United States District Court, D. Montana, Billings Division
FINDINGS & RECOMMENDATION AND ORDER
JEREMIAH C. LYNCH, Magistrate Judge.
Plaintiff Dwight Ratcliff ("Ratcliff") brings this action against the City of Red Lodge Police Department ("the City") and one of its officers, Al Stuber ("Officer Stuber"), asserting federal constitutional claims under 42 U.S.C. § 1983, and several pendent state law claims. The City and Officer Stuber have filed motions for summary judgment, which should be granted in part and denied in part as set forth below.
For summary judgment purposes, the Court is to take the material facts from the record and, where disputed, view them in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 474 U.S. 574, 587-88 (1986). Before embarking on this task here, however, the Court must determine whether to accept Ratcliff's untimely summary judgment response brief, statement of genuine issues, and supporting evidentiary materials.
The City and Officer Stuber each filed separate motions for summary judgment on November 15, 2013. (Doc. 46, 49). Pursuant to Local Rule 7.1(d)(B), Ratcliff's response brief was due 21 days later - no later than December 10, 2013. Ratcliff did not file a response by the established deadline. Nor did he file a motion for extension of time. Finally, on December 21, 2013, Ratcliff moved for leave to file a late and overlength brief in response to both summary judgment motions. Ratcliff attached his proposed brief - which is 98 pages long and has an unspecified word count in excess of that allowed by L.R. 7.1(d)(2)(A) - to the motion, along with a statement of genuine issues and 25 evidentiary exhibits. (Doc. 60 through 60-27).
Notwithstanding the fact that all motions "must be accompanied by a brief in support filed at the same time as the motion, " Ratcliff waited three additional days before filing a supporting brief. (Doc. 61). In that brief, Ratcliff explains that he mistakenly thought he had 28 days within which to file his summary judgment response brief under the Local Rules, and so believed his response was due on December 16, 2013. But Ratcliff did not even meet that deadline, inexplicably waiting until December 20, 2013 to seek leave of Court to file an untimely response.
Ratcliff nonetheless asks that his late filing be allowed under Fed.R.Civ.P. 6(b)(1)(B), which provides that "the court may, for good cause" allow for an extension "on motion made after the time has expired if the party failed to act because of excusable neglect." To determine whether there has been "excusable neglect" within the meaning of Rule 6(b), the court must evaluate four factors: "(1) the danger of prejudice to the opposing party; (2) the length of the delay and its potential impact on the proceedings; (3) the reason for the delay; and (4) whether the movant acted in good faith." Bateman v. U.S. Postal Service, 231 F.3d 1220, 1223-24 (9th Cir. 2000) ( citing Pioneer Investment Services Co. v. Brunswick Associates Ltd. Partnership, 507 U.S. 380, 395 (9th Cir. 2000)).
The length of the delay in this case was moderate, as Ratcliff moved for leave to file his untimely summary judgment response brief ten days after it was due. While the length of the delay alone would not necessarily prejudice the Defendants, the effect of that delay is compounded by the fact that Ratcliff's proposed 98-page brief is significantly oversized in violation of Local Rule 7.1(d)(2)(A). The Defendants would to some extent be prejudiced if the Court were to accept Ratcliff's proposed filing, thereby putting the Defendants in the position of having to respond to a late-filed, significantly oversized brief with the March 3, 2014, trial date fast approaching.
More importantly, Ratcliff has not provided any legitimate reason for the delay. See e.g. In re Veritas Software Corp Securities Litigation, 496 F.3d 962, 973 (9th Cir. 2007) (affirming district court's decision finding based on the third factor - the reason for the delay - notwithstanding the fact that the length of the delay was not great and the opposing party had not established prejudice). According to Ratcliff, he misread the applicable rules and mistakenly believed his summary judgment response brief was not due until December 15, 2013. But "inadvertence, ignorance of the law, or mistakes construing the rules do not usually constitute excusable' neglect." Kyle v. Campbell, 28 F.3d 928, 931 (9th Cir. 1994) ( quoting Pioneer, 507 U.S. at 392)). Regardless, Ratcliff did not file his response brief on December 15, 2013. Ratcliff explains that he was unable to do so due to the press of business and because he was waiting for the deposition transcript of his expert, John Sullivan. (Doc. 62, ¶¶ 10-12). But even assuming that is true, Ratcliff fails to explain why he did not follow standard practice and simply move for an extension of time within which to respond to the Defendants' motions. Instead of seeking an extension of time, Ratcliff apparently decided to complete his response brief and submit it later that week in conjunction with a motion to accept the late filing. While there is no indication that Ratcliff's decision was necessarily motivated by bad faith, his failure to timely file was not the result of excusable neglect. If the Court were to conclude otherwise, then there would be nothing to prevent parties from routinely ignoring briefing deadlines and filing late briefs at their own convenience. Because Ratcliff has not shown excusable neglect for having missed the deadline for responding to the Defendants' motions for summary judgment, his motion for leave to file a late and oversized response brief is denied.
For present purposes, this means that the following facts are taken from the evidentiary materials submitted by the Defendants in support of their summary judgment motions. Consistent with well-established summary judgment standards, the Court views the facts in the light most favorable to Ratcliff as the non-moving party.
The events giving rise to Ratcliff's lawsuit took place on the afternoon of July 2, 2011. At approximately 1:00 p.m., the Carbon County Dispatch Center received a 911 call from Jessica Duede ("Duede"), who reported that two motorcyclists had just passed her vehicle on a double yellow line on Highway 308 heading into Red Lodge, Montana. Duede's vehicle came to a stop sign while she was still on the phone with the dispatch officer, at which time she indicated that the two individuals had "parked their motorcycles and they are getting off and coming right at us." Duede reported that one of the motorcyclists punched her car, and then said there were "two of them" and "they are trying to attack my husband." (Doc. 51-1, 0:00-2:15).
The dispatch officer radioed Officer Stuber and informed him that a caller had just reported being passed by two motorcycles on Highway 308, headed into Red Lodge. Officer Stuber's patrol car was equipped with an "ICOP" video and audio recording system, which recorded this initial communication from dispatch and remained on as the events described below unfolded. (Doc. 51-2). The dispatch officer told Officer Stuber that the 911 caller and the motorcycles were at a stop sign at the Rocky Fork Juniper, and the motorcyclists were "confronting the people at the stop sign there - there's a confrontation going on."
While Officer Stuber was en route to the scene, the dispatch officer notified him that one of the motorcycles had just pulled into the gas station and was turning around. The dispatch officer advised Officer Stuber that "they were yelling at each other - trying to hit their vehicle - get into their vehicle. They were passed on a double solid line is what started it." Dispatch then relayed that "one motorcycle is at the gas station" and "one motorcycle took off southbound."
Officer Stuber arrived on the scene approximately ten seconds later, and saw an unknown individual, later identified as Ratcliff, dismounting a motorcycle wearing full motorcycle gear and a helmet. Ratcliff, who was 70 years old at the time, began walking towards Officer Stuber. Officer Stuber told him to "stay right there." Ratcliff kept walking towards Officer Stuber and began removing his helmet, at which point Officer Stuber directed him two more times to "stay right there."
Officer Stuber can then be heard telling Ratcliff to "back off, back off, back off now, you got it?" Although it cannot be seen on the ICOP video, Officer Stuber drew his taser and pointed it at Ratcliff. (Doc. 5, ¶ 17). Ratcliff can then be seen stepping backwards a few paces as Officer Stuber instructed him to "turn around and put your hand on top of your head." Ratcliff turned around and placed his right hand on his helmet while holding a pair of sunglasses in his left hand. Officer Stuber lowered his taser and Ratcliff removed his helmet. Officer Stuber then moved in to handcuff Ratcliff. Officer Stuber grabbed Ratcliff's right arm, placed his left hand on Ratcliff's right shoulder, and forced Ratcliff forward until he was bent face forward over the seat of his motorcycle. After what appears on the ICOP video to be a brief struggle, Officer Stuber handcuffed Ratcliff.
Once Ratcliff was handcuffed, Officer Stuber told him they had "an incident of an assault here, and there's a guy on a bike, and you're the guy on a bike - ready to leave." Red Lodge Police Officer Danielle Barnes then arrived on the scene and Ratcliff asked the officers to adjust his handcuffs. As Officer Barnes talked to Ratcliff, Officer Stuber adjusted his handcuffs. Officer Stuber asked Ratcliff "What's going on here, " at which point Ratcliff provided his version of the incident reported by Duede.
After speaking with Ratcliff, Officer Stuber interviewed two other witnesses who had arrived on the scene. While Officer Stuber was speaking with the two witnesses, Officer Barnes led the still-handcuffed Ratcliff over to a small boulder to sit and wait. Several minutes later, Officer Stuber approached Ratcliff and advised him that he was being detained pending his investigation.
Officer Stuber then interviewed Duede and her husband, who provided their version of events. While Officer Stuber was interviewing the Duedes, Officer Barnes repositioned Ratcliff's handcuffs from the back to the front, and placed him the back seat of a patrol car. A few minutes later, another set of witnesses arrived on the scene and relayed what they had seen of the incident to Officer Stuber. As a result of his investigation, Officer Stuber learned that it was Ratcliff's traveling companion, Kent Faulkner ("Faulkner"), who had been involved in the confrontation with the Duedes. Faulkner had left the scene on his motorcycle before Officer Stuber arrived.
After speaking with the Duedes and the various witnesses, Officer Stuber stated he was going to go "cut [Ratcliff] loose." By that time, Ratcliff had been detained in handcuffs for approximately 20 minutes. Officer Stuber released Ratcliff, and then cleared the call at 1:28 p.m. - approximately 25 minutes after first making contact with Ratcliff.
Ratcliff filed this lawsuit nearly two years later. (Doc. 1). He advances claims under 42 U.S.C. § 1983 against Officer Stuber and the City of Red Lodge for allegedly violating his rights under the First, Fourth, Fifth, Eighth, and Fourteenth Amendments. Dkt. 1. Ratcliff also assert state law claims for negligence per se, false imprisonment, assault and battery, negligent and/or intentional infliction of emotional distress, and violations of the Montana Constitution. Officer Stuber and the City have each moved for summary judgment on all claims.
II. Summary Judgment Standards
Under Federal Rule of Civil Procedure 56(a), a party is entitled to summary judgment "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." The party seeking summary judgment 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 any genuine issue of material fact. Celotex Corp. v. Cattrett, 477 U.S. 317, 323 (1986). A movant may satisfy this burden where the documentary evidence produced by the parties permits only one conclusion. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 251 (1986).
Once the moving party has satisfied its initial burden with a properly supported motion, summary judgment is appropriate unless the non-moving party designates by affidavits, depositions, answers to interrogatories or admissions on file "specific facts showing that there is a genuine issue for trial." Celotex, 477 U.S. 317, 324 (1986). The party opposing a motion for summary judgment "may not rest upon the mere allegations or denials" of the pleadings. Anderson, 477 U.S. at 248.
In considering a motion for summary judgment, the court "may not make credibility determinations or weigh the evidence." Reeves v. Sanderson Plumbing Prods., 530 U.S. 130, 150 (2000); Anderson, 477 U.S. at 249-50. The Court must view the evidence in the light most favorable to the non-moving party and draw all justifiable inferences in the non-moving party's favor. Anderson, 477 U.S. at 255; Betz v. Trainer Wortham & Co., Inc., 504 F.3d 1017, 1020-21 (9th Cir. 2007).
Because Ratcliff has not shown that his failure to timely file a summary judgment response brief was due to excusable neglect, the Court is in the position of considering Defendants' motions without the benefit any responsive argument or evidentiary materials. Although Local Rule 7.1(d)(1)(B) provides that a "failure to file a response brief may be deemed an admission that the motion is well-taken, " the Ninth Circuit has made clear that a district court may not grant "summary judgment simply because a party fails to file an opposition or violates a local rule" and must "analyze the record to determine whether any disputed material fact [is] present." Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1258 (9th Cir. 2010). See also, Martinez v. Stanford, 323 F.3d 1178, 1182 (9th Cir. 2003) ("a nonmoving party's failure to comply with local rules does not excuse the moving party's affirmative duty under Rule 56 to demonstrate it is entitled to judgment as a matter of law.").
Bearing these principles in mind, the Court turns now to the question of whether the Defendants have met their summary judgment burden of showing that there are no material issues of fact and that they are entitled to judgment as a matter of law.
A. Federal Claims - 42 U.S.C. § 1983
1. Officer Stuber
Ratcliff alleges that Officer Stuber is liable under 42 U.S.C. § 1983 for violating his rights under the First, Fourth, Fifth, Eighth, and Fourteenth Amendments to the United States Constitution. It is important to note at the outset that Ratcliff does not specify whether he is suing Officer Stuber in his individual or official capacity. Because Ratliff has named the City of Red Lodge as a defendant, however, any official capacity claims against Officer Stuber would be superfluous and subject to summary dismissal on that basis. See e.g. Hafer v. Melo, 502 U.S. 21, 25 (1991) (When a plaintiff brings such a claim against an individual defendant in his official capacity, the claim "generally represents only another way of pleading an action against an entity of which an officer is an ...