Peschel v. City Of Missoula, No. CV 08-79-M-JCL.

• Decision Date: 15 October 2009
• Docket Number: No. CV 08-79-M-JCL.
• Citation: 686 F.Supp.2d 1092
• Parties: Walter PESCHEL, M.D., Plaintiff, v. CITY OF MISSOULA, acting through the Missoula Police Department, Missoula City Police Chief Rusty Wickman, Assistant Chief Mark Muir, Lt. Gregg Willoughby, Sgt. Daniel Jason Huntsinger, Officer Craig Serba, and Officer Ryan Prather, Defendants.
• Court: U.S. District Court — District of Montana

686 F.Supp.2d 1092

Walter PESCHEL, M.D., Plaintiff,

v.CITY OF MISSOULA, acting through the Missoula Police Department, Missoula City Police Chief Rusty Wickman, Assistant Chief Mark Muir, Lt. Gregg Willoughby, Sgt. Daniel Jason Huntsinger, Officer Craig Serba, and Officer Ryan Prather, Defendants.

No. CV 08-79-M-JCL.

United States District Court,

D. Montana,

Missoula Division.

Decided: Oct. 15, 2009.

COPYRIGHT MATERIAL OMITTED

Cynthia K. Smith, Lance P. Jasper, Jasper Smith Olson, David R. Paoli, Heather M. Latino, John A. Kutzman, Paoli, Latino & Kutzman, P.C., Missoula, MT, for Plaintiff.

Jeffrey M. Roth, Natasha Prinzing Jones, Thomas J. Leonard, William L Crowley, Boone Karlberg, P.C., Missoula MT, Brendon J. Rohan, Poore Roth &amp Robinson, Butte, MT, for Defendants.

ORDER

JEREMIAH C. LYNCH, United States Magistrate Judge.

This matter is before the Court upon Defendants Rusty Wickman, Mark Muir and Gregg Willoughby's Fed.R.Civ.P. 56 motion seeking summary judgment upon the claims advanced against them under 42 U.S.C. § 1983. For the reasons discussed below, the Court deems it appropriate to grant the motion.

I. INTRODUCTION

This action has its genesis in the August 18, 2007 arrest of Plaintiff Walter Peschel by officers of the City of Missoula, Montana Police Department. Peschel was charged with, and prosecuted for, the misdemeanor offense of obstructing a peace officer in violation of Mont.Code Ann § 45-7-302. Peschel was ultimately acquitted of the charge by a jury.

Peschel, and his wife Peggy, commenced this action against the individual officers who participated in Peschel's arrest, their superiors, and the City of Missoula. The Peschels advance claims for relief under the Federal Civil Rights Act of 1871, codified at 42 U.S.C. § 1983, as well as Montana's Constitution and common law. All of the Peschels' claims for relief are bottomed on three basic assertions: (1) the officers lacked probable cause to arrest Peschel thus rendering his arrest unlawful; (2) the officers used excessive force to effect the arrest; and (3) the officers deprived Peschel of necessary medical treatment after the arrest. To put the Peschels' claims in perspective, review of the circumstances surrounding the arrest is in order.

On August 18, 2007, Walter Peschel was mowing the lawn at an apartment complex he owns in Missoula when tenant, Anna Martello, asked him for assistance with another tenant, Julie Huguet. Peschel, a medical doctor, found Huguet in her car nearly unconscious from an apparent prescription medication overdose. Huguet had a gun and was threatening to commit suicide. Peschel engaged Huguet to dissuade her from taking her life-while directing Martello to call 911.

Numerous City of Missoula police officers responded to the scene. The officers immediately ordered Peschel to get away from Huguet's car and out of the line of fire. Instead of complying with the officers' directive, Peschel asked the officers to assist him with Huguet. With their guns trained in the direction of Peschel and Huguet, the officers repeated their command that Peschel move away from Huguet's car. Again, Peschel would not move away from Huguet's car because Huguet had apparently told him she would shoot herself if he left.

The tension between Peschel and the officers escalated as Peschel, agitated by the manner in which the police responded to the situation, cursed at the officers. The standoff continued for approximately 46 minutes the officers repeatedly ordering Peschel to move away from the car and Peschel refusing.

Eventually, Huguet lost consciousness and sloughed to the seat of the car. At that point, Peschel moved away from the car to the top of a nearby grassy knoll. From below, Officer Duncan Crawford ordered Peschel to come down the knoll. When Peschel did not immediately comply with Crawford's order, the commanding officer at the scene, Jason Huntsinger, issued the order to arrest Peschel. Officer Craig Serba responded by knocking Peschel down from behind causing him to fall down the grassy slope. Peschel states that during his arrest Officers Serba and Ryan Prather were on top of him, and that he felt someone knee him in the back. Peschel also asserts that either Serba or Crawford used a taser on him the officers claim no taser was used.

Peschel claims he suffered various injuries during the course of the arrest. He complains that although emergency medical responders were at the scene, the officers failed to offer him necessary medical treatment notwithstanding the fact that Officer Prather noticed that Peschel was panting and sweating after the arrest. Instead, according to Peschel, the officers placed him face down in a police car leaving him there with windows rolled up and no air conditioning on a very hot day.

The events which occurred at the scene including the conduct of Officers Serba and Prather in gaining physical custody of Peschel were recorded by a video camera located in one of the police cars. The video was eventually uploaded to the hard drive of a Missoula Police Department computer and viewed by several police officers in the days following the arrest. At some point, however, the video was "lost", as were numerous other video recordings of unrelated police encounters. The City of Missoula unsuccessfully attempted to retrieve the video through a forensic computer analysis.

Defendants Wickman, Muir and Willoughby ("Supervisory Officers") were, at the time of Peschel's arrest, the Chief of Police, Assistant Chief of Police and a Lieutenant, respectively. Muir and Willoughby were not on the scene. Wickman had been communicating with Huntsinger the commanding officer on the scene by cell phone as the events transpired. Wickman arrived at the scene after Peschel was in custody.

Peschels seek to impose supervisory liability in other words personal liability under § 1983 upon the Supervisory Officers for allegedly: (1) failing to properly train and supervise their subordinate onthe-scene officers; and (2) ratifying the subordinate officers' conduct. Additionally, the Peschels seek to impose supervisory liability upon Muir for allegedly failing to adequately investigate the conduct of the subordinate officers.

In a separate vein, the Peschels seek to impose personal liability upon the Supervisory Officers under § 1983 for allegedly "conspiring to conceal or cover-up officer misconduct". As best as can be ascertained from the Peschels' ill-defined argument, it appears they contend the Supervisory Officers failed to preserve, or undertake to timely retrieve the video in order to inhibit Peschel's criminal defense and the prosecution of this civil action.

The Supervisory Officers claim summary judgment is appropriate because they are entitled to qualified immunity with respect to all claims advanced against them by the Peschels under authority of 42 U.S.C. § 1983.¹ For the reasons discussed below, the Court agrees.

II. DISCUSSION

A. Summary Judgment Standard

Federal Rule of Civil Procedure 56(c) entitles a party to summary judgment "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." A party moving for summary judgment who does not have the burden of persuasion at trial, must produce evidence which either (1) negates an essential element of the non-moving party's claim, or (2) shows that the non-moving party does not have enough evidence of an essential element to ultimately carry his burden at trial. Mssaw Fire & Marine Ins. Co. Ltd. v. Fritz Companies, Inc., 210 F.3d 1099, 1102 (9th Cir.2000).

Once the moving party has satisfied its burden, the non-moving party must go be- yond the pleadings and designate by affidavits, depositions, answers to interrogatories, or admissions on file, "specific facts showing that there is a genuine issue for trial." Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A party opposing summary judgment must identify evidence establishing that a dispute as to a particular material fact is genuine. Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The opponent "must do more than simply show that there is some metaphysical doubt as to the material facts." Id. The party opposing the motion "may not rest upon the mere allegations or denials of his pleading, but... must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

An issue of fact is "genuine" if there is sufficient evidence for a reasonable fact finder to find for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is "material" if it may affect the outcome of the case. Id. at 248, 106 S.Ct. 2505.

"In considering a motion for summary judgment, the court may not weigh the evidence or make credibility determinations, and is required to draw all inferences in a light most favorable to the nonmoving party." Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir.1997), abrogated on other grounds as noted in Shakur v. Schriro, 514 F.3d 878, 884-85 (9th Cir. 2008).

B. Supervisory Liability Under 42 U.S.C. § 1983 Generally

Supervisory officials "may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior." Ashcroft v. Iqbal, U.S. , 129 S.Ct. 1937, 1948, 173 L.Ed.2d 868 (2009) (italics in original).²Rather, a plaintiff must establish that each individual "Government-official defendant through the official's own individual actions, has violated the Constitution." Id. In other words, supervisory officials "cannot be held liable unless they themselves" violated a constitutional right. Id. 129 S.Ct. at 1952.

Supervisory liability under § 1983 the personal...