Hardesty v. Barcus et al

Filing 41

ORDER granting in part and denying in part 33 Motion to Dismiss for Failure to State a Claim; adopting Findings and Recommendations re 39 Findings and Recommendations.; denying 29 Motion to Dismiss for Failure to State a Claim; granting 31 Motion to Dismiss for Lack of Jurisdiction. Signed by Judge Donald W. Molloy on 3/5/2012. (dle)

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

MARC HARDESTY,

)
)
Plaintiff,
)
v.
)
)
GLENN BARCUS, in his individual and
)
official capacities; COL. MICHAEL
)
TOOLEY, in his individual and official
)
capacities; MONTANA HIGHWAY
)
PATROL; and JOHN DOES 1–25, in their )
individual and official capacities;
)
)
Defendants.
)
___________________________________ )

CV 11–103–M–DWM–JCL

ORDER

Plaintiff Marc Hardesty filed this lawsuit against the defendants, alleging
that Trooper Glenn Barcus used excessive force against him. All three defendants
move to dismiss. Magistrate Judge Lynch recommends granting the Montana
Highway Patrol’s motion to dismiss, denying Trooper Barcus’s motion, and

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granting in part and denying in part Colonel Tooley’s motion. Having reviewed
Trooper Barcus’s and Colonel Tooley’s objections, the Court agrees with Judge
Lynch and adopts his Findings and Recommendation in full.
BACKGROUND
This matter was referred to Judge Lynch under 28 U.S.C. § 636(b). Judge
Lynch issued his Findings and Recommendation on January 20, 2012.
Judge Lynch recommends dismissing the complaint as to the Montana
Highway Patrol on the basis of eleventh amendment sovereign immunity. Judge
Lynch recommends, though, that the complaint not be dismissed as to Trooper
Barcus or Colonel Tooley. He recommends that the Court allow Mr. Hardesty to
proceed with his state law claims against them.
Trooper Barcus and Colonel Tooley timely objected to Judge Lynch’s
Findings and Recommendation. They are therefore entitled to de novo review of
the specified findings or recommendations to which they object. 28 U.S.C. §
636(b)(1). The Court reviews portions of the Findings and Recommendation not
specifically objected to for clear error. McDonnell Douglas Corp. v. Commodore
Bus. Mach., Inc., 656 F.2d 1309, 1313 (9th Cir. 1981).
Since the parties are familiar with the facts of this case, they are restated
here only as necessary to explain the Court’s decision.
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DISCUSSION
The only portion of the Findings and Recommendations to which Trooper
Barcus and Colonel Tooley object is the recommendation that the Court allow Mr.
Hardesty to go forward with his state law claims. Trooper Barcus and Colonel
Tooley present two arguments. First, they argue that they cannot be named as
defendants. More specifically, they argue that if a plaintiff has a tort claim against
a state employee for actions that the employee took in the course and scope of his
employment, then the State is the only proper defendant. Second, they argue that
they are entitled to immunity under Montana Code Annotated § 2–9–305(5).
I.

State employees as defendants
Trooper Barcus and Colonel Tooley argue that the only proper defendant for

the state-law claims is the State of Montana. Not so.
As Trooper Barcus and Colonel Tooley correctly observe, “Every
governmental entity is subject to liability for its torts and those of its employees
acting within the scope of their employment or duties . . . .” Mont. Code Ann. §
2–9–102. But that does not imply that only governmental entities are subject to
liability. State employees may also be individually liable and named as defendants.
Indeed, one of the very purposes of Montana Code Annotated § 2–9–305 is to
“provide for the . . . defense . . . and indemnification of public officers and
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employees civilly sued for their actions taken within the course and scope of their
employment.” Mont. Code Ann. § 2–9–305(1). Trooper Barcus and Colonel
Tooley’s claim that only the State can be named as a defendant would nullify
Section 2–9–305, which expressly contemplates lawsuits against state employees.
More importantly, there is simply no authority that supports Trooper Barcus
and Colonel Tooley’s theory that a plaintiff can sue only the State for a state
employee’s torts.
II.

State employee immunity
While a plaintiff may generally sue a state employee, Montana Code

Annotated § 2–9–305(5) immunizes employees from liability if certain conditions
are met:
Recovery against a governmental entity under the provisions of parts 1
through 3 of this chapter constitutes a complete bar to any action or
recovery of damages by the claimant, by reason of the same subject
matter, against the employee whose negligence or wrongful act, error,
omission, or other actionable conduct gave rise to the claim. In an action
against a governmental entity, the employee whose conduct gave rise to
the suit is immune from liability by reasons of the same subject matter
if the governmental entity acknowledges or is bound by a judicial
determination that the conduct upon which the claim is brought arises
out of the course and scope of the employee's employment, unless the
claim constitutes an exclusion provided in subsections (6)(b) through
(6)(d).
Mont. Code Ann. § 2–9–305(5). The second sentence, and not the first, is

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applicable here. It sets out two requirements that must be met in order for
immunity to attach: (1) the plaintiff must name a governmental entity as a
defendant and (2) the governmental entity must acknowledge, or be bound by a
judicial determination, that the employee’s conduct arose out of the course and
scope of the employee’s employment. Id.
Most of the cases discussing Section 2–9–305(5) have given more attention
to the second condition rather than the first. See e.g. Polesky v. Morrison, 2009
WL 117365 at *2, *9–*10 (D. Mont. Jan. 16, 2009); Peschel v. City of Missoula,
2008 WL 5131369 at *8–*10 (D. Mont. Dec. 5, 2008); Kiely Const., LLC v. City
of Red Lodge, 57 P.3d 836, 852–55 (Mont. 2002); Gerber v. Commr. of Ins., 786
P.2d 1199, 1200–01 (Mont. 1990). But this Court and the Montana Supreme Court
have both acknowledged that the first condition—that the plaintiff name a
governmental entity as a defendant—must be satisfied in order for immunity to
attach. See e.g. Peschel v. City of Missoula, 2009 WL 902438 at *11 (D. Mont.
March 27, 2009); Peschel, 2008 WL 5131369 at *9; Kenyon v. Stillwater Co., 835
P.2d 742, 147 (Mont. 1992), overruled on other grounds, Heiat v. E. Mont.
College, 912 P.2d 787 (Mont. 1996).
This case requires the Court to take a closer look at the first condition and
resolve the following question: If a plaintiff initially names a governmental entity
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as a defendant, is that entity still a named defendant for purposes of Section
2–9–305(5) when the complaint against it is dismissed on the basis of eleventh
amendment sovereign immunity? The answer to that question is “no.”
Judge Lynch correctly concluded that a governmental entity is not a named
defendant if the complaint against it has been dismissed on the basis of sovereign
immunity. As a result, state employees may not subsequently assert statutory
immunity under Section 2–9–305(5) after a governmental employee successfully
asserts eleventh amendment sovereign immunity.
This conclusion preserves the fundamental purpose of Section 2–9–305(5):
“to prevent a plaintiff from recovering from both the governmental entity and the
individuals acting on behalf of that entity for the same conduct . . . .” Kiely Const.,
57 P.3d at 854–55. Once the complaint has been dismissed as to the governmental
entity, there is no longer a danger of double recovery. The concerns expressed in
Section 2–9–305(5) no longer apply.
Since Montana Highway Patrol has been dismissed on the basis of eleventh
amendment sovereign immunity, this lawsuit is not one against a “governmental
entity.” See Mont. Code Ann. § 2–9–305(5). But Section 2–9–305(4) might

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apply.1 As Judge Lynch explained, that section might require the State of Montana
to indemnify Trooper Barcus and Colonel Tooley.
The Court finds no clear error in the portions of Judge Lynch’s Findings and
Recommendations to which Trooper Barcus and Colonel Tooley do not object.
Specifically, it finds no clear error in Judge Lynch’s conclusion that the state-law
claims against Colonel Tooley, in his official capacity, must be dismissed. Nor
does it find clear error in Judge Lynch’s recommendation that the Montana
Highway Patrol be dismissed under the Eleventh Amendment.
IT IS ORDERED that the Court adopts Judge Lynch’s Findings and
Recommendations (dkt # 39) in full.
IT IS FURTHER ORDERED that the Montana Highway Patrol’s motion to
dismiss (dkt # 31) is GRANTED. The Montana Highway Patrol is dismissed from
this lawsuit.
IT IS FURTHER ORDERED that Trooper Glen Barcus’s motion to dismiss
(dkt # 29) is DENIED.
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Montana Code Annotated § 2–9–305(4) provides:

In any noncriminal action in which a governmental entity employee is a party
defendant, the employee must be indemnified by the employer for any money
judgments or legal expenses, including attorney fees either incurred by the employee
or awarded to the claimant, or both, to which the employee may be subject as a result
of the suit unless the employee’s conduct falls within the exclusions provided in
subsection (6).
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IT IS FURTHER ORDERED that Colonel Michael Tooley’s motion to
dismiss (dkt # 33) is GRANTED IN PART and DENIED IN PART. Colonel
Tooley’s motion is GRANTED as to Marc Hardesty’s state-law claims against
Colonel Michael Tooley in his official capacity. Those claims are DISMISSED.
The motion to dismiss is DENIED in all other respects.
Dated this 5th day of March 2012.

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