Harmon v. City of Pocatello

CourtUnited States District Courts. 9th Circuit. District of Idaho
Citation431 F.Supp.3d 1135
Docket NumberCase No. 4:17-cv-00485-DCN
Parties Kerry HARMON , Plaintiff, v. CITY OF POCATELLO ; Pocatello Police Department; and Shanon Bloxham, Brandon Vail, Shaun Wright, and Russ Gunter in his and/or her individual capacity as a police officer for the Pocatello Police Department, Defendants.
Decision Date07 January 2020

Kyle Richard May, Bron M. Rammell, May, Rammell, and Thompson Chtd, Pocatello, ID, for Plaintiff.

Blake G. Hall, Hall Angell & Associates, LLP, Idaho Falls, ID, for Defendants.


David C. Nye, Chief U.S. District Court Judge


Pending before the Court is Defendants, City of Pocatello, City of Pocatello Police Department, Shannon Bloxham, Brandon Vail, Shaun Wright, and Russ Gunter's (collectively "Defendants") Motion for Summary Judgment (Dkt. 21) and Plaintiff Kerry Harmon's Motion for Partial Summary Judgment (Dkt. 22). After these motions were filed—and in response to assertions made in Defendants' submissions—Harmon filed a Motion to Strike (Dkt. 28) and a Motion to Amend/Correct Complaint (Dkt. 29).

The Court held oral argument on July 1, 2019, and took the motions under advisement. For the reasons outlined below, the Court finds good cause to GRANT Harmon's Motion to Amend/Correct, DENY Harmon's Motion to Strike, GRANT Defendant's Motion for Summary Judgment, and DENY Harmon's Motion for Partial Summary Judgment.

A. Factual Background

In October 2015, the Pocatello Police Department ("PPD") began investigating a complaint that Plaintiff Kerry Harmon had engaged in unlawful telephone harassment. As a result of this investigation, Idaho State Magistrate Judge Steven Thomsen issued a warrant on October 30, 2015, for Harmon's arrest. In his order, Judge Thomsen set a bond amount and initialed the arrest warrant for "nighttime execution"—meaning the warrant could be served at night (i.e., after 8pm). No action was immediately taken as a result of the warrant.

On February 27, 2016, PPD received a complaint from another individual, Cassie Hughes, alleging that Harmon was harassing her via telephone. PPD tasked Officer Brandon Vail with investigating the complaint.

Officer Vail called Harmon multiple times the evening of February 27, 2016, with no response. Finally, Harmon answered the phone, indicated it was late, and told Vail that she would talk to him at a more appropriate time. As part of his investigation, Office Vail learned of the active warrant from October 2015 for similar conduct.

The next evening, February 28, 2016, Officer Vail and Officer Shannon Bloxham went to Harmon's house to follow up on the new complaint of telephone harassment and to serve the outstanding arrest warrant obtained in the prior complaint. When Officers Vail and Bloxham knocked on the door, Harmon's husband, Doug Harmon, initially answered and spoke with the officers. Harmon herself then came to the door, but insisted that she did not want to speak to the officers.

At some point during the conversation, Harmon attempted to close the door. Both Officers Vail and Bloxham placed a foot into the doorframe to prevent Harmon from closing the door. According to Harmon, Officer Vail said that she "was going to be arrested tonight," and Officer Bloxham stated, "you're going to jail tonight." Dkt. 21-4, at 8. At this point, Officer Bloxham reached out and grabbed Harmon's wrist to place her in handcuffs. Harmon pulled away.

Unbeknownst to Officers Vail and Bloxham, Harmon had recently undergone surgery on her wrist for arthritis

. Harmon claims that on the night in question she was wearing a splint. Neither Officer Vail nor Officer Bloxham observed Harmon wearing any type of splint on her wrist and contend that had Harmon been wearing such a device, they would not have grabbed her wrist. Nonetheless, Harmon vehemently contends that she was wearing the split at the time of the incident.1

During this same time period, Doug Harmon had called the family's attorney, Greg May. Doug Harmon came back to the door and asked Officer Vail if he would speak to their attorney. Officer Vail declined. Kerry Harmon took the phone from her husband and went into another room to speak to May. She returned, handed the phone to her husband, and went upstairs. PPD Sergeant Derek Daniels then arrived at the scene, spoke with May, and made arrangements for Harmon to voluntarily meet law enforcement at the courthouse the following day to sort out the issues. Officers Vail and Bloxham admonished Harmon against communicating with Cassie Hughes—the complainant of the second telephone harassment incident—and left the scene.

Harmon voluntarily presented herself the following day as agreed. The charge stemming from the 2015 incident was ultimately dismissed by the prosecutor. Harmon was also never charged with any crime pertaining to the 2016 complaint made by Cassie Hughes.

B. Procedural Background2

On November 28, 2017, Harmon filed her complaint, alleging various civil rights violations. Dkt. 1. On July 2, 2018, Harmon filed an Amended Complaint correcting a typographical error of little significance. Dkt. 12. Defendants consented to the amendment and the Court accepted the same. Dkt. 14.

In her Amended Complaint, Harmon alleges seven causes of action under 42 U.S.C. § 1983 : (1) a Constitutional violation for unlawful entry, seizure, and arrest; (2) a Constitutional violation for failing to communicate legal justification for an arrest; (3) a Constitutional violation for use of excessive force; (4) a Constitutional violation for malicious prosecution; (5) a Constitutional violation for failure to intervene; (6) a Constitutional violation for failure to train; and (7) a Monell claim based on "widespread practices and/or policies" of the Pocatello Police Department.

On May 3, 2019, Defendants moved for summary judgment on all claims. Defendants also asked as part of their motion that the Court dismiss Defendants Brandon Vail, Shaun Wright, and Russ Gunter, asserting that Harmon had failed to allege any facts against them.

On that same day, Harmon moved for partial summary judgment on three claims. First, citing Monell , Harmon moved for summary judgment because "there are no genuine issues of material fact that the City of Pocatello had implemented an unconstitutional policy of having day officers (who had no knowledge of the facts) make affirmative misrepresentations and/or omit material facts in probable cause affidavits to obtain warrants." Dkt. 22-1, at 2. Harmon also moved for summary judgment on her claim for unlawful arrest (Claim 1), and her claim for malicious prosecution (Claim 4).

In response to Defendants' Motion for Summary Judgment—aside from arguing substantively against the arguments presented—Harmon agrees that the Court can dismiss Russ Gunter as a defendant, but contends that she properly identified Brandon Vail and Shaun White as defendants and that she has alleged sufficient facts against each of them to justify their inclusion in this suit. As part of this argument, Harmon postures that even if the Complaint is deficient as to these individuals, since Defendants are asking the Court to dismiss these defendants, the Court should give her an opportunity to amend her Complaint.

In response to Harmon's Motion for Partial Summary Judgment, Defendants firmly reject Harmon's characterization of the first "claim" for which she seeks summary judgment—regarding PPD's allegedly unconstitutional policy for obtaining warrants. In their estimation, none of the seven claims identified in the complaint relate to a constitutional violation pertaining to the method used to obtain the warrant for her arrest. In other words, Defendants contend that Harmon is moving for summary judgment on a claim that does not exist—a claim she never pled and that they never received notice of. In support of their arguments, Defendants filed the affidavit of Office Shaun White—the officer who executed the probable cause affidavit used to procure the arrest warrant back in 2015—discussing the process and procedures PPD followed in obtaining warrants. Defendants then explain that there were no widespread policies of abuse, let alone constitutional violations, in the manner in which the department performed these tasks.3

In their Reply Memorandum to their own Motion for Summary Judgment filed the same day, Defendants firmly reject the idea that Harmon can amend her Complaint at this late stage (to plead additional facts against Vail and White) asserting that she has not shown good cause to amend as required by Federal Rule of Civil Procedure 16(b).

In her Reply Memorandum to her Motion for Partial Summary Judgment, Harmon first asserts that Defendants never technically answered her Amended Complaint and therefore cannot move for summary judgment on any claims or to dismiss any defendants, and that Defendants' failure to Answer constitutes acquiescence on all claims. Harmon then addresses the three causes of action that she seeks summary judgment on from the Court.

In conjunction with her Reply, Harmon also filed a Motion to Strike and a Motion to Amend Complaint. In the Motion to Strike, Harmon alleges that Officer Shaun White's affidavit filed by Defendants in opposition to her Motion for Summary Judgment is a sham affidavit that contradicts his prior deposition testimony. In her Motion to Amend, Harmon rebuffs Defendants' contention that her "how the warrant was obtained" claim is some type of new claim, but, nonetheless, formally asks the Court for leave to Amend her Complaint to add this additional claim. Harmon argues that while the details of how the probable cause affidavit was obtained in 2015 did not come to light until recently, she has always asserted that that Defendants obtained the warrant without legal justification. Further, since Defendants never identified any confusion regarding her pleadings until summary judgment, Harmon claims she was unaware that they...

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