Knifong v. Girard et al

Filing 35

ORDER ADOPTING 32 FINDINGS AND RECOMMENDATIONS in full. Defendant Hansen's Motion for Summary Judgment 23 is denied. Signed by Judge Richard F. Cebull on 10/1/2012. (TAG, )

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MONTANA

BUTTE DIVISION

JEFFREY KNIFONG,
Plaintiff,
vs.

BUTCH GIRARD and JAY
HANSEN,
Defendants.

CV-ll-1S-BU-RFC

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ORDER ADOPTING FINDINGS
AND RECOMMENDATIONS OF
U.S. MAGISTRATE JUDGE

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On September 5,2012, United States Magistrate Judge Carolyn Ostby
entered Findings and Recommendation. Magistrate Judge Ostby recommends this
Court deny Defendant Hansen's Motion for Summary Judgment (Court Doc. 23).
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). In this matter, no
party filed objections to the September 5,2012 Findings and Recommendation.
Failure to object to a magistrate judge's findings and recommendation waives all
objections to the findings of fact. Turner v. Duncan, 158 F.3d 449,455 (9th Cir.
1999). However, failure to object does not relieve this Court of its burden to

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review de novo the magistrate judge's conclusions of law. Barilla v. Ervin, 886
F.2d 1514, 1518 (9th Cir. 1989).
There are two ways to allege individual liability against a defendant in an
action proceeding under 42 U.S.C. § 1983. First, an individual can be held liable
for their own personal acts which directly cause an injury. There is no allegation
or suggestion that Defendant Hansen's personal acts directly caused Knifong's
injury. Second, an individual can be held liable individually under a theory of
supervisory liability. "[A] plaintiff may state a claim against a supervisor for
deliberate indifference based upon the supervisor's knowledge of and
acquiescence in unconstitutional conduct by his or her subordinates." Starr v.
Baca, 652 F.3d 1202 (9th Cir. 2011).
The Ninth Circuit has identified four general situations in which supervisory
liability may be imposed: (1) for setting in motion a series of acts by others, or
knowingly refusing to terminate a series of acts by others, which they knew or
reasonably should have known would cause others to inflict constitutional injury;
(2) for culpable action or inaction in training, supervision, or control of
subordinates; (3) for acquiescence in the constitutional deprivation by
subordinates; or (4) for conduct that shows a reckless or callous indifference to the
rights of others. Larez v. City o/Los Angeles, 946 F.2d 630, 646 (9th Cir. 1991).

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Knifong's verified complaint alleged Defendant Hansen was responsible for
Knifong's injury by failing to train his officers correctly in "those types of
situations." (Court Doc. 2, p. 8). Defendant Hansen does not address Knifong's
failure to train allegation. Even though Hansen was not present in the courtroom
at the time of the alleged excessive force incident, he could still be liable for
inadequate training or supervision. Hansen is not entitled to summary judgment
on Knifong's supervisory liability claim.
After an extensive review of the record and applicable law, this Court finds
Magistrate Judge Ostby's Findings and Recommendation are well grounded in law
and fact and adopts them in their entirety.
Accordingly, IT IS HEREBY ORDERED that Defendant Hansen's
Motion for Summary Judgment (Court Doc. 23) is denied.
The Clerk of Cou~al1 notify the parties of the entry of this Order.
DATED the

L ~f October, 201
CHARD F. CEBULL
UNITED STATES DISTRICT JUDGE

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