United States District Court, D. Montana, Billings Division
WILLIAM D. BURGAN and LYNETTE BURGAN, Plaintiffs,
ALEXANDER NIXON, THOMAS RIEGER, and CARBON COUNTY, Defendants.
TIMOTHY J. CAVAN UNITED STATES MAGISTRATE JUDGE.
William D. Burgan (“Bill Burgan”) and Lynette
Burgan (collectively, the “Burgans”) bring this
action against Carbon County, Montana (“the
County”) pursuant to 42 U.S.C. § 1983, and against
Carbon County Attorney Alex Nixon (“Nixon”) and
former Carbon County Sheriff Thomas Rieger
“Defendants”) under Montana state law. (Doc. 56
before this Court are the County's Motion to Dismiss the
Second Amended Complaint (Doc. 60) and Nixon and Rieger's
Joint Motion to Dismiss (Doc. 62), each made under
Fed.R.Civ.P. 12(b)(6). Having reviewed the parties'
arguments and submissions, and for the reasons discussed
below, Nixon and Rieger's motion is GRANTED in part and
DENIED in part; the County's motion is DENIED.
purposes of the pending Rule 12(b)(6) motion to dismiss, the
Court accepts as true all factual allegations in the
complaint, and construes them in a light most favorable to
the Burgans. Turner v. City and Cty. of San
Francisco, 788 F.3d 1206, 1210 (9th Cir. 2015).
Accordingly, the Court has compiled the following factual
background from the Burgans' Second Amended Complaint.
Burgans purchased property near Roberts, Montana in 1990 (the
“Burgan Property” or “Property”).
(Doc. 56 at 5-6.) They reside at the Property and operate a
farm and ranch thereon, where they raise livestock and grow
hay. Id. at 6. The Property is irrigated with water
diverted from Rock Creek to a point of diversion called the
Hunter-Northey Ditch. Id. The ditch, its headgate,
and the Headgate Access Road used to access the headgate are
all located on the property directly south of, and adjacent
to, the Burgan Property. Id. In 2007, James Brien
(“Brien”) purchased this adjacent property
(“Brien Property”). Id. at 7. He
thereafter began socializing with Nixon and Rieger, hosting
them as guests at barbeques, and hunting with Nixon.
Id. at 8.
Burgans claim a right to use water diverted into the
Hunter-Northey Ditch, with a priority date of July 15, 1894.
Id. at 6. The only way to access the ditch and
headgate is via the Headgate Access Road, which runs along
the Brien Property. Id. at 6-7. The Burgans, their
predecessors-in-interest, and other users of the ditch have
used this road to access and control the headgate since 1894.
Id. at 7. The Burgans require ready access to the
headgate to irrigate and prevent flooding of their ranch.
summer of 2012, Brien locked the gate located at the entrance
of the Headgate Access Road, blocking the Burgans' access
to the headgate. Id. at 8. For the next year, the
Burgans attempted to regain access to the headgate, first by
dealing directly with Brien, and then by attempting to enlist
the help of Nixon, the Carbon County Sheriff's Office,
and the Montana Attorney General.
Burgan sent several letters to Brien, informing him of the
Burgans' right to use the Headgate Access Road, and
reminding Brien that his predecessor-in-interest had
recognized this right. Id. Brien responded that he
would allow the Burgans to access the headgate “on a
limited basis (with no easement created).” Id.
at 8-9. Brien then sent the Burgans a letter prohibiting them
from accessing the headgate unless they followed certain
requirements, including walking along the Headgate Access
Road, using a motor vehicle “at a speed no greater than
a walk, ” or traveling along the side of the
Hunter-Northey ditch. Id. at 9. Brien also demanded
a hold harmless agreement or insurance policy from the
response, the Burgans informed Nixon of the dispute with
Brien, and attached a copy of Brien's most recent letter.
Id. But Nixon informed the Burgans that he lacked
sufficient information to determine whether the Burgans had
an easement. Id. at 9-10. The Burgans then submitted
documentation to substantiate their easement claim to the
undersheriff, who provided copies to Nixon and Rieger.
Id. at 10-11.
about June 10, 2013, Bill Burgan, with the help of another
neighbor, cut a lock that Brien had placed on the gate to the
Headgate Access Road, and replaced it with a two-lock system
that gave Brien and the other ditch users the ability to
unlock the gate. Id. at 11. In response, Brien
contacted the sheriff's office but was ultimately told
that access to the headgate was a civil issue. Id.
Bill Burgan sent a letter to the Attorney General requesting
an opinion regarding the easement rights. Id. at 12.
The Attorney General declined, stating “this is clearly
a civil issue, ” and sent a copy of the letter to
Nixon. Id. at 12-13.
August 15, 2013, Bill Burgan and his son, Chase Burgan, used
the Headgate Access Road to adjust their headgate.
Id. at 13. Brien contacted the Sheriff's Office
and demanded that Bill and Chase Burgan be charged with
criminal trespass. Id. Later that day, Rieger
consulted with Nixon, who advised that the Burgans had
committed a criminal trespass. Id. Rieger then
instructed a deputy sheriff to sign and serve a Notice to
Appear and Complaint for criminal trespass (interchangeably
the “Notice” and the “Citation”) on
Bill and Chase Burgan. Id. On August 16, 2013, the
deputy delivered copies of the Citation to Bill Burgan.
Id. at 14. When Bill Burgan told the deputy that
“we're going to keep going there, ” the
deputy warned, “you could end up in jail.”
Id. at 14.
criminal trespass charge was ultimately dismissed on January
7, 2014. The Burgans then filed a declaratory action against
Brien on May 5, 2014 in the Montana Twenty-Second Judicial
District Court, Carbon County. Id. at 14-15. On
February 26, 2015, the presiding judge, Hon. Michael Moses,
issued an order granting summary judgment in favor of the
Burgans. Id. at 15-16. Judge Moses determined that
the Burgans' motion “establishe[d] that [the
Burgans] have a statutory right pursuant to § 70-17-112,
MCA and a right established by historical use to access the
headgate via [Brien's] private drive using a motorized
vehicle.” Id. at 16; (Doc. 1-15 at 9.)
18, 2016, the Burgans filed the instant action, alleging they
were illegally ousted from their property for 18 months
because of Defendants' unlawful conduct. (See
Doc. 1.) Specifically, the Burgans alleged that considering
the documentation they provided substantiating their
easement, Rieger and Nixon lacked probable cause to cite Bill
and Chase Burgan with criminal trespass. Id. at
18-24. The Burgans also alleged Defendants acted with the
intention to benefit Brien. Id. at 20. The
Defendants filed a Joint Motion to Dismiss (Doc. 11), which
this Court granted, without prejudice, as to Lynette
Burgan's claims, but denied in all other respects. (Doc.
and Nixon filed an interlocutory appeal to the Ninth Circuit
on the issue of qualified immunity. (Doc. 24.) The Ninth
Circuit concluded Rieger and Nixon were entitled to qualified
immunity, barring the Burgans' federal constitutional
claims against them. (Doc. 51.)
Burgans subsequently filed their Second Amended Complaint
(“Complaint”) on January 30, 2018. (Doc. 56.) The
Burgans now advance six causes of action. Counts One and Two
are asserted against Carbon County. The Burgans allege that
Nixon and Rieger's unconstitutional conduct can be
imputed to Carbon County under a theory of municipal
liability. They further assert the County violated the Due
Process Clause of the Fourteenth Amendment (Count One), and
engaged in the private taking of property for private
purposes in violation of the Fifth Amendment (Count Two).
(Doc. 56 at 18-20.)
Three through Six are brought against Nixon and Rieger
individually, and allege that Nixon and Rieger violated the
Burgans' procedural due process rights guaranteed by
Article II, § 17 of the Montana Constitution (Count
Three); violated the takings clause of Article II, § 29
of the Montana Constitution (Count Four); initiated a
malicious prosecution against the Burgans (Count Five); and
that their actions constituted an abuse of process (Count
Six). Id. at 20-23.
Defendants now move to dismiss all counts of the Complaint.
Defendants move to dismiss pursuant to Fed.R.Civ.P. 12(b)(6).
A Rule 12(b)(6) motion to dismiss tests the sufficiency of a
complaint. Navarro v. Block, 250 F.3d 729, 732 (9th
Cir. 2001). Dismissal under Rule 12(b)(6) is informed by Rule
8(a)(2), which requires a pleading to contain “a short
and plain statement of the claim showing that the pleader is
entitled to relief.” Ashcroft v. Iqbal, 556
U.S. 662, 677-78 (2009). Dismissal is proper under
Fed.R.Civ.P. 12(b)(6) only when the complaint lacks a
cognizable legal theory or fails to allege sufficient facts
to support a cognizable legal theory. Zixiang Li v.
Kerry, 710 F.3d 995, 999 (9th Cir. 2013) (quoting
Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d
1097, 1104 (9th Cir. 2008)).
survive a 12(b)(6) motion to dismiss, “a complaint must
contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its
face.'” Id. at 678. “A claim has
facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Id. Plausibility is context-specific, requiring
courts to draw on judicial experience and common sense when
evaluating a complaint. Levitt v. Yelp! Inc., 765
F.3d 1123, 1135 (9th Cir. 2014).
considering a 12(b)(6) motion, a court must accept as true
the allegations of the complaint and construe them in the
light most favorable to the nonmoving party. Hardesty v.
Barcus, 2012 WL 705862, *2 (D. Mont. Jan. 20, 2012).
However, “factual allegations must be enough to raise a
right to relief above the speculative level.” Bell
Atlantic Corp. v. Twombly, 550 U.S 544, 555 (2007).
Carbon County's ...