No. 44-8.)
Judge Wetherell ordered a resentencing and redacted the Polygraph Report from the presentence investigation report. In arriving at the new sentencing terms, Judge Wetherell explained that he considered how much the court’s ruling was impacted by the Polygraph Report, and that the court added additional time to Osborn’s sentence because of the court’s belief that Osborn, “even after being found guilty, continued to maintain a position that everything was the fault of the other guy.” (Aff. of Overson Ex. N, Nov. 6, 2009 Tr. at 50, Docket No. 44-8.) In taking Osborn’s denials into account, Judge Wetherell considered the Polygraph Report as evidence of Osborn’s propensity to lie, thus adding additional time to the sentence. (Id.). Because the Polygraph Report results were discredited, Judge Wetherell reconsidered Osborn’s sentence and on November 6, 2009, he sentenced Osborn to eight years fixed, with seventeen years indeterminate for a total of twenty-five years with credit for time served against the fixed portion of the sentence. (Id.).
The Veracity of the Polygraph Report
The test that Defendant Butler administered to Jacobsen was a “YOU-PHASE
Based upon AAPP guidelines, Osborn contends that the Polygraph Report was unreliable and false because Defendant Butler construed the test as a split decision and qualified the deceptive answer to the second question with a narrative. Osborn asserts that the narrative opinion unfairly suggested the deceptive score should be viewed with caution, and could have been truthful. Osborn characterizes Defendant Butler’s testimony in this regard, stating that as a member of the AAPP, “Mr. Butler knew it was a violation of the guidelines and standards of the [AAPP] and the ISP to include explanations for scores showing deception.” (Pl.’s Statement of Facts ¶ 6, Docket No. 44-1.) “By reporting the results of the Jacobsen polygraph as a split decision rather than as a fail, Defendant Butler violated AAPP guidelines and standards.” (Id.) Osborn asserts that “Mr. Butler understood his responsibility to make it known to the AG’s Office that Mr. Jacobsen had failed the polygraph. Mr. Butler knew immediately that Mr. Jacobsen had lied on the polygraph but reported otherwise. Mr. Butler told no one that Mr. Jacobsen had actually failed the polygraph test.” (Pl.’s Statement of Facts ¶ 7, Docket No. 44-1.)
However, while Defendant Butler acknowledged he violated AAPP guidelines (Aff. of Overson Ex. A, Depo. of Butler at 65-80, Docket No. 44-6), Defendant Butler testified he stood by his findings, his report was “accurate” and he “administered the test properly.” (Depo. of Butler at 81, 90, 95, Docket No. 44-6.) Thus, although he acknowledged that he did not score the test as the YOU-PHASE should be scored, he stated that “I stand by my findings on those charts that my report is accurate, that he responded truthfully to the one question, and deceptively to the other.” (Depo. of Butler at 81.) Defendant Butler also denied any intent to violate ISP procedure or policy. (Depo. of Butler at 70, Docket No. 44-6.) Furthermore, Defendant Butler did not submit the report to anyone except the Attorney General’s Office, understanding that his Polygraph Report was just being used as an “assist to the AG’s office” to “provide an opinion on whether or not Michael Osborn had, in fact, made those threats.” (Depo. of Butler at 88, 95,103.)
III.
Discussion
A. Motion to Strike
Osborn initially sought to strike portions of paragraphs 3 through 7 and 11 through 14 of Defendants’ Statement of Undisputed Facts in Support of Motion for Summary Judgment and the related portions of the Skinner Affidavit filed in support of the statement of facts, as well as Exhibit 1 of the Skinner Affidavit. At the hearing, Osborn withdrew his motion with respect to paragraphs 7 through 10 of the Skinner Affidavit, Exhibits 5 through 9 of the Skinner Affidavit, and paragraphs 3, 4, 6, 11, 12, 13, and 14 of Defendants’ statement of facts. This left the Court with the motion to strike Exhibit 1 and paragraph 3 of the Skinner Affidavit on the grounds that the exhibit, which purports to be a website prepared by Plaintiff Michael Osborn, con
Defendants contend that the statements made in the website printout attributable to Michael Osborn are admissible as statements of a party opponent under Fed. R.Evid. 801(d)(2)(D). Defendants contend that the contents of the website show that Osborn had knowledge that the Parole Commission considered the Polygraph Report, and therefore knew his injury occurred in 2004 as a result of the Polygraph Report. Defendants rely upon the statements made therein in support of their argument that the statute of limitations bars this action.
There are two aspects to the determination of whether the website printout attached to the Skinner Affidavit as Exhibit 1 is admissible. The first aspect is authentication, and the second aspect is the admissibility of the website contents. Mr. Skinner represents that he printed the website, “http://americaswrongfully convicted.com/michael_osborn.htm,” in its entirety as it was maintained at that internet address on September 24, 2009. (Skinner Aff. ¶ 3, Docket No. 37.)
U.S. v. Tank,
However, Defendants do not just offer the website to show that Osborn maintained a website, but rely upon the statements contained within the website pages, contending that the statements were “made by Michael Osborn” and therefore qualify as admissions of a party opponent. The website contains a statement that the “[sjtories from authors are in their own words.” (Skinner Aff. ¶ 3, Docket No. 37.) Osborn contends that the statements made in the website are inadmissible hearsay under Fed.R.Evid. 801(c). The Court agrees.
The cases Defendants rely upon to support their argument that the statements made on'the website pages are admissions of a party opponent do not apply to this case. In
Perfect 10, Inc. v. Cybernet Ventures, Inc.,
In this case, while there may be photos of Plaintiff on the website and a statement by a third party that the stories recounted therein are in the author’s own words, the website does not identify Michael Osborn or Laura Osborn- 2 as the author of the website, and Michael and Laura Osborn do not otherwise identify themselves as the website’s authors. In the cases Defendants cited, the author of the materials verified that he or she wrote the content, either on the website itself, in written correspondence, or in the case of Fraser, admitted to being the author of the diary. Without verification by Osborn that he authored the contents, the website is admissible for the limited purpose of showing that a website such as the one Mr. Skinner printed exists or did exist at the purported website address, but the statements made therein are not sufficiently identified as Osborn’s statements. The verification in this case comes from a third party. Therefore, the written content of the website pages is inadmissible hearsay under Fed.R.Evid. 801(c), and Plaintiffs motion to strike will be granted. The Court did not consider the statements made within the website, or the factual assertions based upon the website content, in any part of its decision.
B. Motions for Summary Judgment
1. Rule 56 Standards
Motions for summary judgment are governed by Rule 56 of the Federal Rules of Civil Procedure, which provides, in pertinent part, that judgment “should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c).
A moving party must show that no genuine issue of material fact exists by demonstrating that “there is an absence of evidence to support the non-moving party’s case.”
Celotex Corp. v. Catrett,
In determining whether a genuine issue of material fact exists, facts and inferences must be viewed most favorably to the non-moving party. To deny the motion, the Court need only conclude that a result other than that proposed by the moving party is possible under the facts and applicable law.
Aronsen v. Crown Zellerbach,
The Ninth Circuit has emphasized that summary judgment may not be avoided merely because there is some purported factual dispute, but only when there is a “genuine issue of material fact.”
Hanon v. Dataproducts Corp.,
the non-moving party: (1) must make a showing sufficient to establish a genuine issue of fact with respect to any element for which it bears the burden of proof; (2) must show that there is an issue that may reasonably be resolved in favor of either party; and (3) must come forward with more persuasive evidence than would otherwise be necessary when the factual context makes the non-moving party’s claim implausible.
British Motor Car Distnb. Ltd. v. San Francisco Automotive Indus. Welfare Fund,
When parties file cross-motions for summary judgment, as the parties have done here, each motion “must be considered on its own merits.”
Fair Housing Council of Riverside County, Inc. v. Riverside Two,
Defendants filed their motion for summary judgment contending that there are no genuine issues of material fact, and judgment should be entered in favor of Defendants as to all of Osborn’s claims. Both parties submitted affidavits in support of and in opposition to Defendants’ motion. Osborn, in turn, filed a motion for partial summary judgment, contending that there is no genuine issue of material fact as to the issue of Defendant Butler’s liability on Count One of the Complaint. While Osborn did not submit any additional evidence, Defendants submitted affidavits containing exhibits not previously included in their response. The Court will consider all of the evidence submitted, and determine whether disputed issues of material fact exist with respect to either motion.
2. Statute of Limitations
Defendants contend that the two year statute of limitations has run, barring this action, because the erroneously scored polygraph first caused injury on August 13, 2004, when Osborn was denied parole. Defendants argue that the statute therefore ran two years from that date, while the Complaint in this case was filed on February 23, 2009.
Osborn, however, contends that he was unaware that the Parole Commission possessed the Polygraph Report containing the results of the polygraph test and Defendant Butler’s interpretation of it. (Aff. of Osborn ¶ 23, Docket No. 44-2.) Osborn attests that he never received a copy of the Polygraph Report (Aff. of Osborn ¶ 19, Docket No. 44-2) and did not know that it could have been misinterpreted. Thus, Osborn contends it was not until June 26, 2007, when he and his mother learned that the polygraph was scored incorrectly, that they knew about the source of his injury. At the earliest, Osborn contends he knew the polygraph was scored incorrectly on April 6, 2007, when Defendant Deulen testified at the sentencing hearing that Jacob-sen admitted to lying about the alleged threats Osborn made toward Prosecutor Bourne’s daughter. Osborn therefore asserts his complaint was timely filed less than two years later on February 23, 2009.
Osborn alternatively argues that Defendants are equitably estopped from asserting the statute of limitations as a defense because their conduct caused Osborn to refrain from filing his lawsuit. Osborn contends Defendant Butler concealed information from DAG Rosenthal by giving the impression that the polygraph meant
Defendants rebut Osborn’s contentions, claiming that Osborn was well aware of the contents of the Jacobsen Letter, and Osborn, having allegedly made the threats, was in a unique position to know the truth or falsity of Jacobsen’s allegations. Thus, Defendants assert that Osborn had to have known the reported threats were false, because only he knew whether the alleged threats were made. If the threats were true, Defendants assert the Polygraph Report could not have caused any injury. Defendants also contend that equitable estoppel does not apply, because Defendant Butler did not believe he had mis-scored the polygraph results at the time he prepared his Report.
The length of the statute of limitations for a civil rights action is governed by state law.
Wilson v. Garcia,
Notwithstanding the use of the state statute of limitations in civil rights cases, the Court uses federal law to determine when a claim accrues under a statute.
Elliott v. Union City,
Equitable estoppel applies as a defense to statute of limitations issues. In Idaho, equitable estoppel is a principle that “does not ‘extend’ a statute of limitation[;][r]ather, it prevents a party from pleading and utilizing the statute of limitations as a bar, although the time limit of the statute may have already run.”
J.R. Simplot Co. v. Chemetics International,
(1) a false representation or concealment of a material fact with actual or constructive knowledge of the truth; (2) that the party asserting estoppel did not know or could not discover the truth; (3) that the false representation or concealment was made with the intent that it be relied upon; and (4) that the person to whom the representation was made, or from whom the facts were concealed, relied and acted upon the representation or concealment to his prejudice.
Id.,
Taking the facts in a light most favorable to Osborn, 5 there is a disputed issue of material fact regarding the application of equitable estoppel to the statute of limitations bar, thus precluding summary judgment on the basis of the statute of limitations. Although Defendants claim Osborn knew of the Jacobsen Letter, Osborn claims the cause of his injury was not the letter but the Polygraph Report and its contents. Osborn claims he did not know the critical facts surrounding his alleged injury until he was aware that the polygraph was scored incorrectly and could have been misinterpreted by those who read it to assume Jacobsen told the truth as to both questions. Even though Osborn, as the maker of the alleged threats, knew whether he made the statements, the critical fact central to his claim is that the Polygraph Report was misleading, and that others relied upon it when making decisions about his incarceration. The Polygraph Report arguably lent credibility to Jacobsen’s statements. Any refutation by Osborn that he did not make the threats might have been discredited in light of the Polygraph Report. Thus, whether Osborn knew that Jacobsen’s statements were false is irrelevant to the determination, because until Osborn knew the Polygraph Report was unreliable, that others relied upon it, and that it should not have been relied upon by the decision-makers in his case, a trier of fact could reasonably conclude that Osborn could not have known the source of his injury.
3. Section 1983 Claims and Qualified Immunity
a. Applicable Standards
Having decided there is a genuine issue of material fact preluding summary judgment on statute of limitations grounds, the Court must determine whether Osborn has stated a claim under 42 U.S.C. § 1983, and whether Defendants are protected from suit by qualified immunity. To state a claim under § 1983, a plaintiff must allege a violation of a constitutional or federal statutory right proximately caused by conduct of a person acting under color of state law.
Crumpton v. Gates,
However, even if a government official committed a constitutional wrong, the individual is protected from suit when he or she “makes a decision that, even if constitutionally deficient, reasonably misapprehends the law governing the circumstances.”
Mueller v. Auker,
The court generally applies a two pronged test to resolve qualified immunity claims. First, the court considers whether, “[t]aken in the light most favorable to the party asserting the injury, ... the facts alleged show the [defendants’] conduct violated a constitutional right,” and second, whether that right was clearly established.
Saucier v. Katz,
Addressing the two prongs of the test in this order is often beneficial, but it is not mandatory. Courts may “exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular ease at hand.”
Pearson v. Callahan,
— U.S. -,
With respect to the first prong, an essential element of a § 1983 case is that the plaintiff show that the defendants’ actions caused the deprivation of a constitutional right. 42 U.S.C. § 1983;
Arnold v. IBM Corp.,
If causation and a constitutional violation are established, the court next turns to Supreme Court and Ninth Circuit law existing at the time of the alleged act to determine whether the right was clearly established.
Osolinski v. Kane,
“The relevant, dispositive inquiry in detex-mining whether a right is clearly established is whether it would be clear to a reasonable [defendant] that his conduct was unlawful in the situation he confronted.”
Saucier v. Katz,
When examining what was or was not apparent to the official at the time, the subjective beliefs of the actual officials are mrelevant.
Inouye,
While application of qualified immuixity is appropriate where “the law did not put the [defendant] on notice that his conduct would be clearly unlawful,”
Saucier,
b. Analysis
Osborn alleges that his due process rights were violated first during his parole hearing on August 13, 2004, and again during his April 20, 2007 sentencing hearing, because a knowingly “false” polygraph report was relied upon by the decision-makers in those hearings. Taking the Saucier test in order, it would be appropriate to analyze first whether a constitutional right was violated; if it was, next to determine whether each individual defendant caused the constitutional violation; and finally whether, despite the constitutional violation, the right was not clearly established, therefore providing immunity from suit.
i. Parole
Idaho Code § 20-223 sets forth the statutory requirements for considering the parole of a prisoner. Idaho Code § 20-223(c) requires the Parole Commission to afford a prisoner the opportunity to be interviewed and to prepare a report for the commission’s consideration in making a parole determination, which report is exempt from public disclosure. The report may contain information from the presentence investigation report, medical or psychological information, victim information, designated confidential witness information, and criminal history information. Id. Parole “shall be ordered when, in the discretion of the commission, it is in the best interests of society, and the commission believes the prisoner is able and willing to fulfill the obligations of a law-abiding citizen.” Id.
In Idaho, “parole is a matter of grace.”
Balla v. Idaho State Bd. of Corrections,
However, in
Wilkinson,
the Supreme Court recognized a limited constitutional right attendant in the parole process.
Wilkinson
held that an inmate may initiate a § 1983 action to seek invalidation of “state procedures used to deny parole eligibility ... and parole suitability,” but he may not seek “an injunction ordering his immediate or speedier release into the community.”
In two decisions prior to
Wilkinson,
the Idaho Court of Appeals also appeared to recognize a limited right to challenge parole procedures or statutes governing parole. In
Dopp,
the Idaho Court of Appeals held that the plaintiff had stated a cognizable claim when he challenged specific rules alleged to conflict with state statutes governing the parole process.
Dopp,
After the
Wilkinson
decision, this Court has had occasion to determine the effect of its holding. In
Fox v. Craven,
No. CV 05-494-S-LMB,
Taking the facts in a light most favorable to Osborn, and assuming for purposes of this decision that the Polygraph Report was false and should not have been relied upon during the parole hearing, Defendants’ motion for summary judgment must be granted and Plaintiffs motion for summary judgment denied as a matter of law. Osborn has not overcome established Idaho law denying recognition of a constitutional right in the decision to grant or deny parole.
Dopp,
Even under the holdings of Dopp and Vittone, which arguably open the door to due process challenges to a rule, procedure, or state statute governing the parole process, Osborn has not stated a cognizable claim. During the hearing, the Court repeatedly asked for identification of the constitutional right, law, procedure, or statute implicated by the Parole Commission’s consideration of the Polygraph Report and/or Defendants’ failure to tell authorities the report was wrong. Osborn initially explained that he did not know the Polygraph Report was considered by the Parole Commission, and therefore did not have an opportunity to rebut the substance of the Polygraph Report. Osborn further explained that, because the Polygraph Report was false and misleading and buttressed the statements in the Jacobsen Letter, Osborn could not have been fully and fairly interviewed. Anything Osborn said to rebut the Jacobsen Letter, he claimed, would be viewed with skepticism in light of the Polygraph Report. Osborn contends that the inclusion of the false Polygraph Report thwarted any opportunity he had to a fair and meaningful parole hearing.
Despite an impassioned effort, Osborn’s contentions do not implicate a constitutional right attendant to the parole process in Idaho. Osborn has not cited to a violation of a specific rule, procedure or statute governing the parole hearing process. He has not challenged the constitutionality of current parole hearing proce
Osborn conceded that the Parole Commission interviewed him prior to his parole hearing. Although Osborn argues he had a right to review the Polygraph Report, be provided with assistance to rebut the Polygraph Report, and a right to a “fair” interview, Osborn has not cited to any law conferring upon him a right to review the contents of the Parole Commission’s file or its written report prior to his parole hearing.
See Dopp,
The uncontroverted evidence in the record demonstrates that the Polygraph Report played, at best, a minimal role in the Parole Commission’s decision. Although Olivia Craven acknowledged that the Parole Commission possessed a copy of the Polygraph Report, she did not know whether the Polygraph Report had an effect on the Parole Commission’s decision to deny Osborn parole. Craven explained that the Parole Commission examines the “holistic case” and that polygraphs “are not something that the Commission relies a whole lot on for anything.” (Depo. of Craven at 31-34, Docket No. 44-8.) Other than the fact that the Parole Commission file included the Polygraph Report, Osborn has not presented any evidence that the Parole Commission was swayed one way or the other by the Polygraph Report.
Finally, the argument Osborn raises in this case was squarely rejected by the Idaho Court of Appeals. In
Hays,
a plaintiff alleged that he was denied “due process” during his parole hearing because allegedly false information was in his prison file and therefore the parole board lacked a rational basis for denying parole.
Hays,
Even if the Court assumes the Polygraph Report was false and misleading and should not have been considered, Osborn has not identified a constitutional right underpinning his § 1983 claim for violation of due process during his parole hearing.
ii. Sentencing
Osborn next alleges he suffered a constitutional injury when Fourth District Judge Wetherell considered as part of Osborn’s presentence investigative report the Jacob-
Even though Osborn was resentenced on November 6, 2008, and the fixed portion of his sentence was reduced from ten years to eight years, Osborn contends that the resentencing did not cure the due process violation. Plaintiff relies upon
Tennison v. County of San Francisco,
When fashioning an appropriate sentence, a judge may consider a broad range of information.
State v. Morgan,
Osborn contends he was denied a fair sentencing because he was denied the right to challenge the reliability of the information contained in his presentence report, specifically the Polygraph Report. But according to the record before the Court, Osborn does not present evidence creating a disputed issue of material fact that he was denied any of the above due process safeguards. Osborn had an opportunity to read, explain, correct or deny parts of the presentence report and the opportunity to present evidence at the sentencing hearing. Osborn availed himself of those rights, and there is no evidence of a disputed issue of material fact that Defendants obstructed those rights.
The uncontroverted record before the Court reflects that Osborn was given an opportunity to examine the presentence report and present favorable evidence. Osborn’s counsel represented that he had adequate time to review the materials in the presentence report, which included the Jacobsen Letter, the Polygraph Report, and a letter from Osborn, with only one exception — counsel had not had time to review a report from Intermountain Hospital. (Docket No. 44-8 at 36.) Despite Osborn’s belief that the Polygraph Report was false because of Jacobsen’s motive to lie, Osborn did not object to the inclusion of the Polygraph Report in the presentence report and did not obtain an independent review of the Polygraph Report.
Instead, Osborn chose to rebut the veracity of the Polygraph Report by having Defendant Deulen testify at the sentencing hearing on April 6, 2007. Defendant Deulen testified that Jacobsen admitted lying
Osborn claims he did not have “evidence” until “recently” to rebut the accuracy of the Polygraph Report. However, the Court cannot ascertain, nor did Osborn identify, what more Osborn required other than his own knowledge about the veracity of the threats and the opportunity to have an expert evaluate the Polygraph Report according to accepted standards. Osborn does not challenge the conclusions drawn in the Polygraph Report. Instead, he claims it was incorrect because Butler asked two separate questions, and by so doing, the deceitful answer to question one coupled with a truthful answer to question two required Defendant Butler to score the polygraph as “inconclusive” and entirely deceitful rather than independently score the two answers and provide an explanation for the discrepancy.
There is no evidence or allegation that Defendant Butler incorrectly interpreted the raw data upon which he based his conclusions. Other than a difference of opinion in scoring the Polygraph Report, Defendant Butler’s conclusions have not been refuted. Osborn did not deny making the threat against Prosecutor Bourne, nor did he explain the circumstances despite having the opportunity to do so. (Aff. of Overson Ex. K, Tr. at 703-704, Docket No. 44-8 at 26) (“There is nothing in these reports that indicates that at any time Mr. Osborn’s accuser was found to have been deceptive with regard to the threats Mr. Osborn made against Mr. Bourne. Nothing.”) Consequently, to uncover the alleged error all an expert would require would be the Polygraph Report itself, which is what Laura Osborn ultimately retained an expert to review. There is no evidence that Osborn was prevented from having an expert review the Polygraph Report and testify at the initial sentencing hearing.
Osborn next claims Defendants had a duty to notify persons relying upon the Polygraph Report some three years after being asked to conduct it that the Polygraph Report was scored incorrectly. Osborn relies upon
Tennison v. City and County of San Francisco,
Second, the evidence in question — the false nature of the Polygraph Report-bore no relation to the crime of robbery for which Osborn was sentenced, and is therefore not the type of exculpatory evidence discussed in Tennison. The exculpatory evidence discussed in Tennison would have cast reasonable doubt upon the defendants’ guilt or innocence. In this case, the Polygraph Report had no relationship to the evidence presented at Osborn’s trial for robbery, and instead was considered as part of a discretionary decision to impose a sentence for the crime committed. There is no evidence Osborn would not have been incarcerated had Judge Wetherell not reviewed the Polygraph Report. In fact, at resentencing, Judge Wetherell only reduced the fixed portion of Osborn’s sentence by two years. Osborn would therefore have been incarcerated regardless of the Polygraph Report because a jury found him guilty of being an accessory to a robbery.
Even if the Court concluded, which it has not, that Osborn’s constitutional right to due process during his sentencing hearing was violated no Defendant caused the violation. Based upon Osborn’s contention that Defendant Butler submitted a knowingly false Polygraph Report and Defendant Deulen’s suppressed evidence that Jacobsen had lied to obtain a plea deal, Osborn argues that Butler and Deulen should have known others would rely upon the Polygraph Report to Osborn’s detriment, and should have informed authorities of their knowledge to prevent such reliance. By failing to notify others about their error and knowledge, Osborn contends his right to due process was abridged. Even assuming Butler and Deulen had some obligation, their action or lack thereof did not cause Osborn’s injury as a matter of law.
The requisite causal connection between an act and the resultant injury can only be established by “setting in motion a series of acts by others which the actor knows or reasonably should know would cause others to inflict the constitutional injury.”
Arnold,
“Not every injury in which a state official has played some part is actionable” under § 1983.
Martinez v. State of California,
the order of the court, right or wrong, is ordinarily the proximate cause of the injury. Various preliminary steps occur before the order is made.... In the ordinary case, the order is made after a hearing in court or after consideration by the court of the supporting documents and evidence. Therefore, the various preliminary steps would not cause damage unless they could be said to be the proximate cause of the injury. In the usual case, the order of the court would be the proximate cause and the various preliminary steps would be remote causes of any injury from imprisonment or restraint under the court order.
We are not saying that there could not be situations where a judge was so deceived and hoodwinked by proceedings brought before him that certain of these preliminary acts might not raise themselves to the status of a proximate cause of an injury, notwithstanding the intervening order of the court. There might be situations where the action of the court became in substance, merely a conduit for the wrongful action which preceded.
Hoffman v. Holden,
In this case, the acts of Butler and Deulen in falsely scoring the polygraph test and failing to tell others that Jacobsen admitted to lying on one of the questions to receive a plea deal have no causal connection to Osborn’s sentencing for the crime of accessory to robbery. Butler and Deulen both testified that, after administering the polygraph test, neither one had any idea where the Polygraph Report ended up. (Butler Depo. at 103, Docket No. 44-6; Deulen Depo. 27-36, Docket No. 44-7.) The invalidity of the polygraph test or its scoring, in and of itself, violated no statute or other rights. The relevant event for purposes of analyzing Butler’s or Deulen’s culpability is the alleged constitutional injury, which is the denial of due process during the sentencing hearing. Until then, no injury occurred. Once the Polygraph Report was in the sentencing judge’s hands, the judge had discretion to
There is no evidence that Judge Wetherell relied exclusively upon the Polygraph Report in deciding to impose a sentence. Rather, Judge Wetherell explained he reviewed “all of the evidence,” including the nature of the offense, character of the offender, mitigating and aggravating factors, the objective of protecting society, as well as other incidents that occurred in jail in which Osborn lost his temper and made threatening racial remarks, all of which “[didn’t] give this Court much confidence in terms of what [Osborn] would do if [he] were simply given probation in this case.” (Aff. of Overson Ex. K, Tr. at 698, 704, Docket No. 44-8 at 25-26.) Osborn did not establish any fact showing that Defendants directed the outcome of Osborn’s sentencing hearing. Absent such facts, the acts of Butler and Deulen do not rise to the level of proximate cause.
The Court finds, as a matter of law, that there are no disputed issues of material fact and concludes Osborn’s constitutional right to due process during his sentencing hearing was not violated. Even if Osborn’s right to due process had been violated, no Defendant caused any alleged violation.
IV. Conclusion
Based upon the foregoing, the Court finds, as a matter of law, Osborn has not established an essential element of his case, namely that a constitutional violation occurred at all, either with respect to his 2004 parole hearing or his 2007 sentencing hearing. With respect to sentencing, even assuming a constitutional violation occurred, Osborn has not established a disputed issue of material fact that Defendants caused any constitutional injury. The Court therefore finds it unnecessary to discuss the other elements of the qualified immunity analysis. The Court’s finding that Defendants are entitled to summary judgment with respect to Osborn’s claim that Defendants violated his due process rights necessarily requires that Count II, which alleges a conspiracy to violate Osborn’s constitutional rights, be dismissed as well.
ORDER
Based on the foregoing, the Court being otherwise fully advised in the premises, IT IS HEREBY ORDERED that:
1) Defendants’ Motion for Summary Judgment (Docket No. 32) is hereby GRANTED and Plaintiffs Complaint is DISMISSED with prejudice.
2) Plaintiffs Motion for Partial Summary Judgment (Docket No. 45) is hereby DENIED.
3) Plaintiffs Motion to Strike (Docket No. 43) is hereby GRANTED.
Notes
. Plaintiff agreed with Defendants’ statement of undisputed material facts set forth in paragraphs one through four, portions of paragraph five, paragraph six, eight, portions of nine, ten, eleven, thirteen, and fourteen. (See Pl.'s Response to Defendants' Statement of Undisputed Facts, Docket No. 44-1.) Plaintiff included additional facts within his statement that do not contradict Defendants' facts.
. Defendants argue that Mrs. Osborn was Plaintiff's agent, and for all purposes, her statements are equivalent to Osborn’s statements. The Court does not decide that issue in light of its analysis.
. The Court recognizes, but reconciles, two oddities with Bibeau and Kubrick: one is the tolling versus accrual question, the other is a civil rights versus FTCA question.
On the first point, Bibeau deems the rule at issue a '‘tolling” rule, but the Court will consider it an "accrual” rule. (Tolling is governed by state law, and accrual by federal law. In Idaho, there is no "discovery” tolling rule, but there is an accrual rule based upon the existence of objectively reasonable damages.)
On the second point, Bibeau is a civil rights case, which relies on Kubrick, an FTCA "accrual” case. In Kubrick, the "discovery” rule discussed is statutory; however, its basic "knew or should have known” accrual premise has been applied to determine accrual of civil rights causes of action, and the Court finds it appropriate to apply it here.
. Equitable tolling also exists as a defense to the application of the statute of limitations. However, Plaintiff did not raise equitable tolling as a basis for the Court's consideration. Therefore, the Court will not consider whether equitable tolling applies.
. Because the Court granted the motion to strike, the Court relied upon the testimony in Osborn's affidavit in making its determination. Based upon the Osborn Affidavit and the other assertions in the record, there is no dispute that Osborn did not receive a copy of the Polygraph Report prior to or during his parole hearing.
.
Cohen
overruled
Hoffman
by holding that a civil rights claim did not have to contain as an element that the state actors committed the acts in question with the purpose of depriving an individual of his or her civil rights.
Hoffman
has, however, been cited by the Ninth Circuit Court of Appeals for its discussion of proximate causation.
See, e.g., Arnold,
. Another example would be a policy or institutional custom condoning violence during an arrest, which fairly can be said to set in motion acts by others which the policy maker reasonably should know would cause others to inflict a constitutional injury during an arrest.
See, e.g., Monell v. Dep't of Social Servs. of City of New York,