United States District Court, D. Montana, Billings Division
L. Christensen, Chief Judge United States District Court
the Court is United States Magistrate Judge Jeremiah C.
Lynch's Findings and Recommendations, which he entered in
this matter on July 17, 2019. (Doc. 42.) There, Judge Lynch
recommended that the Court grant summary judgment as to all
defendants. (Id.) No party objects. See 28
U.S.C. § 636(b)(1)(C). Therefore, this Court reviews
Judge Lynch's Findings and Recommendations for clear
error. See McDonnell Douglas Corp. v. Commodore Bus.
Mach, Inc., 656 F.2d 1309, 1313 (9th Cir. 1981);
Thomas v. Arn, 474 U.S. 140, 149 (1985). Clear error
is "significantly deferential" and exists if the
Court is left with a "definite and firm conviction that
a mistake has been committed." United States v.
Syrax, 235 F.3d 422, 427 (9th Cir. 2000) (citations
rule is well-settled that a "judge's function at
summary judgment is not to weigh the evidence and determine
the truth of the matter but to determine whether there is a
genuine issue for trial." Tolan v. Cotton, 572
U.S. 650, 656 (2014) (citation and internal quotation marks
omitted). Summary judgment is appropriate when "the
movant shows that there is no genuine issue as to any
material fact and the movant is entitled to judgment as a
matter of law." Fed. Rule Civ. Proc. 56(a).
It is undisputed that Defendants Kramer and Schweigert did
not violate Plaintiffs constitutional rights, and they are
entitled to qualified immunity.
Kramer and Schweigert rely on the doctrine of qualified
immunity to support their motion for summary judgment. (Doc.
42 at 10.) At the summary judgment stage, if the court finds
that defendant officers' alleged conduct "did not
violate a constitutional right, then the defendants are
entitled to immunity and the claim must be dismissed."
Hopkins v. Bonvicino, 573 F.3d 752, 762 (9th Cir.
2009). Where the plaintiff alleges excessive force as the
relevant constitutional violation, the court "weigh[s]
three non-exclusive factors: (1) the severity of the crime at
issue; (2) whether the suspect poses an immediate threat to
the safety of officers or others; and (3) whether [the
suspect] is actively resisting arrest or attempting to evade
arrest by flight." Shafer v. County of Santa
Barbara, 868 F.3d 1110, 1116 (9th Cir. 2017)
(internal quotation marks and citation omitted).
Lynch found a dearth of disputed material facts on the issue
of whether Defendants violated Plaintiffs constitutional
right to be free from excessive force, and the Court finds no
clear error in his conclusion. As to the first factor,
Plaintiff does not dispute that, on the night of his arrest,
he behaved belligerently toward both the bartender and
patrons of The Monte. (See Doc. 32-1 at 3.) He does
not dispute that he refused to leave The Monte at the
bartender's request. (Id.) He does not dispute
that he threatened to "come over the bar and f*** up
[the bartender's] sh**" when the bartender dialed
9-1-1. (Id.) Accordingly, no genuine factual dispute
exists as to the severity of Plaintiff s criminal conduct at
The Monte that night.
and related to the first factor, Plaintiff does not raise any
genuine factual dispute as to whether he posed a serious
threat to the safety of officers or others on the night of
his arrest. He does not dispute that he was still across the
street from The Monte-where he had undisputedly just
threatened to "f*** up" an employee-when Defendant
Kramer approached him. (Doc. 39-2 at 5.) And, he does not
dispute the bartender's observations of the arrest
scene-that Plaintiff was "flailing, aggressive, highly
agitated, and spitfire cussing" while Defendant Kramer
attempted to handcuff him. (Doc. 32-1 at 4.) The temporal and
geographic proximity of the arrest to Plaintiffs undisputed
criminal conduct at The Monte posed serious threats to both
law enforcement and the public.
and finally, Plaintiff does not dispute that he actively
resisted arrest. In his response to Defendants' motion
for summary judgment, he states that he asked, "What did
I do wrong, Sir?" in an alleged effort to cooperate.
(Doc. 39 at 2.) Be that as it may, he does not dispute that
he refused to stop when Defendant Kramer commanded him to do
so, resisted arrest, and refused to cooperate when Defendants
attempted to place him in the police car. (See Doc.
39-2 at 4, 6, 7.) And, Plaintiff does not dispute that he
kicked at Defendant Schweigert as he and Defendant Kramer
attempted to detain Plaintiff in the police car. (Doc. 39-3
at 8.) Nor does Plaintiff dispute that Defendant Schweigert
closed the car door only to shield himself from the kicks
Plaintiff aimed at him. (Id. )
Plaintiff fails to present any genuine factual disputes on
the issue of excessive force. In his Findings and
Recommendations, Judge Lynch goes on to analyze whether the
constitutional right violated was clearly established at the
time of the Defendants' allegedly unlawful conduct. (Doc.
42 at 19-22.) However, because the Court finds no clear error
in Judge Lynch's determination that the Defendants did
not violate Plaintiffs constitutional rights, there is no
need to address the second prong of qualified immunity
analysis. See Hopkins, 573 F.3d at 762; see also
Pearson v. Callahan, 555 U.S. 223, 236 (2009).
Plaintiff presents no evidence that defendant Billings Police
Department advances an unconstitutional policy related to
excessive use of force.
the Court agrees with Judge Lynch's finding that no
underlying constitutional violation exists, it follows that
the Court also finds no clear error in his conclusion that
the Plaintiff cannot establish a claim of municipal liability
against Defendant Billings Police Department. (See
Doc. 42 at 22 (citing City of Los Angeles v. Heller,
475 U.S. 796, 799 (1986).) Additionally, the Court agrees
with Judge Lynch's conclusion that, even if an underlying
constitutional violation did exist, Plaintiff fails to
present evidence of an unconstitutional custom, policy, or
practice of excessive use of force, as required under
Monell. See Monell v. Dept. of Soc. Svcs., 436 U.S.
658, 694 (1978).
because the Court sees no clear error in Judge Lynch's
Findings and Recommendations (Doc. 42), IT IS ORDERED that:
Judge Lynch's Findings and Recommendations (Doc. 42) as
to the grant of summary judgment are ADOPTED IN FULL.
Clerk of Court is directed to close this matter and enter
judgment in favor of Defendants pursuant to Rule 58 of ...