United States District Court, D. Montana, Missoula Division
JENNIFER ROBERTS, individually and on behalf of her minor children, T.F., E.F., and A.F., Plaintiff,
DONALD BELL; LAKE COUNTY; and DOES 1-10, Defendants.
L. Christensen, Chief Judge United States District Court
States Magistrate Judge Jeremiah C. Lynch entered Findings
and Recommendations in this case on July 25, 2017,
recommending Defendants' Motion to Dismiss Pursuant to
Fed.R.Civ.P. 12(b)(6) (Doc. 4) be granted and the case be
dismissed. (Doc. 10 at 10-11.) Plaintiff Jennifer Roberts
("Roberts") timely filed an objection and is
therefore entitled to de novo review of the specified
findings and recommendations to which she objects. 28 U.S.C.
§ 636(b)(1). The portions of the findings and
recommendations not specifically objected to will be reviewed
for clear error. 28 U.S.C. § 636(b)(1)(A); McDonnell
Douglas Corp. v. Commodore Bus. Mack, Inc., 656 F.2d
1309, 1313 (9th Cir.1981). Clear error exists if the Court is
left with a "definite and firm conviction that a mistake
has been committed." United States v. Syrax,
235 F.3d 422, 427 (9th Cir. 2000) (citations omitted).
reasons stated below, the Court declines to adopt Judge
Lynch's Findings and Recommendations.
February 27, 2017, Roberts' mother, Cheryl Ann Brown
("Brown"), died in a tragic automobile accident as
a result of a collision between the vehicle she was driving
and a school bus on a highway in Lake County, Montana. Lake
County Sheriff Donald Bell ("Sheriff Bell")
responded to the scene of the accident and took several
photographs, which he then posted on the Lake County Sheriffs
Office Facebook page. Local media outlets reposted the
photographs on their media sites, and the images were picked
up by various entities and reposted around the internet.
Roberts describes them, the photographs depict the body of
her deceased mother. Roberts alleges she and her minor child,
A.F., suffered severe emotional distress after seeing the
images on Facebook. Roberts further claims that internet
users have forwarded the photographs to her and her minor
children, causing them repeated severe emotional distress.
commenced this action in May 2017, alleging claims under 42
U.S.C. § 1983 against both Lake County and Sheriff Bell
for allegedly depriving her of her substantive due process
rights under the Fourteenth Amendment. She also alleges state
law claims against Defendants for negligence and violations
of her rights under the Montana Constitution. Defendants
filed a motion to dismiss under Rule 12(b)(6) for failure to
state a claim upon which relief can be granted.
Roberts' § 1983 claim against Sheriff Bell
alleges that Sheriff Bell is liable in his individual
capacity pursuant to 42 U.S.C. § 1983 because he
violated her substantive due process rights under the
Fourteenth Amendment by posting photographs of her deceased
mother's body on the internet. (Doc. 1 at 5-7.)
order to prevail on her individual capacity claim against
Sheriff Bell under § 1983, Roberts must show "(1)
that the conduct complained of was committed by a person
acting under color of state law; and (2) that the conduct
deprived the plaintiff of a constitutional right."
Balistreri v. Pacifica Police Dep't, 901 F.2d
696, 699 (9th Cir. 1990). When qualified immunity is at
issue, a plaintiff must also show that the constitutional
right was clearly established at the time of the alleged
violation. See, e.g., LSO, Ltd. v. Stroh, 205 F.3d
1146, 1157 (9th Cir. 2000).
do not dispute that Bell was acting under color of state law
when the conduct complained of took place. And, for purposes
of their Motion, Defendants assume that Roberts has a well
established constitutionally protected right in images of her
deceased parent. Defendants make this assumption based upon
Marsh v. County of San Diego, 680 F.3d 1148, 1153-55
(9th Cir. 2012). In Marsh, the Ninth Circuit held
that a parent's right of privacy in the autopsy images of
their child is protected by the substantive due process
guarantees of the Fourteenth Amendment. Id.
substantive due process protects individuals from arbitrary
deprivations of their constitutional rights through the
executive abuse of power, only "the most egregious
official conduct can be said to be arbitrary in a
constitutional sense." Brittain v. Hansen, 451
F.3d 982, 991 (9th Cir. 2006) (quoting County of
Sacramento v. Lewis, 523 U.S. 833, 849 (1988)). In order
to violate substantive due process, the alleged official
conduct must '"shock the conscience' and
'offend the community's sense of fair play and
decency.'" Marsh, 680 F.3d at 1154 (quoting
Rochin v. California, 342 U.S. 165, 172-73 (1952)).
Whether conduct shocks the conscience is an objective test to
be applied to the circumstances of the particular case.
See Lewis, 523 U.S. at 857 (Kennedy, J.,
Lynch determined that the publicized photographs,
particularly one which Roberts' claims depicts her
mother's body "partially covered by a blue blanket
or tarp, with her bloody arm dripping blood onto the floor of
the vehicle and the ground, " are the focal point of
this litigation. (Doc. 10 at 8 (quoting Doc. 8 at 6).)
Although the parties describe these photographs differently,
they do not dispute their authenticity. (Id. at 7.)
Judge Lynch concluded that the question of whether or not the
publication of the photographs violated Roberts'
substantive due process rights turned on whether or not
Bell's conduct "shocks the conscience."
(Id. at 6.) Judge Lynch then interpreted County
Defendants' Motion to Dismiss as, in effect, a request
for the Court "to review the photographs and determine
as a matter of law whether they shock the conscience."
(Id. at 7.) Judge Lynch relied on Cotta v.
County of Kings,79 F.Supp.3d 1148, 1178-79 (E.D. Cal.
2015), for the proposition that "whether conduct shocks
the conscience can be an issue of law that the Court may
decide based on undisputed facts." Judge Lynch then
considered the photographs to decide whether publicizing them
shocked the conscience as a matter of law. (Doc. 10 at 7.)
Judge Lynch focused on the photograph described above and
concluded that it did not "primarily depict the death