McClammy v. Halloran et al

Filing 103

ORDER: IT IS ORDERED that 1) Defendant Officers' 41 Motion for Summary Judgment is GRANTED IN PART and DENIED IN PART; 2) Defendant City of Great Falls' 45 Motion for Summary Judgment is DENIED; 3) McClammy's 49 Motion in Limine is GRANTED IN PART and DENIED IN PART; 4) Defendant Officers' 55 and 58 Motions in Limine are GRANTED IN PART and DENIED IN PART; 5) Defendant City of Great Falls' 60 and 62 Motions in Limine are GRANTED IN PART and DENIED IN PART. SEE ORDER FOR FULL DETAILS. Signed by Judge Brian Morris on 9/25/2019. (SLR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
GREAT FALLS DIVISION
DIANA McCLAMMY,

CV-18-68-GF-BMM

Plaintiff,
vs.
ORDER
OFFICER THOMAS HALLORAN, et
al.,
Defendants.

Defendant City of Great Falls (“City”) and Defendants Great Falls Police
Officers Tovson and Halloran (collectively “Officers”) filed separate motions for
summary judgment. (Docs. 41 & 45.) Plaintiff Diana McClammy (“McClammy”)
opposed the motions. (Docs. 78 & 80.) The Court conducted a hearing on the
motions on September 12, 2019. (Doc. 100.)
FACTUAL AND PROCEDURAL BACKGROUND
McClammy called 911 at approximately 7:32 p.m. on May 22, 2015. (Doc. 3
at 3.) She reported that her boyfriend, Louis Dymon, had physically abused her.
(Id.) The Officers responded to McClammy’s apartment building. (Id.) McClammy
told the Officers that Dymon had been drinking, was violent, head-butted her, hit

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her in the back of the neck with a plastic bottle, and scratched her face at her
jawline. (Id.)
The Officers spoke separately with McClammy and Dymon. (Id. at 3-4.)
McClammy alleges that the Officers acted dismissively toward her complaints. (Id.
at 3.) The Officers reported that McClammy was intoxicated. (Id.) Subsequent
testing measured McClammy’s blood alcohol content (BAC) as 0. (Id.) The
Officers reported that Dymon was calm, but appeared intoxicated. (Id. at 4.)
Subsequent testing measured Dymon’s BAC as 0.297. (Id.) The Officers cleared
the call based on their conversations with McClammy and Dymon. (Id.)
McClammy reports that the Officers’ investigation lasted less than 15 minutes.
(Id.) The Officers left the apartment building after they had concluded their
investigation. (Id.)
The apartment building manager called 911 a little over an hour later. (Id.)
The building manager reported that McClammy told him that she had just stabbed
Dymon and to call for help. (Id.) The Officers responded to the scene. (Id.)
McClammy asserts that she told the Officers that she had acted in self-defense and
that she had not meant to kill Dymon. (Id.) The Officers arrested McClammy. (Id.)
Medical personnel pronounced Dymon dead later that night. (Id. at 5.)
The State of Montana charged McClammy with deliberate homicide for
Dymon’s death. (Id.) The state district court appointed public defender Matthew

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McKittrick to defend McClammy. (Id. at 6.) McClammy pleaded not guilty to the
charge of deliberate homicide. (Id.) The court held an omnibus hearing on October
14, 2015. (Id.) McClammy informed the court that she intended to rely on a
justifiable use of force and/or mental disease or defect defense. (Id.) The court
scheduled trial for November 16, 2015. (Id.)
McKittrick moved to vacate and continue various deadlines, including
McClammy’s trial date. (Id.) Ultimately, the court reset McClammy’s trial for
February 13, 2017. (Id.) The State filed a motion to dismiss the charge with
prejudice on February 7, 2017. (Id.) The State represented that it lacked sufficient
evidence to overcome McClammy’s self-defense claim. (Id.) The state district
court dismissed the charges on February 7, 2017. (Id. at 7.) McClammy had been
incarcerated for the 21 months between her arrest and the dismissal. (Doc. 78 at
11-12.)
McClammy filed her Complaint in Montana State Court on March 7, 2018.
(Doc. 3 at 15.) McClammy initially asserted seven causes of action against various
defendants. (Id. at 7-16.) The Officers removed the case to federal court on April
25, 2018. (Doc. 1.) McClammy has since moved to dismiss several causes of
action and two defendants. (Docs. 80 at 2, 98 at 1, & 100.) The following causes of
action remain: (1) negligence against the Officers and the City; and (2) 42 U.S.C.
§ 1983 Fourteenth Amendment violation against the Officers. (Doc. 3 at 7, 13.)

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McClammy clarifies that she bases her claims against the Officers on their
alleged “deliberate indifference” in investigating the assault that McClammy first
reported and in failing to arrest Dymon based on their investigation. (Doc. 78 at 4.)
McClammy bases her claims against the City on its vicarious liability for the
Officers’ tortious conduct. (Id.)
DISCUSSION
I.

Motions for Summary Judgment
The Court will address separately the motions for summary judgment.
A. Summary Judgment Legal Standard
A party may move for summary judgment on all or part of a claim. Fed. R.

Civ. P. 56(a). Summary judgment proves proper when no genuine dispute of
material fact exists and the moving party is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(a). The Court will grant summary judgment where the
documentary evidence produced by the parties permits only one conclusion.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).
A moving party, who does not carry the burden of proof at trial, carries the
“initial burden of production” on a summary judgment motion. Nissan Fire &
Marine Insurance Company, LTD v. Fritz Companies, Inc., 210 F.3d 1099, 1102
(2000). The movant may fulfill her initial burden of production in one of two ways.
Id., at 1106. The movant may produce “affirmative evidence negating an essential

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element of the nonmoving party’s claim.” Id. at 1103. The movant alternatively
may show that the “nonmoving party did not have enough evidence to carry” her
burden of proof at trial. Id.
If the movant meets her burden of production, the nonmovant must produce
evidence to support her claim. Id. Rule 56 mandates summary judgment where the
nonmovant’s production of evidence fails to create a genuine issue of material fact.
Id. If the movant fails to meet her initial burden of production, then the nonmovant
may defeat the motion for summary judgment without having produced any
evidence. Id.
B. The Officers’ Motion for Summary Judgment
State-Created Danger
The Fourteenth Amendment generally does not require an officer to protect
an individual from third-party violence. Town of Castle Rock v. Gonzales, 545 U.S.
748, 768 (2005). An officer may owe a Fourteenth Amendment due process duty to
protect against third-party violence, however, if the officer affirmatively placed the
plaintiff in a position of known danger by acting with deliberate indifference.
Kennedy v. City of Ridgefield, 439 F.3d 1055, 1062-63 (9th Cir. 2006). The
exception requires the officer to engage in affirmative conduct that placed the
plaintiff in a position that was more dangerous than the one in which the officer
found the plaintiff. Id. at 1061.

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McClammy alleges that the Officers’ actions resulted in a state-created
danger in violation of her Fourteenth Amendment Due Process right. (Docs. 3 at 13
& 78 at 12.) McClammy asserts that the Officers created a danger through the
following omissions: (1) failing to investigate properly her claims when they
responded to her 911 call; and (2) failing to arrest Dymon following their
investigation. (Doc. 78 at 12.)
McClammy specifically argues that the Officers increased her risk of harm
by “stoking Dymon’s anger” during their investigation. (Id. at 20.) McClammy
asserts that, after the Officers left, Dymon threw her on the futon, grabbed her hair,
and screamed, “[n]o red marks bitch!” (Id.) McClammy contends that the Officers
must have told Dymon that they had not seen any red marks on McClammy’s head
or neck in order for Dymon to then scream “[n]o red marks bitch!” at McClammy
after the Officers had left. (Doc. 78 at 20.)
The Officers moved for summary judgment regarding McClammy’s statecreated danger claim. (Doc. 42 at 13.) The Officers assert that McClammy failed to
show that their actions deprived McClammy of any constitutional right. (Id.) The
Officers argue that they did not act affirmatively to place McClammy in a position
that was more dangerous than the one in which they found her. (Id. at 16.) The
Officers further argue that no evidence exists to indicate that they acted with
deliberate indifference to a known or obvious danger. (Id.)

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A genuine issue of material fact exists regarding whether the Officers acted
affirmatively with deliberate indifference to place McClammy in a more dangerous
position than the one in which they found her. McClammy argues that the Officers
acted affirmatively. (Doc. 78 at 20.) McClammy asserts that the Officers’ action in
telling Dymon that they did not see any red marks on McClammy constitutes the
“affirmative act.” (Doc. 78 at 20.) McClammy further alleges that the Officers
acted with deliberate indifference despite the following compelling evidence
presented to the Officers: (1) that Dymon had physically abused McClammy; and
(2) that the physical abuse would escalate when the Officers left. (Doc. 78 at 21.)
The parties separately emphasize the genuine issues of material fact that
currently exist. McClammy contends that the Officers’ purported statement to
Dymon that they had not seen any red marks on McClammy constitutes the
“affirmative act” at issue. Whether the Officers made that statement to Dymon
represents a disputed issue of material fact. (Doc. 88 at 6.) Assuming the Officers
made the statement, McClammy’s claim of Dymon’s reaction to the statement also
presents a factual issue.
The trier of fact must determine whether the statement increased Dymon’s
anger towards McClammy, thereby placing her in more danger than when the
Officers first arrived at the scene. The trier of fact first must resolve these material
factual issues to determine whether the officers acted with deliberate indifference

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when they left the apartment building after having completed their investigation
without arresting Dymon. These issues of material fact preclude summary
judgment on McClammy’s state-created danger claim. Fed. R. Civ. P. 56(c).
State Law Claims
Officers further assert that they are entitled to summary judgment on
McClammy’s state law claims. (Doc. 42 at 24.) McClammy agrees that the
doctrine of qualified immunity protects the Officers from her state law claims
because the City appears as a defendant and the Officers acted in the scope of their
employment. (Doc. 78 at 23.) The Court grants the Officers’ motion for summary
judgment regarding McClammy’s state law claims.
C. The City’s Motion for Summary Judgment
The public duty doctrine provides that a police officer owes no duty to an
individual plaintiff when carrying out his general duty to protect and preserve the
peace. Renenger v. State, 426 P.3d 559, 567 (Mont. 2018). The public duty
doctrine expresses the policy that a police officer owes to the public at large a duty
to protect and preserve the peace rather than to an individual plaintiff. Nelson v.
State, 195 P.3d 293, 301 (Mont. 2008).
McClammy claims that the Officers acted negligently in the following ways:
(1) investigating the assault that she had reported; and (2) failing to arrest Dymon
after conducting their investigation. (Doc. 78 at 4.) The City moved for summary

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judgment on the basis that the City lacks liability for the Officers’ alleged
negligence. (Doc. 46 at 11.) The City asserts that the Officers owed no legal duty
to McClammy based on the public duty doctrine’s protection of their conduct.
(Doc. 46 at 11-25.) The City asserts that the public duty doctrine bars liability for
an alleged negligent investigation. (Doc. 46 at 12.) The City further asserts that the
public duty doctrine bars liability for the Officers’ alleged negligence in failing to
arrest Dymon after having completed their investigation. (Doc. 46 at 19.)
Courts have recognized exceptions to the public duty doctrine where a
“special relationship” exists between a police officer and the plaintiff. This
“special relationship” gives rise to a duty that proves more specific than the general
duty that the officer owes to the public at large. Gatlin-Johnson v. City of Miles
City, 291 P.3d 1129, 1132 (Mont. 2012); Nelson, 195 P.3d at 300. A statute that
specifically protects a class of persons establishes this “special relationship.”
Gatlin-Johnson, 291 at 1132. The Montana Supreme Court in Massee v.
Thompson, 90 P.3d 394, 403-04 (Mont. 2004), determined that Montana’s
domestic abuse statutes create this “special relationship” between police officers
and victims of domestic violence.
The Montana Legislature has enacted numerous statutes that specifically
address the relationship between police officers and domestic abuse victims. For
example, Mont. Code Ann. § 46-6-311 provides that arrest represents the

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“preferred response” in domestic assault cases involving “imminent danger to the
victim.” In fact, Mont. Code Ann. § 46-6-601 affirmatively requires a police
officer to file a written report with the officer in command when the officer fails to
make an arrest when called to the scene of a reported domestic assault incident.
Mont. Code Ann. § 46-6-602 further requires a police officer to advise the victim
of the availability of a shelter or other community services and notify the victim of
any legal rights and remedies available.
The statutes could be construed, pursuant to Massee, to reflect the Montana
Legislature’s intent to create a “special relationship” between law enforcement and
victims of domestic violence. Massee, 90 P.3d at 403-04. McClammy called 911
and reported that Dymon, her domestic partner, had assaulted her. The 911
operators dispatched the Officers to McClammy’s apartment. McClammy alleges
that the Officers had a “special relationship” with McClammy, a victim of reported
domestic violence, pursuant to Montana law.
Montana law obligated the Officers to respond to the reported domestic
violence in a specific manner. See Mont. Code Ann. §§ 46-6-311, 46-6-601, 46-6602. McClammy alleges that the Officers owed McClammy a legal duty pursuant
to those statutory obligations. McClammy further alleges facts that could limit
application of the public duty doctrine to the Officers’ potential liability. The
City’s motion for summary judgment (Doc. 45) must be denied until the finder of

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fact resolves the extent of the contact—and the corresponding relationship—
between McClammy and the Officers.
II.

Motions in Limine
A. Motion in Limine Legal Standard
A motion in limine constitutes “a procedural mechanism to limit in advance

testimony or evidence in a particular area. Frost v. BNSF Ry. Co., 218 F. Supp. 3d
1122, 1133 (D. Mont. 2016). A motion in limine “reduces the likelihood that
unduly prejudicial evidence will ever reach the jury.” Jackson v. Cty. Of San
Bernardino, 194 F. Supp. 3d 1004, 1008 (C.D. Cal. 2016) (citing Brodit v.
Cambra, 350 F.3d 985, 1004-05 (9th Cir. 2003). A district court possesses “wide
discretion” in considering a motion in limine. Frost, 218 F. Supp. 3d at 1133.
B. The Parties’ Motions in Limine
McClammy, the Officers, and the City have filed several motions in limine
asking the Court to exclude multiple items of evidence at trial. (Docs. 49, 55, 58,
60, & 63.)
McClammy seeks to exclude the following evidence: (1) evidence of other
crimes, wrongs, or bad acts (Doc. 50 at 6-21); (2) defense counsel’s questioning of
McClammy regarding whether other witnesses are lying (Doc. 50 at 21-29); and
(3) Defense expert Mark Muir’s rebuttal testimony (Doc. 50 at 29). (Docs. 49 &
50.)

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The Officers seek to exclude the following evidence: (1) McClammy’s
liability experts’ testimony (Docs. 55 & 57); (2) testimony concerning Missoula
Police Department policies (Docs. 58 at 2 & 59 at 2); and (3) reference to any
alleged need for an “internal investigation” (Docs. 58 at 2 & 59 at 3). (Docs. 55,
57, 58 & 59.)
The City seeks to exclude the following evidence: (1) references to current
events, racial strife, news sources, political figures, and political affiliations (Docs.
60 at 2 & 61 at 5-7); (2) McClammy’s handwritten statement (Docs. 60 at 2 & 61
at 7-9); and (3) McClammy’s expert Mori Woods’s testimony (Docs. 62 at 1-2 &
63 at 2-10).
C. The Court’s Rulings
The Court heard arguments on the motions in limine at the hearing on
September 12, 2019. (Doc. 100.) The Court ruled from the bench on the parties’
motions during the hearing and provided its reasoning at that time. The Court
summarizes its decisions as follows:
1. Evidence of McClammy’s prior bad acts: Evidence of McClammy’s prior
bad acts will be admissible only if McClammy first opens the door to such
evidence at trial. Defendants must submit a list to the Court of each bad act that
Defendants seek to admit. The list must detail the prior bad act, including a
description of the act, where the act occurred, and when the act occurred. The

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Court will rule on the admissibility of each prior bad act individually when it
becomes necessary to do so.
2. Defense counsel’s questioning of McClammy regarding whether other
witnesses are lying: Defendants must compile a list of witnesses whom
McClammy claims to be lying. Defendants should identify those witnesses’
specific statements that McClammy contradicted during her deposition. Any of
these witnesses must testify at trial in order for Defendants to question McClammy
on any alleged lies by the testifying witnesses. The Court will rule on each
testifying witness closer to trial as appropriate.
3. Defense expert Mark Muir’s rebuttal testimony: Any new information that
Muir presented on rebuttal must have been in response to information that
Plaintiff’s experts disclosed. Any other information will be excluded.
4. Mark Muir’s references to current events, racial strife, news sources,
political figures, and political affiliations: Plaintiffs may question Muir about any
opinions that Muir published in a widely read publication, such as a newspaper.
Plaintiffs must seek the Court’s approval to question Muir about opinions that he
published in a more private publication, such as on his Facebook account.
Plaintiffs may not question Muir about any personal opinions that he did not
publish unless Muir first opens the door to any such questions.

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5. McClammy’s experts’ testimony: Expert witnesses should not use any
language that sounds like jury instructions and invades the province of the jury.
For example, expert witnesses may testify about matters that they believe to be
“credible” or “not credible.” Expert witnesses may not say that they believe
something to be “false.”
a. Ron Steffens: Plaintiffs may ask Steffens about his investigation.
Steffens may discuss the opinions that he formed as a result of his investigation.
Steffens may not discuss his opinions in the form of legal conclusions on the
ultimate issues to be resolved at trial.
b. Mori Woods: Woods may not testify regarding her opinions in the
form of legal conclusions on the ultimate issues to be resolved at trial, such as her
opinion that the officers “deliberately conspired.” Defendants may attack Woods’s
credibility and knowledge as an expert on cross-examination.
6. Testimony concerning Missoula Police Department Policies: Experts may
not discuss the City of Missoula’s policies, or for that matter, the policies of any
particular city. Experts instead should talk generally about “best police practices.”
7. Reference to any alleged need for an “internal investigation”: Witnesses may
not use the term “internal investigation.” Witnesses may discuss the topic by
talking about for the need for a “review by supervisors” or by using other
appropriate language.

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8. McClammy’s handwritten statement: The statement is not admissible at this
point. The Court will re-assess the issue on redirect examination if necessary.
ORDER
Accordingly, IT IS ORDERED that:
1. Defendant Officers’ Motion for Summary Judgment (Doc. 41) is
GRANTED, IN PART, and DENIED, IN PART.
2. Defendant City of Great Falls’s Motion for Summary Judgment (Doc. 45) is
DENIED.
3. McClammy’s Motion in Limine (Doc. 49) is GRANTED, IN PART, and
DENIED, IN PART.
4. Defendant Officers’ Motions in Limine (Docs. 55 & 58) are GRANTED, IN
PART, and DENIED, IN PART.
5. Defendant City of Great Falls’s Motions in Limine (Docs. 60 & 62) are
GRANTED, IN PART, and DENIED, IN PART.
DATED this 25th day of September, 2019.

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