Briese et al v. State of Montana et al
Filing
163
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS in re GRANTING 143 Motion for Summary Judgment and 153 Findings and Recommendations. Signed by Judge Richard F. Cebull on 3/1/2013. (Copy mailed to E.B in Rapid City, SD) (ACL, )
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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.,
Case No. CV-09-146-BLG-RFC
ORDER ADOPTING FINDINGS
AND RECOMMENDATIONS OF
U.S. MAGISTRATE JUDGE
Plaintiff,
vs.
STATE OF MONTANA, et al.,
Defendants.
United States Magistrate Judge Carolyn Ostby has entered Findings and
Recommendation (doc. 153) with respect to the County Defendants' Motion for
Summary Judgment Doc. 143. Judge Ostby recommends that summary judgment
be granted in favor of Defendants.
Upon service of a magistrate judge'S findings and recommendation, a party
has 14 days to file written objections. 28 U.S.C. § 636(b)(l). PlaintiffErene
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Briese appeared pro se l and filed an objection to the findings and
recommendations (doc. 161). County Defendants responded (doc. 162).
Accordingly, the Court must make a de novo determination of those portions of
the Findings and Recommendations to which objection is made. 28 U.S.C. §
636(b)(1).
PROCEDURAL DEFECTIVENESS
Initially, the Court must address the procedural defectiveness in the Briese's
response to the County Defendants' summary judgment motion. Briese failed to
file a statement of genuine issues as required by Local Rule 56.1 (b). 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. 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. It is 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,
IOn November 16,2012, counsel for Plaintiffs moved to withdraw. On November 20,
2012, that motion was granted and I ordered objections to the Findings and Recommendation be
filed by January 28, 2013. Erene Briese filed her objections on January 22, 2013.
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Inc., 2011 WL 4852472, * 1 (C.D. Cal. 2011) (quoting Keenan v. Allan, 91
F.3d 1275, 1279 (9th Cir. 1996)).
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.
o/Commerce, 29 F.3d 1349, 1353 (9th Cir. 1994) (citations omitted). This
Court's Local Rules attempt to promote orderly and efficient process to all parties
who come before the Court.
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. That being said, even if the Court were to excuse the
Plaintiffs' failure to file a statement of genuine issues, the Court nevertheless
concludes that summary judgment in favor of the County Defendants is still
appropriate.
ANALYSIS AND SUBSTANTIVE DEFECTIVENESS
Objection 1: Complaints Against Former Counsel
Most of Briese's objections relate to her counsels' withdrawal and alleges
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that counsel was ineffective in their representation and handling of Plaintiffs'
lawsuit. Briese asserts that her former counsel missed deadlines, failed to employ
a standard of care expert, and failed to file pertinent documents and she should not
be penalized for their mistakes. Briese also states that she has attempted to locate
new counsel and has been unsuccessful.
These arguments are not relevant to the Findings and Recommendation of
Magistrate Judge Ostby, and are not properly before the Court. These arguments
will not be considered as part of the Court's de novo review.
Objection 2: Disputed Issues of Material Fact
Briese argues that there are genuine issues of material fact which preclude
summary judgment on the negligence claims. Briese attempts to support her
argument and demonstrate material issues of fact with conclusory and unsupported
assertions and arguments not raised before Magistrate Judge Ostby.
"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). "[AJ 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
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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 reasonable fact-finder to return a verdict for the
nonmoving party. Id.
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 Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986) (citation omitted).
Plaintiffs specifically object that there is a material issue of fact as to David
Briese's mental state and claim the Yellowstone County Sheriffs Office (YCSO)
should have taken action related to David Briese's use ofDHEA in light of his
mental state preceding the accident in his patrol vehicle. Additionally, Plaintiffs
argue that proof ofYCSO's duty to its deputies requires no expert testimony.
However, Plaintiffs have not produced admissible evidence to demonstrate a
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genuine issue of material fact. Instead, Plaintiffs speculate not only about David
Briese's DHEA use, but also now about his mental state as overly "stressed" and
argue the YCSO should have known that stress in his personal life, combined with
DHEA and on-the-job stress would combine to make him unfit for duty.
There is no evidence in the record of David Briese's alleged stress, or any
indication that he was affected by any such stress - or the use ofDHEA - in the
performance of his job. The record is void of any complaints about David Briese's
ability to perform the functions of his job. There is nothing to indicate the YCSO
knew, or should have known that Briese would fail to operate his vehicle in a safe
manner, whether due to stress or any other factor. There is no evidence that David
Briese was using any mind-altering or incapacitating substances at all, much less
while at work, and no reasonable jury could conclude, based on the evidence in the
record, that anyone at the YCSO should have known or thought that David Briese
would not perform his job functions safely.
Plaintiffs argue, without authority, that YCSO's standard of care requires no
expert testimony and thus their claims should withstand the County Defendants'
motion. Plaintiffs are mistaken. Magistrate Judge Ostby correctly found that
" ... Plaintiffs cannot establish what duty was owed to them because expert
testimony is essential to establish the standard of care and the Briese Plaintiffs
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have neither provided such testimony nor identified an expert qualified to render
such an opinion." (See Doc. 153, p. 41).
Expert testimony is required to establish the standard of care regarding the
use ofDHEA and workplace safety in addition to whether it could be a breach of
duty to fail to discipline a patrol officer for such use. Plaintiffs did not designate
any experts to testify as to any of the aforementioned subject matter. As such,
their claim is precluded. See Dubiel v. Montana Dept. ofTransp., 2012 MT 35,
364 Mont. 175, 272 P.3d 66 (holding that expert testimony was required to
establish standard of care and breach thereof when allegation involved whether the
Montana Department of Transportation should have closed a road due to high
winds); Dayberry v. City ofEast Helena, 2003 MT 321, ~ 17,318 Mont. 301,80
P.3d 1218 (holding that expert testimony is required to determine the standard of
care applicable to swimming pool operators and to determine the reasonableness
of pool design).
Even if expert testimony wasn't required to demonstrate YCSO's duty to
Plaintiffs, Magistrate Judge Ostby correctly found that their claims would
nevertheless fail because expert testimony is required to show any alleged failure
to act by the YCSO could have caused David Briese's accident in his patrol
vehicle. (See Doc. 153, p. 43); Hinkle v. Shepherd Sch. Dist. #37,93 P.3d 1239,
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1246 (Mont. 2004) (affirming summary judgment where plaintiff failed to
introduce expert testimony establishing causal connection between defendants'
actions and plaintifr s medical conditions).
After a de novo review, the Court determines the Findings and
Recommendation of Magistrate Judge Ostby are well grounded in law and fact and
HEREBY ORDERS they be adopted in their entirety.
Accordingly, IT IS HEREBY ORDERED that the County Defendants'
Motion for Summary Judgment [doc. 143] is GRANTED.
The Clerk of Court shall notify the parties of the making of this Order and
close this case accordi::l!.
DATED this
~Y of March, 201
.
RICHARD F. CEBULL
UNITED STATES DISTRICT JUD
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