United States District Court, D. Montana, Billings Division
ORDER AND FINDINGS AND RECOMMENDATIONS OF UNITED
STATES MAGISTRATE JUDGE
JOHNSTON UNITED STATES MAGISTRATE JUDGE
issue are Plaintiff David Matthew's motion for leave to
file a second amended complaint (Doc. 42), Defendants'
motion for summary judgment (Doc. 55), Mr. Matthew's
motion to continue (Doc. 79), and the issue of service on
Defendants Amanda, Pinkerton, and Scott.
of background, this Court issued an Order on February 15,
2017 directing the service of Plaintiff David Matthew's
Amended Complaint (Doc. 15) on Defendants Prindle (Justin
Prindle), Dunker (Jake Dunker), Crockett (Heather Crockett),
Metzger (Steve Metzger), Pluhar (Carolyn Pluhar), Deegle
(Brian Degele), Moyra (Chris Myrup), Neiter (Timothy Neiter),
Nurse Amanda, Nurse Pinkerton, and Nurse Scott on Counts II
and III of the Amended Complaint. (Doc. 21.) On April 5, 2017,
District Court Judge Morris adopted the Findings and
Recommendations in full, dismissed Counts I, IV, and V of the
Amended Complaint (Doc. 15), and dismissed Defendants Iron,
Singh, Aramark, Caruso, Jessee, Shirley, Langford, Grosslock,
Washington, Vanessa, Yellowstone County, Yellowstone County
Sheriff, Riverstone Health, the U.S. Marshal Service, and all
Does Defendants. (Doc. 37 at 5.)
the adoption of the Findings and Recommendations, the
following claims remained: (1) a supervisory liability claim
against Timothy Neiter; (2) excessive force claims against
Justin Prindle, Chris Myrup, Brian Degele, Steve Metzger,
Jake Dunker, Carolyn Pluhar, and Heather Crockett, and (3)
deliberate indifference to medical need claims against Chris
Myrup, Brian Degele, Steve Metzger, Jake Dunker, Heather
Crockett, and Nurses Amanda, Pinkerton, and Scott.
Crockett, Degele, Dunker, Metzger, Myrup, Neiter, Pluhar and
Prindle filed Answers to the Amended Complaint on April 3,
2017. (Docs. 29-36.) Nurses Amanda, Pinkerton and Scott did
not respond to the Court's request for waiver of service
and have not been served.
April 10, 2017, the Court issued a Scheduling Order directing
Mr. Matthew to provide the necessary information to
effectuate service on Defendants Amanda, Pinkerton, and Scott
on or before July 7, 2017. (Doc. 39 at 2.) On May 22, 2017,
Mr. Matthew filed a motion for leave to file a second amended
complaint in which he indicated that these nurses were
employed by Riverstone Health in Billings, Montana. (Doc.
Crockett, Deegle, Dunker, Moyra, Prindle, Metzger, Neiter,
and Pluhar filed a motion for summary judgment on July 6,
2017. (Doc. 55.) Instead of filing a response to the motion,
Mr. Matthew filed a motion to continue (Doc. 79) seeking to
stay ruling on Defendants' motion for summary until after
resolution of the motion for leave to amend.
Motion for Leave to Amend
22, 2017, Mr. Matthew filed a motion for leave to amend his
complaint. (Doc. 42.) The proposed Amended Complaint added
new failure to protect claims against individuals with the
United States Marshals Office (Count I) and renewed his
excessive force and denial of medical claims against
Defendants Prindle, Dunker, Degele, Myrup, Metzger, Neiter,
Pluhar, Nurses Scott, Amanda, and Pinkerton, Riverstone
Health, Yellowstone County, and Sheriff Linder (Counts II and
responded to the motion arguing that Mr. Matthew was
attempting to circumvent the Court's screening process by
amending his complaint to re-allege already dismissed claims
and include already dismissed defendants. They argue (without
citation to authority) that he is violating the law of the
case by attempting to re-litigate already dismissed claims.
the law of the case doctrine, a court is generally precluded
from reconsidering an issue that has already been decided by
the same court, or a higher court in the identical
case.” United States v. Almazan-Becerra, 537
F.3d 1094, 1096-97 (9th Cir. 2008) (quoting United States
v. Alexander, 106 F.3d 874, 876 (9th Cir. 1997)).
However, “[t]he [law-of-the-case] doctrine simply does
not impinge upon a district court's power to reconsider
its own interlocutory order provided that the district court
has not been divested of jurisdiction over the order.”
City of Los Angeles, Harbor Division v. Santa Monica
Baykeeper, 254 F.3d 882, 888 (9th Cir. 2001).
as the Court can discern, the new claims in the Second
Amended Complaint are only against United States Marshals
Daq, Patrick, an unknown U.S. Marshal supervisor, and Nurse
Jessica. Mr. Matthew is also attempting to correct
deficiencies with his claims against Defendants Riverstone
Health Clinic, Yellowstone County, and Sheriff Linder.
to amend should be “freely given” where there is
no “undue delay, bad faith or dilatory motive on the
part of the movant, . . . undue prejudice to the opposing
party by virtue of allowance of the amendment, [or] futility
of the amendment . . . ” Foman v. Davis, 371
U.S. 178, 182 (1962); Eminence Capital, LLC v. Aspeon,
Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (listing the
Foman factors as those to be considered when
deciding whether to grant leave to amend). Not all of these
factors merit equal weight. Rather, “the consideration
of prejudice to the opposing party . . . carries the greatest
weight.” Id. (citing DCD Programs, Ltd. v.
Leighton, 833 F.2d 183, 185 (9th Cir. 1987)).
Yellowstone County, Sheriff Linder, and Riverstone Health
on in this litigation Mr. Matthew was given specific
standards for establishing County/entity liability and he
failed to present any facts to suggest that Yellowstone
County, Sheriff Linder, or Riverstone Health had a custom,
policy or practice amounting to deliberate indifference to
his constitutional rights. (Doc. 10 at 27-29 citing
Monell v. Dept. of Social Services, 436 U.S. 658,
691 (1978); Taylor v. List, 880 F.2d 1040, 1045 (9th
Cir. 1989).) He filed an amended complaint which failed to
meet these standards and all claims against Yellowstone
County, the Yellowstone County Sheriff, and Riverstone Health
were dismissed on April 5, 2017. (Doc. 37.)
second amended complaint, Mr. Matthew makes a third attempt
to state a municipal/entity liability claim by making the
conclusory claim that “Riverstone Health Clinic,
Yellowstone County, and Yellowstone County Sheriff were aware
of their employees numerous unlawful human and civil rights
violations. The County, Sheriff, and Clinic, have lost many
law suits for their employees causing injury to detainees,
yet they do nothing to correct the problems, injuries, and
harm done by their employees, officers, and agents.”
(Second Amended Complaint, Doc. 42-1 at 22.) These conclusory
allegations are still insufficient.
Matthew failed to allege any facts which “might
plausibly suggest” that he was subject to a
constitutional deprivation pursuant to any municipal custom,
policy, or practice implemented or promulgated with
deliberate indifference to his constitutional rights, or that
such a policy was the “moving force” or cause of
his injury. See Hernandez v. Cnty. of Tulare, 666
F.3d 631, 637 (9th Cir. 2012) (applying Iqbal's
pleading standards to Monell claims). After
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009),
“[a]llegations of Monell liability will be
sufficient for purposes of Rule 12(b)(6) where they: (1)
identify the challenged policy/custom; (2) explain how the
policy/custom is deficient; (3) explain how the policy/custom
caused the plaintiff harm; and (4) reflect how the
policy/custom amounted to deliberate indifference, i.e., show
how the deficiency involved was obvious and the
constitutional injury was likely to occur.” Young
v. City of Visalia, 687 F.Supp.2d 1155, 1163 (E.D. Cal.
2010). Following Iqbal and Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 555 (2007), Monell
claims must contain sufficient allegations to give fair
notice to the opposing party and “must plausibly
suggest an entitlement to relief, such that it is not unfair
to require the opposing party to be subjected to the expense
of discovery and continued litigation.” AE ex rel.
Hernandez v. Cnty. of Tulare, 666 F.3d 631, 637 (9th
Cir. 2012)(quoting Starr v. Baca, 652 F.3d 1202,
1216 (9th Cir. 2011)).
assuming that a violation of Mr. Matthew's constitutional
rights occurred, the bald and conclusory allegation that
Defendants had been previously sued does not demonstrate the
existence of a municipal policy or custom. See McDade v.
West, 223 F.3d 1135, 1141 (9th Cir. 2000) (citation
omitted) (“[o]nly if a plaintiff shows that his injury
resulted from a permanent and well settled practice may
liability attach for injury resulting from a local government
custom). Mr. Matthew simply failed to provide sufficient
factual allegations regarding the nature of those alleged
lawsuits and/or the results of those lawsuits to plausibly
state a Monell claim against these Defendants.
his boilerplate assertion that Defendants failed to provide
their employees training against the use of excessive force
is also insufficient. As to failure to train, the United
States Supreme Court has held that “the inadequacy of
police training may serve as the basis for § 1983
liability only where the failure to train amounts to
deliberate indifference to the rights of persons with whom
the police come into contact.” City of Canton v.
Harris, 489 U.S. 378, 388, 109 S.Ct. 1197, 103 L.Ed.2d
412 (1989) (“Only where a municipality's failure to
train its employees in a relevant respect evidences a
‘deliberate indifference' to the rights of its
inhabitants can such a shortcoming be properly thought of as
a city ‘policy or custom' that is actionable under
section 1983 plaintiff alleging a policy of failure to train
peace officers must show: (1) he/she was deprived of a
constitutional right; (2) the local government entity had a
training policy that amounts to deliberate indifference to
constitutional rights of persons with whom its peace officers
are likely to come into contact; and (3) his/her
constitutional injury would have been avoided had the local
government unit properly trained those officers.
Blankenhorn v. City of Orange, 485 F.3d 463, 484
(9th Cir. 2007).
Matthew has not alleged sufficient facts to support the
proposition that Defendants were deliberately indifferent
with respect to the training or that known or obvious
consequences were disregarded. See, e.g., Connick v.
Thompson, 563 U.S. 51, 62 (2011) (“Deliberate
indifference is a stringent standard of fault requiring proof
that a municipal actor disregarded a known or obvious
consequence of his action.”).
both claims, Mr. Matthew merely presents a recitation of the
elements of Monell causes of action based on policy,
practice or custom, and failure to train and supervise and
does not provide sufficient supporting facts. See
Dougherty v. City of Covina, 654 F.3d 892, 901 (9th Cir.
2011)(complaint was a “formulaic recitation of a cause
of actions's elements” and no facts alleged
concerning key elements of the Monell claims).
such, Mr. Matthew's motion to amend to include newly
added/revised claims against Defendants Yellowstone County
Commissioner(s) unknown, Yellowstone County Sheriff Mike
Linder, and Riverstone Health Clinic CEO unknown should be
denied as being futile.
New Defendants and Remaining Claims
motion to amend will be granted as to the United States
Marshal individual defendants Patrick and Daq and Nurse
Jessica and ...