Boise Man Files Suit Against Idaho Department of Corrections - Now Files Amended Complaint

Twin Falls Times News-Associated Press

Published 02/23/10

The Idaho Department of Corrections stopped making the designations after the court's decision last
year, but has retained the designation applied to offenders before justices made their ruling. And violent
sexual predator information is still being published through law enforcement.

One of those offenders with the violent sexual predator designation was Mark S. Wicklund, 56, whose
designation was vacated in 4th District Court following the Supreme Court ruling involving a different
sexual offender.

Then, on Feb. 4, Wicklund filed his $5 million lawsuit against the state in U.S. District Court, arguing
he was damaged by the violent sexual predator designation that the high court ruled has constitutional
flaws.

"In our view, there are significant constitutional shortcomings in the statutory procedure as a result of
the lack of procedural due process afforded (to) an offender," the high court decision reads.

In the lawsuit, Wicklund's attorney, Jacob Deaton, said "Mr. Wicklund now seeks to recover damages,
in the amount of $5,000,000, that he suffered by the unconstitutional designation."

Jeff Ray, spokesman for the Idaho Department of Corrections, told The Times-News the agency has
suspended issuing new violent sexual predator labels until a new process is developed.

"A proposal is expected to be ready for consideration by the 2011 Legislature," Ray said.

He declined to comment on the lawsuit.

Wicklund was convicted of sexual battery of a minor in Ada County in 2001, and for attempted
communication with a minor for immoral purposes out of King County, Wash.

Idaho has online registries that have 52 listings for violent sexual predators throughout the state.

The violent sexual predator designation was intended to identify high-risk offenders, according to state
rules: "A sexual offender shall be designated as a VSP if his risk of re-offending sexually or threat of
violence is of sufficient concern to warrant the designation for the safety of the community."
Former Twin Falls resident Jason C. Smith, 34, challenged the designation, leading to the Idaho
Supreme Court ruling last year. Wicklund cites that case in his $5 million lawsuit against the state.

Kathy Baird, management assistant for the Sexual Offender Classification Board, defended the state's
use of the designation.

"The Smith decision did not nullify the VSP designation, so anyone who was previously designated as
a VSP is still considered as such," she said. "Every time a VSP moves or reregisters with the sheriff's
office, his picture and address is published in the newspaper."

Read more: http://www.idahostatesman.com/2010/02/23/1091387_boise-man-sues-ida...

Case No. 1:09-cv-00673-EJL

FIRST AMENDED VERIFIED COMPLAINT AND DEMAND FOR JURY TRIAL
JACOB D. DEATON, ISB #7470
LAW OFFICE OF JACOB D. DEATON, PLLC
776 East Riverside Drive, Suite 200
Eagle, Idaho 83616
Tel: (208) 685-2350
Fax: (208) 685-2351
Attorney for Plaintiff
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
MARK S. WICKLUND, an individual
Plaintiff,
v.
ADA COUNTY, a municipality, SHELLEY W. ARMSTRONG, an individual, TESSIE A. BUTTRAM,
an individual and JOHN and JANE DOES I-V, individuals
Defendants.
_____________________________________

Case No. 1:09-cv-00673-EJL

FIRST AMENDED VERIFIED COMPLAINT AND DEMAND FOR JURY TRIAL
Plaintiff, Mark S. Wicklund, by and through his attorney of record, Jacob D. Deaton, of the Law Office
of Jacob D. Deaton, PLLC, and pursuant to Federal Rules of Civil Procedure Rule 15(a)(1), as and for a
cause of action against the Defendants amends his previously filed Complaint and Demand for Jury
Trial and states and alleges as follows:
STATUS OF PARTIES
1. Plaintiff, Mark S. Wicklund, is an individual currently residing in Ada County, Idaho.
2. Defendant, Ada County, is a county in the State of Idaho.
3. Defendant Shelley W. Armstrong is an individual employed as a Deputy Prosecuting Attorney by the
Ada County Prosecuting Attorney‟s Office who was acting under color of law at the time the events set
forth below occurred.
4. Defendant Tessie A. Buttram is an individual employed as a Deputy Prosecuting Attorney by the Ada
County Prosecuting Attorney‟s Office who was acting under color of law at the time the events set
forth below occurred.
5. Defendants, John and Jane Does I-V, are individuals employed by Defendant Ada County. The
identities of these individuals are unknown at this time, but will be clarified through amendment upon
further discovery.
JURISDICTION AND VENUE
6. Jurisdiction lies in the District Court of the United States District Court for the District of Idaho
pursuant to 28 U.S.C. §§ 1331, 1343(3), 1343(4), 42 U.S.C. § 1983, and the Constitution of the United
States and more particularly the Fifth and Fourteenth Amendment thereto. The further relief sought in
this action is more fully spelled out below.
7. The claims made in this action arose within this judicial district.
8. Venue is proper in this judicial district pursuant to 28 U.S.C. § 1391(b).
GENERAL FACTUAL ALLEGATIONS
9. The case outlines causes of action stemming from the destruction and removal of properly filed
documents by the Defendants and subsequent attempts by the Defendants to intimidate and coerce
defense witnesses. The Defendants actions were made under the color of law and in violation of
Plaintiff‟s rights, and, as such, relief is sought under 42 U.S.C. §1983.
10. In 2008, Plaintiff was on probation related to a criminal case filed by the Ada County Prosecuting
Attorney‟s Office in the Fourth Judicial District for the State of Idaho.
11. Mr. Wicklund had less than a year remaining on his probation when his probation officer had him
detained on discretionary jail time. Shortly after his detention in January 2008, a polygraph
examination was performed by a polygrapher named James Page who had been hired by his probation
officer.
12. Mr. Wicklund was arrested and charged with violating the terms of his probation. The polygraph
examination given by James Page was later used as a basis to support the allegations of violation
against Mr. Wicklund.
13. Defendant Armstrong was the handling attorney on Mr. Wicklund‟s probation violation. Defendant
Buttram was not assigned to the case and had no reason to be involved in the probation violation
proceedings.
14. Eventually, Mr. Wicklund was found in violation of his probation and the term of his probation was
extended for an additional three years.
15. After his probation was extended, Mr. Wicklund sought early termination of the probation by filing
a Motion for Early Release from Probation, a copy of which has been attached to this Amended
Complaint.
16. The motion specifically refers to two affidavits, one by Chip Morgan (a polygrapher) and the other
by Dave Ferguson (a treatment specialist with SANE Solutions), that were filed contemporaneously
with the motion.
17. Both affidavits were filed with the motion.
18. The affidavit of Chip Morgan attacked the validity of the polygraph exam given by James Page in
January 2008. Mr. Morgan‟s affidavit sets forth his personal observations that indicated that Mr.
Wicklund was not lucid at the time the polygraph examination occurred and that Mr. Page knew that
Mr. Wicklund was medically unable to take a polygraph in that state.
19. The affidavit of Dave Ferguson sets forth his knowledge of Mr. Wicklund‟s treatment while on
probation and Mr. Ferguson‟s experience in dealing with probation officers. The affidavit of Dave
Ferguson supported Mr. Wicklund‟s claim that the probation violation was filed on the mistaken
assumption that Mr. Wicklund did not have permission to use the internet, when he had been granted
such access by his probation officer.
20. Within days of the filing of the affidavits, Dave Ferguson received a phone call from Defendant
Shelley Armstrong. During that phone call, Defendant Armstrong said she had seen Mr. Ferguson‟s
affidavit and strongly disagreed with the characterizations contained in the affidavit.
21. During that phone call, Defendant Armstrong demanded he change his testimony or she would
“ruin him professionally in court.”
22. Because of that conversation, Mr. Ferguson felt intimidated and contacted the Attorney General‟s
office where he reported the occurrence to Steven Bywater, a Deputy Attorney General.
23. At or about the same time, Dennis Charney, Mr. Wicklund‟s attorney, received a phone call from
Defendant Buttram wherein she attempted to discredit the affidavit of Mr. Morgan. During this phone
call, Defendant Buttram made specific reference to the affidavit filed with the motion to terminate
probation in Mr. Wicklund‟s case.
24. Defendant Buttram also made phone calls and sent emails to four or five other individuals and
attorneys associated with Chip Morgan besmirching Mr. Morgan‟s polygraphs and the affidavit he
submitted in Mr. Wicklund‟s case.
25. After these phone calls indicating actual knowledge of the filings, Mr. Wicklund received an order
from Judge Neville denying his motion. The “order” is a handwritten note appended to the bottom of
the Mr. Wicklund‟s motion stating, “This motion is hereby DENIED without a hearing. While no
statements from Chip Morgan were attached, the basis for the motion asks the Court to „re-hash‟ old
issues, but in any event is an unpersuasive grounds even if it were true.”
26. The order from Judge Neville indicates that the affidavits were missing from the file at the time he
reviewed the file.
27. In response to this denial, Mr. Wicklund and a business acquaintance, Dale Dutt, went to the
courthouse to inspect the file to determine what happened to the affidavits. As they reviewed the file,
they noted that the fax notification indicated that 9 pages were sent and received when the documents
were filed. They counted the pages remaining and three pages were missing.
28. The remaining pages had tears and bits of paper dust on them indicating that some documents had
been attached but had been hastily removed from the two-hole punch securing the file.
29. Mr. Wicklund and Mr. Dutt inquired of the clerk at window 19, a woman in her late twenties with
long brown hair that was parted in the middle, as to why pages were missing from the file. The clerk
responded that she had no idea why the documents were clearly missing from the file.
30. Because it was obvious that the judge had not received all of the documents filed by his attorney,
Mr. Wicklund directed his attorney to re-file the motion and accompanying affidavits.
31. In doing so, Mr. Wicklund incurred additional legal fees.
32. In discovering that items had been removed from the court file, Mr. Wicklund became upset and
concerned about his ability to have his filings properly presented to the judge in the manner in which he
submitted them. He suffered severe emotional distress as a result
33. Further, in response to the phone calls and emails from Defendant Buttram, Chip Morgan wrote a
lengthy email to Roger Bourne of the Ada County Prosecuting Attorney‟s Office outlining numerous
objections he had to the way the deputy prosecuting attorneys were handling polygraphs in general and,
in particular, to Defendant Buttram‟s statements against him.
34. In response to this email, Roger Bourne and Chip Morgan had several lengthy phone conversations.
During those phone conversations, Chip Morgan told Roger Bourne that documents had been removed
from Mr. Wicklund‟s file.
35. In a subsequent phone call, Roger Bourne indicated that he had looked into the allegations made by
Chip Morgan that deputy prosecutors had destroyed documents in Mr. Wicklund‟s file and that he
determined that the allegations were true.
36. During that phone conversation, Mr. Bourne stated that Defendant Armstrong claimed the
destruction of the documents was permissible and excusable as a strategy decision.
37. This conversation was overheard by Mr. Wicklund.
38. The Morgan and Ferguson affidavits were removed from the official court file and destroyed by the
Defendants after the Defendants reviewed them and after the Defendants made the phone calls set forth
above.
39. The Morgan and Ferguson affidavits were improperly shared with Defendant Buttram, when she
had no reason to be involved in the case.
40. The reasons these affidavits were shared with her is because Defendant Buttram and James Page,
the polygrapher mentioned above, are husband and wife and Defendant Buttram as a partial owner of
Mr. Page‟s polygraph business.
41. The removal of those affidavits constitutes obstruction of justice, prosecutorial misconduct in non-
judicial function, and a denial of the Plaintiff‟s right to due process under the law.
42. The removal and destruction of official court records as well as witness intimidation are crimes in
the State of Idaho.
COUNT ONE - 42 U.S.C. §1983 – Defendants Armstrong, Buttram and Jane/John Doe I-V
43. The Plaintiff hereby alleges the above paragraphs as a fully set forth herein.
44. The Fifth and Fourteenth Amendments of the United States Constitution ensure a citizen‟s right to
due process under the law.
45. The First Amendment of the United States Constitution guarantees a citizen‟s right to petition the
government for a redress of grievances.
46. The Plaintiff enjoys the protections of the First, Fifth and Fourteenth Amendments.
47. Defendants Armstrong, Buttram, and Jane/John Does I-V deprived the Plaintiff of his due process
rights by tampering with a court file, removing filings and removing evidence of the removal of those
filings.
48. The removal of the filings denied Plaintiff of his constitutional rights.
49. As a result of the destruction of the official court records, Mr. Wicklund suffered actual damages
including, but not limited to, emotional distress and incurred additional legal fees in bringing a
subsequent motion to present the stolen affidavits to the court.
50. As a result of the violation of his Constitutional rights, Plaintiff is entitled to nominal and actual
damages.
COUNT TWO - 42 U.S.C. §1983 – Defendant Ada County
51. The Plaintiff hereby alleges the above paragraphs as a fully set forth herein.
52. The Fifth and Fourteenth Amendments of the United States Constitution ensure a citizen‟s right to
due process under the law.
53. The First Amendment of the United States Constitution guarantees a citizen‟s right to petition the
government for a redress of grievances.
54. The Plaintiff enjoys the protections of the First, Fifth and Fourteenth Amendments.
55. Defendants Armstrong, Buttram and Jane/John Does I-V are employees of Ada County.
56. The action of the employees of the Defendant Ada County deprived Mr. Wicklund his due process
rights under the United States Constitution.
57. The Defendant Ada County and its employees acted under color of law in taking the actions
described in this Complaint.
58. Defendant Ada County‟s training policies were not adequate to train its employees to handle the
usual and recurring situations with which they must deal.
59. Defendant Ada County was deliberately indifferent to the obvious consequences of its failure to
adequately train its employees.
60. Ada County‟s failure to adequately train its employees caused the deprivation of Mr. Wicklund‟s
rights, as outlined above; that is, the Defendant Ada County‟s failure to train its employees is so
closely related to the deprivation of Mr. Wicklund‟s due process rights as to be the moving force that
caused the ultimate injury in this case.
61. Defendant Ada County‟s failure to train its employees made it highly predictable that its employees
would engage in conduct that would deprive persons, like Mr. Wicklund, of their rights.
62. As a result of the destruction of the official court records, Mr. Wicklund suffered actual damages.
63. As a result of the violation of his Constitutional rights, Plaintiff is entitled to nominal and actual
damages.
COUNT THREE – Negligence/Negligence Per Se – All Defendants
64. The Plaintiff hereby alleges and incorporates the preceding paragraphs as a fully set forth herein.
65. The Defendants owed a duty of reasonable care to the Plaintiff.
66. Specifically, the Defendants were stewards of the documents filed with the court and owed a duty
of reasonable care to maintain those items filed with the court in the manner in which they were filed.
67. Pursuant to the Idaho Tort Claim Act, I.C. §§6-901 et seq, Defendant Ada County is jointly and
severally liable for the acts of negligence by its agents.
68. The individuals named as Defendants are liable under the Idaho Tort Claim Act for the negligent
acts committed in this case.
69. The Defendants violated Idaho Code §§18-3201(stealing, mutilating or falsifying public record),
18-2604 (intimidating a witness), 18-2603 (destruction of evidence). These violations constitute
negligence per se and amount to a breach of the Defendants duty of reasonable care under the
circumstances.
70. The Defendants breached their duty in taking the actions described in this Complaint.
71. The Defendants‟ negligence caused the Plaintiff damages, including but not limited to, emotional
distress and additional legal fees incurred in bringing a subsequent motion to present the stolen
affidavits to the court.
72. As a result of the Defendants negligence, the Plaintiff suffered damages, the exact amount which
will be proven at trial.
DEMAND FOR JURY TRIAL
The Plaintiff hereby demand a jury trial as to all causes of action raised in this Complaint.
PRAYER FOR RELIEF
AS TO COUNT ONE
1. Award Plaintiff‟s nominal and compensatory damages.
2. Award Plaintiff‟s costs and attorney's fees pursuant to 42 U.S.C. § 1988.
3. Grant such other and further relief as this Court deems necessary and proper.
AS TO COUNT TWO
1. Award Plaintiff‟s nominal and compensatory damages.
2. Award Plaintiff‟s costs and attorney's fees pursuant to 42 U.S.C. § 1988.
3. Grant such other and further relief as this Court deems necessary and proper.
AS TO COUNT THREE
1. Award Plaintiff‟s compensatory damages.