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Burgan v. Nixon

United States District Court, D. Montana, Billings Division

September 28, 2018

WILLIAM D. BURGAN and LYNETTE BURGAN, Plaintiffs,
v.
ALEXANDER NIXON, THOMAS RIEGER, and CARBON COUNTY, Defendants.

          ORDER

          TIMOTHY J. CAVAN UNITED STATES MAGISTRATE JUDGE.

         Plaintiffs 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 (“Rieger”) (collectively, “Defendants”) under Montana state law. (Doc. 56 at 1-5.)

         Currently 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.

         I. Background

         For 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.

         The 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.

         The 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. Id.

         In the 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.

         Bill 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 Burgans. Id.

         In 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.

         On or 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.

         Thereafter, 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.

         On 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.

         The 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.)

         On May 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. 19.)

         Rieger 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.)

         The 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.)

         Counts 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.

         The Defendants now move to dismiss all counts of the Complaint.

         II. Legal Standard

         The 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)).

         To 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).

         When 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).

         III. Discussion

         A. Carbon County's ...


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