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Gorniak v. Wharton

United States District Court, D. Montana, Helena Division

August 8, 2018

TRACY BOWEN GORNIAK, Individually and as Personal Representative of THE ESTATE OF VINCENT DEMERS, Plaintiff,
MICHAEL WHARTON, in his individual capacity and as sheriffs deputy, MIKE JOHNSON, in his individual capacity and as undersheriff, JEFFERSON COUNTY SHERIFF DEPT., JEFFERSON COUNTY, and DEFENDANTS 1-10, Defendants.

          OPINION & ORDER

         Before the Court is the motion for summary judgment of Defendants Michael Wharton, Mike Johnson and Jefferson County. Having reviewed the briefs and the record and no party having requested oral argument, the Court is prepared to rule.


         Fed. R.Civ.P. 56(a) permits a party to seek summary judgment "identifying each claim or defense-or the part of each claim or defense-on which summary judgment is sought." A district court may grant summary judgment as to particular claims or defenses when one of the parties is entitled to judgment as a matter of law. Summary judgment or adjudication is appropriate when the movant shows "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); Matsushita Elec. Indus, v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); T. W. Elec. Serv., Inc. v. Pacific Elec. Contractors Assn., 809 F.2d 626, 630 (9th Cir.1987). The purpose of summary judgment is to "pierce the pleadings and assess the proof in order to see whether there is a genuine need for trial." Matsushita, 475 U.S. at 586, n. 11.

         On summary judgment, a court must decide whether there is a "genuine issue as to any material fact," not weigh the evidence or determine the truth of contested matters. Fed. R. Civ.P. 56(a), (c); see also, Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). "Credibility determinations, the weighing of the evidence, and the: drawing of legitimate inferences from the facts are jury functions, not those of a judge, whether he is ruling on a motion for summary judgment or for a directed verdict." Anderson v. Liberty Lobby, Inc., 477 U.S.242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The evidence of the party opposing summary judgment is to be believed and all reasonable inferences from the facts must be drawn in favor of the opposing party. Anderson, 477 U.S. at 255; Matsushita, 475 U.S. at 587. The Court must determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-252.

         The moving party, in supporting its burden of production, "must either produce evidence negating an essential element of the nonmoving party's claim or defense or show that the nonmoving party does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial." Nissan Fire & Marine Ins. Co. v. Fritz Companies, Inc., 210 F.3d 1099, 1102 (9th Cir.2000). A "complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial" to entitle the moving party to summary judgment. Celotex Corp. v. Catrett, 477 U.S.317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "[T]o carry its ultimate burden of persuasion on the motion, the moving party must persuade the court that there is no genuine issue of material fact." Nissan Fire, 210 F.3d at 1102. "As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248.

         Once the moving party has met its initial burden, the burden shifts to the non-moving party to establish the existence of a general issue of material fact. Matsushita, 475 U.S. at 586 - 87. The non-moving party may not rely on the allegations or denials of its pleadings but must cite to facts in the record. Fed.R.Civ.P. 56(c)(1); Matsushita, 475 U.S. at 586, n. 11. Either party may object to the facts presented by the other party on the grounds that the material cited is not I admissible. Fed.R.Civ.P. 56(c)(2).


         First Encounter

         While patrolling in Whitehall, Montana on November 8, 2013, Sheriffs Deputy Michael Wharton (Deputy Wharton) observed a man in a white hooded sweatshirt and white shorts, later identified as Vincent DeMers (Mr. DeMers), get into a white Infiniti parked in the Town Pump parking lot, pull out of that spot and pull into another spot. (Doc. 18, Plaintiffs Statement of Disputed Facts, at ¶ 1). Deputy Wharton drove south of the Town Pump and s;topped at a location where he could observe the Infiniti, which pulled out of the Town Pump lot and began traveling south. (Doc. 18 at ¶ 2).

         Deputy Wharton followed the Infiniti and observed its driver park next to and enter another convenience store. (Doc. 18 at ¶ 2). While the driver was inside, Deputy Wharton learned that the Infiniti was registered to Mr. DeMers, whose license had been revoked. The driver came out of the store without having apparently purchased anything. (Doc. 18 at ¶ 3).

         Deputy Wharton had pulled into position along Legion Street, facing eastbound, to see where the Infiniti would go. (Doc. 19-3, Inquest Tr., at 21:19 - 21). The driver pulled out going westbound and, immediately upon seeing the patrol car, turned into the alley alongside the Cowdrey Apartments." (Doc. 19-3 at 21:22 - 24). Deputy Wharton activated his emergency lights to stop the Infiniti and investigate whether it was being driven by its owner, whose license had been revoked. (Doc. 18 at ¶ 4). The stop occurred around 9:30 or 9:45 at night. (Doc. 19-3 at 22:7).

         Between 9 and 9:30 that evening, Mr. DeMers had called his friend Austin Mariah Senst (Ms. Senst) for directions to her apartment in Whitehall. (Doc. 19-1, Senst Aff., at ¶ 4). Although the location of Ms. Senst's apartment is not identified in the materials provided to the Court, the Court draws the reasonable inference that Ms. Senst's apartment was located in the Cowdrey Apartments.

         The Infiniti pulled into a parking space beside the Cowdrey Apartments and the driver exited before Deputy Wharton could stop the patrol car. (Doc. 19-3 at 22:10 - 13). Plaintiff identifies the person riding with Deputy Wharton as Kristy Burns, "the dispatch ride-along." (Doc. 18 at ¶ 5). The Court will refer to this woman as Ms. Burns because a woman identified as Christi Burns testified at the Coroner's Inquest. (Doc. 17-2 at 1, Index to Inquest Tr.). According to Ms. Burns, the driver "had some items in his hands, and when he opened the car door, he had his right arm laying above the car door, and he ... asked Deputy Wharton why." (Doc. 19-3 at 22:20 - 24). The driver said no after Deputy Wharton told him to put his hands up again. (Doc. 19-3 at 23:1 - 3). After Deputy Wharton repeated his command for a third time, the Infiniti driver "turned, flung the car door shut, and ran." (Doc. 19-3 at 23:5 - 8) According to Deputy Wharton, he "got out of [his] patrol car with [his] gun drawn, but not pointed at DeMers, and ordered DeMers to show his hands. Demers refused to comply and, after the third command, began running. [Deputy Wharton] holstered [his] gun and chased DeMers, but was unable to catch him." (Doc. 17-1, Wharton Aff., at ¶ 8).

         Plaintiff alleges that there is disputed testimony as to whether Deputy Wharton had his weapon pointed at Mr. DeMers, relying on a statement made by Mr. DeMers to his friend, Ms. Senst. (Doc. 18 at ¶ 6). Defendants correctly point out that Plaintiff is relying on Mr. DeMers's out-of-court statement to prove that the gun was pointed at Mr. DeMers - i.e. to prove the truth of the matter asserted. Because the issue of whether Ms. Senst could be permitted to testify about Mr. DeMers's statement based on an exception to the hearsay rule has not been fully briefed, the Court will assume for purposes of this motion that Deputy Wharton pointed his drawn gun at Mr. DeMers at some point during their first encounter.

         Events Following First Encounter

         Deputy Wharton returned to his patrol car and contacted Undersheriff Johnson after losing sight of the Infiniti driver. (Doc. 18 at ¶ 7). When Deputy Wharton, following Undersheriff Johnson's instruction, went to impound the Infiniti as evidence of a crime, Deputy Wharton looked through the car windows and saw a magazine for an automatic pistol sticking out from under the driver's seat and a pair of brass knuckles on the front seat. (Doc. 18 at ¶ 8). Deputy Wharton retrieved the magazine, which was loaded with ammunition, along with the brass knuckles and a box containing ammunition. Deputy Wharton then had the Infiniti towed to the impound lot and secured. (Doc. 18 at ¶ 9).

         Deputy Wharton returned home when his shift ended. (Doc. 18 at ¶ 10). At 2:30 a.m., about one-half hour after his shift ended, Deputy Wharton responded to a call from dispatch that a man was trying to wave down traffic on Interstate 90. (Doc. 18 at ¶ 11).

         Second Encounter

         When Deputy Wharton got to the area where the man had been reported as possibly endangering himself by attempting to flag down traffic, Deputy Wharton saw a man he refers to as DeMers standing by the side of the westbound lane of Interstate 90 (I 90). (Doc. 17-1, Wharton Aff., at ¶ 13). Plaintiff alleges that Deputy Wharton knew only that the man he saw on the side of I 90 was wearing a white hoody similar to the one he observed on the suspect earlier that evening. (Doc. 18 at ¶ 13). Although Deputy Wharton's affidavit does not state when he recognized the man he saw on I 90 as the suspect he saw earlier that evening, it is clear that Deputy Wharton recognized the man he saw on I 90 as the man who had been driving the Infiniti and had run away from a traffic stop, leaving behind a loaded magazine and ammunition. It was therefore reasonable for Deputy Wharton to suspect that the man he saw could be armed.

         Deputy Wharton pulled over to the side of the westbound lane, but did not turn on his emergency lights, and got out of his patrol car with his taser drawn. (Doc. 18 at ¶ 13). Mr. DeMers began walking toward the patrol car and took his hands out of his pockets, as instructed by Deputy Wharton. (Doc. 18 at ¶ 14). After starting to comply with Deputy Wharton's order to go to the passenger side of the patrol car, Mr. DeMers turned and began running west, along the westbound lanes. (Doc. 18 at ¶ 15). Deputy Wharton fired his taser at Mr. DeMers and missed. (Doc. 18 at ¶ 16).

         As Deputy Wharton was getting into his patrol car, Mr. DeMers turned and began running south, across the westbound lanes. (Doc. 18 at ¶ 17). Deputy Wharton turned on his emergency lights and began crossing the median. As Deputy Wharton was crossing the median, Mr. DeMers ran into the eastbound lanes of I 90 and was struck by an eastbound vehicle. Deputy Wharton's first aid efforts were unsuccessful and Mr. DeMers died at the scene. (Doc. 18 at ¶ 18).


         Plaintiff Tracy Bowen Gorniak (Ms. Gorniak) brings this case on behalf of herself and as personal representative for the estate of her deceased son, Mr. DeMers. The term "plaintiff is used in both the singular and plural in the First Amended Complaint and other documents filed by Ms. Gorniak. For ...

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