Briese et al v. State of Montana et al
Filing
153
FINDINGS AND RECOMMENDATIONS. IT IS RECOMMENDED that the 143 MOTION for Summary Judgment filed by Yellowstone County Sheriff's Department, Yellowstone County, Yellowstone County Sheriff be GRANTED. Objections to F&R due by 11/2/2012. Signed by Magistrate Carolyn S Ostby on 10/16/2012. (JDH, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION
ERENE BRIESE, Individually; JDB
and JRB, Individually; Erene Briese
as Personal Representative on behalf
of the heirs of David L. Briese, Jr.,
CV-09-146-BLG-RFC-CSO
Plaintiffs,
vs.
STATE OF MONTANA,
DEPARTMENT OF PUBLIC
HEALTH AND HUMAN SERVICES,
CHILD AND FAMILY SERVICES
DIVISION; SOCIAL WORKER PAM
WEISCHEDEL, UNKNOWN JOHN
DOES AND JANE DOES 1-20
Employees and Supervisors,
Individually and Personally,
YELLOWSTONE COUNTY, A
Political Subdivision of the State of
Montana, YELLOWSTONE COUNTY
SHERIFF’S DEPARTMENT;
YELLOWSTONE COUNTY
SHERIFF; UNKNOWN JOHN DOES
AND JANE DOES 1-20, Employees
and Supervisors, Individually and in
their official capacities; CITY OF
BILLINGS, BILLINGS POLICE
DEPARTMENT, Employees and
Supervisors, Individually and in their
official capacities; JOANNE BRIESE;
J. GREGORY TOMICICH; DAWN
MACEY, and KENDALL JACKSON,
Defendants.
FINDINGS AND
RECOMMENDATION OF
U.S. MAGISTRATE JUDGE
Plaintiffs Erene Briese, JDB, and JRB (collectively “Briese
Plaintiffs”) claim violations of various federal and state laws by State,
County, City, and private Defendants. Pltfs’ First Am. Cmplt (DKT 51).
Only Yellowstone County, the Yellowstone County Sheriff’s
Department, and the Yellowstone County Sheriff (collectively “County
Defendants”) remain as defendants. See Order Adopting Findings and
Recommendations of U.S. Magistrate Judge (DKT 93) (dismissing State
Defendants and Defendant Kendall Jackson); Order Dismissing
Defendant Dawn Macey (DKT 124); Order Adopting Findings and
Recommendations of U.S. Magistrate Judge (DKT 127) (dismissing
Defendants Joanne Briese and J. Gregory Tomicich); and Order for
Dismissal (DKT 139) (dismissing Defendants City of Billings and
Billings Police Department).
Although the Briese Plaintiffs also named as County Defendants
“UNKNOWN JOHN DOES AND JANE DOES 1-20, Employees and
Supervisors, Individually and in their official capacities[,]” they have
failed to identify them further and the time for doing so has passed.
See Scheduling Order (DKT 106) (setting May 31, 2011 deadline for
2
motions to amend pleadings, including joinder of parties and
identification of any “Doe” defendants). Thus, to the extent the Briese
Plaintiffs assert claims against any Yellowstone County employees and
supervisors, individually and in their official capacities, such claims
should be dismissed.
Now pending is the County Defendants’ motion for summary
judgment. DKT 143. Having reviewed the record, together with the
parties’ arguments in support of their positions, the Court makes the
findings and recommendation discussed below.
I.
BACKGROUND
The Briese Plaintiffs’ allegations concern events that sometimes
overlap, span several months, and involve multiple parties. Because
only the County Defendants remain, the Court confines its discussion
to those facts pertinent to claims against them. Less relevant facts and
allegations are included only to provide context. The Court has taken
many of the following facts from the Briese Plaintiffs’ First Amended
Complaint (DKT 51), the County Defendants’ Answer (DKT 63) thereto,
and exhibits that the parties filed in support of their positions
3
respecting the summary judgment motion at hand (DKTs 147 – 147-8
and 151-1 – 151-14).1 Unless otherwise indicated, the facts are
undisputed.
David L. Briese, Jr. (“David”), and Erene Briese (“Erene”) were
married on August 26, 2000. They had two children – JDB, born in
1999, and JRB, born in 2000. Erene also had a daughter from a
previous marriage who lived with David and Erene during part of the
relevant time.
On November 19, 2001, David began working as a deputy for the
Yellowstone County Sheriff’s Office. He continued working as a deputy
during all relevant times.
On April 16, 2004, David executed and filed a Petition for
Dissolution of Marriage in In Re: the Marriage of Briese, DR 04-488,
Montana Thirteenth Judicial District Court, Yellowstone County. A
summons was issued, but David did not have the Petition and
summons served upon Erene at that time.
On December 29, 2005, the state court issued an “Ex Parte
Some background information was mentioned in the Briese
Plaintiffs’ original Complaint. DKT 1.
1
4
Custody Order; Temporary Order of Protection; Order Setting
Hearing.” Erene was served with that document the same day. The Ex
Parte Custody Order granted David custody of JDB and JRB and
granted Erene “visitation in a supervised environment[.]” The Order of
Protection, inter alia, removed and excluded Erene from David’s
residence and directed her to remain 1,500 feet away from the
children’s school.
On February 1, 2006, after a hearing, the state court entered an
“Order of Protection and Interim Parenting Plan” in In Re: the
Marriage of Briese. The Order granted David “residential care of the
parties’ minor children during the pendency of this action or until
further Order of this Court.” It also granted Erene “supervised
parenting time[,]” directed her to stay 1,500 feet away from the
children’s school and daycare, and ordered her to “stay away from the
former family home of the parties[.]”
On June 14, 2006, Erene reported to the Yellowstone County
Sheriff’s Office that David was using steroids and marijuana. She
reported that her daughter had witnessed David injecting himself. She
5
also reported that David was accessing pornography on their computer
through the Internet and that JDB and JRB, who were ages 5 and 6 at
the time, had viewed the pornography.
The Yellowstone County Sheriff’s Office conducted an internal
investigation into Erene’s allegations against David. The subject
computer was provided to the Sheriff’s Office, which sent it away to be
examined by the cyber crimes unit. The Sheriff’s Office requested that
the computer be examined only for “child” pornography. Erene had not
reported that David had been viewing child pornography. The results
of the examination of the computer were that there were no images of
child pornography.
Lt. Ron Wilson and Detective George Jensen, who were
conducting the investigation, interviewed Erene, David, JDB, JRB, and
Erene’s daughter. Their investigation and the conclusions they reached
are reflected in written reports in the record. See DKTs 147-1 at 4-15,
147-2 at 1-15, 147-3 at 1-13. In summary, the investigation concluded
that: (1) the allegation that David viewed inappropriate materials on a
personal computer was unfounded, DKT 147-1 at 3; (2) the allegation
6
that David was smoking marijuana had been disproved and was
unfounded, id. at 2; and (3) the allegation that David was shooting up
steroids was disproved, but it was determined that he had been taking
a supplement called DHEA, which is a steroid but is not illegal, id.
With respect to the allegations concerning steroid and marijuana
use, the Sheriff’s Office concluded in August 2006 that it would take no
further action. Id. Respecting the complaints against David about
inappropriate images on the computer, the Sheriff’s Office concluded in
October 2006 that it would take no further action. Id. at 3.
On November 3, 2006, David was on duty and was responding to a
request for assistance from another deputy sheriff. He was driving
more than 106 miles per hour and was not wearing a seat belt when he
lost control of his patrol vehicle. He was killed in the ensuing crash.
At the time of David’s death, David and Erene were still married and
the “Order of Protection and Interim Parenting Plan” was still in effect.
On the day David was killed, Erene attempted through the
Billings Police Department and the Yellowstone County Sheriff’s Office
to get assistance in retrieving JDB and JRB. Neither the police
7
department nor the Sheriff’s Office assisted Erene in locating and
obtaining physical possession of JDB and JRB. Also on November 3,
2006, community social worker Pamela Weischedel (“Weischedel”)
informed David’s mother, Joanne Briese (“Joanne”) that the Montana
Department of Public Health and Human Services, Child and Family
Services Division (“DPHHS”), would be intervening on behalf of JDB
and JRB and instructed Joanne not to release the children to Erene.
On November 9, 2006, DPHHS sought from the state court
temporary investigative authority regarding JDB and JRB. On
November 14, 2007, more than one year later, DPHHS placed JDB and
JRB in Erene’s custody and monitored the family. On January 24,
2008, DPHHS sought dismissal of the dependent/neglect case against
Erene stating that there were no further safety issues that would
warrant further involvement by DPHHS.
On November 3, 2009, the Briese Plaintiffs initiated this action.
II.
THE BRIESE PLAINTIFFS’ CLAIMS AGAINST THE
COUNTY DEFENDANTS
The Briese Plaintiffs now assert the following ten counts against
the County Defendants:
8
1. Count I:
under 42 U.S.C. § 1983 (“§ 1983”), alleging
unwarranted state interference with their familial
relationship in violation of Fourteenth Amendment
due process rights and alleging failure to instruct,
supervise, control, and discipline David or to intervene
and provide medical or mental health treatment for
him (DKT 51 at ¶¶ 133-138);
2. Count II:
under § 1983, alleging municipal liability in having
policies, procedures, customs, and practices not to
discipline, prosecute, or take corrective or responsive
action to complaints by citizens or to properly
investigate complaints filed against officers evidencing
deliberate indifference to constitutional rights and
violating due process rights (id. at ¶¶ 139-144);
3. Count III:
alleging negligence for breaching a duty to provide a
safe work environment for employees and by violating
policies and procedures for investigating substance
abuse by officers resulting in injuries to the Briese
Plaintiffs (id. at ¶¶ 145-149);
4. Count IV:
alleging negligent infliction of emotional distress (id.
at ¶¶ 150-152);
5. Count V:
alleging intentional infliction of emotional distress (id.
at ¶¶ 153-154);
6. Count VI:
alleging negligent investigation of allegations of
violations of Sheriff’s Office policy (id. at ¶¶ 155-157);
7. Count IX:
alleging violation of right to privacy – false light (id. at
¶¶ 162-166);
8. Count X:
under § 1983, alleging conspiracy (id. at ¶¶ 167-170);
9
9. Count XII:
under § 1983, alleging wrongful death of David caused
by failing to investigate complaints and failing to
instruct, supervise, control, and discipline officers
including David (id. at ¶¶ 177-184); and
10. Count XIII: under § 1983, alleging violation of civil rights by
engaging in unwarranted state interference with their
familial relationship in violation of Fourteenth
Amendment (id. at ¶¶ 185-190).
The precise bases for each of the Briese Plaintiffs’ claims against
the County Defendants are unclear. It appears, however, that the
claims stem from the Briese Plaintiffs’ allegations that: (1) David used
marijuana and steroids; (2) although Erene complained to the County
Defendants about David’s use of marijuana and steroids, they neither
properly investigated nor took appropriate action respecting such use;
(3) David’s use of steroids and the County Defendants’ failure to take
appropriate action regarding such use, such as by disciplining him,
resulted in David’s death; (4) David’s death deprived the Briese
Plaintiffs of their familial relationship with him; (5) after David’s
death, Erene sought the County Defendants’ assistance in getting
physical custody of her children; (6) the County Defendants’ refusal or
failure to assist her resulted in the Briese Plaintiffs being deprived of
10
their familial relationship with one another; and (7) the County
Defendants’ actions or failures to act breached duties they owed to the
Briese Plaintiffs resulting in damages to them.
The County Defendants now seek summary judgment in their
favor on all counts against them.
III. SUMMARY OF THE PARTIES’ ARGUMENTS
Respecting the Briese Plaintiffs’ § 1983 claims, the County
Defendants argue that there is no evidence that they deprived the
Briese Plaintiffs of any constitutional right or that they acted with
deliberate indifference to the Briese Plaintiffs’ right to familial
relations. County Defts’ Opening Br. (DKT 145) at 11. The County
Defendants also argue that no evidence exists that their actions or
inactions caused David’s death or that they prevented Erene from
obtaining her children after David’s death. Id. at 11-15.
Specifically, the County Defendants argue that: (1) evidence of
record shows that Lt. Wilson and Detective Jensen conducted an
investigation into Erene’s allegations against David; (2) they found no
evidence of marijuana use or illegal images on the family computer; (3)
11
they found that David used only DHEA, a legal steroid; (4) during the
investigation, David admitted using Androstendione, but stated that he
stopped using this steroid in December 2005 when he learned it was
banned; (5) evidence shows that the Sheriff’s Office was not concerned
about David’s use of DHEA since it was a legal substance; (6) the
Sheriff’s Office determined that it could not intervene regarding
David’s decision to use DHEA, because it is a legal substance, unless
there was a problem with his job performance associated with its use;
and (7) Erene was not living with David in 2006 and admitted that she
was not in a position to know whether he was using any substance or
whether he would have been having any problems related to use of
DHEA. Id. at 11-13. Because of these facts, the County Defendants
argue, it would not be reasonable to conclude that the County
Defendants were responsible for David’s death and that they are thus
entitled to judgment as a matter of law. Id. at 15.
The County Defendants also argue that the Briese Plaintiffs
cannot show that a constitutional deprivation occurred. Id. at 16. They
argue that no evidence exists that demonstrates that their action or
12
inaction prevented Erene from obtaining her children. At the time of
David’s death, the County Defendants argue, a state court order was in
place that permitted Erene only supervised visitation of JDB and JRB
and that after David’s death, DPHHS intervened to prevent Erene from
obtaining the children. They argue that Erene admits that there was
no court authorization that would allow them or any other agency to
obtain physical custody of the children for her after David’s death or
that they disregarded any such order. Instead, the County Defendants
argue, Erene had alleged and admits that DPHHS affirmatively
prevented her from obtaining physical custody of her children. Thus,
the County Defendants argue, there is no evidence of any action or
inaction by them that caused Erene or the children to suffer loss of a
familial relationship or other constitutional deprivation. Id. at 17-19.
For these reasons, they argue, summary judgment is appropriate on the
Briese Plaintiffs’ § 1983 claims. Id. at 19.
Respecting the Briese Plaintiffs’ negligence claims, the County
Defendants argue that they did not breach any duty of care. They
argue that no reasonable jury could conclude based on the evidence of
13
record that the County Defendants failed to use reasonable care in
their investigation of David. Id. They argue that the Briese Plaintiffs’
negligence claims fail because: (1) the Briese Plaintiffs have never
named any individual County Defendants nor identified which County
Defendants acted negligently; (2) there is no evidence that use of a
legal, over-the-counter supplement led to David’s accident in his patrol
vehicle; (3) there is no evidence of record indicating interference with
David’s ability to perform the functions of his job; and (4) no evidence
suggests that David was using any mind-altering or incapacitating
substances at all or that any of the County Defendants knew or should
have known that David would not perform his job functions safely. Id.
at 21. Thus, the County Defendants argue, it was not foreseeable to
them that David would drive too fast and fail to wear a seatbelt while
responding to a request for assistance. Id.
Also, the County Defendants argue, the Briese Plaintiffs have
failed to produce any evidence to show how disciplining David for using
a legal steroid would have prevented the accident in his patrol vehicle.
They also argue that the Briese Plaintiffs have failed to disclose any
14
experts who could testify about whether David’s DHEA use could have
contributed to his accident or that its use would have made an accident
foreseeable and that their failure precludes them from making those
claims. They argue that for these same reasons, the Briese Plaintiffs’
claims for intentional infliction of emotional distress and invasion of
privacy – false light claims also fail. Id. at 21-23.
In response, the Briese Plaintiffs argue that genuine issues of
material fact exist that preclude summary judgment. Briese Pltfs’
Resp. Br. (DKT 151) at 5-18. Respecting their § 1983 claims, the Briese
Plaintiffs first point to transcripts of the investigators’ interviews of
David during the investigation of Erene’s complaints against him. The
Briese Plaintiffs argue that David repeatedly lied about: (1) not taking
any steroids since high school when he later revealed that he previously
had taken Androstendione until he stopped in 2005 and was, at the
time of the investigation, taking DHEA, id. at 6-8; and (2) taking “a
whole bunch of supplements” but not taking any steroids when he was
actually taking DHEA, id. at 8. The Briese Plaintiffs argue that testing
revealed that David actually had 12 times the normal level of DHEA in
15
his system at the time. And, although DHEA was legally sold without
a prescription, the Briese Plaintiffs note that Detective Jensen learned
from an Internet search that it “was banned from use in many
professional sports and the Olympics.” Id. at 9.
The Briese Plaintiffs argue that in a follow-up interview with
David, he admitted to the investigators that he was using DHEA and
had previously used Androstendione. He stated in the interview that
he did not know DHEA was a steroid, and that he stopped using
Androstendione after he learned that it was banned. Id. at 10-12. An
August 8, 2006 supplemental report resulted from this follow-up
interview and the Under Sheriff at the time met with David, informing
him that the investigation was complete and that Erene’s statements
about him shooting up steroids and using marijuana were disproved.
Id. at 13. The Briese Plaintiffs argue that they “have not been provided
with any documentation that shows the Yellowstone County Sheriff’s
Office followed up on the investigation of [David] [d]espite the fact that
[David] had tested positive for the use of steroids and had lied about
that fact[.]” Id. at 13-14.
16
The Briese Plaintiffs argue that the County Defendants: (1) did
not discipline David for using either type of steroid; (2) have produced
no evidence that they ever carefully monitored his duty performance
after the investigation despite learning that he had 12 times the
normal amount of DHEA in his system less than six months prior to his
accident in his patrol vehicle; and (3) failed to act despite knowing that
one of the side effects of DHEA was “aggression.” Id. at 14. They argue
that David’s “behavior both by taking a banned substance,
Androstendione, for almost a year after being banned, and then being
deceptive about the use of such is in direct conflict with the Yellowstone
County Sheriff’s Office Law Enforcement Code of Ethics.” Id. at 15
(emphasis omitted). Again, the Briese Plaintiffs argue, there is no
record of the County Defendants “taking disciplinary action or seeking
mental health assistance for [David].” Id.
Finally, the Briese Plaintiffs argue that genuine issues of
material fact exist respecting whether the County Defendants were
made aware of any problems with David’s job performance related to
the use of DHEA or marijuana. They argue that Erene’s report that
17
David had sexually assaulted her, while made to the Billings Police
Department, was made known to the County Defendants. Although the
investigation into the alleged sexual assault was not yet completed at
the time David died, the Briese Plaintiffs argue, the County Defendants
were nevertheless aware of the complaint and its existence creates a
fact issue about whether the County Defendants should have taken
action to discipline David or at least monitor his mental health. Id. at
16-18.
Respecting their negligence claims, the Briese Plaintiffs argue
that: (1) the County Defendants owed a duty to provide a safe work
environment for its employees; (2) they breached that duty when they
failed to conduct a proper investigation into alleged substance abuse by
David, “which was in violation of the policies and procedures of the
County[,]”; (3) even if they did not owe a duty, when the County
Defendants voluntary undertook to perform an investigation they were
required to exercise ordinary care in doing so; (4) the County
Defendants were on notice that David admitted to using an illegal
substance for a year after it was classified as a controlled substance,
18
putting the County Defendants on notice that further investigation was
necessary; and (5) materials provided by the County Defendants to
David noted the adverse side effects of steroid use, so their knowledge
that David was using 12 times the normal amount of DHEA should
have made them aware that side effects for David were likely. Id. at
19-20. For all of these reasons, the Briese Plaintiffs argue that the
Court should deny the County Defendants’ summary judgment motion.
Id. at 20.
In reply, the County Defendants first argue that the Briese
Plaintiffs failed to demonstrate any genuine issues of material fact
because they failed to file a statement of genuine issues in compliance
with the Local Rules. Thus, they argue that the Briese Plaintiffs failed
to dispute the County Defendants’ statement of uncontroverted facts.
County Defts’ Reply Br. (DKT 152) at 1-2.
Second, they argue that the Briese Plaintiffs “failed to respond to
[the] County Defendants’ motion as it relates to familial interference,
false light and intentional infliction of emotional distress.” Thus, they
argue, the Court should deem their motion well-taken as it relates to
19
those claims. Id. at 2.
Third, the County Defendants argue that the Briese Plaintiffs
failed to produce any evidence that: (1) the County Defendants acted
pursuant to a policy or custom that was deliberately indifferent to the
Briese Plaintiffs’ rights, id.; (2) the County Defendants either caused
David’s death or prevented Erene from obtaining her children after
David’s death, id.; (3) David’s recollection of his steroid use is in dispute
because the County Defendants do not dispute his inconsistent
recollection or how they responded to it, id. at 2-3; (4) supports their
claim that the County Defendants should have disciplined David and
that such discipline would have prevented his death, id. at 3; (5) the
failure to discipline David was pursuant to a custom, policy or practice
of deliberate indifference attributable to the County Defendants, id.; (6)
the County Defendants’ actions caused a deprivation of the Briese
Plaintiffs’ rights, id.; (7) that steroid use can lead to aggressive
behavior or that it relates to the ability to operate a motor vehicle, id.;
(8) David had illegal or banned substances in his system when he died,
id.; (9) there were any problems with David’s job performance or any
20
complaints about his job performance, id. at 4; (10) the investigation
into the alleged sexual assault of Erene by David was concluded at the
time of his death or was sufficient to demonstrate that the County
Defendants were deliberately indifferent to anyone’s safety, id. at 5-6;
(11) demonstrates a causal link between the County Defendants’
actions and David’s death, id. at 6; and (12) demonstrates any action
was taken by the County Defendants pursuant to a County custom or
policy, id. at 6-7.
Fourth, the County Defendants argue that the Briese Plaintiffs
failed to designate any expert witnesses competent to testify with
respect to David’s DHEA use and workplace safety or about whether it
could be a breach of a duty to fail to discipline a patrol officer for using
DHEA. Id. at 7. Thus, they argue, the negligence claims are
precluded. Id. Finally, the County Defendants argue that, even if
expert testimony is not necessary, the Briese Plaintiffs’ negligence
claims also fail because: (1) they failed to identify individual defendants
who allegedly acted negligently; (2) the record lacks any evidence of
complaints about David’s ability to perform the functions of his job; (3)
21
no evidence indicates that the County Defendants knew or should have
known that David would fail to operate his vehicle in a safe manner;
and (4) no evidence exists that David was using mind-altering or
incapacitating substances. Id. at 8. Thus, they argue, summary
judgment on the Briese Plaintiffs’ negligence claims is appropriate.
IV.
SUMMARY JUDGMENT STANDARD
“The court shall grant summary judgment if the movant shows
that 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. 56(a). “[A]
party seeking summary judgment always bears the initial
responsibility of informing the district court of the basis for its motion,
and identifying those portions of ‘the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if
any,’ which it believes demonstrate the absence of a genuine issue of
material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
Material facts are those which may affect the outcome of the case.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as
to a material fact is genuine if there is sufficient evidence for a
22
reasonable fact-finder to return a verdict for the nonmoving party. Id.
Entry of summary judgment is appropriate “against a party who
fails to make a showing sufficient to establish the existence of an
element essential to that party’s case, and on which that party will bear
the burden of proof at trial.” Celotex Corp., 477 U.S. at 322. “A moving
party without the ultimate burden of persuasion at trial – usually, but
not always, a defendant – has both the initial burden of production and
the ultimate burden of persuasion on a motion for summary judgment.”
Nissan Fire & Marine Ins. Co. v. Fritz Companies, Inc., 210 F.3d 1099,
1102 (9th Cir. 2000). “In order to carry its burden of production, the
moving party must either produce evidence negating an essential
element of the nonmoving party’s claim or defense or show that the
nonmoving party does not have enough evidence of an essential
element to carry its ultimate burden of persuasion at trial.” Id.
If the moving party meets its initial responsibility, the burden
then shifts to the opposing party to establish that a genuine issue as to
any material fact actually does exist. Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to
23
establish the existence of this factual dispute, the opposing party may
not rely upon the denials of its pleadings, but is required to tender
evidence of specific facts in the form of affidavits, and/or admissible
discovery material, in support of its contention that the dispute exists.
Fed. R. Civ. P. 56(c); Matsushita, 475 U.S. at 586, n.11. Again, the
opposing party must demonstrate that the fact in contention is
material, i.e., a fact that might affect the outcome of the suit under the
governing law, Anderson, 477 U.S. at 248; T.W. Elec. Serv., Inc. v.
Pacific Elec. Contractors Ass'n, 809 F .2d 626, 630 (9th Cir. 1987), and
that the dispute is genuine, i.e., the evidence is such that a reasonable
jury could return a verdict for the nonmoving party, Anderson, 477 U.S.
at 248 (“summary judgment will not lie if the dispute about a material
fact is ‘genuine,’ that is, if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party”).
To establish the existence of a factual dispute, the opposing party
need not establish a material issue of fact conclusively in its favor. It is
sufficient that “the claimed factual dispute be shown to require a jury
or judge to resolve the parties’ differing versions of the truth at trial.”
24
T.W. Elec. Serv., 809 F.2d at 631. Thus, the “purpose of summary
judgment is to pierce the pleadings and to assess the proof in order to
see whether there is a genuine need for trial.” Matsushita, 475 U.S. at
587 (quotation omitted).
In resolving a summary judgment motion, the Court examines the
pleadings, depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any. Fed. R. Civ. P. 56(c). The
evidence of the opposing party is to be believed, Anderson, 477 U.S. at
255, and all reasonable inferences that may be drawn from the facts
placed before the Court must be drawn in favor of the opposing party,
Matsushita, 475 U.S. at 587 (citation omitted).
V.
DISCUSSION
The Court concludes for the reasons discussed below that the
Briese Plaintiffs’ response to the County Defendants’ summary
judgment motion is both procedurally and substantively defective.
First, the Briese Plaintiffs failed to file a statement of genuine issues as
required by Local Rule 56.1(b), which provides:
(b)
Any party opposing a motion for summary judgment must
also file a Statement of Genuine Issues. The Statement
25
must:
(1)
set forth in serial form each fact on which the party
relies to oppose the motion;
(2)
cite a specific pleading, deposition, answer to
interrogatory, admission or affidavit before the Court
to support each fact; and
(3)
be filed separately from the motion and brief.
L.R. 56.1(b)(1)-(3).
This rule serves important goals. The statement of genuine
issues, with evidentiary citations, permits the moving party and the
Court to efficiently and expeditiously discern whether the party
opposing summary judgment has evidence demonstrating a material
fact issue sufficient to allow a claim to proceed to trial. The statement,
ideally, directs the movant and the Court to specific evidence in the
record – that is, “a specific pleading, deposition, answer to
interrogatory, admission or affidavit before the Court” that supports
each material fact that the responding party claims is in dispute.
Without the statement of genuine issues, the party seeking summary
judgment and the Court are left to search the record for evidence that
could demonstrate a genuine issue of material fact for trial. But it is
26
not this Court’s task “to scour the record in search of a genuine issue of
triable fact.” Pom Wonderful LLC v. Ocean Spray Cranberries, Inc.,
2011 WL 4852472, *1 (C.D. Cal. 2011) (quoting Keenan v. Allan, 91
F.3d 1275, 1279 (9th Cir. 1996)). Instead, “counsel have an obligation to
lay out their support clearly.” Id. (quoting Carmen v. San Francisco
Sch. Dist., 237 F.2d 1026, 1031 (9th Cir. 2001). The Court “rel[ies] on
the nonmoving party to identify with reasonable particularity the
evidence that precludes summary judgment.” Id. (quoting Richards v.
Combined Ins. Co., 55 F.3d 247, 251 (7th Cir. 1995) and citing Guarino
v. Brookfield Township Trustees, 980 F.2d 399, 405 (6th Cir. 1992)
(“[The nonmoving party’s] burden to respond is really an opportunity to
assist the court in understanding the facts. But if the nonmoving party
fails to discharge that burden – for example, by remaining silent – its
opportunity is waived and its case wagered.”)).
Rule 83, Fed. R. Civ. P., authorizes district courts to adopt local
rules to govern proceedings before them. “Local rules have the ‘force of
law’ and are binding upon the parties and upon the court . ...” Prof.
Programs Group v. Dept. of Commerce, 29 F.3d 1349, 1353 (9th Cir.
27
1994) (citations omitted). This Court’s Local Rules attempt to promote
orderly and efficient process to all parties who come before the Court.
This Court recently noted that “[t]he Central District of
California, addressing a similar local rule [to L.R. 56.1(b)], concluded
that when a party fails to file a statement of genuine issues, that party
is deemed ‘not to raise a triable issue of material fact as to the claims
on which the moving party seeks summary judgment.’ ” Peterson v.
Time Ins. Co. et al., CV 11-81-M-DWM-JCL (Order filed May 16, 2012)
(quoting Deirmenjian v. Deutsche Bank, A.G., 2010 WL 3034060 at *7
(C.D. Cal. July 30, 2010) (citations and internal quotation marks
omitted)); see also Fed. R. Civ. P. 56(e).
Here, the Briese Plaintiffs not only failed to file a statement of
genuine issues, with evidentiary citations, but also failed otherwise to
file or point to evidence before the Court demonstrating the existence of
a genuine issue of material fact for trial. This failure is fatal to those
claims for which the County Defendants now seek summary judgment.
After considering the County Defendants’ motion and the parties’
arguments in the context of the above-discussed standards, the Court
28
recommends that the motion be granted. The Briese Plaintiffs have
failed to identify, with evidentiary support in the record, any triable
issue of material fact on their claims against the County Defendants at
issue here. The Court is left to conclude that they cannot prove the
essential elements of their claims and thus there is no “genuine need
for trial” of those claims. Matsushita, 475 U.S. at 587.
Also, as discussed in more detail below, even if the Court were to
excuse the Briese Plaintiffs’ failure to file a statement of genuine
issues, the Court nevertheless concludes that it must recommend that
summary judgment be granted in the County Defendants’ favor. The
County Defendants’ summary judgment motion is appropriately
directed at the two categories of claims asserted – the Briese Plaintiffs’
§ 1983 claims and their state law claims. The Court addresses each
category in turn.
A.
§ 1983 Claims
Section 1983 provides:
Every person who, under color of any [state law] ... subjects,
or causes to be subjected, any citizen of the United States or
other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured
29
by the Constitution and laws, shall be liable to the party
injured in an action at law[.]
42 U.S.C. § 1983.
“Section 1983 does not create any substantive rights, but is
instead a vehicle by which plaintiffs can bring federal constitutional
and statutory challenges to actions by state and local officials.”
Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006) (citing Cholla
Ready Mix, Inc. v. Civish, 382 F.3d 969, 978 (9th Cir.2004) (internal
quotation marks omitted)). The statute’s purpose “is to deter state
actors from using the badge of their authority to deprive individuals of
their federally guaranteed rights.” Id. (quoting McDade v. West, 223
F.3d 1135, 1139 (9th Cir. 2000)).
In the case at hand, as noted, only the County Defendants remain
and no claims against individuals are pending. Thus, the Briese
Plaintiffs assert only so-called municipal or governmental entity
liability (“municipal liability”). For municipal liability to lie under §
1983, offending actions must be taken “pursuant to official municipal
policy.” Monell v. Department of Social Servs., 436 U.S. 658, 691
(1978). Such municipal liability also may lie for a policy of inaction if
30
the inaction amounts to a failure to protect constitutional rights. City
of Canton v. Harris, 489 U.S. 378, 388 (1989). But municipal liability
does not arise from respondeat superior or general liability theories.
Id. at 385 (citation omitted). Instead, to demonstrate municipal
liability, the Briese Plaintiffs must show that (1) the County
Defendants deprived them of a constitutional right; (2) the County
Defendants had a policy, custom, or practice; (3) the policy, custom, or
practice amounted to deliberate indifference to the Briese Plaintiffs’
constitutional right; and (4) the policy was the “moving force behind the
constitutional violation.” Van Ort v. Estate of Stanewich, 92 F.3d 831,
835 (9th Cir. 1996) (citing Oviatt v. Pearce, 954 F.2d 1470, 1474 (9th Cir.
1992) and quoting Canton, 489 U.S. at 389-91).
Deliberate indifference “occurs when the need for more or
different action is so obvious, and the inadequacy of the current
procedure so likely to result in the violation of constitutional rights,
that the policymakers ... can reasonably be said to have been
deliberately indifferent to the need.” Oviatt, 954 F.2d at 1477-78
(citations and internal quotation marks omitted). The failure to
31
adequately implement a policy also may form the basis of municipal
liability if the failure itself constitutes a policy of deliberate
indifference. Berry v. Baca, 379 F.3d 764, 768 (9th Cir. 2004). Whether
a municipality has pursued a policy of deliberate indifference generally
is a jury question. Oviatt, 954 F.2d at 1478 (citation omitted). A policy
is the “moving force” behind a constitutional violation if it caused the
violation. City of Oklahoma City v. Tuttle, 471 U.S. 808, 823 (1985).
“Pointing to a municipal policy action or inaction as a ‘but-for’ cause is
not enough to prove a causal connection under Monell. Rather, the
policy must be the proximate cause of the section 1983 injury.” Van
Ort, 92 F.3d at 837 (citations omitted).
As noted, the Briese Plaintiffs’ principal theory for recovery on
their § 1983 claims is that David’s use of steroids and the County
Defendants’ failure to take appropriate action regarding such use, such
as by disciplining him, resulted in David’s death. His death, in turn,
deprived the Briese Plaintiffs of their familial relationship with him.
In addition, David’s death led Erene to seek the County Defendants’
assistance in obtaining physical custody of her children and the County
32
Defendants’ failure to assist her deprived her of familial relationship
with them.
The Court concludes that the Briese Plaintiffs’ § 1983 claims fail.
First, for the Briese Plaintiffs’ claim that the County Defendants failed
to implement or enforce a policy to discipline David for steroid use, the
failure must amount to deliberate indifference. As noted above,
deliberate indifference “occurs when the need for more or different
action is so obvious, and the inadequacy of the current procedure so
likely to result in the violation of constitutional rights, that the
policymakers ... can reasonably be said to have been deliberately
indifferent to the need.” Oviatt, 954 F.3d at 1477-78 (citations and
internal quotation marks omitted).
Here, there is no evidence suggesting that there was an obvious
need for the County Defendants to take different action to protect
identifiable constitutional rights. The record reflects that: (1) the
County Defendants responded to Erene’s complaint that David was
viewing pornography, shooting up steroids, and smoking marijuana by
conducting an investigation; (2) the investigators ruled out illegal
33
pornography and marijuana use; (3) the investigators determined that
the only steroid David was then using was DHEA, a legal substance;
and (4) the County Defendants cautioned David about potential adverse
health effects from such use.
The Briese Plaintiffs have failed to introduce evidence that would
preclude summary judgment respecting their claim that the County
Defendants should have done more, such as by disciplining David, or
that supports their allegation that the investigation was somehow
inadequate. Instead, they have merely referred the Court and the
County Defendants to portions of interviews conducted during the
investigation and to written reports summarizing the investigation.
Even affording the Briese Plaintiffs, as the non-moving parties, every
favorable inference flowing from these materials, the Court concludes
that they still fail to raise a genuine issue of material fact suitable for
resolution by a jury. See Daniels v. Williams, 474 U.S. 327, 333-36
(1986) (for municipal liability to exist, a policy of inaction or omission
must be more than mere negligence). The Briese Plaintiffs offer no
facts that would tend to prove “deliberate indifference” by the County
34
Defendants.
Second, the Briese Plaintiffs have failed to introduce admissible
evidence that any action or inaction by the County Defendants caused a
constitutional violation. Respecting their claim that the County
Defendants caused David to drive his patrol vehicle recklessly, crash
the vehicle, and sustain fatal injuries, thus depriving them of a familial
relationship with him, the Briese Plaintiffs offer no evidentiary
support. They have failed to present any expert opinion that supports
their theory that having DHEA in excessive amounts in his
bloodstream contributed to or caused David to crash his vehicle or
caused his death. Similarly, they have offered no evidence supporting
their claim that the County Defendants’ failure to discipline David
caused him to crash his vehicle. As noted, for municipal liability to
exist, a policy of inaction or omission must be more than mere
negligence. Daniels, 474 U.S. at 333-36.
Respecting the Briese Plaintiffs’ claim that the County
Defendants failed to assist Erene in gaining physical custody of her
children at the time of David’s death, the Briese Plaintiffs again offer
35
no evidentiary support. It is clear from the record that, at the time of
David’s death, there was in effect a state court “Order of Protection and
Interim Parenting Plan” that granted David “residential care of the
parties’ minor children during the pendency of this action or until
further Order of this Court[,]” and gave Erene “supervised parenting
time[,]” but directed her to stay 1,500 feet away from the children’s
school and daycare, and ordered her to “stay away from the former
family home of the parties[.]” With this order in effect, the Briese
Plaintiffs have failed to introduce evidence showing what the County
Defendants should have or could have done, short of violating a state
court order, to assist Erene in gaining physical custody of her children.
The Briese Plaintiffs can succeed on the causation requirement of
their municipal liability claims only if a reasonable jury could conclude
that the County Defendants’ inadequate investigation, failure to
discipline David, and failure to assist Erene in getting physical custody
of the children were the moving force behind, and proximate cause of,
the constitutional violation. For the foregoing reasons, the Court
concludes that no reasonable jury could reach such a conclusion. Thus,
36
summary judgment in the County Defendants’ favor is appropriate with
respect to the Briese Plaintiffs’ § 1983 claims asserting municipal
liability, which includes Counts I, II, XII, and XIII of their First
Amended Complaint.
Respecting the Briese Plaintiffs’ § 1983 claim alleging conspiracy,
the Court also concludes that summary judgment in the County
Defendants’ favor is appropriate. To prove conspiracy under § 1983, a
plaintiff must show an agreement or a meeting of the minds to violate
the plaintiff’s constitutional rights. See Vieux v. East Bay Regional
Park Dist., 906 F.2d 1330, 1343 (9th Cir. 1990). Even if a plaintiff can
show a conspiracy, however, § 1983 liability will not lie unless there is
an “underlying constitutional violation.” Lacey v. Maricopa County, ___
F.3d ___, 2012 WL 3711591, at *28 (9th Cir., Aug. 29, 2012).
Here, as discussed above, the Briese Plaintiffs have failed to raise
a genuine issue of material fact to preclude summary judgment on their
other § 1983 claims asserting municipal liability. As such, they have
failed to demonstrate a constitutional violation. Without a
constitutional violation, they cannot advance an actionable § 1983
37
conspiracy claim. Thus, the County Defendants’ summary judgment
motion should be granted to the extent it relates to the Briese
Plaintiffs’ § 1983 conspiracy claim found at Count X of their First
Amended Complaint.
B.
State Law Claims
The parties’ briefs characterize the Briese Plaintiffs’ remaining
state law claims as “negligence” claims. But, in addition to their
negligence claims alleging breach of the duty to provide a safe place to
work (Count III), negligent infliction of emotional distress (Count IV),
and negligent investigation of claims of Sheriff’s Office policy (Count
VI), the Briese Plaintiffs also allege intentional infliction of emotional
distress (Count V) and “violation of right to privacy – false light” (Count
IX). DKT 51. The Court addresses the two types of claims below.
1.
Negligence Claims
The Briese Plaintiffs’ negligence claims stem from their
allegations that: (1) the County Defendants failed to discipline David
for his steroid use and that the failure ultimately resulted in David’s
fatal vehicle crash; (2) the County Defendants failed to adequately
38
investigate Erene’s complaint to them about David’s alleged use of
marijuana and steroids; and (3) the County Defendants’ actions or
inactions resulted in negligent infliction of emotional distress upon the
Briese Plaintiffs. For the reasons that follow, the Court concludes that
summary judgment in the County Defendants’ favor is appropriate on
these claims.
The Montana Supreme Court has described negligence and its
elements in the context of a summary judgment motion as follows:
Negligence is the failure to use the degree of care that an
ordinarily prudent person would have used under the same
circumstances. To maintain an action in negligence, the
plaintiff must prove four essential elements: (1) the
defendant owed the plaintiff a legal duty, (2) the defendant
breached that duty, (3) the breach was the actual and
proximate cause of an injury to the plaintiff, and (4)
damages resulted. As noted, actionable negligence arises
only from the breach of a legal duty. Therefore, in order for
there to be a genuine issue of material fact in a negligence
case, there must be a duty imposed on the defendant and
allegations which, if proven, would support a finding of a
breach of the duty. Furthermore, although negligence
actions ordinarily involve factual issues which make
summary judgment inappropriate, if the plaintiff fails to
offer proof on any one of the four elements of negligence,
then summary judgment in favor of the defendant is proper.
Peterson v. Eichhorn, 189 P.3d 615, 620-21 (Mont. 2008) (citations
39
omitted). Determination of the existence of a duty is an issue of law.
Gonzales v. City of Bozeman, 217 P.3d 487, 491 (Mont. 2009) (citing
Lopez v. Great Falls Pre-Release Services, 986 P.2d 1081, ¶ 31 (Mont.
1999)).
“To determine if a defendant breached a duty of care, a plaintiff
must establish the standard of care by which to measure the
defendant’s actions; in other words, she must establish the degree of
prudence, attention, and caution the defendant must exercise in
fulfilling that duty of care.” Dubiel v. Montana Dept. of Transportation,
272 P.3d 66, 69 (Mont. 2012) (citing Dalton v. Kalispell Reg’l Hosp., 846
P.3d 960, 962 (Mont. 1993)). In further explaining the standard of care,
the supreme court stated recently:
It is well-established that expert testimony is required to
support a negligence claim “when the issue presented is
sufficiently beyond the common experience of the trier of
fact and the expert testimony will assist the trier of fact in
determining the issue or understanding the evidence.”
Albert v. City of Billings, 282 P.3d 704, 708 (Mont. 2012) (quoting
Dayberry v. City of East Helena, 80 P.3d 1218 at ¶ 17 (Mont. 2003)).
Here, as noted, the County Defendants argue that the Briese
40
Plaintiffs cannot establish what duty was owed them because expert
testimony is essential to establish the standard of care and the Briese
Plaintiffs have neither provided such testimony nor identified an expert
qualified to render such an opinion. The Court agrees.
In considering the Briese Plaintiffs’ claims alleging negligence,
myriad factors inform the standard by which the County Defendants’
actions and inactions are to be measured. Many of these factors are not
readily apparent to a layperson.
For example, the Briese Plaintiffs base their allegations
supporting these claims on David’s use of Androstendione until
December 2005 and DHEA at the time of the investigation of Erene’s
complaints against him. They argue that use of such substances is
known to cause aggression. And they apparently theorize that David
experienced aggression as a result of his use of the steroids, that the
aggression led him to drive at too high a rate of speed while responding
to a request for assistance from another deputy, and that his excessive
rate of speed contributed to his ultimate crash and death.
But the Briese Plaintiffs have offered no competent or admissible
41
evidence supporting any of these allegations – most notably that use of
steroids causes aggression, that their use caused aggression in David,
or that aggression led David to drive at an unsafe speed. Instead, they
attached to their response brief only unauthenticated, hearsay, and
therefore inadmissible, documents discussing Androstenedione. See
Resp. Br. (DKT 151) at Ex. H (DKT 151-8) at 1-18. A district court’s
ruling on a summary judgment motion may only be based on admissible
evidence. See In re Oracle Corp. Securities Litigation, 627 F.3d 376,
385 (9th Cir. 2010). Nor do the Briese Plaintiffs offer any expert
opinions as to the duties of a law enforcement agency faced with this
situation.
Also, while the Briese Plaintiffs argue that David had 12 times
the normal level of DHEA in his system when tested during the
investigation, they have offered no competent evidence linking that fact
with any of their other allegations. Thus, they have failed to
demonstrate with competent evidence the standard of care by which to
measure the County Defendants’ actions or inactions respecting work
place safety or their investigation and decisions concerning David’s use
42
of DHEA. The Briese Plaintiffs are not permitted at this juncture to
merely speculate respecting their claims, and they have offered no
expert testimony to support them. Thus, they have failed to
demonstrate a genuine issue of material fact that would preclude
summary judgment.
Also, even if it could somehow be determined that the Briese
Plaintiffs have adequately demonstrated that the County Defendants
owed a duty respecting the subject claims, the claims nevertheless fail.
For the same reasons already discussed, the medical effects of steroid
use at the time David used them and whether such use caused David to
be aggressive and to drive at unsafe speeds at the time he crashed his
patrol vehicle are sufficiently beyond the common experience of the
trier of fact. Similarly, whether a different type of investigation or
whether some form of discipline of David would have led to a different
outcome are not questions with answers within the common experience
of lay persons. Expert testimony is required to establish causation
under the circumstances. See Hinkle v. Shepherd Sch. Dist. # 37, 93
P.3d 1239, 1246 (Mont. 2004) (affirming summary judgment where
43
plaintiff failed to introduce expert testimony establishing causal
connection between defendants’ actions and plaintiff’s medical
conditions). The Briese Plaintiffs’ negligence claims are subject to
summary judgment on this basis as well.
2.
Emotional Distress and Privacy Claims
The County Defendants seek summary judgment on the Briese
Plaintiffs’ claims alleging emotional distress and invasion of right to
privacy for the same reasons asserted above respecting the negligence
claims. The Briese Plaintiffs failed to respond to the County
Defendants’ motion to the extent it was directed at these claims. For
this reason alone, under the foregoing authority discussing the
standard for summary judgment, it is appropriate to grant the County
Defendants’ motion.
Another basis for granting the County Defendants’ motion for
summary judgment as to the Briese Plaintiffs’ “invasion of privacy –
false light” claim is that the Briese Plaintiffs have presented no
evidence supporting this claim. The County Defendants’ motion
respecting this claim, therefore, should be granted.
44
Finally, respecting the Briese Plaintiffs’ emotional distress
claims, there are two additional reasons they are subject to summary
judgment. First, the Briese Plaintiffs have presented no evidence
supporting these claims.
Second, in Montana, “[a]n independent cause of action for the tort
of infliction of emotional distress will arise under circumstances where
serious or severe emotional distress to the plaintiff was the reasonably
foreseeable consequence of the defendant’s negligent or intentional act
or omission.” Sacco v. High Country Independent Press, Inc., 896 P.2d
411, 418 (Mont. 1995). “It is for the court to determine whether on the
evidence severe [serious] emotional distress can be found; it is for the
jury to determine whether, on the evidence, it has in fact existed.” Id.,
896 P.2d at 425 (quoting Restatement (Second) of Torts, § 46, comment
j at 78).
As noted above, the Briese Plaintiffs’ other claims against the
County Defendants do not survive summary judgment. Thus, it
appears that the bases upon which the Briese Plaintiffs’ emotional
distress claims rest no longer exist because there are no negligent or
45
intentional acts or omissions from which their emotional distress could
flow. Thus, summary judgment with respect to the Briese Plaintiffs’
emotional distress claims is appropriate.
VI.
CONCLUSION
Based on the foregoing, IT IS RECOMMENDED that the County
Defendants’ Motion for Summary Judgment (DKT 143) be GRANTED.
NOW, THEREFORE, IT IS ORDERED that the Clerk shall
serve a copy of the Findings and Recommendation of United States
Magistrate Judge upon the parties. The parties are advised that
pursuant to 28 U.S.C. § 636, any objections to the findings and
recommendation must be filed with the Clerk of Court and copies
served on opposing counsel within fourteen (14) days after service
hereof, or objection is waived.
DATED this 16th day of October, 2012.
/S/ Carolyn S. Ostby
United States Magistrate Judge
46
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?