United States District Court, D. Montana, Billings Division
DONALD W. MOLLOY, District 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. (Docs. 46 and 49.) Magistrate Judge Jeremiah Lynch entered Findings and Recommendations on January 10, 2014, recommending that both motions be granted in part and denied in part. (Doc. 67.)
The parties are 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 the findings and recommendations that are not specifically objected to for clear error. McDonnell Douglas Corp. v. Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313 (9th Cir. 1981). All three parties filed timely objections. (Docs. 73, 74, and 75.)
Ratcliff objects to Judge Lynch's determinations that: (1) Officer Stuber had reasonable suspicion for a Terry stop, (2) the City's actions did not amount to "deliberate indifference, " (3) Ratcliff's negligence per se claim could not be based on a criminal statute, and (4) Ratcliff's claims under the Montana Constitution are limited to those arising under Article II, § 11. Ratcliff also requests a clarification regarding the implications of Judge Lynch's recommendations as to Ratcliff's 42 U.S.C. § 1983 claims.
The City and Officer Stuber object to Judge Lynch's determination that a genuine issue of material fact remains as to whether the scope of the investigatory stop exceeded that of a lawful Terry stop and whether excessive force was used. The City also objects to Judge Lynch's determination that the public duty doctrine does not apply to Ratcliff's negligence claims and that Ratcliff can maintain his claim for negligence absent expert testimony as to the applicable standard of care. Officer Stuber further objects to a number of Judge Lynch's fact characterizations, and asserts that at the very least, Officer Stuber is entitled to qualified immunity as he was not "plainly incompetent."
After reviewing these objections, the Court adopts in part and modifies in part Judge Lynch's Findings and Recommendations. The Findings and Recommendations are modified in that summary judgment is denied as to Ratcliff's § 1983 claim against the city. The Findings and Recommendations are adopted in all other respects. As the parties are familiar with the factual and procedural background, it will not be restated here.
I. Legal Standard
A party is entitled to summary judgment if it can demonstrate 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). Summary judgment is warranted where the documentary evidence produced by the parties permits only one conclusion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986). Only disputes over facts that might affect the outcome of the lawsuit will preclude entry of summary judgment; factual disputes that are irrelevant or unnecessary to the outcome are not considered. Id. at 248.
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 Corp. v. Catrett, 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. The Court must view the evidence in the light most favorable to the non-moving party and draw all justifiable inferences in the nonmoving party's favor. Id. at 255.
A. Ratcliff's Objections
1. Terry Stop: Reasonable Suspicion
Ratcliff contends Judge Lynch incorrectly determined Officer Stuber had reasonable suspicion to make an investigatory stop because Officer Stuber did not affirmatively know Ratcliff was involved in the altercation. This argument, however, supports a finding of reasonable suspicion.
For a Terry stop to be lawful under the Fourth Amendment, the officer must have "a reasonable suspicion supported by articulable facts that criminal activity may be afoot[.]'" United States v. Sokolow, 490 U.S. 1, 7 (1989) (quoting Terry v. Ohio, 392 U.S. 1, 30 (1968)). This standard of proof is less than that of probable cause. United States v. Tiong, 224 F.3d 1136, 1140 (9th Cir. 2000). Whether reasonable suspicion exists for a Terry stop depends on the totality of the circumstances. United States v. Arvizu, 534 U.S. 266, 273 (2002).
Here, Officer Stuber received a call from dispatch that two men with motorcycles were involved in an altercation with a woman and her family, and all parties were at a gas station on Highway 308. Upon arriving at the scene, Officer Stuber saw an individual in motorcycle gear standing next to a motorcycle. Officer Stuber was aware at this time that one of the two motorcyclists had driven away. At this point, the Officer Stuber ostensibly had reasonable suspicion to conduct an investigatory stop to confirm or dispel his suspicion that the man next to the motorcycle, Ratcliff, may be one of the men involved in an altercation where physical violence had been alleged. See Gallegos v. City of L.A., 308 F.3d 987, 991 (9th Cir. 2002) ("The whole point of an investigatory stop, as the ...