United States District Court, D. Montana, Helena Division
ELLEN MARTEN, as Guardian and Conservator of Glen Marten, Plaintiff,
GENE HAIRE, STATE OF MONTANA, DOES 1-10, Defendants.
OPINION & ORDER
CHARLES C. LOVELL SENIOR UNITED STATES DISTRICT JUDGE.
the Court is Defendant Gene Haire's motion for summary
judgment, which is opposed by Plaintiff. Having reviewed the
briefs and the record and no party having requested oral
argument, the Court is prepared to rule.
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."
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
(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 (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., 411 U.S. 242, 255
(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.
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 (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, 411 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. Moreover, the
Court is "not required to comb through the record to
find some reason to deny a motion for summary judgment."
Carmen v. San Francisco Unified Sch. Dist., 237 F.3d
1026, 1029 (9th Cir.2001) (quoting Forsberg v. Pac.
Northwest Bell Tel Co., 840 F.2d 1409, 1418 (9th
Cir.1988)). Instead, the "party opposing summary
judgment must direct [the Court's] attention to specific
triable facts." Southern California Gas Co. v. City
of Santa Ana, 336 F.3d 885, 889 (9th Cir.2003).
OF FACTS 
Marten (Marten) "is an incapacitated adult who suffers
from developmental, cognitive, physical and psychological
conditions." (Doc. 53 at ¶ 1). MDC is a State-run
facility for people with serious intellectual disabilities
who have been determined to pose an imminent risk of serious
harm to themselves or others." (Doc. 53 at ¶ 2).
Marten was evaluated at MDC in 1990 and was
"involuntarily committed at MDC due to his violent
outbursts" for "a significant amount of time -
approximately 15 years total" - on three separate
occasions since 1990, most recently from February 2009 to
November 25, 2014. (Doc. 53 at ¶¶ 3 and 5).
Gene Haire (Haire) began working as the MDC Superintendent in
May of 2011. (Doc. 44-4, Depo. Haire 20:22 - 24 (May 18,
2018)). At that time, the maximum number of clients who could
be served at MDC was 68. (Doc. 44-4 at 25:16 - 21). Haire
served in that position until May of 2015, when he retired.
(Doc. 44-4 at 32:6 - 11). Haire directly supervised MDC's
Clinical Services Director, Polly Peterson, who supervised
MDC's medical personnel. (Doc. 44-4 at 22:5 - 10).
Defendant State of Montana and Haire admit that "with
respect to the conduct of Haire of which Plaintiff complains,
Haire acted within the course and scope of his employment
with the State." (Doc. 41 at ¶ 11).
to Dr. Lemons, one of Plaintiff s retained experts, Marten
required help getting up and was weak after falling at MDC on
September 11, 2014 - the "first sign of spinal cord
injury," (Doc. 69-3 at 4). Marten "suffered
progressive signs and symptoms of his cervical disc
herniation and spinal cord dysfunction" from September
11, 2014 to December 3, 2014. (Doc. 69-3 at 5).
this time, Dr. Justad, who contracted with the State to
provide services at MDC, was Marten's primary treating
physician. (Doc. 53 at ¶ 9). Dr, Justad ordered an MRI
of Marten's brain in October, but did not follow the
recommendation of MDC staff to order an MRI of his entire
spine. (Doc. 53 at ¶¶ 34, 35 and 37).
met weekly with MDC medical staff, including Dr. Justad,
(Doc. 53 at ¶ 17). He was generally aware of
Marten's medical issues during the fall of 2014 and was
concerned about Marten. (Doc. 53 at ¶ 19). By the end of
October, 2014, Haire was aware that Marten's entire
treatment team was recommending that Marten have an MRI of
his entire spine done in one visit and that Dr. Justad did
not want to order an MRI of the entire spine. (Doc. 44-4 at
255: 1 - 256:18).
"relied on the expertise and skills of people who were
licensed to provide medical care to Marten." (Doc. 53 at
¶ 19). Haire "continued to communicate with Dr.
Justad and the nursing director in the Monday meetings and in
other conversations, and felt that they were taking the
actions that they felt needed to be taken." (Doc. 44-4
at 232:24 - 233:3).
November 25, 2014, "MDC staff made the call to take
Marten to the ER at St. Peter's Hospital." (Doc. 53
at ¶ 44). At St. Peter's, Marten "was admitted
to the intensive care unit with severe pulmonary
emboli." (Doc. 44-33 at 2). When that condition
improved, "the biggest concern became his lower
extremity weakness and concern of spinal cord lesion."
(Doc. 44-33 at 2). After Marten's pulmonary embolus
stabilized, an "MRI was obtained documenting the very
severe and impinging C4-5 disk." (Doc. 44-33 at 2 - 3).
Marten had decompressive surgery on December 3, 2014. (Doc.
44-33 at 3).
to Dr. Lemons, MDC medical staff should have properly
diagnosed Marten and referred him for surgical intervention
"[a]t the latest... in the first week of October."
(Doc. 69-3 at 13). Dr. Lemons opines that the "delay in
diagnosis and referral significantly injured Mr. Marten's
cervical spinal cord" and that "Mr. Marten would
have had a significantly better outcome" had MDC medical
staff "recognized the potential for cervical spinal ...