United States District Court, D. Montana, Missoula Division
Jeremiah C. Lynch United States Magistrate Judge.
the Court is Defendant Officer James Schneider's
Fed.R.Civ.P. 56 motion for summary judgment requesting the
Court dismiss Plaintiff Randy Wallway's amended complaint
filed against him. For the reasons discussed, the Court
recommends the motion be granted, and this case be dismissed.
is appearing pro se in this action. His pleading alleges as
23, 2014, Wallway was at a hospital in Kalispell, Montana,
for a blood alcohol test. While at the hospital he complained
he had an injured shoulder, but the medical staff performed
an x-ray and did not “find anything wrong.” (Doc.
11 at 6 of 8.)
states that when he left the hospital Defendant Montana
Highway Patrol Officer James Schneider arrested him in the
hospital's parking lot and placed Wallway in handcuffs.
Wallway states he informed Schneider that his shoulder was
injured, but Schneider allegedly grabbed Wallway from behind,
threatened Wallway that he would “fix” his
shoulder, and hit his shoulder “really hard and drove
[Wallway] to [his] knees.” (Doc. 11 at 6 of 8.) Wallway
alleges Schneider slammed his shoulder so hard that it caused
further and extensive physical injury to his shoulder.
Therefore, Wallway alleges Schneider is liable for the
excessive use of force during the course of his arrest.
moves for summary judgment arguing the undisputed facts
demonstrate he did not use excessive force to affect
Wallway's arrest. Alternatively, Schneider argues he is
entitled to qualified immunity from liability on
Wallway's claim. Wallway has not filed either a brief in
response to the motion as required by L.R. 7.1(d)(1)(B), or a
statement of disputed facts as required by L.R. 56.1(b).
Applicable Law - Summary Judgment Standards
Rule of Civil Procedure 56(a) entitles a party to summary
judgment “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” In deciding a motion for
summary judgment, the Court views the evidence in the light
most favorable to the non-moving party and draws all
justifiable inferences in the non-moving party's favor.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986); Betz v. Trainer Wortham & Co.,
Inc., 504 F.3d 1017, 1020-21 (9th Cir. 2007).
noted, Wallway did not file a brief in opposition to
Schneider's motion, and the deadline for doing so has
passed. Nonetheless, the Ninth Circuit has made clear that a
district court may not grant “summary judgment simply
because a party fails to file an opposition or violates a
local rule, ” and the court must “analyze the
record to determine whether any disputed material fact [is]
present.” Ahanchian v. Xenon Pictures, Inc.,
624 F.3d 1253, 1258 (9th Cir. 2010). See also
Martinez v. Stanford, 323 F.3d 1178, 1182
(9th Cir. 2003) (explaining that “a
nonmoving party's failure to comply with local rules does
not excuse the moving party's affirmative duty under Rule
56 to demonstrate its entitlement to judgment as a matter of
because Wallway is proceeding pro se the Court must construe
his documents liberally and give them “the benefit of
any doubt” with respect to Schneider's summary
judgment motion. Frost v. Symington, 197 F.3d 348,
352 (9thCir. 1999). See also Erickson v.
Pardus 551 U.S. 89, 94 (2007).
claim alleges Schneider violated his right against an
unreasonable seizure protected by the Fourth Amendment to the
United States Constitution. Therefore, the claim is
cognizable under 42 U.S.C. § 1983. Section 1983 permits
claims under federal law against a local governmental entity,
or a state official or employee, if the plaintiff can
establish that the defendant was (1) acting under color of
state law, and (2) deprived the plaintiff of a federal right
secured by the Constitution or laws of the United States.
Kirtley v. Rainey, 326 F.3d 1088, 1092
(9th Cir. 2003).
right under the Fourth Amendment is the right to be free from
unreasonable seizures by state officers. Graham v.
Connor, 490 U.S. 386, 394-95 (1989). The Fourth
Amendment prohibits an officer from exceeding “the
bounds of reasonable force in effecting ‘an arrest,
investigatory stop, or other seizure.'” Shafer