Gorniak et al v. Wharton et al, No. 6:2016cv00103 - Document 31 (D. Mont. 2018)
Court Description: OPINION AND ORDER: IT IS HEREBY ORDERED that Defendants' Motion for SummaryJudgment (Doc. 15) is GRANTED as to Counts I and II and DENIED as to Counts Ill, IV, and V of the First Amended Complaint. The Court confirms the trial date of Septembe r 11, 2018, for trial of Plaintiffs remaining state law claims. The remaining deadlines set in the Court's Preliminary Scheduling Order (Doc. 12) remain in full force and effect. IT IS FURTHER ORDERED that this matter is referred to United S tates Magistrate Judge John Johnston for the purpose of conducting a settlement conference, which will be set down by him by subsequent order. (See Order). JTJ Chambers notified of order referring for settlement purposes via email. Signed by Judge Charles C. Lovell on 8/8/2018. (HEG)
Download PDF
<![CDATA[
Gorniak et al v. Wharton et al Doc. 31 IN THE UNITED STATES DIST CT COURT FOR THE DISTRICT OF MO ANA HELENA DIVISION f FILED AUG O8 2018 Clerk, U.S. District Court District Of Montana Helena TRACY BOWEN GORNIAK, Individually and as Personal Representative of THE ESTATE OF VINCENT DEMERS, Plaintiff, V 16-103-H-CCL OPINION & ORDER vs. MICHAEL WHARTON, in his individual capacity and as sheriff's deputy, MIKE JOHNSON, in his individual capacity and as undersheriff, JEFFERSON COUNTY SHERIFF DEPT., JEFFERSON COUNTY, and DEFENDANTS 1-10, Defendants. Before the Court is the motion for summary ju gment of Defendants Michael Wharton, Mike Johnson and Jefferson Coun . Having reviewed the briefs and the record and no party having requested o al argument, the Court is prepared to rule. Dockets.Justia.com I - . STANDARD OF REVIEW Fed.R.Civ.P. 56(a) permits a party to seek sum ary judgment "identifying each claim or defense-or the part of each claim or dr frnse-on which summary judgment is sought." A district court may grant sum airy judgment as to particular claims or defenses when one of the parties s entitled to judgment as a matter of law. Summary judgment or adjudication is ppropriate when the movant shows "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P 5\ (a); Matsushita Elec. 6 Indus. v. Zenith Radio Corp., 475 U.S. 574,587, 106 S.Ct. 1348, 89 L.Ed.2d 538 ( 1986); T. W. Elec. Serv., Inc. v. Pacific Elec. Contra tors Assn., 809 F .2d 626, 630 (9th Cir.1987). The purpose of summary judgment is to "pierce the pleadings and assess the proof in order to see whether there is a gen ine need for trial." Matsushita, 475 U.S. at 586, n. 11. On summary judgment, a court must decide whether there is a "genuine issue as to any material fact," not weigh the evidence l r determine the truth of contested matters. Fed.R.Civ.P. 56(a), (c); see also, dickes v. S.H. Kress & Co., I 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (19 0). "Credibility 2 determinations, the weighing of the evidence, and th drawing of legitimate inferences from the facts are jury functions, not those\ of a judge, whether he is J ruling on a motion for summary judgment or for a di ected verdict." Anderson v. Liberty Lobby, Inc., 4 77 U.S. 242, 25 5, 106 S.Ct. 2sds, 91 L.Ed.2d 202 (I 986). The evidence of the party opposing summary judgme t \is to be believed and all reasonable inferences from the facts must be drawn i favor of the opposing party. Anderson, 477 U.S. at 255; Matsushita, 475 U.S. at 87. The Court must determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that o e party must prevail as a matter of law." Anderson, 477 U.S. at 251-252. The moving party, in supporting its burden of roduction, "must either defense or show that the nonmoving party does not h ve enough evidence of an essential element to carry its ultimate burden of persu sion at trial." Nissan Fire I & Marine Ins. Co. v. Fritz Companies, Inc., 210 F.3d 099, 1102 (9th Cir.2000). A "complete failure of proof concerning an essential lement of the nonmoving party's case necessarily renders all other facts immate ial" to entitle the moving 3 party to summary judgment. Celotex Corp. v. Catret t 4 77 U.S. 31 7, 323, 106 S. Ct. 2548, 91 L.Ed.2d 265 ( 1986). "[T]o carry its uT mate burden of persuasion on the motion, the moving party must persuade the c urt that there is no genuine issue of material fact." Nissan Fire, 210 F.3d at 110 . "As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the govern ng law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248. Once the moving party has met its initial burde , the burden shifts to the non-moving party to establish the existence of a gene al issue of material fact. Matsushita, 475 U.S. at 586 - 87. The non-moving arty may not rely on the allegations or denials of its pleadings but must cite to acts in the record. Fed. R. Civ. P. 56(c)(l); Matsushita, 475 U.S. at 586, n. 11. E'ther party may object to the facts presented by the other party on the grounds that h€ material cited is not I admissible. Fed. R. Civ. P. 56(c)(2). III III 4 STATEMENT OF FACTS 1 First Encounter While patrolling in Whitehall, Montana on No einber 8, 2013, Sheriffs Deputy Michael Wharton (Deputy Wharton) observe a man in a white hooded I sweatshirt and white shorts, later identified as Vince t DeMers (Mr. DeMers ), get into a white Infiniti parked in the Town Pump parkin lot, pull out of that spot and pull into another spot. (Doc. 18, Plaintiff's Statemen1 of Disputed Facts, at 'IJ l). Deputy Wharton drove south of the Town Pump and r 9pped at a location where he could observe the Infiniti, which pulled out of the I own Pump lot and began traveling south. (Doc. 18 at ,-r 2). Deputy Wharton followed the Infiniti and obse ved its driver park next to and enter another convenience store. (Doc. 18 at ,-r 2) While the driver was inside, Deputy Wharton learned that the Infiniti was r gistered to Mr. DeMers, whose license had been revoked. The driver came out of the store without having apparently purchased anything. (Doc. 18 at ,-r 3). 1 Because Plaintiff opposes summary judgment, the Co rt L cepts as true all facts for which Plaintiff provides support in the record and draws all rea orlable inferences in favor of Plaintiff. Anderson, 477 U.S. at 255. 5 Deputy Wharton had pulled into position alon Legion Street, facing eastbound, to see where the Infiniti would go. (Doc. 19-3, Inquest Tr., at 21: 19 21 ). The driver pulled out going westbound and, iml ediately upon seeing the patrol car, turned into the alley alongside the Cowdre1 Apartments." (Doc. 19-3 at 21 :22- 24). Deputy Wharton activated his emergen I and investigate whether it was being driven by its o lights to stop the Infiniti et, whose license had been revoked. (Doc. 18 at ,r 4). The stop occurred around :~O or 9:45 at night. (Doc. 19-3 at 22:7). Between 9 and 9:30 that evening, Mr. DeMers r d called his friend Austin Mariah Senst (Ms. Senst) for directions to her apartm nt in Whitehall. (Doc. 19-1, Senst Aff., at ,r 4). Although the location of Ms. Sen t's apartment is not identified in the materials provided to the Court, the ourt draws the reasonable inference that Ms. Senst' s apartment was located in the Cowdrey Apartments. The Infiniti pulled into a parking space beside t e Cowdrey Apartments and the driver exited before Deputy Wharton could stop th patrol car. (Doc. 19-3 at 22: 10 - 13 ). Plaintiff identifies the person riding with ~puty Wharton as Kristy Bums, "the dispatch ride-along." (Doc. 18 at ,r 5). Th Court will refer to this 6 woman as Ms. Burns because a woman identified as 9risti Bums testified at the Coroner's Inquest. ( Doc. 17-2 at 1, Index to Inquest Tr.). According to Ms. Bums, the driver "had some items in his hands, and ] hen he opened the car door, he had his right arm laying above the car door, and h .. . asked Deputy Wharton why." (Doc. 19-3 at 22:20 - 24). The driver said no l fter Deputy Wharton told him to put his hands up again. (Doc. 19-3 at 23: I - 3 J. After Deputy Wharton repeated his command for a third time, the Infiniti dri er "turned, flung the car door shut, and ran." (Doc. 19-3 at 23:5 - 8) According to Deputy Wharton, he "got out of [hisl patrol car with [hisl gun drawn, but Iorpointed at DeMers, and ordered DeMers to show his hands. Demers refused o comply and, after the third command, began running. [Deputy Wharton] holstere , [his] gun and chased DeMers, but was unable to catch him." (Doc. 17-1, arton Aff., at ,r 8). Plaintiff alleges that there is disputed testimon as to whether Deputy Wharton had his weapon pointed at Mr. DeMers, rely" g on a statement made by I • Mr. DeMers to his friend, Ms. Senst. (Doc. 18 at ,r 6). Defendants correctly pomt out that Plaintiff is relying on Mr. DeMers's out-of-col 1 statement to prove that the gun was pointed at Mr. DeMers - i.e. to prove the ruth of the matter asserted. Because the issue of whether Ms. Senst could be perm·tted to testify about Mr. DeMers's statement based on an exception to the hear ay rule has not been fully 7 briefed, the Court will assume for purposes of this m tipn that Deputy Wharton pointed his drawn gun at Mr. DeMers at some point ring their first encounter. Events Following First Encounter Deputy Wharton returned to his patrol car and ontacted Undersheriff I Johnson after losing sight of the Infiniti driver. (Doc. 18 at ,I 7). When Deputy Wharton, following Undersheriff Johnson's instructi1n, went to impound the Infiniti as evidence of a crime, Deputy Wharton looked through the car windows and saw a magazine for an automatic pistol sticking o t from under the driver's seat and a pair of brass knuckles on the front seat. (D c. 18 at ,I 8). Deputy Wharton retrieved the magazine, which was loaded w ·th ammunition, along with the brass knuckles and a box containing ammunition. Deputy Wharton then had the Infiniti towed to the impound lot and secured. (D c. 18 at 1 9). Deputy Wharton returned home when his shift nfed. (Doc. 18 at ,I 10). At 2:30 a.m., about one-half hour after his shift ended, D Juty Wharton responded to a call from dispatch that a man was trying to wave do n traffic on Interstate 90. (Doc. 18 at ,I 11). Second Encounter When Deputy Wharton got to the area where th man had been reported as possibly endangering himself by attempting to flag do n traffic, Deputy Wharton 8 saw a man he refers to as DeMers standing by the sid of the westbound lane of Interstate 90 (I 90). (Doc. 17-1, Wharton Aff., at, 13). Plaintiff alleges that Deputy Wharton knew only that the man he saw on t e side of I 90 was wearing a white hoody similar to the one he observed on the sus 9ct earlier that evening. (Doc. 18 at, 13). Although Deputy Wharton's affida it does not state when he recognized the man he saw on I 90 as the suspect he s w earlier that evening, it is clear that Deputy Wharton recognized the man he sa on I 90 as the man who had been driving the Infiniti and had run away from a traf 1c stop, leaving behind a loaded magazine and ammunition. It was therefore re sonable for Deputy Wharton to suspect that the man he saw could be arm ,d. Deputy Wharton pulled over to the side of the westbound lane, but did not turn on his emergency lights, and got out of his patrol car with his taser drawn. (Doc. 18 at, 13). Mr. DeMers began walking toward the patrol car and took his hands out of his pockets, as instructed by Deputy Wh rton. (Doc. 18 at, 14). After starting to comply with Deputy Wharton's orde to go to the passenger side of the patrol car, Mr. DeMers turned and began runni g west, along the westbound lanes. (Doc. 18 at, 15). Deputy Wharton fired his ta el at Mr. DeMers and missed. (Doc. 18 at , 16). III 9 As Deputy Wharton was getting into his patrol car, Mr. DeMers turned and began running south, across the westbound lanes. (l oc. 18 at ,i 17). Deputy Wharton turned on his emergency lights and began c ossing the median. As Deputy Wharton was crossing the median, Mr. DeM s\ran into the eastbound lanes of I 90 and was struck by an eastbound vehicle. Deputy Wharton's first aid efforts were unsuccessful and Mr. DeMers died at th scene. (Doc. 18 at ,r 18). PLAINTIFF'S CLAIMS Plaintiff Tracy Bowen Gorniak (Ms. Gorniak) rings this case on behalf of herself and as personal representative for the estate o hfr deceased son, Mr. DeMers. The term "plaintiff' is used in both the sing lar and plural in the First Amended Complaint and other documents filed by M ·. Gorniak. For the sake of consistency, the Court will refer to Plaintiff in the sin ular. In Count I of the First Amended Complaint, Pl in~ alleges that Deputy iff Wharton violated Mr. DeMers's right to be free from nreasonable seizure under the Fourth and Fourteenth Amendment by using exce sive force in his two encounters with Mr. DeMers on November 8 and 9 of2013 and that the excessive force caused Mr. DeMers to run across I 90 until he w s hit by an SUV. (Doc. 7, First Amended Compl., at ,r,r 16 - 24, 27 - 29). Plainti f flso alleges that Defendants Jefferson County and Jefferson County Sh riff's Department 10 established policies, patterns and practices that cause t' e violation of Mr. DeMers' s rights, that individuals with final decision aking authority acted in conscious disregard for the need to properly train, supervise, and discipline the employees of Jefferson County and the Jefferson Cou ty Sheriff's Department, and that individuals with final decision making autho 'tf endorsed Deputy Wharton's use of excessive force. (Doc. 7 at ,r,r 30 - 33). Undersheriff Mike Johnson is the only individual other than Deputy Wharton identified in Plaintiff's' First Amended Complaint and is named in both his in Iividual and official capacity. Plaintiff raises claims under Montana state lawl n the remaining counts of the First Amended Complaint. Plaintiff alleges in Co nt II that the conduct giving rise to Defendants' alleged violation of Mr. DeMers' s federal constitutional rights also violated his rights under the Montana Constitutio . (Doc. 7 at ,r,r 36 - 39). Plaintiff alleges in Count III that Defendants' neglige ce caused the death of Mr. DeMers and alleges in Count IV that Defendants' neg igence caused Mr. DeMers to suffer severe emotional distress before his death. I CCount V, Ms. Gomiak I seeks damages on her own behalf for her loss of her s nls comfort and society and for her grief, sorrow, and mental anguish following th alleged wrongful death of her son. 11 DEFENDANTS' SUMMARY JUDGMENT MOT ON Deputy Wharton contends that he is entitled to summary judgment as to Plaintiffs excessive force claim against him because he undisputed facts demonstrate that his use of force was objectively reas nab le and that his conduct did not violate clearly established law. Undersheriff Johnson argues that he is entitled to summary judgment as to the claim against im in his individual capacity because the first amended complaint contain no allegations which demonstrate that he engaged in conduct that caused of excessive force. Jefferson County contends that it e~uty Wharton's alleged use r entitled to summary judgment because its employee did not use excessive , orce against Mr. DeMers in violation of his constitutional rights. Alternatively, J fferson County argues that Plaintiff failed to allege specific facts to support the g n;eral allegation that Jefferson County implemented policies or practices th t caused Deputy Wharton to use excessive force during his encounters with Mr. r eMers. Defendants contend they are entitled to summaey judgment as to Plaintiffs Montana constitutional tort claim because their actio) did not violate Mr. I DeMers's rights under the Montana constitution and b cause Plaintiff has other, adequate remedies. Defendants contend that Plaintiff negligence and wrongful death claims are barred by the public duty doctrine. 12 FEDERAL CLAIMS Plaintiffs 42 U.S.C. In deciding whether Deputy Wharton used excessive force during his two encounters with Mr. DeMers, the Court uses the fram work set forth in Graham v. Connor, 490 U.S. 386 (1989). The Court must balan e "'the nature and quality of the intrusion"' on Mr. DeMers's rights "against the c j tervailing government I interests at stake." Id. at 396 (quoting Tennessee v. G rner, 471 U.S. 1, 8, 105 I S.Ct. 1694, 1699 (1985)). The proper application oft e Graham test "requires careful attention to the facts and circumstances of eac particular case, including the severity of the crime at issue, whether the suspect dses an immediate threat to the safety of the officers or others, and whether he [w s] actively resisting arrest or attempting to evade arrest by flight." Id. First Encounter Deputy Wharton effected his investigative traf c stop without using any force - he activated his emergency lights. Contrary t l laintiff's contention, that stop was justified because Deputy Wharton reasonabl believed that the Infiniti was being driven by its owner, and he knew the owne 's license had been revoked. Deputy Wharton got out of his patrol car with is gun drawn after Mr. DeMers jumped out of the Infiniti. For purposes oft is motion, the Court accepts 13 Plaintiffs contention that Deputy Wharton pointed hi drawn gun at Mr. DeMers at some point during their first encounter. Pointing a oaded gun at a suspect involves a high level of force. Thompson v. Rahr, 88 F.,3d 582, 586 (9 th Cir. 2018). The Court must next consider whether the leve of force was justified by the government interest, considering the severity of the s spected crime, the danger posed by the suspect, and whether the suspect was resisling arrest or attempting to escape. Id. At the time of his first encounter with M . DeMers, Deputy Wharton was investigating a traffic offense. While a traffic of nse is not a serious crime, the United States Supreme Court recognizes that there is a potential danger whenever an officer makes a traffic stop and that the isk of harm to the officer and the occupants of a vehicle is minimized when the officer takes command of the situation. Arizona v. Johnson, 555 U.S. 323, 330 (2009). It was reasonable for Deputy Wharton to draw his gun and order Mr. DeMJ s to show or put up his hands when Mr. DeMers jumped out of his car. The situation escalated because Mr. DeMers re sed to comply with Deputy I Wharton's commands to show his hands. There is no dispute about the fact that at least one of Mr. DeMers's hands was not visible to D puty Wharton. This was not a case of an officer pointing a gun at a compliant and learly unarmed individual. 14 Even if a jury could find that Deputy Wharton sf d excessive force during his first encounter with Mr. DeMers, Deputy Wharto ik entitled to summary judgment on the basis of qualified immunity. Qualifi d immunity protects a government official from civil liability unless the offi ial' s conduct violates "clearly established statutory or constitutional rights f which a reasonable person would have known. Kisela v. Hughes, 138 S. Ct. 114 , 1152 (2018) (per curiam) (quoting White v. Pauly, 13 7 S.Ct. 548, 551 (2017)). Given the fact intensive inquiry involved in deciding excessive force cases, la for using excessive force "are entitled to qualified i enforcement officers sued I unity unless existing precedent 'squarely governs' the specific facts at issu ." Id. at 1153. To overcome Deputy Wharton's qualified immllmity defense, Plaintiff must demonstrate that Deputy Wharton violated clearly esilblished rights. Vos v. City ofNewport Beach, 892 F.3d I 024, 1035 (9th Cir. 201 { , To meet this burden, Plaintiff must cite precedent that could have been kno n to Deputy Wharton prior to November 8, 2013, that would have placed the issu of whether Deputy Wharton acted reasonably "beyond debate." Id. Plai tiff failed to meet this I burden, citing two cases that bear no factual similarit to the instant case. The defendant law enforcement officers in Esta e of Simpson v. Yellowstone County were following an Explorer that they thought 15 atched the description of a stolen Explorer possibly driven by someone who ma have been involved in a burglary "that had occurred hours earlier and that the had not yet investigated.". 229 F. Supp. 3d 1192, 1197 (D. Mont. 2017). The of 1c\ rs did not attempt to e conduct a traffic stop because they were unable to kel p up with the Explorer on a snow-covered and winding road. Id. at 1198. Instead, after learning that the road was a dead-end, they waited in the middle of the road f6r the Explorer to return. Id. at 1199. "Despite not knowing who was driving t e Explorer, whether it contained any passengers, and having no reason to b lieve the driver was armed," the officers loaded a shot gun and an assault rifle, wh ch they fired at the Explorer. Id. One of the many shots fired by the officers killed Simpson. Id. at 1200. This Court, acting through the Honorable Susa If. Watters, rejected the officers' qualified immunity defense, finding that "an ileasonable officer would recognize that using deadly force to effect a Terry sto violates clearly established law." Id. at 1208. As explained above, Deputy WhJ on used no force to effect his investigative (Terry) stop of the Infiniti - he simp turned on his emergency lights. His conduct cannot be compared to that of the o,ficers who used deadly force to effect a traffic stop in Estate of Simpson. Plaintiff argues that Deputy Wharton should ha e known that drawing and pointing his gun at Mr. DeMers was unreasonable bee use the Ninth Circuit has 16 "recognized that ' [w]here there is no need for force, a y force used is constitutionally unreasonable."' (Doc. 19 at 19, quoti g Headwaters Forest Defense v. County ofHumboldt, 240 F.3d 1185, 1199 (9 th Cir. 2000)). The plaintiffs in Headwaters were non-violent protesters Ho "linked themselves together with self-releasing lock-down devices knowl >Js 'black bears"' to protest the "logging of ancient redwood trees in the Headwat rs Forest." Headwaters Forest Defense v. County ofHumboldt, 276 F.3d 112 , [ 127-28 (9 th Cir. 2002) (reaffirming 240 F .3d 1185, following remand by the L ted States Supreme I Court). The defendants in Headwaters were the coun y sheriff and chief deputy who authorized the use of pepper spray on the plainti 'fs. Id. at 1127. When viewed in the light most favorable to the protestors, t e facts showed that the "protestors were sitting peacefully, were easily move ~y the police, and did not threaten or harm the officers." Id. at 1130. The Nint Cfircuit held that the defendants were "not entitled to qualified immunity b cause the use of pepper spray on the protestors' eyes and faces was plainly in excess of the force necessary under the circumstances, and no reasonable officer c Ir have concluded otherwise." Id. at 1131. A case finding that no force was necessary aga·nst a seated and immobilized individual engaged in a peaceful protest cannot be ex ended to the instant case. 17 Mr. DeMers jumped out of his car and refused to sho his hands, at least one of which was concealed from Deputy Wharton's view,. response to repeated commands. A reasonable officer could view Mr. Derers's action as aggressive. Plaintiff may be able to present evidence that t e force used by Deputy Wharton in his first encounter with Mr. DeMers cons· sted of pointing a loaded gun at Mr. DeMers after pulling him over for a traffi violation. In another case involving an officer pointing a loaded gun during at r ffic stop, a deputy sheriff (Copeland) pulled the plaintiff (Thompson) over for r ultiple traffic violations. Thompson, 885 F.3d at 587. Thompson, like Mr. De ers, had a suspended license. He was also a convicted felon, whose most r cent felony conviction was for possession of a firearm. Id. Copeland had Thompson get out of the vehicle patted him down for weapons, radioed for backup and had Thompson sit o the bumper of Copeland's patrol car while Copeland conducted an inventory search of Thompson's car. Id. at 585. During the search, Copeland saw a loaded rej olver in the vehicle, which was 10 to 15 feet away from where Thompson was si ting, "on the bumper of I Copeland's police cruiser, watched over by another d puty who had arrived for backup on the scene." Id. Copeland's conduct at this point was disputed by the parties - Copeland claimed that he unhostered and di 18 layed his weapon, but did not point it at Thompson. Thompson claimed that " opeland pointed his gun at Thompson's head, demanded Thompson surrender, a d threatened to kill him if he did not." Id. The Ninth Circuit assumed that Thompson's v , rsion of events was true and held that a gun to the head constitutes excessive fore "where the officers have an unarmed felony suspect under control, where they co ld easily have handcuffed the suspect while he was sitting on the squad car, an where the suspect is not in close proximity to an accessible weapon. Id. at 587. The Ninth Circuit nevertheless held that Copeland was entitled to quali '1ed immunity because "Thompson's right not to have a gun pointed at him nder the circumstance here was not clearly established at the time the events too place." Id. Deputy Wharton had more reason to draw his ehpon and point it at Mr. DeMers than Copeland had to draw his weapon and T int it at Thompson. Unlike Thompson, Mr. DeMers was not checked for weapon :. Indeed, Mr. DeMers refused to comply with Deputy Wharton's instruction to show his hands. Deputy Wharton therefore was not able to assure himself that Mr. DeMers was unarmed. Unlike Thompson, Mr. DeMers was standing by the I finiti, within reaching distance of a weapon that may have been concealed t ere. Even if the Ninth Circuit had decided the Thompson case before Nove ber of 2013, that decision 19 would not have put Deputy Wharton on notice that po nr ng a gun at Mr. DeMers constituted excessive force in violation of Mr. DeMer 's clearly established constitutional right to be free from unreasonable seiz e. Second Encounter The Court agrees with Plaintiffs position that t e events leading up to Deputy Wharton's second encounter with Mr. DeMer t ould all be considered in determining whether Deputy Wharton's decision to atf°mpt to use a taser to seize Mr. DeMers on I 90 was reasonable under the circum tances. Deputy Wharton recognized the man he saw on I 90 as the driver ofth Infiniti who had fled from him earlier that day. Having found a loaded magazin fi r an automatic pistol and a pair of brass knuckles during his search of the In fin· i, Deputy Wharton had reason to believe that Mr. DeMers could be armed. iven Mr. DeMers's choice to run away earlier in the day, Deputy Wharton also had reason to believe that Mr. DeMers might attempt to flee again. It was therefore eksonable for Deputy I Wharton to draw his taser before confronting Mr. De ers and to deploy his taser when Mr. DeMers ran away. Deputy Wharton is enti ler to summary judgment because the undisputed facts demonstrate that he did of use excessive force I during his second encounter with Mr. DeMers. III 20 Even if a jury could find that Deputy Wharton s use of a taser on a suspect who had previously evaded arrest and was suspected of carrying a weapon was excessive, Deputy Wharton is entitled to summary ju gment on the basis of qualified immunity for his conduct during his second encounter with Mr. DeMers. Although the United States Court of Appeals fi, r the Ninth Circuit decided a number of cases involving the use of tasers during th I years preceding the incidents that led to the filing of this case, the Court as found no case sufficiently similar to the facts of this case as to have put Deputy harton on notice that his use of the taser violated Mr. DeMers's constitutional ights. In 2010, the Ninth Circuit held that a single de I loyment of a taser in dart mode against an agitated but clearly unarmed man w o was pulled over for a minor traffic violation and was not attempting to flee dnstituted excessive force. Bryan v. MacPherson, 630 F.3d 805,822, 832 (9 th Ci 1. 2010). Deputy Wharton got out of his car with his taser drawn because he "kn w DeMers was a habitual traffic offender, was possibly armed, and had run fro a previous stop, .... " (Doc. 17-1 at 114). Deputy Wharton fired the taser o ly after Mr. DeMers turned and began to run away; his actions were therefore not governed by the law established in Bryan. Ill 21 More recently, the Ninth Circuit addressed the ssue "whether police I officers are entitled to qualified immunity when they' ..e alleged to have caused the death of a suspect by using tasers repeatedly and simt ltaneously for an extended period." Jones v. Las Vegas Metropolitan Police Der- 't, 873 F.3d 1123, 1126 - 27 (9 th Cir. 2017). Jones ran away after being pulled over 1or a traffic stop. Id. at 1127. The Ninth Circuit held that the officer's initial ~se of the taser to subdue Jones was appropriate, but the continued use after back up arrived was not. Id. at 1130. Deputy Wharton' s single and unsuccessful use of the taser, like the defendant's initial use of the taser in Jones, was not unreasonable and therefore did not violate Mr. DeMers ' s clearly established righ1s. Plaintiff's 42 U.S.C. § 1983 Claim against Unl rsheriff Johnson Plaintiff seeks to hold Undersheriff Johnson irnlividually liable for violating Mr. DeMers's constitutional rights based on Undersh !riff Johnson's supervision of Deputy Wharton. "In a § 1983 suit or a Bivens act' on - where masters do not answer for the torts of their servants - the term ' supervisory liability' is a misnomer." Ashcroft v. Iqbal, 556 U.S. 662, 677 (20119). Each government official individually named in § 1983 claim "is only liable for his or her own misconduct." Id. Undersheriff Johnson can only bet eld liable for Deputy Wharton' s acts if he personally participated in Deput, Wharton's constitutional 22 violation or engaged in some "culpable action, or ina Ition" that caused Deputy Wharton's constitutional violation. Starr v. Baca, 65 F.3d 1202, 1207 - 1208 (9th Cir. 2011 ). There are only five allegations in the First Arn [ ded Complaint specifically n naming Undersheriff Johnson:~ 9 identifies Johnson as a citizen of Montana and an employee or agent of Jefferson County Sheriff's D[ partment; ,i 14 states that Johnson served as a peace officer in the State of Mon ana at all times relevant to the complaint; 20 states that Deputy Wharton impo nded DeMers' s vehicle "after direction from defendant Johnson;"~ 27 states hat "Defendants Wharton and Johnson were employed by Defendants Jefferson county and the Jefferson county sheriffs department" when they interacted wi h Mr. DeMers on November 8 and 9, 2013; and~ 45 states "Defendants Wharton 1 Johnson created a foreseeable risk of physical and serious or severe emT ional injury to plaintiff by directly causing severe emotional distress that resulte , in physical symptoms." (Doc. 7). None of these allegations establish that Unders er ff Johnson personally participated in or caused Deputy Wharton's alleged c Institutional violation. The party moving for summary judgment can meet its bur :en by pointing out the complete absence of evidence to prove an essential el Iment of the non-moving 23 party's claim when, as in this case, the non-moving p rey will bear the burden of I proof at trial. Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9 th Cir. 2007). Undersheriff Johnson met this burden by poi ing out the absence of specific factual allegations linking Undersheriffs Jo inson's conduct to Deputy Wharton's in the First Amended Complaint. Undersheriff Johnson is also entitled to qualifi d immunity. See Felarca v. Birgeneau, 891 F.3d 809,822 (9 th Cir. 2018)(applyin , qualified immunity to claims against supervisors). Although the first step i1 the qualified immunity analysis would normally be to determine whether De, uty Wharton, an officer supervised by Undersheriff Johnson, used excessive rce, id., this procedure is no longer mandatory. Pearson v. Callahan, 555 U.S. 22 ' , 236 (2009). The Court will proceed directly to the second prong. As discuss d above, Plaintiff has failed to "identify a case where an officer acting under simil r circumstances [to Deputy Wharton in either his first or second encounter with r. DeMers] was held to have violated the Fourth Amendment." Felarca, 891 F.3d t 822. Undersheriff Johnson, like Deputy Wharton, is entitled to summa judgment on the basis of qualified immunity. Plaintiffs 42 U.S.C. 1983 Claim a ainst Jef£ rson Count Plaintiffs§ 1983 claim against Jefferson Coun y is premised on the 24 allegations of the amended complaint that officials w th final policy-making ] authority endorsed Deputy Wharton's use of excessi e force through their policies, patterns, and practices, which included failu e to properly train Deputy Wharton. (Doc. 19 at 21 and 23 ). A local government entity, in this case Jefferso County, can be held liable under § 1983 only if a plaintiff can show that a polic , practice, or custom of that entity was "a moving force behind a violation of con itutional rights." Dougherty v. City of Covina, 654 F .3d 892, 900 (9th Cir. 2011 ). ee also Monell v. Dept. of Social Services, 436 U.S. 658, 690-94 (1978). The c stom or practice must be "so 'persistent and widespread' that it constitutes a 'permanent and well settled [county] policy,"' which means that liability"may not be predicated on isolated or sporadic incidents." Trevino v. Gates, 99 F.3d 911,918 (9 th Cir. 1996) (quoting Monell, 436 U.S. at 691). "A [county's] culpability for a deprivation of rights is at its most tenuous where a claim turns on a failure to train." Connick v. Thompson, 563 U.S. 51, 61 (2011). Liability can only be imposed for a local gov rnment's failure to I adequately train its employees "when the need form e or different training is so obvious, and the inadequacy so likely to result in the iolation of constitutional I rights that the local policymakers of [the local govern1 ent entity] can reasonably 25 be said to have been deliberately indifferent to the ne dr" City of Canton v. Harris, 489 U.S. 378, 390 (1989). The United States Supre e Court set this high standard to avoid diluting the requirement that a local government can be held liable only for an action or inaction that amounts to an official pl licy. Clouthier v. County of Contra Costs, 591 F.3d 1232, 1250 (9 th Cir. 2010)(ov rruled on another issue by Castro v. County of Los Angeles, 833 F.3d 1060 (9 th i~. 2016)). Jefferson County met its summary judgment b rden by pointing out the absence of a factual basis for Plaintiff's general and c ]onclusory allegations that the County's policies, patterns, and practices caused the iolation of Mr. DeMers's rights. Plaintiff failed to identify a specific policy, p a~tice or custom as the "moving force" behind Deputy Wharton's conduct in her response to the Jefferson County's motion for summary judgment, instead arguing that it is not plaintiffs burden to allege specific facts. (Doc. 19 at 23 ). Plai tiff is mistaken. To survive 1 a motion to dismiss for failure to state a claim, a plaiJ tiff must provide more than legal conclusions and "a formulaic recitation of the el J ents of a cause of action." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 ( 007). When a party moves for summary judgment and points out a complaint's failure to state a claim, the plaintiff cannot fall back on the legal conclusions int e complaint to avoid summary judgment 26 The Court finds that no genuine issue of materi 1(act precludes summary judgment in favor of Deputy Wharton, Undersheriff J , hnson and Jefferson County on their Motion for Summary Judgment as to Plainti, s' claims under 42 U.S.C. § 1983 and that they are entitled to judgment as a matte of law on those claims. STATE LAW CLAIMS Constitutional Tort Claim Plaintiff bases her claim for violation of the Mdntana Constitution on the Montana Supreme Court's decision in Dorwart v. Ca aJvay, 58 P.3d 128 (Mont. 2002). Since deciding Dorwart, the Montana Supre e Court has clarified that the constitutional tort theory is not available in Montana here "adequate remedies exist under statutory or common law." Sunburst Schaal Distr. No. 2 v. Texaco, Inc., 165 P.3d 1079, ,r 64 (Mont. 2007), see also Nort ern Cheyenne Tribe v. Roman Catholic Church, 296 P.3d 450, ,r 59 (Mont. 2013). As explained below, Plaintiff has adequate state law remedies in this case. Defendants are therefore entitled to summary judgment as to Plaintiffs claim t , at Defendants violated the Montana constitution. Remaining State Law Claims Defendants move for summary judgment on Pl inti ff s remaining state law claims on the basis of the public duty doctrine. "The I ublic duty doctrine provides 27 that a governmental entity cannot be held liable for a I individual plaintiffs injury resulting from a governmental officer's breach of ad ty owed to the general public rather than to the individual plaintiff." Masse v. Thompson, 90 P.3d 394, 403 (Mont. 2004). The Montana Supreme Court rec gnizes a "special relationship" exception to the public duty doctrine in our situations: "(1) where a statute intended to protect a specific class of persons rom a particular type of harm imposes a duty; (2) where the government agen undertakes a specific action to protect a person or property; (3) where a governme t action reasonably induces detrimental reliance by a member of the public; and (4) where the government has actual custody of the plaintiff or a third person who h rms the plaintiff." Gonzalez v. City of Bozeman, 217 P .3d 487, ,-r 20 (Mont. 2009). 'Uhe Court is not persuaded that Deputy Wharton assumed a duty to protect Mr. eMers by responding to a dispatch call. Were that the case, every officer respo ding to a call would have a special relationship to the person who either made or as the subject of the call. The evolving nature of the public duty doctrine in Montana is demonstrated by a recent opinion issued by the Montana Supreme o rt in response to a certified question from the United States Court of Ap eris for the Ninth Circuit. Bassett v. Lamantia, 417 P.2d 299 (Mont. 2018). Th Montana Supreme Court reformulated the question to ask: "Under Montana la , when a plaintiff claims he 28 was injured directly by an officer's affirmative acts, oes the public duty doctrine exclude all duties that may arise pursuant to generall applicable principles of negligence?" Id. at ,r 1 The Montana Supreme Court nswered the question in the negative, id. at ,r 2, and held that "the public duty docline ... does not apply to exclude the legal duty an officer may owe to a person injured directly by the officer's affirmative actions." Id. Bassett was decided after Defendants' summa judgment motion was fully briefed and the parties have not had the opportunity t I address it. The Court therefore finds that Defendants have not met their bu den and are not entitled to summary judgment as to Plaintiffs remaining state la claims. CONCLUSION AND ORDER As explained above, Defendants are entitled to ·udgment as a matter of law as to Plaintiffs claims under 42 U.S.C. § 1983 and P aintiffs constitutional tort claim under the Montana constitution but not as to Pl intiffs remaining state law claims. According! y, IT IS HEREBY ORDERED that Defendants' otion for Summary Judgment (Doc. 15) is GRANTED as to Counts I and II and DENIED as to Counts Ill, IV, and V of the First Amended Complaint. 29 The Court confirms the trial date of September 11, 2018, for trial of Plaintiffs remaining state law claims. The remainin deadlines set in the Court's Preliminary Scheduling Order (Doc. 12) remain in fu 1 force and effect. It appearing to this Court that the case is now r •ady for a court-supervised settlement conference, IT IS FURTHER ORDERED that this matter i referred to United States Magistrate Judge John Johnston for the purpose of conducting a settlement conference, which will be set down by him by subseql ent order. Those individuals having ultimate settlement authority shall be present personally at the conference. The Clerk is directed forthwith to notify Unite States Magistrate Judge Johnston of the entry of this order. 0,,/J. Dated this~ day of August, 2018 . 30
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
