White v. Maurier et al

Filing 67

ORDER finding as moot 29 Motion to Dismiss for Failure to State a Claim; granting 35 Motion for Summary Judgment; granting 36 Motion for Summary Judgment; granting 37 Motion for Summary Judgment; granting 42 Motion for Summary Judgment; finding as moot 60 Motion in Limine. The case is closed. Signed by Chief Judge Dana L. Christensen on 3/18/2014. (dle)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BUTTE DIVISION

BRYAN D. WHITE and DEBRA
BRECKENRIDGE,

CV 13–33–BU–DLC

Plaintiffs,

ORDER

vs.
JOSEPH MAURIER as agent of the State
of Montana Fish Wildlife and Parks,
RICK SCHMAUCH, individually and as
the agent of State of Montana Fish
Wildlife and Parks, DANIEL MULKEY,
individually and as agent of State of
Montana Beaverhead County Sheriffs
Department, SCOTT KESSEL,
individually and as agent of State of
Montana Beaverhead County Sheriffs
Department, JAY HANSEN, individually
and as the agent and Sheriff of
Beaverhead County, BEAVERHEAD
COUNTY, a political subdivision of the
State of Montana, and JOHN DOES I-X,
Defendants.
Plaintiffs Bryan D. White (“White”) and Debra Breckenridge
(“Breckenridge”) filed this action against Defendants, state and local officials and
the political subdivision of Beaverhead County, Montana, seeking damages for

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alleged wrongful conduct arising out of White’s receipt of two citations for waste
of big game animals. The citations were issued by Defendant Rick Schmauch
(“Schmauch”), a game warden for Montana Fish Wildlife and Parks, who was
accompanied at the time by Defendant Daniel Mulkey (“Mulkey”), a Beaverhead
County Deputy Sheriff. Jurisdiction is based on 42 U.S.C. § 1983 and 28 U.S.C.
§ 1367. Before the Court are Defendants’ motions for summary judgment. For
the reasons explained below, the motions will be granted.
I. FACTUAL BACKGROUND
On November 20, 2010, White took possession of a cow elk carcass and the
next day he shot a mule deer. He stored the two carcasses outside on a flatbed
truck on his property in Lima, Montana, until December 15, 2010, when
authorities cited White for waste of game and confiscated the carcasses.
Deputy Mulkey had received citizen complaints about the carcasses,
including a complaint from the mayor of Lima. Around December 7, 2010,
Mulkey observed cats and birds eating on the carcasses. On December 13, 2010,
Mulkey contacted Montana Department of Fish Wildlife and Parks Game Warden
Rick Schmauch to inform him of the citizen complaints regarding the carcasses.
On December 14, 2010, Schmauch travelled to Lima and observed the
carcasses from a public alley adjacent to White’s property. The animals were laid
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on top of a flat bed truck and exposed to the elements. Schmauch took
photographs of the carcasses. Schmauch showed the photos of the carcasses to a
local meat processor who expressed concern regarding the carcasses’ fitness for
human consumption. Schmauch then met with his supervisor concerning the
carcasses who concurred that the deer and elk appeared to be in a state of waste.
Schmauch then met with Beaverhead County Attorney Jed Fitch to explain the
situation. Schmauch showed Fitch the photos of the carcasses. Fitch agreed that
probable cause existed to issue White citations for waste of game and asked
Schmauch to issue the citations. Fitch presumed the carcasses would be seized.
On December 15, 2010, Schmauch and Mulkey traveled to White’s house,
knocked on his door and asked White to answer some questions about the
carcasses. White alleges that the officers peered into the interior of his house after
he opened the door. It is undisputed that neither officer ever entered White’s
house. After some discussion, Schmauch informed White that he was going to cite
White for waste of game and seize the carcasses. White agreed to move his truck
in order to assist the officers in accessing the carcasses. White then returned into
his house and obtained a video camera to tape the encounter. Outside, Schmauch
took more photos of the carcasses. Before Schmauch loaded the carcasses onto his
truck, White retrieved a loaded foothold trap from inside the cavity of the elk
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carcass.
Schmauch then issued White two citations for waste of game. After
completing the paperwork, Schmauch held the citations out to White. White
attempted to grab the citations away from Schmauch, but Schmauch held onto
them. White began to walk away. Schmauch then allegedly briefly grabbed
White’s shoulder, told White to “chill out,” and told White that he had to explain
the citations to White. The time between Schmauch allegedly grabbing White’s
shoulder and the officers leaving the premises was between time 23 and 40
seconds.
The next day, December 16, 2010, Schmauch wrote a report concerning the
incident and presented the report to the Beaverhead County Justice Court for
filing. White was arraigned in Beaverhead County Justice Court on January 4,
2011. The Beaverhead County Attorney’s office determined there was probable
cause to prosecute White for waste of game. In June 2011, White was tried on
both charges and a jury found him not guilty. Post-trial, White moved the Justice
Court to return the animal carcasses. The Justice Court denied the motion and
White did not appeal the order.
Out of this set of undisputed facts, White brings the following claims: (1)
False Arrest and False Imprisonment, (2) Malicious Prosecution, (3) Civil Rights
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Violations Under the U.S. Constitution, (4) Civil Rights Violations Under the
Montana Constitution, (5) Negligence and Gross Negligence, (6) Negligence Per
Se, (7) Emotional Distress, (8) Acting in Concert, (9) Punitive Damages, and (10)
Defamation.
II. LEGAL STANDARD
Summary judgment is appropriate “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). The movant bears the initial burden of
informing the 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) (internal quotation marks omitted). The movant’s burden is satisfied when
the documentary evidence produced by the parties permits only one conclusion.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251–52 (1986). Where the moving
party has met its initial burden, the party opposing the motion “may not rest upon
the mere allegations or denials of his pleading, but . . . must set forth specific facts
showing that there is a genuine issue for trial.” Id. at 248 (internal quotation
marks omitted).
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III. ANALYSIS
A.

False Arrest/False Imprisonment
Defendants move for summary judgment on White’s false arrest and false

imprisonment claim. Defendants assert that no arrest occurred and, even if one did
occur, that the officers had probable cause for the arrest.
“[T]here are two components of a claim for false imprisonment: the restraint
of an individual against his will, and the unlawfulness of the restraint.” Kichnet v.
Butte-Silver Bow County, 274 P.3d 740, 745 (Mont. 2012). “It is well-settled that
a court's determination of probable cause is a complete defense to a claim of false
arrest or imprisonment leveled against the charging party.” Id.
The undisputed facts demonstrate that White was not falsely arrested or
imprisoned. The basis of White’s false imprisonment claim is that Schmauch
briefly grabbed White’s shoulder and then instructed him to remain in his presence
while he explained to White the citations for waste of game. The time between the
alleged touching of White’s shoulder and his “release” was no more than 40
seconds. Even if this were enough to constitute an arrest, see Gonzalez v. City of
Bozeman, 217 P.3d 487, 493-94 (suggesting otherwise), because the officers
possessed probable cause to issue citations to White for waste of game, Plaintiffs’
claim for false arrest fails. Kitchnet v. Butte-Silver Bow County, 274 P.3d 740,
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745 (Mont. 2012).
Probable cause exists “where the facts and circumstances within an officer's
personal knowledge prove sufficient to warrant a reasonable person to believe that
someone is committing or has committed an offense.” State v. Kelm, 300 P.3d
687, 693 (Mont. 2013). When determining probable cause, authorities “may rely
on hearsay and other evidence that would not be admissible in a court.” Hart v.
Parks, 450 F.3d 10589, 1066 (9th Cir. 2006). Here, the officers reasonably
believed that White had committed the offense of waste of game. White stored the
carcasses outside on his flatbed truck for approximately 25 days. Neighbors and
other citizens of Lima had complained about the carcasses. White admits that the
carcasses were “chewed on” by unknown animals while in his possession. (Doc.
38-1 at 2.) Officer Mulkey had previously observed cats and birds feeding on the
carcasses and relayed this information to Schmauch. Schmauch had photographed
the carcasses and shown the photos to a local meat processor who expressed
concern about their fitness for human consumption. Schmauch had also spoken
with his supervisor and the county attorney who stated that probable cause existed
for issuance of citations for waste of game. Inside the cavity of the elk carcass
was a loaded foothold trap. The undisputed facts demonstrate the existence of
probable cause for the issuance of the waste of game citations and reasonable
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minds concerning this issue cannot differ. Accordingly, White’s claims for false
arrest and false imprisonment fail because the existence of probable cause is a
complete defense to a claim for false imprisonment. Kichnet, 274 P.3d at 745.
In addition, Montana imposes a two-year statute of limitations on false
arrest claims. Mont. Code Ann. § 27-2-204(3). White’s claims for false arrest and
false imprisonment are based upon his interaction with Schmauch that occurred on
December 15, 2010. White did not file his initial complaint until April 19, 2013.
Thus, Schmuach’s claims for false arrest and false imprisonment are barred by the
applicable statute of limitation.
B.

Malicious Prosecution
Defendants move for summary judgment on Plaintiffs’ claim for malicious

prosecution. Defendants contend that Plaintiffs’ claim for malicious prosecution
fails because the officers had probable cause to issue the citations for waste of
game and also because Plaintiffs lack any evidence that White’s prosecution was
motivated by malice.
To prevail on a claim of malicious prosecution requires a plaintiff to prove
the following essential elements: (1) a judicial proceeding was commenced and
prosecuted against the plaintiff; (2) the defendant was responsible for instigating,
prosecuting or continuing such proceeding; (3) there was a lack of probable cause
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for the defendant's acts; (4) the defendant was actuated by malice; (5) the judicial
proceeding terminated favorably for plaintiff; and (6) the plaintiff suffered
damage. Blacktail Mountain Ranch, Co., L.L.C. v. State, Dept. of Nat. Resources
and Conserv., 220 P.3d 388, 390 (Mont. 2009). Because, as explained above, the
officers had probable cause, Plaintiffs’ malicious prosecution claim fails.
C.

Civil Rights Violations under the U.S. Constitution
Defendants move for summary judgment on all of Plaintiffs’ § 1983

claims. Defendants assert that they are entitled to qualified immunity.
Alternatively, Defendants assert that all of Plaintiffs’ claims fail as a matter of law
because Plaintiffs lack evidence sufficient to support any § 1983 claims, and/or the
claims are barred by the existence of probable cause.
White’s claims here are manifold. White alleges Fourth Amendment
violations for illegal search and seizure, and Fourteenth Amendment violations of
due process and equal protection.
Qualified Immunity
“Qualified immunity shields federal and state officials from money damages
unless a plaintiff pleads facts showing (1) that the official violated a statutory or
constitutional right, and (2) that the right was “clearly established” at the time of
the challenged conduct.” Ashcroft v. al-Kidd, 131 S.Ct. 2074, 2080 (2011).
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“Qualified immunity gives government officials breathing room to make
reasonable but mistaken judgments about open legal questions. When properly
applied, it protects ‘all but the plainly incompetent or those who knowingly violate
the law.’” Id., 131 S.Ct. at 2085 (quoting Malley v. Briggs, 475 U.S. 335, 341
(1986)).
1.

Search

Plaintiffs’ amended complaint alleges that Schmauch and/or Mulkey peered
into his house looking for incriminating evidence after he opened the door. This
claim fails even as alleged. “[A] Fourth Amendment search occurs when the
government violates a subjective expectation of privacy that society recognizes as
reasonable.” Kyllo v. U.S., 533 U.S. 27, 33 (2001) (citing Katz v. United States,
389 U.S. 347, 361 (1967). Peering into an opened doorway does not violate a
reasonable expectation of privacy. Anything that the officers saw inside the house
after White opened the door was in plain view and Plaintiffs had no reasonable
expectation of privacy in things open to the officers’ view after White opened the
door. Accordingly, Plaintiffs’ claim based on the officers’ conduct of looking
inside his opened doorway fails.
Plaintiffs attempt to change their illegal search theory on summary judgment
by alleging that Schmauch conducted an illegal search on December 14, 2011, by
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trespassing onto White’s property to observe and photograph the carcasses. No
allegation of this sort appears in Plaintiffs’ amended complaint. “[S]ummary
judgment is not a procedural second chance to flesh out inadequate pleadings.”
Wasco Prods., Inc. v. Southwall Techs. Inc., 435 F.3d 989, 992 (9th Cir. 2006)
(quoting Fleming v. Lind-Waldock &Co., 922 F.2d 20, 24 (1st Cir. 1990)).
“[N]ecessary factual averments are required with respect to each material element
of the underlying legal theory.” Id. Plaintiffs’ claim for illegal search based on
Schmauch’s alleged conduct on December 14, 2010 fails because it was not
adequately pled. Moreover, Plaintiffs lack any evidence that supports the claim or
rebuts the sworn affidavit of Officer Schmauch. Mr. White’s “strong sense” that
Schmuach must have trespassed on December 14, 2010, is not evidence sufficient
to survive summary judgment. (Doc. 62-1 at 1.) Accordingly, Plaintiffs’ claim
based on allegations that Schmauch committed an illegal search on December 14,
2011, is dismissed because Plaintiffs did not plead any factual averments to
support such a claim and Plaintiffs lack sufficient evidence to support the claim.
2.

Seizure
Plaintiffs allege constitutional violations based on the “seizure” of White’s

person and the seizure of the carcasses.
“If an officer has probable cause to believe that an individual has committed
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even a very minor criminal offense in his presence, he may, without violating the
Fourth Amendment, arrest the offender.” Atwater v. City of Lago Vista, 532 U.S.
318, 354 (2001).
To the extent Plaintiffs assert constitutional violations based on the seizure
of White’s person, this claim fails because, as explained above, the officers had
probable cause to believe that White had committed the offense of waste of game.
The seizure of White’s person, to the extent there was one, was reasonable and did
not constitute a clear violation of the Fourth Amendment. Accordingly,
Defendants are entitled to summary judgment on Plaintiffs’ § 1983 claim based on
the seizure of White’s person.
Plaintiffs’ claim based on illegal seizure of the carcasses also fails. The
officers had probable cause to believe that White possessed the carcasses in
violation of the law. Montana Code Annotated § 87-1-506(1)(d) authorizes a
game warden to “seize game . . . possessed in violation of the law or the rules of
the department.” Schmauch and Mulkey were lawfully on White’s property at the
time of the seizure. Indeed, White assisted the officers in accessing the carcasses
by moving his truck into a position so that the carcasses could be seized. The
seizure of the carcasses was not unreasonable under the circumstances and the
officers did not violate a clearly established constitutional right in seizing
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carcasses that the officers reasonably believed were possessed in violation of the
law. Kentucky v. King, 131 S.Ct. 1849, 1856 (2011) (noting that “the ultimate
touchstone of the Fourth Amendment is ‘reasonableness’”).
In addition, the carcasses, lying on a flatbed truck open to public view by
two adjacent public roads, were in plain view and the officers were authorized to
seize them under the plain view doctrine. “If an article is already in plain view,
neither its observation nor its seizure would involve any invasion of privacy.”
Horton v. California, 496 U.S. 128, 133 (1990)(citing Arizona v. Hicks, 480 U.S.
321, 325 (1987)). “[L]aw enforcement officers may seize evidence in plain view,
provided that they have not violated the Fourth Amendment in arriving at the spot
from which the observation of the evidence is made.” King, 131 S.Ct. at 1858.
The seizure of the carcasses in plain view did not violate any constitutional right
and Defendants are entitled to summary judgment on this claim.
3.

Equal Protection

Plaintiffs’ claim for violation of the Fourteenth Amendment’s equal
protection clause is based on his allegation that the officers “profiled” and
“targeted” White. (Doc. 52 at 24.) Plaintiffs support this allegation by reference
to previous occasions (dating back to 2005) in which Plaintiffs apparently
complained to law enforcement officials about various incidents which, Plaintiffs
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allege, were then not adequately followed up on by law enforcement. It is
undisputed that prior to the citations for waste of game Plaintiffs have never been
issued any citation by any Defendant.
Defendants are entitled to summary judgment on Plaintiffs’ § 1983 equal
protection claim. First, Plaintiffs cite no authority for their legal theory that a
government official’s failure to adequately investigate and/or prosecute a
smattering of past crimes constitutes an equal protection violation. Established
law suggests that no constitutional claim lies on such a theory. DeShaney v.
Winnebago County Dept. of Social Serv., 489 U.S. 189 (1989) (holding that “the
Due Process Clauses generally confer no affirmative right to governmental aid,
even where such aid may be necessary to secure life, liberty, or property
interests”). Furthermore, other than conclusory allegations, Plaintiffs fail to
provide any specific evidence that the prior incidents actually occurred as alleged
or that the alleged incidents were handled improperly by any of the Defendants,
much less any evidence demonstrating that the past incidents were handled
improperly because the officers were “profiling” or “targeting” Plaintiffs.
Plaintiffs also fail to create any genuine dispute that the officers’ issuance of the
waste of game citations were part of a scheme of targeting and “profiling”
Plaintiffs.
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Plaintiffs’ conclusory allegations about the various past incidents are
insufficient to create a genuine dispute. Plaintiffs’ equal protection claim fails.1
4.

Due Process

Plaintiffs’ claim for violation of due process fails. First, even at the
summary judgment stage, it is not clear to the Court what alleged conduct forms
the basis of Plaintiffs’ claim for due process violations. As already established,
the undisputed facts demonstrate that the officers had probable cause to believe
that White had committed a crime. The undisputed facts demonstrate that the
officers did not conduct an illegal search or seizure, or violate the equal protection
clause of the Fourteenth Amendment. Likewise, Plaintiffs cannot demonstrate that
any supervisory officials failed to adequately train or supervise because Plaintiffs
have not demonstrated any violations of constitutional rights by the supervisors’
subordinates. Plaintiffs’ claim for due process violations accordingly fails.
D.

Montana Constitutional Claims
Defendants move for summary judgment on all of Plaintiffs’ claims based

1

The Court notes that Deputy Scott Kessel was added as a Defendant in Plaintiffs’
amended complaint. There are no allegations, however, that Deputy Kessel participated in any of
the complained-of events on December 14th or 15th, 2010. Kessel’s alleged conduct relates to
past incidents that Plaintiffs allege were not adequately investigated. These allegations are
apparently meant to support Plaintiffs’ equal protection, due process, and Montana constitutional
claims, but Plaintiffs make no specific mention of Kessel in any of the summary judgment briefs.
For the reasons explained herein, any claims against Kessel are dismissed.
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on violations of the Montana Constitution. Defendants contend that Plaintiffs’
Montana constitutional claims are duplicative of Plaintiffs’ claims based on the
United States Constitution and should be dismissed for the reasons already
explained. In addition, Defendants contend that to the extent that Plaintiffs’
claims are not precisely duplicative of the federal claims, Plaintiffs are
impermissibly asserting claims for which there exists an adequate remedy under
state common law tort theories and/or asserting claims based on provisions of the
Montana constitution that are not “self-executing.” (Doc. 44 at 27.)
In general, Plaintiffs claims under the Montana constitution, for malicious
prosecution, search, seizure, and equal protection, are indeed duplicative of their
federal claims, and fail for the reasons explained above. In summary, the
malicious prosecution claim, search, and seizure claims fail because of the
existence of probable cause. In addition, when “adequate remedies exist under
statutory or common law,” no constitutional tort claim lies. Sunburst School Dist.
No. 2 v. Texaco, Inc., 165 P.3d 1079, 1093 (Mont. 2007). Likewise, Plaintiffs’
equal protection claim based on “profiling” is not cognizable. Plaintiffs make no
effort to demonstrate that they can meet the elements for such a claim, and the
claim fails for lack of sufficient evidence.
Other than these duplicative claims, Plaintiffs contend that Breckenridge’s
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right to privacy and dignity were violated when Mulkey failed to prosecute an
unidentified peeping tom. The peeping incident allegedly occurred at some
unknown time in the past. Plaintiffs fail to demonstrate how it was Mulkey’s, or
any other Defendant’s, duty to prosecute this alleged, unidentified peeping tom, or
how, Mulkey or any of the other Defendants, violated Breckenridge’s dignity.
Plaintiffs simply make the bald, conclusory assertion, unsupported by any citation
to any legal authority, that this conduct constitutes a violation of the right to
dignity under the Montana Constitution. This mere allegation is insufficient to
survive summary judgment. Accordingly, Defendants are entitled to summary
judgment on all of Plaintiffs’ Montana constitutional claims.
E.

Negligence and gross negligence
Defendants move for summary judgment on White’s negligence claims.

Defendants assert that Plaintiffs’ negligence claims are barred by the public duty
doctrine. Defendants further assert that there is no cognizable claim for negligent
investigation. Plaintiffs counter that the public duty doctrine does not apply
because White was in actual custody.
A claim for negligence requires the plaintiff to prove that the defendant
owed the plaintiff a legal duty. Peterson v. Eichhorn, 189 P.3d 615, 620-621
(Mont. 2008). Whether a legal duty exists is a question of law. Slack v. Landmark
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Co., 27 P.3d 6, 10 (Mont. 2011). The public duty doctrine provides that “a law
enforcement officer has no duty to protect a particular person absent a special
relationship because the officer’s duty to protect and preserve the peace is owed to
the public at large and not to individual members of the public.” Gonzalez v. City
of Bozeman, 217 P.3d 487, 491 (Mont. 2009) (citing Nelson v. Driscoll, 983 P.2d
972 (Mont. 1999); Eves v. Anaconda-Deer Lodge County, 114 P.3d 1037 (Mont.
2005). A special relationship exists “under certain circumstances, when the
agency has actual custody of the plaintiff.” Nelson, 983 P.2d 972, 978.
Defendants are entitled to summary judgment on all of Plaintiffs’
negligence claims because the claims are barred by the public duty doctrine. The
undisputed facts demonstrate that White was never in “actual custody” of any of
the Defendants. At most, White was briefly detained (for a period of
approximately 30 seconds) so that Schmauch could explain to White the citations
for waste of game. The Court cannot locate, and Plaintiffs do not cite, any
authority suggesting that this brief detention for the purpose of explaining a
citation, is sufficient to establish that White was in “actual custody” as required to
establish a special relationship and an exception to the public duty doctrine. The
undisputed facts demonstrate that White was never in actual custody.
Accordingly, the public duty doctrine applies, the officers owed no duty to White
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other than the duty owed to the public at large, and all of Plaintiffs’ general
negligence claims fail.
F.

Negligence per se
Defendants move for summary judgment on all of Plaintiffs’ negligence per

se claims. Plaintiffs’ claims of negligence per se are premised on violations of six
Montana statutes:
(1) § 87-1-502(6) (granting game wardens the authority to inspect game “at
reasonable times and at any location other than a residence or dwelling”);
(2) § 87-1-506(1)(c) (granting game wardens the power to “search, with a
search warrant, any dwelling house or other building”);
(3) § 87-1-513 (stating that money obtained from the sale of seized property
in association with a game violation must be paid to the party from whom the
property was taken if the person is subsequently found not guilty of the charge);
(4) § 45-7-207 (criminal tampering with or fabricating physical evidence);
(5) § 45-6-301 (criminal theft);
(6) § 45-7-202 (criminal false swearing).
Defendants contend that none of these statutes were violated and furthermore that
none of these statutes are intended to regulate law enforcement officers for the
protection of persons such as Plaintiffs.
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In order to prevail on a claim of negligence per se a plaintiff must establish:
(1) that a defendant violated a particular statute; (2) that the violated statute was
enacted to protect a specific class of persons; (3) that the plaintiff is a member of
the class; (4) that the plaintiff’s injury is the kind of injury that the statute was
enacted to prevent; and (5) that the statute was intended to regulate members of
the defendant’s class. Doyle v. Clark, 254 P.3d 570, 576-77 (Mont. 2011). A
plaintiff must also establish that the “statute allegedly violated allows a private
right of action.” Id. 254 P.3d at 577.
Plaintiffs do not address how they intend to meet all of the required
elements for each of their claims for negligence per se. Plaintiffs contend that the
officers did not have probable cause, but the Court has already rejected this
position. Otherwise, Plaintiffs make only the arguments addressed below.
Plaintiffs contend that the flatbed truck on which the carcasses were laid
was within Plaintiff’s dwelling’s curtilage. This apparently is meant to support
Plaintiffs’ claim that the officers searched White’s home in violation of Montana
Code Annotated § 87-1-502(6). Putting aside the fact that the statute makes no
mention of a home’s curtilage, Plaintiffs make no showing that § 87-1-502 creates
a private right of action or that the statute was enacted to protect people such as
Plaintiffs. Furthermore, Plaintiffs’ contention that the flatbed truck was within the
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curtilage of White’s house is conclusory and unsupported by the undisputed facts.
The flatbed truck was located away from Plaintiffs home in a yard open to public
view from two adjacent public streets.
To the extent Plaintiffs assert violations of § 45-6-301 (theft), Plaintiffs
make no showing that this criminal statute creates a private right of action or that
it was enacted to protect people such as Plaintiffs from the conduct of law
enforcement officers. In any case, the officers were statutorily authorized to seize
the carcasses which they had probable cause to believe were possessed in violation
of the law. Mont. Code Ann. § 87-1-506(d).
With respect to the tampering and false statements, §§ 45-7-207 and 45-7202, Plaintiffs again fail to make any showing that these criminal statutes create a
private right of action, that the statutes were intended to regulate law enforcement,
or that White is a member of a class that the statutes were enacted to protect.
Plaintiffs state, without citation to any legal authority, that these statutes “set the
standard of conduct” for law enforcement. (Doc. 52 at 29.) This conclusory
allegation, without reference to any legal authority, or further elaboration, is
insufficient to survive summary judgment.
Defendants are entitled to summary judgment on all of Plaintiffs’
negligence per se claims.
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G.

Emotional Distress
Defendants move for summary judgment on Plaintiffs’ independent claim

for emotional distress. Defendants contend that the public duty doctrine bars
Plaintiffs’ emotional distress claim. Defendants also assert that Plaintiffs’ claim
fails for lack of sufficient evidence.
A cause of action for negligent infliction of emotional distress arises only
where serious or severe emotional distress was the reasonably foreseeable
consequence of a defendant’s negligent actions. Sacco v. High Country Ind.
Press, Inc., 896 P.2d 411, 425 (Mont. 1995).
Plaintiffs assert in conclusory fashion that White suffered severe emotional
distress from having to take time off work to prepare for his trial on the waste of
game citations and from losing the meat he planned to eat from the carcasses.
Serious or severe emotional distress can not be regarded as the reasonably
foreseeable consequence of issuing citations for waste of game and seizing
carcasses that are apparently rotting. Moreover, the public duty doctrine bars this
claim because White was never in “actual custody.”
H.

Defamation
Defendants move for summary judgment on Plaintiffs’ defamation claim.

Defendants assert that there is no evidence of any false publication and that any
22

statements the Defendants made in the proper discharge of their duties is
privileged under Montana Code Annotated § 27-1-804. Defendants further assert
that any claim of defamation based on false statements in Schmauch’s incident
report is time barred.
Plaintiffs concede that a defamation claim based on alleged falsehoods in
the incident report is time barred. Plaintiffs only contention is that “it is
uncontradicted that [White’s] charges were published in the local paper.” (Doc.
52 at 30-31.) Plaintiffs make no other effort to establish their claim for
defamation. Critically, Plaintiffs make no effort to demonstrate that the
newspaper publication concerning the charges against White was false. A claim
for libel requires a false publication. Mont. Code Ann. § 27-1-802. Plaintiffs
offer no evidence of this essential element. Accordingly, Defendants are entitled
to summary judgment on White’s claim for defamation.
I.

Punitive Damages and Acting in Concert
Defendants contend they are entitled to summary judgment on Plaintiffs’

claims for punitive damages and acting in concert because these claims are
dependent on establishing liability on some other count. The Court agrees that
Plaintiffs’ claims here are dependent on establishing liability under one of
Plaintiffs’ other counts. Doll v. Major Muffler Centers, Inc., 687 P.2d 48, 55
23

(Mont. 1984); Peschel v. City of Missoula, 664 F.Supp.2d 1149, 1173 (D.Mont.
2009). Accordingly, Defendants are entitled to summary judgment on these
counts.
J.

Attorney’s Fees
Defendant Mulkey moves the Court for attorney fees for having to defend

against Plaintiffs’ claims against him in his individual capacity contending that
attorney fees are appropriate when a Plaintiff is on notice that claims against a
government official in his individual capacity will fail as a result Montana Code
Annotated § 2-9-305(5). Mulkey cites one case in which attorney fees were
awarded when the Court determined that a defendant clearly enjoyed immunity
from the plaintiff’s state law claims pursuant to § 2-9-305(5). Germann v.
Stephens, 137 P.3d 545, 553-54 (Mont. 2006). Defendants Beaverhead County
and Hansen also move the Court for attorney fees, but state no specific reason why
attorney fees should be granted. The Court will not depart from the American
Rule regarding attorney’s fees and denies Defendants’ motion for attorney’s fees.
CONCLUSION
In closing, the Court notes two features of this case. First, Plaintiffs’ filings
in this case have consistently violated the Court’s Local Rules. All motions and
other papers must be filed with one-inch margins and the pages should be
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numbered. L.R. 1.5(a). Citations should adhere to the rules provided by Bluebook
or ALWD. Id. All briefs must be filed with a certificate of compliance. L.R.
7.1(d)(2)(E). Exhibits should be filed in manner that allows the Court and the
parties to locate easily and refer unambiguously to a specific page of a specific
exhibit. L.R. 7.2(a). Filing a group of exhibits instead of filing each exhibit as a
separate document is inconsistent with this rule. All exhibits filed should be
“germane” to the issues in dispute. L.R. 7.2(b). The statement of disputed facts
(not a “Statement of Genuine Issues”) should set forth each fact on which the party
relies to oppose the motion. L.R. 56.1(b). Each fact should be supported by a
specific document in the record. Id. There is a difference between an argument, or
a party’s position, and a fact. Plaintiffs’ counsel must learn to distinguish between
facts that are appropriate for a statement of disputed facts and arguments, which
are appropriate for briefs.
The Court also openly wonders about Plaintiffs’ counsel’s performance of
due diligence, initial research, and proper inquiry before filing this 10-count action
against government officials and a political subdivision. The law with respect to
many of Plaintiffs’ claims is well established and contrary to Plaintiffs’ claims.
The Court believes that the performance of some initial research and investigation
into these claims may have resulted in a determination that the claims were likely
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not warranted by existing law, or that evidentiary support for the claims was
lacking.
IT IS ORDERED that Defendants’ motions for summary judgment (Docs.
35, 36, 37, & 42) are GRANTED. Judgment shall be entered in favor of all
Defendants.
IT IS FURTHER ORDERED that all pending motions are DENIED AS
MOOT and this case is CLOSED.
DATED this 18th day of March, 2014.

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