United States District Court, D. Montana, Great Falls Division
MORRIS UNITED STATES DISTRICT COURT JUDGE
City of Great Falls (“City”) and Defendants Great
Falls Police Officers Tovson and Halloran (collectively
“Officers”) filed separate motions for summary
judgment. (Docs. 41 & 45.) Plaintiff Diana McClammy
(“McClammyâ) opposed the motions. (Docs. 78 & 80.)
The Court conducted a hearing on the motions on September 12,
2019. (Doc. 100.)
AND PROCEDURAL BACKGROUND
called 911 at approximately 7:32 p.m. on May 22, 2015. (Doc.
3 at 3.) She reported that her boyfriend, Louis Dymon, had
physically abused her. (Id.) The Officers responded
to McClammy’s apartment building. (Id.)
McClammy told the Officers that Dymon had been drinking, was
violent, head-butted her, hit her in the back of the neck
with a plastic bottle, and scratched her face at her jawline.
Officers spoke separately with McClammy and Dymon.
(Id. at 3-4.) McClammy alleges that the Officers
acted dismissively toward her complaints. (Id. at
3.) The Officers reported that McClammy was intoxicated.
(Id.) Subsequent testing measured McClammy’s
blood alcohol content (BAC) as 0. (Id.) The Officers
reported that Dymon was calm, but appeared intoxicated.
(Id. at 4.) Subsequent testing measured
Dymon’s BAC as 0.297. (Id.) The Officers
cleared the call based on their conversations with McClammy
and Dymon. (Id.) McClammy reports that the
Officers’ investigation lasted less than 15 minutes.
(Id.) The Officers left the apartment building after
they had concluded their investigation. (Id.)
apartment building manager called 911 a little over an hour
later. (Id.) The building manager reported that
McClammy told him that she had just stabbed Dymon and to call
for help. (Id.) The Officers responded to the scene.
(Id.) McClammy asserts that she told the Officers
that she had acted in self-defense and that she had not meant
to kill Dymon. (Id.) The Officers arrested McClammy.
(Id.) Medical personnel pronounced Dymon dead later
that night. (Id. at 5.)
State of Montana charged McClammy with deliberate homicide
for Dymon’s death. (Id.) The state district
court appointed public defender Matthew McKittrick to defend
McClammy. (Id. at 6.) McClammy pleaded not guilty to
the charge of deliberate homicide. (Id.) The court
held an omnibus hearing on October 14, 2015. (Id.)
McClammy informed the court that she intended to rely on a
justifiable use of force and/or mental disease or defect
defense. (Id.) The court scheduled trial for
November 16, 2015. (Id.)
moved to vacate and continue various deadlines, including
McClammy’s trial date. (Id.) Ultimately, the
court reset McClammy’s trial for February 13, 2017.
(Id.) The State filed a motion to dismiss the charge
with prejudice on February 7, 2017. (Id.) The State
represented that it lacked sufficient evidence to overcome
McClammy’s self-defense claim. (Id.) The state
district court dismissed the charges on February 7, 2017.
(Id. at 7.) McClammy had been incarcerated for the
21 months between her arrest and the dismissal. (Doc. 78 at
filed her Complaint in Montana State Court on March 7, 2018.
(Doc. 3 at 15.) McClammy initially asserted seven causes of
action against various defendants. (Id. at 7-16.)
The Officers removed the case to federal court on April 25,
2018. (Doc. 1.) McClammy has since moved to dismiss several
causes of action and two defendants. (Docs. 80 at 2, 98 at 1,
& 100.) The following causes of action remain: (1)
negligence against the Officers and the City; and (2) 42
U.S.C. § 1983 Fourteenth Amendment violation against the
Officers. (Doc. 3 at 7, 13.)
clarifies that she bases her claims against the Officers on
their alleged “deliberate indifference” in
investigating the assault that McClammy first reported and in
failing to arrest Dymon based on their investigation. (Doc.
78 at 4.) McClammy bases her claims against the City on its
vicarious liability for the Officers’ tortious conduct.
Motions for Summary Judgment
Court will address separately the motions for summary
Summary Judgment Legal Standard
may move for summary judgment on all or part of a claim.
Fed.R.Civ.P. 56(a). Summary judgment proves proper when no
genuine dispute of material fact exists and the moving party
is entitled to judgment as a matter of law. Fed.R.Civ.P.
56(a). The Court will grant summary judgment where the
documentary evidence produced by the parties permits only one
conclusion. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 250 (1986).
moving party, who does not carry the burden of proof at
trial, carries the “initial burden of production”
on a summary judgment motion. Nissan Fire & Marine
Insurance Company, LTD v. Fritz Companies, Inc., 210
F.3d 1099, 1102 (2000). The movant may fulfill her initial
burden of production in one of two ways. Id., at
1106. The movant may produce “affirmative evidence
negating an essential element of the nonmoving party’s
claim.” Id. at 1103. The movant alternatively
may show that the “nonmoving party did not have enough
evidence to carry” her burden of proof at trial.
movant meets her burden of production, the nonmovant must
produce evidence to support her claim. Id. Rule 56
mandates summary judgment where the nonmovant’s
production of evidence fails to create a genuine issue of
material fact. Id. If the movant fails to meet her
initial burden of production, then the nonmovant may defeat
the motion for summary judgment without having produced any
Officers’ Motion for Summary Judgment
Fourteenth Amendment generally does not require an officer to
protect an individual from third-party violence. Town of
Castle Rock v. Gonzales, 545 U.S. 748, 768 (2005). An
officer may owe a Fourteenth Amendment due process duty to
protect against third-party violence, however, if the officer
affirmatively placed the plaintiff in a position of known
danger by acting with deliberate indifference. Kennedy v.
City of Ridgefield, 439 F.3d 1055, 1062-63 (9th Cir.
2006). The exception requires the officer to engage in
affirmative conduct that placed the plaintiff in a position
that was more dangerous than the one in which the officer
found the plaintiff. Id. at 1061.
alleges that the Officers’ actions resulted in a
state-created danger in violation of her Fourteenth Amendment
Due Process right. (Docs. 3 at 13 & 78 at 12.) McClammy
asserts that the Officers created a danger through the
following omissions: (1) failing to investigate properly her
claims when they responded to her ...