Bonogofsky v. Big Horn County Sheriff's Department et al

Filing 62

ORDER granting 53 Big Horn County Sheriff's Department's Motion for Partial Summary Judgment. Counts III and IV of Second Amended Complaint are Dismissed. Signed by Judge Richard F. Cebull on 6/1/2010. (EMA)

IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF MONTANA B I L L I N G S DIVISION R A N D Y BONOGOFSKY, ) ) Cause No. CV-08-32-BLG-RFC P la intiff, ) ) v. ) ORDER ) B I G HORN COUNTY SHERIFF'S ) D E P A R T M E N T , AND JOHN DOES ) 1 -4 9 , ) ) D e fe nd a nts . ) ____________________________________ ) P la intiff has filed a Second Amended Complaint against Big Horn County S he riff' s Department and their agents/employees alleging claims of (1) Count I N e glige nc e ; (2) Count II - State Constitutional Violations (Excessive Force); (3) C o unt III - Negligence Per Se; and (4) Count IV - Civil Rights violations under 42 U .S .C . § 1983. Presently before the Court is Big Horn County Sheriff's Department's Motion fo r Partial Summary Judgment on Plaintiff's Claims of Negligence Per Se, and Civil R ights violations under 42 U.S.C. § 1983.

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FACTUAL BACKGROUND O n June 30, 2005, at Fort Smith, within the boundaries of Big Horn County, M o nta na , Plaintiff Randy Bonogofsky was at his residence when now ex-wife S he ila Bonogofsky, son, and another juvenile arrived at his residence. An argument e ns ue d between Plaintiff and Sheila that resulted in her pointing a rifle at Plaintiff a nd allegedly firing at Plaintiff. Plaintiff managed to wrestle the rifle from his wife w itho ut physical injury to himself. However, the argument and subsequent physical a lte rc a tio n caused Plaintiff's son to be so angered as to point a .22 handgun at the P la intiff. Plaintiff managed to diffuse the situation and Plaintiff's then-wife and two juve nile s left Plaintiff's residence in separate vehicles. A lmo s t immediately after the incident, Big Horn County Dispatch received tw o 911 calls from Plaintiff's neighbors describing the incident. Officers were then d is p a tc he d to Plaintiff's residence. The information that the Officers received from d is p a tc h resulted in an unclear perception as to who was the domestic abuse victim a nd who was the perpetrator. The only confirmed information was that a firearm w a s involved. Consequently, when the Officers arrived at Plaintiff's residence, they d ire c te d him to exit his residence, ordered him to lay on the ground, at which point the Officers handcuffed him and placed him in a patrol car. When it was clear that P la intiff was the victim and not the perpetrator, he was released.
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Plaintiff contends that prior to being directed to the ground, he informed the O ffic e rs that he was recovering from back surgery. Further, he states that during the c o urs e of the handcuffing, an officer placed a knee in his back. Lastly, Plaintiff s ta te s that he was forced to sit for over an hour with his hands cuffed behind his b a c k . From the time he was taken into custody and released, Plaintiff alleges claims o f physical and emotional injury arising from the Officers' negligence and use of e xc e s s ive force. In addition, Plaintiff alleges that Defendants were negligent in fa iling to investigate the circumstances of the event prior to taking him into custody. S T A N D A R D OF REVIEW T he Federal Rules of Civil Procedure provide for summary adjudication when " the pleadings, depositions, answers to interrogatories, and admissions on file, to ge the r with affidavits, if any, show that there is no genuine issue as to any material fa c t and that the moving party is entitled to a judgment as a matter of law." Fe d .R .C iv.P . 56(c). In considering a motion for summary judgment, the court must examine all of the evidence in the light most favorable to the non-moving party. United States v. D ie b o ld , Inc., 369 U.S. 654, 655 (1962). If the moving party does not bear the b urd e n of proof at trial, he or she may discharge this burden of showing that no ge nuine issue of material fact remains by demonstrating that "there is an absence of
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evidence to support the non-moving party's case." Celotex Corporation v. Catrett, 4 7 7 U.S. 317, 325 (1986). Once the moving party meets the requirements of Rule 5 6 by showing there is an absence of evidence to support the non-moving party's c a s e , the burden shifts to the party resisting the motion, who "must set forth specific fa c ts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, In c ., 477 U.S. 242, 256 (1986). I. Summary Judgment on Plaintiff's Claims of Negligence Per Se

P la intiff has alleged in his Second Amended Complaint under Count III, N e glige nc e per se as follows: 18. T ha t the Defendants, in effecting the warrantless arrest of the Plaintiff, vio la te d the provisions of § 46-6-311(1), M.C.A. and § 46-6-311(2)(b), M .C .A ., and failed to determine that the Plaintiff was a victim of P a rtne r/Fa mily Member Assault, and further, that there was no issue of mutua l aggression justifying the arrest of Plaintiff. T ha t the Defendants violated the provisions of § 46-6-312, M.C.A. by e ffe c ting a warrantless arrest of the Plaintiff proximately resulting in injurie s to Plaintiff.

19.

U nd e r Montana law, a plaintiff must prove five elements in order to establish ne glige nc e per se: (1) the defendant violated a particular statute; (2) the Legislature inte nd e d the statute to protect a specific class of persons; (3) the plaintiff is a me mb e r of that class; (4) the Legislature intended the statute to prevent plaintiff's

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injury; (5) the Legislature intended to regulate a member of defendant's class. Olson v. Schumaker Trucking and Excavating Contractors, Inc., 347 Mont. 1, 17, 1 9 6 P.3d 1265, 1277 (2008). Montana Code Annotated §46-6-311(1) and (2)(b) state as follows: (1 ) A peace officer may arrest a person when a warrant has not been is s ue d if the officer has probable cause to believe that the person is c o mmitting an offense or that the person has committed an offense and e xis ting circumstances require immediate arrest. (2)(b) When a peace officer responds to a partner or family member a s s a ult complaint and if it appears that the parties were involved in mutua l aggression, the officer shall evaluate the situation to determine w ho is the predominant aggressor. If, based on the officer's evaluation, the officer determines that one person is the predominant aggressor, the o ffic e r may arrest only the predominant aggressor. A determination of w ho the predominant aggressor is must be based on but is not limited to the following considerations, regardless of who was the first a gg r e s s o r : (i) the prior history of violence between the partners or family me mb e rs , if information about the prior history is available to the o ffic e r; (ii) the relative severity of injuries received by each person; (iii) w he the r an act of or threat of violence was taken in self-defense; (iv) the relative sizes and apparent strength of each person; (v) the apparent fear or lack of fear between the partners or fa mily members; and (vi) statements made by witnesses.

M o nta na Code Annotated § 46-6-312 states as follows: A peace officer making an arrest without a warrant shall inform the p e rs o n to be arrested of the officer's authority, of the intention to arrest
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that person, and of the cause of the arrest, except when the person to b e arrested is actually engaged in the commission of or in an attempt to c o mmit an offense or is pursued immediately after its commission, after a n escape, or when the giving of the information will imperil the arrest.

Probable cause existed for the actions taken toward Plaintiff. Probable cause e xis ts when the facts and circumstances within an officer's personal knowledge a c q uire d at the time through his senses, or inferences properly drawn from such k no w le d ge , are "sufficient to warrant a prudent [person] in believing that the [s us p e c t] had committed or was committing an offense." Beck v. Ohio, 379 U.S. 8 9 , 91 (1964). Probable cause is not defeated even if the facts on which the officers base the ir conclusions that a suspect may have committed a crime turn out to be inc o rre c t. It has been recognized that when there is a challenge to whether the p o lic e reasonably believed that the person they are arresting is the person for whom the y have probable cause to arrest, "sufficient probability, but not certainty, is the to uc hs to ne of reasonableness under the Fourth Amendment." Tibbs v. City of C h ic a g o , 469 F.3d 661, 664 (7th Cir. 2006), quoting Hill v. California, 401 U.S. 7 9 7 , 804 (1971). There is no question that officers had probable cause when they took Plaintiff into custody in an attempt to secure the scene of a crime and protect officers and the
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public. The probable cause finding defeats Plaintiff's claims of negligence per se. The undisputed facts in this case demonstrate that Big Horn County Dispatch re c e ive d two 911 calls from Plaintiff's neighbors describing the incident involving a fire a rm. Officers were dispatched to Plaintiff's residence with information that a fire a rm had been used. When the Officers arrived at the Plaintiff's residence, they d ire c te d him to exit his residence, ordered him to lay on the ground, at which point the Officers handcuffed him and placed him in a patrol car. Once the situation was s ta b iliz e d and it was clear that Plaintiff was the victim and not the perpetrator, he w a s released. It is reasonable under the circumstances for the officers to take Plaintiff into c us to d y until they were able to accurately determine all facts surrounding the gun c a ll. Law enforcement would need to investigate to ensure a potentially volatile s itua tio n was stabilized. Plaintiff was released when it was determined that he had no t committed a crime. Further, this Court cannot find any authority to support Plaintiff's contention tha t in enacting Mont. Code Ann. §§ 46-6-311 or 46-6-312, that the Legislature inte nd e d the statute to protect a specific class of persons or that Plaintiff is a me mb e r of that class. There is no basis to conclude from these statutes that the Le gis la ture intended the statutes to prevent Plaintiff's injuries that he alleges he
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sustained in this case or that the Legislature intended the statutes to regulate a me mb e r of Defendant's class. II. Summary Judgment on Plaintiff's Claims of Civil Rights violations under 42 U.S.C. § 1983

T itle 42 U.S.C. § 1983 creates a cause of action to remedy deprivations of c o ns titutio na l rights by persons acting under the authority of state law. With regard to municipal liability, while a governmental entity cannot be held vicariously liable und e r § 1983 for the constitutional violations of its employees, it can be held liable w he n action taken pursuant to official municipal policy caused a constitutional tort. Christie v. Iopa, 176 F.3d 1231, 1235 (9th Cir. 1999) citing Monell v. Department o f Social Serv. of N.Y., 436 U.S. 658, 694 (1978). "The official policy requirement w a s intended to distinguish acts of the municipality from acts of employees of the munic ip a lity, and thereby make clear that municipal liability is limited to action for w hic h the municipality is actually responsible." Id., citing Pembaur v. City of C in c in n a ti, 475 U.S. 469, 479-8 (1986) (internal quotations omitted). Specifically, a § 1983 plaintiff may establish municipal liability in one of thre e ways. First, the plaintiff may prove that a Department employee committed the alleged constitutional violation pursuant to a formal governmental policy or a " lo ngs ta nd ing practice or custom which constitutes the `standard operating

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procedure' of the local government entity." Jett v. Dallas Indep. Sch. Dist., 491 U .S . 701, 737 (1989); Monell, 436 U.S. at 690-91. Second, the plaintiff may e s ta b lis h that the individual who committed the constitutional tort was an official w ith "final policy-making authority" and that the challenged action itself thus c o ns titute d an act of official governmental policy. See Pembaur v. City of C in c in n a ti, 475 U.S. 469, 480-81 (1986); McKinley v. City of Eloy, 705 F.2d 1110, 1 1 1 6 (9th Cir. 1983). Whether a particular official has final policy-making authority is a question of state law. See Jett, 491 U.S. at 737; City of St. Louis v. Praprotnik, 4 8 5 U.S. 112, 123-24, 108 S. Ct. 915, 924, 99 L. Ed. 2d 107 (1988). Third, the p la intiff may prove that an official with final policy-making authority ratified a s ub o rd ina te ' s unconstitutional decision or action and the basis for it. See Pr a p r o tn ik , 485 U.S. at 127; Hammond v. County of Madera, 859 F.2d 797, 8 0 1 -0 2 (9th Cir. 1988). M o re o ve r, to establish municipal liability under § 1983, a plaintiff must s ho w that: (1) he was deprived of a constitutional right; (2) the municipality has a p o lic y; (3) the policy amounts to deliberate indifference to plaintiff's c o ns titutio na l rights; and (4) the policy is the moving force behind the c o ns titutio na l violation. Oviatt v. Pearce, 954 F.2d 1470, 1474 (9th Cir. 1992).

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First, the plaintiff may prove that a Department employee committed the a lle ge d constitutional violation pursuant to a formal governmental policy or a " lo ngs ta nd ing practice or custom which constitutes the `standard operating p ro c e d ure ' of the local government entity." Jett v. Dallas Indep. Sch. Dist., 491 U .S . 701, 737 (1989); Monell, 436 U.S. at 690-91. Plaintiff has completely failed to demonstrate that an officer committed an alleged constitutional violation pursuant to a formal governmental policy or a longstanding practice or custom which c o ns titute s the standard operating procedure of the local government entity. S e c o nd , the plaintiff may establish that the individual who committed the c o ns titutio na l tort was an official with "final policy-making authority" and that the c ha lle nge d action itself thus constituted an act of official governmental policy. See Pe m b a u r , 475 U.S. at 480-81 (1986). Whether a particular official has final p o lic y-ma k ing authority is a question of state law. See Jett, 491 U.S. at 737. In this case, the deputies on the scene at the time Plaintiff was being taken into custody w e re Deputy Sheriff Windburn and Reserve Deputy Jeffson. Neither of these d e p utie s are officials who have final policy-making authority for the Department. Third, the plaintiff may prove that an official with final policy-making a utho rity ratified a subordinate's unconstitutional decision or action and the basis fo r it. Plaintiff cannot establish that any allegedly unconstitutional conduct was
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ratified by a policymaking official for purposes of establishing liability on the part of the Department under § 1983. In order to show ratification, a plaintiff must prove that the "authorized p o lic yma k e rs approve a subordinate's decision and the basis for it. Praprotnik, 485 U .S . at 127 (1988). Ratification requires, among other things, knowledge of the a lle ge d violation. Christie v. Iopa, 176 F.3d 1231, 1239 (9th Cir. 1999). A p o lic yma k e r' s knowledge of an unconstitutional act does not, by itself, constitute ra tific a tio n. Id. Instead, a plaintiff must prove that the policymaker approved the s ub o rd ina te ' s acts. Id. Even a policymaker's refusal to overrule a subordinate's c o mp le te d acts does not constitute approval. Id. Based upon the undisputed facts as presented by Plaintiff, he cannot establish tha t unconstitutional conduct was ratified by the Department for purposes of trigge ring § 1983 liability, as a matter of law. Plaintiff cannot even demonstrate that a policymaker ratified any allegedly unconstitutional conduct on the part of the ind ivid ua l officers toward Plaintiff. Plaintiff argues that the cooperative a rra nge me nt between the Department and the National Park Service and Bureau of Ind ia n Affairs to respond to emergency calls constitutes a policy pursuant to which he was injured for purposes of § 1983 liability. This argument is flawed. There was no formal policy or custom that regularly results in the type of injury claimed by
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Plaintiff and there is no evidence that the Department regularly injures people during ha nd c uffing pursuant to an official policy or custom. CONCLUSION B a s e d upon the foregoing, IT IS HEREBY ORDERED that Defendant Big H o rn County Sheriff's Department's Motion for Partial Summary Judgment [doc. 5 3 ] is GRANTED. Count III - Negligence Per Se; and Count IV - Civil Rights vio la tio ns under 42 U.S.C. § 1983; of the Second Amended Complaint are D ISM ISSE D . Dated this First Day of June, 2010. _ /s / Richard F. Cebull___________ R ic ha rd F. Cebull U nite d States District Judge

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