Amende v. Anderson et al

Filing 34

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 31 in full. Amende's motion for summary judgment 28 is DENIED and Defendants' motion for summary judgment 24 is GRANTED. Any appeal of this decision would not be made in good faith. Signed by Judge Richard F. Cebull on 9/30/2011. Mailed to Amende. (TAG, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION
WILLIAM RAY AMENDE,

)
) Cause No. CV-10-49-BLG-RFC-CSO
Plaintiff,
)
)
v.
) ORDER ADOPTING FINDINGS
) AND RECOMMENDATIONS OF
SGT. SPENCER ANDERSON,
)
U.S. MAGISTRATE JUDGE
and OFFICER JAMES BAISCH, )
)
Defendants.
)
______________________________ )
Plaintiff William Amende has filed this 42 U.S.C. § 1983 action against
Rosebud County, Montana Sheriffs Deputies alleging they used excessive force in
restraining him. United States Magistrate Judge Carolyn Ostby has entered
Findings and Recommendation (doc. 31) with respect to Defendants’ motion for
summary judgment (doc. 24) and Amende’s motion for summary judgment (doc.

28). Judge Ostby recommends Defendants motion be granted and Amende’s
motion be denied because the undisputed facts establish that Defendants actions
were reasonable in light of the circumstances.
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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)(1). Amende has filed
timely objections. Doc. 32. 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).
Amende’s first objection–more of a reminder, actually–is that courts must
liberally construe documents filed by pro se litigants and afford them the benefit of
any doubt. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam). But
regardless of how liberally the Court construes Amende’s pleadings, the
undisputed fact is that Amende was agitated and combative and Defendants had no
choice but to restrain him.
Amende’s second objection is that Defendants allege he was resisting arrest,
but he was not charged with resisting arrest. Not only is this objection irrelevant to
the issues before the Court, Amende’s conduct was more egregious than
misdemeanor resisting arrest. That is why he was charged with felony attempted
assault on a peace officer.
Third, Amende claims the pictures of his bloody face and the blood on the
ground prove that Defendants used excessive force against him. Again, the Fourth
Amendment only prohibits objectively unreasonable force. Graham v. Connor,
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490 U.S. 386, 394-95 (1989). The undisputed facts establish that Amende was
acting like a jackass and Defendants used reasonable force to prevent him from
harming himself or others.
Finally, Amende argues it is up to a jury to determine whether or not the
officers used excessive force in restraining him. As noted by Judge Ostby, Rule 56
Fed.R.Civ.P. entitles Defendants to summary judgment if they can demonstrate
there is no dispute as to any material fact and they are entitled to judgment as a
matter of law. Moreover, although cases alleging excessive force usually require a
jury to determine disputed issues of fact, Lolli v. County of Orange, 351 F.3d 410,
415-16 (9th Cir. 2003), in this case, Amende’s rampage was captured on video.
Judge Ostby correctly concluded that summary judgment was appropriate in light
of that video.
Accordingly, Amende’s objections are overruled and the Findings and
Recommendations are adopted in their entirety.
IT IS HEREBY ORDERED that Amende’s motion for summary judgment
(doc. 28) is DENIED and Defendants’ motion for summary judgment (Doc. 24) is
GRANTED.
IT IS FURTHER ORDERED that the docket reflect that this Court
certifies pursuant to Rule 24(a)(3)(A) Fed.R.App.P. that any appeal of this decision
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would not be made in good faith.
The Clerk of Court shall notify the parties of the entry of this Order and
enter judgment in favor of Defendants.
DATED this 30th day of September, 2011.

/s/ Richard F. Cebull
RICHARD F. CEBULL
UNITED STATES DISTRICT JUDGE

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