United States District Court, D. Montana, Helena Division
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
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.
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.
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.
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.
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.
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).
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
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).
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.
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
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.
Following First Encounter
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).
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).
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.
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).
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
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 ...