Maas v. City of Billings

• Decision Date: 09 June 2021
• Docket Number: CV 19-79-BLG-BMM-KLD
• Parties: DARLENE MAAS, Plaintiff, v. CITY OF BILLINGS, MONTANA; BILLINGS, MONTANA POLICE DEPARTMENT; CHIEF RICH ST. JOHN, CAPTAIN CONRAD, OFFICER KEIGHTLEY, OFFICER LANGE, OFFICER AGUILAR, OFFICER SCHAFF, and JOHN DOES 1-10, Defendants.
• Court: U.S. District Court — District of Montana

DARLENE MAAS, Plaintiff, v. CITY OF BILLINGS, MONTANA; BILLINGS, MONTANA POLICE DEPARTMENT;CHIEF RICH ST. JOHN, CAPTAIN CONRAD, OFFICER KEIGHTLEY, OFFICER LANGE, OFFICER AGUILAR,OFFICER SCHAFF, and JOHN DOES 1-10, Defendants.

CV 19-79-BLG-BMM-KLD

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA BILLINGS DIVISION

June 9, 2021

FINDINGS & RECOMMENDATION and ORDER

Plaintiff Darlene Maas, who is proceeding pro se, brings this action against the City of Billings, the City of Billings Police Department, and six Billings law enforcement officers, alleging federal constitutional claims under 42 U.S.C. § 1983 and several state law theories of recovery. Defendants move for summary judgment on all claims. (Docs. 51 and 53). For the reasons set forth below, Defendants' motions for summary judgment should be granted and this matter should be dismissed.

I. Background

Maas filed this action in state court on June 5, 2019, alleging generally that "[t]he Billings Police Dept. engaged in an extended, baseless, biased course of conduct." (Doc. 3, at 1). Defendants timely removed the case to this Court pursuant to 28 U.S.C. § 1441(a) based on federal question jurisdiction under 28 U.S.C. § 1331 in light of Maas's federal constitutional claims. Defendants then moved for a more definite statement pursuant to Federal Rule of Civil Procedure 12(e) on the ground that the Complaint as initially filed was so vague, ambiguous, and lacking in factual detail that they could not reasonably frame a response. (Doc. 5). The Court granted Defendants' motion, and Maas filed an Amended Complaint on December 17, 2019.¹ (Doc. 5).

The Amended Complaint names the City of Billings and its municipal department, the City of Billings Police Department (hereinafter "City of Billings")²as Defendants. The Amended Complaint also identifies the following City of Billings law enforcement officers as Defendants: Officer Tom Keightley, Officer Brandon Lange, Officer Jordan Aguilar, Officer Shane Schaff, Sergeant Scott Conrad, and Captain Rich St. John (collectively "Individual Defendants")³.

Maas asserts four claims for relief in her Amended Complaint: (1) defamation against the City of Billings, Officer Lange and Officer Aguilar (Count I); (2) violations of the Montana Law Enforcement Code of Ethics against the Individual Defendants (Count II); (3) violations of Article II, sections 3, 4, and 17 of the Montana Constitution against all Defendants (Count III) and; (4) violations of the Bill of Rights and Fourteenth Amendment to the United States Constitution against all Defendants under § 1983 (Count IV). Maas's prayer for relief includes a request for compensatory and punitive damages, along with injunctive relief requiring "extensive training in the areas of bias, discrimination, ethics and communication" for the City of Billings and the Billings Police Department. (Doc.14).

The City of Billings and Individual Defendants move for summary judgment on all claims.

II. Summary Judgment Standard

Under Federal Rule of Civil Procedure 56(a), a party is entitled to summary judgment "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." The party seeking summary judgment bears the initial burden of informing the Court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of any genuine issue of material fact. Celotex Corp. v. Cattrett, 477 U.S. 317, 323 (1986). A movant may satisfy this burden where the documentary evidence produced by the parties permits only one conclusion. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 251 (1986).

When the non-moving party has the burden of proof on a dispositive issue at trial, the moving party need not produce evidence which negates the opponent's claim. See e.g., Lujan v. National Wildlife Fed'n, 497 U.S. 871, 885, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990). Rather, the moving party may satisfy its initialburden on summary judgment by showing that there is an absence of evidence in the record to support the nonmoving party's claims. Celotox, 47 U.S. at 325.

Once the moving party has satisfied its initial burden with a properly supported motion, summary judgment is appropriate unless the non-moving party designates by affidavits, depositions, answers to interrogatories or admissions on file "specific facts showing that there is a genuine issue for trial." Celotex, 477 U.S. 317, 324 (1986). The party opposing a motion for summary judgment "may not rest upon the mere allegations or denials" of the pleadings. Anderson, 477 U.S. at 248.

In considering a motion for summary judgment, the court "may not make credibility determinations or weigh the evidence." Reeves v. Sanderson Plumbing Prods., 530 U.S. 130, 150 (2000); Anderson, 477 U.S. at 249-50. The Court must view the evidence in the light most favorable to the non-moving party and draw all justifiable inferences in the non-moving party's favor. Anderson, 477 U.S. at 255; Betz v. Trainer Wortham & Co., Inc., 504 F.3d 1017, 1020-21 (9^th Cir. 2007).

In general, "pro se litigants in the ordinary civil case should not be treated more favorably than parties with attorneys of record." Jacobsen v. Filler, 790 F.2d 1362, 1364 (9^th Cir. 1986). This means that "[p]ro se litigants must follow the same rules of procedure that govern other litigants." King v. Atiyeh, 814 F.2d 565, 576(9^th Cir. 1987). Nevertheless, in the summary judgment context, courts are to construe pro se documents liberally and give pro se litigants the benefit of any doubt. Erickson v. Pardus 551 U.S. 89, 94 (2007); Frost v. Symington, 197 F.3d 348, 352 (9^th Cir. 1999).

III. Discussion

A. Authentication of Evidence

A party moving for or opposing summary judgment must support an assertion of fact by "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations [...], admissions, interrogatory answers, or other materials." Fed. R. Civ. P. 56(c)(1)(A). See also Local Rule 56.1(a)(2) and (b)(2). While the material presented in summary judgment proceedings "does not yet need to be in a form that would be admissible at trial, the proponent must set out facts that it will be able to prove through admissible evidence[]" later at trial. Norse v. City of Santa Cruz, 629 F.3d 966, 973 (9^th Cir. 2010). See also Celotex., 477 U.S. at 324.

To be admissible, any specific item of documentary evidence must be authenticated by other evidence sufficient "to support a finding that the matter in question is what its proponent claims." Orr v. Bank of America, NT & SA, 285 F.3d764, 773 (9^th Cir. 2002). Evidentiary materials or exhibits may be "authenticated by affidavits or declarations of persons with personal knowledge through whom they could be introduced at trial." Zoslaw v. MCA Distributing Corp., 693 F.2d 870, 883 (9^th Cir. 1982). See also Orr, 285 F.3d at 774 (adding that authentication may occur by any manner permitted by Fed. R. Evid. 901(b) or 902). Absent proper authentication, however, a court may not consider the exhibit in ruling on a summary judgment motion. Orr, 285 F.3d at 773 (citing cases).

Where a party fails to address another party's factual assertion the court may consider the fact "undisputed for purposes of the motion[, ... and] grant summary judgment if the motion and supporting material — including the facts considered undisputed — show that the movant is entitled to it[.]" Fed. R. Civ. P. 56(e)(2) and (3).

In response to the pending motions for summary judgment, Maas has submitted a single document titled "Statement of Undisputed Facts" which includes her statement of undisputed facts, her response brief, and a 68-page exhibit. (Docs. 60 & 60-1). The 68-page exhibit is titled "Exhibit C" and is divided into six categories: (1) "Billings Police Department + Chief St. John"; (2) "Officers Lange + Aguilar"; (3) "Officers Schaff + Keightly + Capt. Conrad"; (4) "City of Billings"; (5) "Payne"; and (6) "POST". (Doc. 60-1). Maas's statement ofundisputed facts primarily consists of conclusory and argumentative statements, and refers generally to Exhibit C for support. (Doc. 60 at 1-8). Exhibit C includes several letters, photographs, handwritten notes, record requests, City of Billings Police Department dispatch narratives, City of Billings Code Enforcement Division violation notices, and a Public Safety Officer Complaint Form. (Doc. 60-1). These documents are not authenticated by an affidavit or declaration, and with a few possible exceptions, the documents are not properly authenticated under Federal Rule of Evidence 901 or self-authenticated under Rule 902. To the extent these documents are not properly authenticated, they are not properly before the Court on summary judgment.

In addition, Defendants have provided copies of Maas's discovery responses, which demonstrate that she did not produce the documents contained in Exhibit C during discovery. (See Docs. 55; 55-2). Because Maas did not produce these materials during discovery and there is no indication that her failure to do so was substantially justified, she cannot rely on them to defeat summary judgment. See Morin v. Nielsen, 2020 WL 6701423, +*3 (D. Mont. Nov. 13, 2020); Fed. R. Civ. P. 37(c)(1) ("If a party fails to provide information...as required by Rule 26(a) or (e), the party is not allowed to use that information...to supply evidence on amotion, at a hearing, or at trial, unless the failure was substantially justified or is harmless.")

Nevertheless, in light of Maas's pro se status, the Court will consider Exhibit C and its contents when discussing Defendants' motions for summary judgment. See e.g. Paulson v. Carter, 2006 WL 381951, at *1 (D. Or. Feb. 16, 2006) (declining to strike evidence that was not...