Osborn v. Butler

• Decision Date: 11 May 2010
• Docket Number: Case No. CV 09-071-S-CWD.
• Citation: 712 F.Supp.2d 1134
• Parties: Michael R. OSBORN, an individual, Plaintiff,v.Kevin BUTLER, individually and in his capacity as an employee of the Idaho State Police; Gary Deulen, individually and in his capacity as an employee of the Office of the Attorney General of the State of Idaho; Steve Hopkins, individually and in his capacity as an employee of the Idaho State Police; and John Does I through IV, Defendants.
• Court: U.S. District Court — District of Idaho

712 F.Supp.2d 1134

Michael R. OSBORN, an individual, Plaintiff,v.Kevin BUTLER, individually and in his capacity as an employee of the Idaho State Police; Gary Deulen, individually and in his capacity as an employee of the Office of the Attorney General of the State of Idaho; Steve Hopkins, individually and in his capacity as an employee of the Idaho State Police; and John Does I through IV, Defendants.

Case No. CV 09-071-S-CWD.

United States District Court D. Idaho.

May 11, 2010.

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Darwin Lavor Overson, Joy M. Bingham, Jones & Swartz PLLC, Boise, ID, for Plaintiff.

David W. Cantrill, Daniel Joseph Skinner, Cantrill, Skinner, Sullivan & King

LLP, Gene A. Petty, Boise, ID, for Defendants.

MEMORANDUM DECISION AND ORDER

CANDY W. DALE, United States Magistrate Judge.

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 Plaintiff's 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 Plaintiff's 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 Plaintiff's 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 Plaintiff's motion. (Minutes, Docket No. 64.) After carefully considering the parties' briefs, evidence, and oral argument, Defendants' Motion for Summary Judgment will be granted and Plaintiff's Motion for Partial Summary Judgment will be denied. Plaintiff's 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 (“Jacobsen”) 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 30.) On September 3, 2003, Judge Horton sentenced Osborn to serve the remainder of his prison term and thereafter Osborn was incarcerated at Idaho State Maximum Security Institution (“ISMSI”). (Overson Aff. Ex. D, Docket No. 44-7 at 21.) Osborn's mother, Laura Osborn, was present during the rider review hearing before Judge Horton, and she recalls that Judge Horton indicated he would not consider the Jacobsen Letter and the threats made therein for sentencing purposes. (Aff. of Laura Osborn ¶ 4, Docket No. 44-3.)

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 allegedly made against Prosecutor Bourne's daughter as part of a plea negotiation. Thereafter, Defendant Deulen spoke to Mrs. Osborn and informed her that Jacobsen had “passed the portion of the polygraph relating to threats against Mr. Bourne, and failed the portion relating to threats made against Mr. Bourne's daughter.” (Aff. of Laura Osborn ¶ 21, Docket No. 44-3.) Defendant Deulen also informed Mrs. Osborn that Jacobsen had admitted to lying about Osborn threatening Prosecutor Bourne's daughter. (Aff. of Laura Osborn ¶ 11, Docket No. 44-3.) Mrs. Osborn was not provided with a copy of the Polygraph Report. (Aff. of Laura Osborn ¶ 22, Docket No. 44-3.)

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...