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 )

) Case No. 1:09-cv-00673-EJL
Plaintiff, )
)
v. ) FIRST AMENDED VERIFIED
) COMPLAINT AND DEMAND FOR
ADA COUNTY, a municipality, SHELLEY ) JURY TRIAL
W. ARMSTRONG, an individual, TESSIE A. )
BUTTRAM, an individual and JOHN and )
JANE DOES I-V, individuals )
)
Defendants.
_____________________________________

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.

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 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.

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 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

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 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.

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 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.

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 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.

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 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.

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 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.

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 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.

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 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.

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