Dundon v. Kirchmeier, Civil No. 1:16-cv-406

• Court: United States District Courts. 8th Circuit. United States District Court of North Dakota
• Writing for the Court: Daniel M. Traynor, District Judge
• Citation: 577 F.Supp.3d 1007
• Parties: Vanessa DUNDON, Crystal Wilson, David Demo, Guy Dullknife, III, Mariah Marie Bruce, and Frank Finan, on behalf of themselves and all similarly-situated persons, Plaintiffs, v. Kyle KIRCHMEIER, Morton County, City of Mandan, Jason Ziegler, Stutsman County, Chad Kaiser, and Does 1-100, Defendants.
• Docket Number: Civil No. 1:16-cv-406
• Decision Date: 29 December 2021

577 F.Supp.3d 1007

Vanessa DUNDON, Crystal Wilson, David Demo, Guy Dullknife, III, Mariah Marie Bruce, and Frank Finan, on behalf of themselves and all similarly-situated persons, Plaintiffs,
v.
Kyle KIRCHMEIER, Morton County, City of Mandan, Jason Ziegler, Stutsman County, Chad Kaiser, and Does 1-100, Defendants.

Civil No. 1:16-cv-406

United States District Court, D. North Dakota.

Signed December 29, 2021

577 F.Supp.3d 1015

Rachel Lederman, Alexsis C. Beach & Rachel Lederman, Attorneys, San Francisco, CA, Janine L. Hoft, People's Law Office, Melinda Power, West Town Law Office, Chicago, IL, Mara Verheyden-Hilliard, Partnership for Civil Justice Fund, Washington, DC, Natali Segovia, Water Protector Legal Collective, Albuquerque, NM, for Plaintiffs Vanessa Dundon, Crystal Wilson, David Demo, Guy Dullknife, III, Mariah Marie Bruce, Frank Finan.

Bradley Neuman Wiederholt, Grant Bakke, Randall J. Bakke, Shawn A. Grinolds, Bakke Grinolds Wiederholt, Bismarck, ND, for Defendants Kyle Kirchmeier, Morton County, City of Mandan, Jason Ziegler, Stutsman County, Chad Kaiser.

ORDER GRANTING MOTION FOR SUMMARY JUDGMENT

Daniel M. Traynor, District Judge

¶1] THIS MATTER comes before the Court on the Converted Motion for Summary Judgment filed by the Defendants¹ on April 6, 2018.² Doc. No. 135. The Plaintiffs ³

[577 F.Supp.3d 1016

filed a Response in Opposition on April 27, 2018. Doc. No. 137. In the alternative, the Plaintiffs filed a Motion to Conduct Discovery pursuant to Federal Rule of Civil Procedure 56(d). Doc. No. 139. The Defendants filed a Reply in Support of the Motion on May 18, 2018. Doc. No. 143. The Defendants filed a Supplemental Brief in Support of the Motion for Summary Judgment on June 25, 2021. Doc. No. 238. The Plaintiffs filed a Supplemental Brief in Opposition on August 11, 2021. Doc. No. 275. The Defendants filed a Supplemental Reply in Support of the Motion on August 30, 2021. Doc. No. 283. For the reasons explained below, the Defendants’ Motion for Summary Judgment is GRANTED .

I. PROCEDURAL HISTORY

¶2] On November 28, 2016, the Plaintiffs filed a Complaint asserting claims against all Defendants for (1) Retaliation under the First, Fourth, and Fourteenth Amendments to the United States Constitution; 42 U.S.C. § 1983 ; (2) Unreasonable Use of Force under the Fourth and Fourteenth Amendments to the United States Constitution; 42 U.S.C. § 1983 ; (3) [Unconstitutional] Policies, Customs, or Practices under the First, Fourth, and Fourteenth Amendments to the United States Constitution; 42 U.S.C. § 1983 ; (4) [Violations Resulting from] Training, Supervision, or Discipline under the First, Fourth, and Fourteenth Amendments to the United States Constitution; 42 U.S.C. § 1983 ; (5) Unequal Protection of the Law under the First, Fourth, and Fourteenth Amendments to the United States Constitution; and (6) Declaratory Relief under 28 U.S.C. § 2201. Doc. No. 1.

[¶3] That same day, the Plaintiffs also filed a Motion for Temporary Restraining Order and Preliminary Injunction, seeking:

an emergency order enjoining Defendants from curtailing their First and Fourth Amendment rights by using highly dangerous weaponry, including Specialty Impact Munitions (SIM, also known as Kinetic Impact Projectiles or KIP), explosive "blast" grenades, other chemical agent devices, and a water cannon and water hoses in freezing temperatures, to quell protests and prayer ceremonies associated with opposition to the Dakota Access Pipeline (DAPL).

Doc. No. 14, p. 1; see also Doc. No. 2. The Plaintiffs submitted twenty (20) exhibits in support of this Motion for Temporary Restraining Order. Doc. Nos. 14-1 – 14-20. These included a Washington Post article titled, "The Latest: Sheriff defends spraying protestors with water", a press release from the Morton County Sheriff's Department titled "Protestors erect unlawful structures; should seek appropriate winter shelter", seventeen (17) declarations from individuals, including the named-Plaintiffs, and a Report by the Physicians for Human Rights titled "Lethal in Disguise: The health consequences of crowd-control weapons." Id.

[¶4] On December 1, 2016, the Court denied the Plaintiffs’ Motion for Temporary Restraining Order on the basis the Plaintiffs’ counsel failed to comply with notice requirements under

[577 F.Supp.3d 1017

Federal Rule of Civil Procedure 65(b)(1) in that the Plaintiffs failed (1) to certify in writing they made efforts to give the Defendants notice, and (2) the Plaintiffs failed to provide reasons justifying why notice to the Defendants was not warranted. Doc. No. 16, p. 2. The Court noted because the matter "is clearly a fact-specific case ... notice to the adverse parties and an opportunity for them to respond and be heard is necessary." Doc. No. 16, p. 2. The Court ordered the Defendants to file a Response to the Motion for Preliminary Injunction within fourteen (14) days after the Plaintiffs served them with the Complaint, Motion for Preliminary Injunction, its brief, and supporting documents. Doc. No. 16, p. 2.

¶5] The same day, the Plaintiffs filed a Motion to Reconsider the Order Denying the Temporary Restraining Order, asserting they complied with the notice requirements of Rule 65(b)(1). Doc. No. 17. They also noted they did not seek the issuance of an ex parte order. Id. On December 8, 2016, the Court denied the Plaintiffs’ Motion for Reconsideration, noting "the Court finds that notice to the adverse parties and an opportunity to respond and be heard is necessary." Doc. No. 31, p. 2 (emphasis in original).

[¶6] On December 22, 2016, the Defendants submitted their Response to the Motion for Preliminary Injunction. Doc. No. 42. In support of the Response in Opposition, the Defendants attached numerous exhibits, including a map of the area in question, news releases, an emergency declaration by the Morton County Commissioners, criminal complaints, correspondence between government officials, releases from the United States Army Corps of Engineers, an Executive Order by the President, and affidavits of law enforcement involved in the matter. Doc. Nos. 43-60, 61-1 – 61-11. The Plaintiffs filed their Reply Brief on January 23, 2017, attaching an additional twenty-nine (29) declarations of individuals, video clips of the November 20, 2016, incident, and information pertaining to crowd control policies. Doc. Nos. 81, 86, 91, 94. In the interim, on February 6, 2017, the Defendants filed a Motion to Dismiss the Complaint. Doc. No. 97.

[¶7] On February 7, 2017, the Court denied the Plaintiffs’ Motion for Preliminary Injunction. Doc. No. 99. The next day, the Plaintiffs filed an interlocutory appeal of the Order Denying the Motion for Preliminary Injunction. Doc. No. 102. On February 17, 2017, the Plaintiffs filed a Motion to Stay Proceedings Pending Interlocutory Appeal, which included staying the Defendants’ Motion to Dismiss and their pending Response in Opposition. Doc. No. 106. On February 22, 2017, the Court granted the Motion to Stay Proceedings. Doc. No. 110. On November 14, 2017, the Eighth Circuit Court of Appeals affirmed the Court's denial of the Preliminary Injunction. Doc. Nos. 111-112.

[¶8] The stay was lifted on January 10, 2018. Doc. No. 113. The Court ordered the Plaintiffs to respond to the Defendants’ Motion to Dismiss the Complaint by February 28, 2018. Doc. No. 113. However, the Plaintiffs requested the Court first consider their Motion for Leave to Amend the Complaint filed on February 1, 2018, as it would render the Defendants’ Motion to Dismiss moot if granted. The Court granted the Plaintiffs’ Motion to Amend the Complaint on February 27, 2018, finding as moot the Defendants’ Motion to Dismiss. Doc. No. 128. The Plaintiffs filed a First Amended Complaint the same day. See Doc. No. 129.

[¶9] The Amended Complaint alleges claims against all Defendants for: (1) [Violations of] the First Amendment ( 42 U.S.C. 1983 ); (2) Unreasonable Use of Force (Fourth and Fourteenth Amendments to the U.S. Constitution; 42 U.S.C. § 1983 ); (3) Unequal Protection of Law; (4) Declaratory

[577 F.Supp.3d 1018

Relief ( 28 U.S.C. § 2201 ); (5) Assault and Battery; and (6) Negligence. Doc. No. 129, ¶¶151-177. The Plaintiffs also assert additional claims of (7) [Unconstitutional] Policies, Customs, or Practices under the First, Fourth, and Fourteenth Amendments to the United States Constitution; 42 U.S.C. § 1983, and (8) [Violations Resulting from] Training, Supervision, or Discipline under the First, Fourth, and Fourteenth Amendments to the United States Constitution; 42 U.S.C. § 1983. Doc. No. 129, ¶¶141-150.

¶10] On April 6, 2018, the Defendants filed the initial Motion to Dismiss, which has been converted now to a Motion for Summary Judgment. Doc. No. 135. On September 17, 2020, this Court converted the Defendants’ Motion to Dismiss into a Motion for Summary Judgment, deferring a ruling on the Motion to allow for limited discovery. Doc. No. 151. On September 17, 2020, the Court issued a limited discovery order outlining what discovery was permissible for each side. Doc. No. 154.

[¶11] On October 7, 2020, the Defendants filed a Notice of Interlocutory Appeal to the Eighth Circuit Court of Appeals, arguing this Court erred by not ruling on the issue of whether the Defendants were...