United States District Court, D. Montana, Billings Division
JENNIFER M. OSTERMILLER, Plaintiffs,
CVS PHARMACY, HALEY REICHENBACH, BILLINGS POLICE DEPARTMENT, C/O STEVEN GEARTNER, and CORY KIRKPATRICK, Defendants.
ORDER AND FINDINGS AND RECOMMENDATIONS OF UNITED
STATES MAGISTRATE JUDGE
Johnston, United States Magistrate Judge
Jennifer Ostermiller submitted a motion to proceed in forma
pauperis, a proposed Complaint alleging Defendants violated
her rights under the Fourth, Fifth, Eighth, and Fourteenth
Amendments to the United States Constitution, and a motion
for discovery. (Docs. 1, 2, 7.) The motion to proceed in
forma pauperis will be granted, the motion for discovery will
be denied. Defendants CVS Pharmacy and Haley Reichenbach and
Ms. Ostermiller's claims regarding the search of her
person on December 13, 2016 at the DUI-Center during which
marijuana was found on her person will be recommended for
dismissal. Defendants Chief St. John, Steven Gaertner, Cory
Kirkpatrick, and Officer Ihde will be required to file a
response to the Complaint.
MOTION TO PROCEED IN FORMA PAUPERIS
Ostermiller's Motion to Proceed in Forma Pauperis is
sufficient to make the showing required by 28 U.S.C.
§1915(a). (Doc. 1.) The request to proceed in forma
pauperis will be granted.
December 13, 2016, Ms. Ostermiller was involved in an
automobile accident. She contends she suffered injuries to
her head, neck, and back and was briefly knocked unconscious.
911 was called and Billings Police Department Officer Cory
Kirkpatrick responded. Ms. Ostermiller alleges that Officer
Kirkpatrick noted upon arrival that Ms. Ostermiller was not
at fault and Ms. Ostermiller exhibited no signs of drug,
alcohol or any physical impairment.
Ostermiller alleges Defendant Haley Reichenbach, an employee
of CVS, called 911 to report the accident and reported that
this was a hit and run accident that involved a fourth car
that fled the scene.
Steven Gaertner then arrived at the scene and spoke to the
driver of the other car and Ms. Reichenbach. The driver of
the other car stated that she had a green light which Ms.
Ostermiller alleges Officers Geartner and Kirkpatrick knew
was untrue at the time Ms. Ostermiller was arrested. Ms.
Ostermiller alleges that Ms. Reichenbach, in violation of Ms.
Ostermiller's rights, told the officers that Ms.
Ostermiller was prescribed heavy doses of pain medication and
other private medical information. According to Ms.
Ostermiller, this led the officers to believe that Ms.
Ostermiller was under the influence of prescription drugs,
that she was responsible for the accident, and that she had
been smoking marijuana. Ms. Ostermiller was then searched by
Officer Kirkpatrick and placed in the back of Officer
Ostermiller alleges she was afforded no medical care,
treatment or evaluation. She contends she was taken to the
Yellowstone County Detention DUI Center where she was
compelled to give four test tubes of blood, charged with
aggravated DUI per prescription, and taken into a dark room
off camera and sexually assaulted by Officer Ihde. She
alleges that after she was charged and booked for aggravated
DUI, she was searched, and found to be in possession of
marijuana. The charge was then amended to DUI-marijuana after
the marijuana was found. (Complaint, Doc. 2 at 14-15.)
Ostermiller alleges that during these incidents she was
wearing only a halter top, a wind jacket, capri jeans and
boots without socks. She claims the average temperature was
four degrees and her temperature was two degrees above
hypothermia when her temperature was taken at the DUI Center.
(Complaint, Doc. 2 at 14-15.)
claims that Officer Ihde, in an attempt to compel Ms.
Ostermiller to remain silent about the sexual assault, told
her it was up to him whether or not she would be charged and
that he could keep her even though she repeatedly advised him
that her children (ages 9 and 10) were home alone.
(Complaint, Doc. 2 at 16.)
Ostermiller contends that the alleged marijuana was not
tested until December 14, 2017 a year later by the police
officer whom Ms. Ostermiller had filed numerous complaints
against for racial profiling. On January 25, 2017, the blood
test results were returned and according to Ms. Ostermiller
the tests indicated that she was not under the influence of
any prohibited level of any substance. (Complaint, Doc. 2 at
Ostermiller alleges the DUI charge was dismissed on September
26, 2017. (Complaint, Doc. 2 at 22.) According to the
documents filed in support of the Complaint, the City of
Billings moved to dismiss the DUI charge on September 26,
2017 but the Municipal Court Judge did not sign the Order
dismissing that charge until November 1, 2017. (Doc. 11 at
contends Officer Kirkpatrick changed his initial police
report from saying that Ms. Ostermiller had the right of way
to state that she did not have the right of way. (Complaint,
Doc. 2 at 18.) She claims this change was made after she
filed a complaint of racial profiling on Officer Gaertner.
She claims she made these complaints on May 23, 2017 and June
27, 2017. She filed these complaints with the Chief of Police
Rich St. John on July 20, 2017.
to the Complaint, is a March 11, 2019 Order from Montana
state district court affirming Ms. Ostermiller's
conviction for possession of dangerous drugs arising out of
the incident on December 28, 2016. (Doc. 8-1 at 1-9.)
SCREENING PURSUANT TO 28 U.S.C. § 1915
Ostermiller is proceeding in forma pauperis so the Court must
review her Complaint under 28 U.S.C. § 1915 which
requires dismissal of a complaint filed in forma pauperis
before it is served if it is frivolous or malicious, fails to
state a claim upon which relief may be granted, or seeks
monetary relief from a defendant who is immune from such
relief. A complaint is frivolous if it “lacks an
arguable basis either in law or in fact.” Neitzke
v. Williams, 490 U.S. 319, 325 (1989). “A case is
malicious if it was filed with the intention or desire to
harm another.” Andrews v. King, 398 F.3d 1113,
1121 (9th Cir. 2005). A complaint fails to state a claim upon
which relief may be granted if a plaintiff fails to allege
the “grounds” of his “entitlement to
relief.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555 (2007) (quotation omitted).
of the Federal Rules of Civil Procedure provides that a
complaint “that states a claim for relief must contain
. . . a short and plain statement of the claim showing that
the [plaintiff] is entitled to relief.” Fed.R.Civ.P.
8(a)(2). That is, a complaint must “contain sufficient
factual matter, accepted as true, to state a claim to relief
that is plausible on its face.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quotations omitted). A
complaint's allegations must cross “the line from
conceivable to plausible.” Iqbal, 556 U.S. at 680.
is a two-step procedure to determine whether a
complaint's allegations cross that line. See Twombly, 550
U.S. at 556; Iqbal, 556 U.S. 662. First, the Court must
identify “the allegations in the complaint that are not
entitled to the assumption of truth.” Iqbal, 556 U.S.
at 679, 680. Factual allegations are not entitled to the
assumption of truth if they are “merely consistent with
liability, ” or “amount to nothing more than a
‘formulaic recitation of the elements' of a
constitutional” claim. Id. at 679, 681. A
complaint stops short of the line between probability and the
possibility of relief where the facts pled are merely
consistent with a defendant's liability. Id. at
the Court must determine whether the complaint states a
“plausible” claim for relief. Iqbal, 556 U.S. at
679. A claim is “plausible” if the factual
allegations, which are accepted as true, “allow[ ] the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id. at
678. This inquiry is “a context-specific task that
requires the reviewing court to draw on its judicial
experience and common sense.” Id. at 679
(citation omitted). If the factual allegations, which are
accepted as true, “do not permit the court to infer
more than the mere possibility of misconduct, the complaint
has alleged-but it has not “show[n]”-“that
the pleader is entitled to relief.” Id.
(citing Fed.R.Civ.P. 8(a)(2)).
document filed pro se is ‘to be liberally
construed,' and ‘a pro se complaint, however
inartfully pleaded, must be held to less stringent standards
than formal pleadings drafted by lawyers.'”
Erickson v. Pardu, 551 U.S. 89, 94 (2007); cf. Fed.
Rule Civ. Proc. 8(e) (“Pleadings must be construed so
as to do justice”).
CVS Pharmacy and ...