The opinion of the court was delivered by: Carolyn S. Ostby United States Magistrate Judge
FINDINGS AND RECOMMENDATION OF U.S. MAGISTRATE JUDGE
Plaintiffs Erene Briese, JDB, and JRB (collectively "Briese Plaintiffs") claim violations of various federal and state laws by State, County, City, and private Defendants. Pltfs' First Am. Cmplt (DKT 51). Only Yellowstone County, the Yellowstone County Sheriff's Department, and the Yellowstone County Sheriff (collectively "County Defendants") remain as defendants. See Order Adopting Findings and Recommendations of U.S. Magistrate Judge (DKT 93) (dismissing State Defendants and Defendant Kendall Jackson); Order Dismissing Defendant Dawn Macey (DKT 124); Order Adopting Findings and Recommendations of U.S. Magistrate Judge (DKT 127) (dismissing Defendants Joanne Briese and J. Gregory Tomicich); and Order for Dismissal (DKT 139) (dismissing Defendants City of Billings and Billings Police Department).
Although the Briese Plaintiffs also named as County Defendants "UNKNOWN JOHN DOES AND JANE DOES 1-20, Employees and Supervisors, Individually and in their official capacities[,]" they have failed to identify them further and the time for doing so has passed. See Scheduling Order (DKT 106) (setting May 31, 2011 deadline for motions to amend pleadings, including joinder of parties and identification of any "Doe" defendants). Thus, to the extent the Briese Plaintiffs assert claims against any Yellowstone County employees and supervisors, individually and in their official capacities, such claims should be dismissed.
Now pending is the County Defendants' motion for summary judgment. DKT 143. Having reviewed the record, together with the parties' arguments in support of their positions, the Court makes the findings and recommendation discussed below.
The Briese Plaintiffs' allegations concern events that sometimes overlap, span several months, and involve multiple parties. Because only the County Defendants remain, the Court confines its discussion to those facts pertinent to claims against them. Less relevant facts and allegations are included only to provide context. The Court has taken many of the following facts from the Briese Plaintiffs' First Amended Complaint (DKT 51), the County Defendants' Answer (DKT 63) thereto, and exhibits that the parties filed in support of their positions respecting the summary judgment motion at hand (DKTs 147 -- 147-8 and 151-1 -- 151-14).*fn1 Unless otherwise indicated, the facts are undisputed.
David L. Briese, Jr. ("David"), and Erene Briese ("Erene") were married on August 26, 2000. They had two children -- JDB, born in 1999, and JRB, born in 2000. Erene also had a daughter from a previous marriage who lived with David and Erene during part of the relevant time.
On November 19, 2001, David began working as a deputy for the Yellowstone County Sheriff's Office. He continued working as a deputy during all relevant times.
On April 16, 2004, David executed and filed a Petition for Dissolution of Marriage in In Re: the Marriage of Briese, DR 04-488, Montana Thirteenth Judicial District Court, Yellowstone County. A summons was issued, but David did not have the Petition and summons served upon Erene at that time.
On December 29, 2005, the state court issued an "Ex Parte
Custody Order; Temporary Order of Protection; Order Setting Hearing." Erene was served with that document the same day. The Ex Parte Custody Order granted David custody of JDB and JRB and granted Erene "visitation in a supervised environment[.]" The Order of Protection, inter alia, removed and excluded Erene from David's residence and directed her to remain 1,500 feet away from the children's school.
On February 1, 2006, after a hearing, the state court entered an "Order of Protection and Interim Parenting Plan" in In Re: the Marriage of Briese. The Order granted David "residential care of the parties' minor children during the pendency of this action or until further Order of this Court." It also granted Erene "supervised parenting time[,]" directed her to stay 1,500 feet away from the children's school and daycare, and ordered her to "stay away from the former family home of the parties[.]"
On June 14, 2006, Erene reported to the Yellowstone County Sheriff's Office that David was using steroids and marijuana. She reported that her daughter had witnessed David injecting himself. She also reported that David was accessing pornography on their computer through the Internet and that JDB and JRB, who were ages 5 and 6 at the time, had viewed the pornography.
The Yellowstone County Sheriff's Office conducted an internal investigation into Erene's allegations against David. The subject computer was provided to the Sheriff's Office, which sent it away to be examined by the cyber crimes unit. The Sheriff's Office requested that the computer be examined only for "child" pornography. Erene had not reported that David had been viewing child pornography. The results of the examination of the computer were that there were no images of child pornography.
Lt. Ron Wilson and Detective George Jensen, who were conducting the investigation, interviewed Erene, David, JDB, JRB, and Erene's daughter. Their investigation and the conclusions they reached are reflected in written reports in the record. See DKTs 147-1 at 4-15, 147-2 at 1-15, 147-3 at 1-13. In summary, the investigation concluded that: (1) the allegation that David viewed inappropriate materials on a personal computer was unfounded, DKT 147-1 at 3; (2) the allegation that David was smoking marijuana had been disproved and was unfounded, id. at 2; and (3) the allegation that David was shooting up steroids was disproved, but it was determined that he had been taking a supplement called DHEA, which is a steroid but is not illegal, id.
With respect to the allegations concerning steroid and marijuana use, the Sheriff's Office concluded in August 2006 that it would take no further action. Id. Respecting the complaints against David about inappropriate images on the computer, the Sheriff's Office concluded in October 2006 that it would take no further action. Id. at 3.
On November 3, 2006, David was on duty and was responding to a request for assistance from another deputy sheriff. He was driving more than 106 miles per hour and was not wearing a seat belt when he lost control of his patrol vehicle. He was killed in the ensuing crash.
At the time of David's death, David and Erene were still married and the "Order of Protection and Interim Parenting Plan" was still in effect.
On the day David was killed, Erene attempted through the Billings Police Department and the Yellowstone County Sheriff's Office to get assistance in retrieving JDB and JRB. Neither the police department nor the Sheriff's Office assisted Erene in locating and obtaining physical possession of JDB and JRB. Also on November 3, 2006, community social worker Pamela Weischedel ("Weischedel") informed David's mother, Joanne Briese ("Joanne") that the Montana Department of Public Health and Human Services, Child and Family Services Division ("DPHHS"), would be intervening on behalf of JDB and JRB and instructed Joanne not to release the children to Erene.
On November 9, 2006, DPHHS sought from the state court temporary investigative authority regarding JDB and JRB. On November 14, 2007, more than one year later, DPHHS placed JDB and JRB in Erene's custody and monitored the family. On January 24, 2008, DPHHS sought dismissal of the dependent/neglect case against Erene stating that there were no further safety issues that would warrant further involvement by DPHHS.
On November 3, 2009, the Briese Plaintiffs initiated this action.
II. THE BRIESE PLAINTIFFS' CLAIMS AGAINST THE COUNTY DEFENDANTS The Briese Plaintiffs now assert the following ten counts against the County Defendants:
1. Count I: under 42 U.S.C. § 1983 ("§ 1983"), alleging unwarranted state interference with their familial relationship in violation of Fourteenth Amendment due process rights and alleging failure to instruct, supervise, control, and discipline David or to intervene and provide medical or mental health treatment for him (DKT 51 at ¶¶ 133-138);
2. Count II: under § 1983, alleging municipal liability in having policies, procedures, customs, and practices not to discipline, prosecute, or take corrective or responsive action to complaints by citizens or to properly investigate complaints filed against officers evidencing deliberate indifference to constitutional rights and violating due process rights (id. at ¶¶ 139-144);
3. Count III: alleging negligence for breaching a duty to provide a safe work environment for employees and by violating policies and procedures for investigating substance abuse by officers resulting in injuries to the Briese Plaintiffs (id. at ¶¶ 145-149);
4. Count IV: alleging negligent infliction of emotional distress (id. at ¶¶ 150-152);
5. Count V: alleging intentional infliction of emotional distress (id. at ¶¶ 153-154);
6. Count VI: alleging negligent investigation of allegations of violations of Sheriff's Office policy (id. at ¶¶ 155-157);
7. Count IX: alleging violation of right to privacy -- false light (id. at
8. Count X: under § 1983, alleging conspiracy (id. at ¶¶ 167-170);
9. Count XII: under § 1983, alleging wrongful death of David caused by failing to investigate complaints and failing to instruct, supervise, control, and discipline officers including David (id. at ¶¶ 177-184); and
10. Count XIII: under § 1983, alleging violation of civil rights by engaging in unwarranted state interference with their familial relationship in violation of ...