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Waggy v. Spokane County Washington

February 5, 2010


Appeal from the United States District Court for the Eastern District of Washington Fred L. Van Sickle, District Judge, Presiding D.C. No. 2:07-cv-00264-FVS.

The opinion of the court was delivered by: Tallman, Circuit Judge


Argued and Submitted December 10, 2009 -- Seattle, Washington.

Before: Ronald M. Gould and Richard C. Tallman, Circuit Judges, and Roger T. Benitez,*fn1 District Judge.


Plaintiff-Appellant Robert Mark Waggy ("Waggy"), a convicted sex offender, was arrested on harassment charges while serving part of his original sentence on community placement in Spokane, Washington. The day after he posted bond and was released, he was again arrested pursuant to a bench warrant issued due to his failure to progress in his court-imposed sexual deviancy treatment program. Based on this latter arrest for violation of his required supervision, he brought suit under 42 U.S.C. § 1983, claiming that the Spokane County prosecuting attorneys and the county violated his constitutional right to be free from arrest without probable cause. The district judge awarded absolute immunity to the deputy prosecuting attorney and found that the plaintiff had failed to allege sufficient facts to warrant trial against the county. We affirm.


On September 29, 2000, Waggy pled guilty to Third Degree Rape of a Child and Second Degree Child Molestation. He was sentenced to 41 months of incarceration and an additional 36 months of community placement supervision following his release from prison. As a condition of his supervised placement, Waggy was ordered to attend a sexual deviancy treatment program, which progressed from individual counseling sessions to peer support group classes once per week. Though he affirmatively took responsibility for the actions leading to his conviction, Waggy's statements during his counseling sessions evinced a fixation on having his children returned to his custody while he continually blamed others for the separation from his children.

During his group counseling session on March 19, 2004, Waggy informed his counselor that if his children were not returned to him by April 20, 2004, he planned to kill John Traylor ("Traylor"), a Washington Department of Social and Health Services ("DSHS") caseworker, whom Waggy blamed for removing his children from his custody. Waggy also stated his intent to conduct a shooting rampage at a local elementary school and made references to the upcoming anniversary of the massacre at Columbine High School in Colorado. Pursuant to statutory reporting obligations, Waggy's counselor divulged these statements to Waggy's Community Corrections Officer and to a supervisor at the Department of Corrections. The supervising corrections officer visited Waggy's home to investigate the reported threats and then imposed additional conditions on Waggy's community placement. Under these new conditions, Waggy was (1) prohibited from having contact with Traylor, (2) ordered to remain no less than two blocks away from the DSHS building in Spokane where Traylor worked, and (3) required to obey all laws.

Spokane Police Department Detective Jeffrey Holy ("Detective Holy") was assigned to investigate Waggy's threats against Traylor. On April 16, 2004, Detective Holy drafted a report detailing his investigation into Waggy's criminal threats. The detective also completed a charging sheet, affidavit of probable cause, and a request for issuance of a prosecutor's complaint and arrest warrant. The documentation was forwarded to Spokane County Deputy Prosecuting Attorney Kelly Fitzgerald ("DPA Fitzgerald"), the prosecutor handling matters dealing with Waggy's prosecution and community placement.

On April 19, 2004, the day before the actions he threatened were to commence, Waggy was arrested on one count of Felony Harassment. He posted bond later that day and was released. Then, on April 20-the fourth anniversary of the Columbine shootings-Todd Wiggs, a supervisor at the Department of Corrections, had a telephone conversation with DPA Fitzgerald where they discussed that Waggy's behavior and subsequent arrest could constitute a violation of the terms of his supervision. In his deposition, Wiggs testified that he and DPA Fitzgerald determined it would be best to secure Waggy in police custody as soon as possible based on the violent threats he was making and because he had failed to make progress in his deviancy treatment program.

DPA Fitzgerald submitted a request for a bench warrant, attaching an order and a motion for an arrest warrant, as well as the same affidavit of facts Detective Holy had submitted on the harassment charge two days prior. A Spokane County Superior Court judge issued a warrant for Waggy's failure to make satisfactory progress in his sexual deviancy treatment program and Waggy was arrested that same day. He was held in the Spokane County Jail for 67 days, at which time he was placed on electronic home monitoring. He was released from this monitoring around August 20, 2004.

Waggy then brought this civil rights action in the Eastern District of Washington under 42 U.S.C. § 1983 against Spokane County, Spokane County Prosecutor Steve Tucker ("Tucker"), and DPA Kelly Fitzgerald. He claimed civil rights violations stemming from false arrest and imprisonment under state law, a violation of his due process rights, and respondeat superior liability against the county. The complaint also alleged a failure by Tucker in his official capacity to adequately train and supervise DPA Fitzgerald in the performance of her duties as a prosecuting attorney.*fn2 District Judge Fred Van Sickle granted summary judgment to all defendants, holding that DPA Fitzgerald was entitled to absolute immunity, and that Waggy ...

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