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Judge recommends tossing Mouseketeer lawsuit

Citing issues that include whether federal court is the appropriate venue for Oregon constitutional rights violations, a judge has recommended dismissal of a $1.7 million lawsuit filed by Dennis Day’s family.

The family filed the lawsuit following a monthslong search for Day’s body that ended when he was found trampled and badly decomposed in a main room of his Phoenix home.

Magistrate Judge Mark Clarke sided with the city of Phoenix, Phoenix police and Phoenix police Lt. Jeff Price — and against Day’s relatives, including his sister Nelda Adkins of Coalinga, California — in an 18-page opinion filed last week in U.S. District Court in Medford. In the court opinion, Clarke touched on a host of legal arguments ranging from qualified immunity of police officers involved in the case to limits of the family’s rights under the Oregon’s Crime Victims Act.

Day, who lived in Southern Oregon for nearly three decades, was known for his childhood acting role as a founding Mouseketeer on the first two seasons of Walt Disney’s “Mickey Mouse Club.”

Day was reported missing in July 2018, and cadaver dogs found his body underneath a pile of clothes in his house in April 2019. Police had searched the house previously, and reportedly stepped on the body without finding it.

Adkins and other relatives of Day filed a lawsuit last year against Phoenix police for negligence and tortious interference with a corpse surrounding the state of Day’s remains. Day’s family alleged that spoiled forensic evidence compromised the Jackson County prosecutor’s still-pending homicide case against suspect Daniel James Burda, and that the failure to find his body limited their options for how to handle Day’s remains.

Clarke’s filing indicated that the family’s suit could have merit in another court, but he determined that the federal court lacks jurisdiction.

“The allegations of police misconduct and facts in this case are disturbing,” Clarke wrote. “Plaintiffs (Day’s sister, nieces and nephew) can pursue their claims in state court.”

A key argument in Adkins’ case against the city of Phoenix alleged that the family’s rights were violated under the Oregon Crime Victims Act, but Clarke said the alleged violations occurred before a criminal investigation ever began, and it’s “not clear how the misconduct alleged gives rise to a right cognizable under Oregon law, let alone federal law.”

The Oregon Crime Victims Act does have “some provisions” that appear to line up with the family’s claims of misconduct surrounding their failure to be notified as victims, Clarke notes, but only during “a criminal action” — not during a missing persons investigation.

The family’s lawsuit claimed that they couldn’t control Day’s remains, as granted under Oregon law, because the alleged police misconduct “destroyed” the remains.

Two federal cases involving the Oregon law that the family cited as precedent, however, were 1966 and 1991 cases that each involved burials at wrong grave sites. Clarke noted that neither case determined rights violations “under the U.S. Constitution or federal law.”

Clarke further sided with the city that Phoenix police have qualified immunity.

Clarke noted that arguments of improper training at the police department don’t hold because they didn’t show evidence of a persistent problem.

“Plaintiffs have not pleaded that Price’s actions reflected a longstanding practice or custom which constitutes the standard operating procedure of the PPD,” Clarke wrote. “As such, they have not properly stated a claim against the PPD.”

Clarke’s filing is not a final order. Another judge, U.S. District Judge Ann Aiken, will make her ruling on the dismissal after considering Clarke’s findings, any formal objections and any responses to objections that may be filed in the next three weeks.

The homicide case is still pending, Jackson County Circuit Court records show, and a trial date has not yet been set for Burda, who is charged with second-degree manslaughter, criminally negligent homicide, second-degree abuse of a corpse, first-degree criminal mistreatment and aggravated identity theft.

Burda was released from the Jackson County Jail on supervised release in August of last year while the Jackson County District Attorney’s office awaits an appeal of a judge’s ruling on evidence a jury will be allowed to consider at trial. Burda’s next court appearance is a pretrial conference scheduled for Jan. 25.

Reach reporter Nick Morgan at 541-776-4471 or nmorgan@rosebudmedia.com. Follow him on Twitter @MTCrimeBeat.