Roberts v. Bell

• Decision Date: 04 January 2018
• Docket Number: CV 17–65–M–DLC–JCL
• Citation: 281 F.Supp.3d 1074
• Parties: Jennifer ROBERTS, individually and on behalf of her minor children, T.F., E.F., and A.F., Plaintiff, v. Donald BELL; Lake County; and Does 1–10, Defendants.
• Court: U.S. District Court — District of Montana

281 F.Supp.3d 1074

Jennifer ROBERTS, individually and on behalf of her minor children, T.F., E.F., and A.F., Plaintiff,

v.Donald BELL; Lake County; and Does 1–10, Defendants.

CV 17–65–M–DLC–JCL

United States District Court, D. Montana, Missoula Division.

Signed January 4, 2018

Timothy M. Bechtold, Bechtold Law Firm, Missoula, MT, for Plaintiff.

Mitchell A. Young, Maco Legal Services, Helena, MT, for Defendants.

ORDER

Dana L. Christensen, Chief Judge United States Magistrate Judge Jeremiah C. Lynch entered Findings and Recommendations in this case on July 25, 2017, recommending Defendants' Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6) (Doc. 4) be granted and the case be dismissed. (Doc. 10 at 1086–87.) Plaintiff Jennifer Roberts ("Roberts") timely filed an objection and is therefore entitled to de novo review of the specified findings and recommendations to which she objects. 28 U.S.C. § 636(b)(1). The portions of the findings and recommendations not specifically objected to will be reviewed for clear error. 28 U.S.C. § 636(b)(1)(A) ; McDonnell Douglas Corp. v. Commodore Bus. Mach., Inc. , 656 F.2d 1309, 1313 (9th Cir. 1981). Clear error 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 omitted).

For the reasons stated below, the Court declines to adopt Judge Lynch's Findings and Recommendations.

BACKGROUND

On February 27, 2017, Roberts' mother, Cheryl Ann Brown ("Brown"), died in a tragic automobile accident as a result of a collision between the vehicle she was driving and a school bus on a highway in Lake County, Montana. Lake County Sheriff Donald Bell ("Sheriff Bell") responded to the scene of the accident and took several photographs, which he then posted on the Lake County Sheriff's Office Facebook page. Local media outlets reposted the photographs on their media sites, and the images were picked up by various entities and reposted around the internet.

As Roberts describes them, the photographs depict the body of her deceased mother. Roberts alleges she and her minor child, A.F., suffered severe emotional distress after seeing the images on Facebook. Roberts further claims that internet users have forwarded the photographs to her and her minor children, causing them repeated severe emotional distress.

Roberts commenced this action in May 2017, alleging claims under 42 U.S.C. § 1983 against both Lake County and Sheriff Bell for allegedly depriving her of her substantive due process rights under the Fourteenth Amendment. She also alleges state law claims against Defendants for negligence and violations of her rights under the Montana Constitution. Defendants filed a motion to dismiss under Rule 12(b)(6) for failure to state a claim upon which relief can be granted.

DISCUSSION

I. Roberts' § 1983 claim against Sheriff Bell

Roberts alleges that Sheriff Bell is liable in his individual capacity pursuant to 42 U.S.C. § 1983 because he violated her substantive due process rights under the Fourteenth Amendment by posting photographs of her deceased mother's body on the internet. (Doc. 1 at 5–7.)

In order to prevail on her individual capacity claim against Sheriff Bell under § 1983, Roberts must show "(1) that the conduct complained of was committed by a person acting under color of state law; and (2) that the conduct deprived the plaintiff of a constitutional right." Balistreri v. Pacifica Police Dep't , 901 F.2d 696, 699 (9th Cir. 1990). When qualified immunity is at issue, a plaintiff must also show that the constitutional right was clearly established at the time of the alleged violation.

See, e.g., LSO, Ltd. v. Stroh , 205 F.3d 1146, 1157 (9th Cir. 2000).

Defendants do not dispute that Bell was acting under color of state law when the conduct complained of took place. And, for purposes of their Motion, Defendants assume that Roberts has a well established constitutionally protected right in images of her deceased parent. Defendants make this assumption based upon Marsh v. County of San Diego , 680 F.3d 1148, 1153–55 (9th Cir. 2012). In Marsh , the Ninth Circuit held that a parent's right of privacy in the autopsy images of their child is protected by the substantive due process guarantees of the Fourteenth Amendment. Id.

While substantive due process protects individuals from arbitrary deprivations of their constitutional rights through the executive abuse of power, only "the most egregious official conduct can be said to be arbitrary in a constitutional sense." Brittain v. Hansen , 451 F.3d 982, 991 (9th Cir. 2006) (quoting County of Sacramento v. Lewis , 523 U.S. 833, 849, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998) ). In order to violate substantive due process, the alleged official conduct must " ‘shock the conscience’ and ‘offend the community's sense of fair play and decency.’ " Marsh , 680 F.3d at 1154 (quoting Rochin v. California , 342 U.S. 165, 172–73, 72 S.Ct. 205, 96 L.Ed. 183 (1952) ). Whether conduct shocks the conscience is an objective test to be applied to the circumstances of the particular case. See Lewis , 523 U.S. at 857, 118 S.Ct. 1708 (Kennedy, J., concurring).

Judge Lynch determined that the publicized photographs, particularly one which Roberts' claims depicts her mother's body "partially covered by a blue blanket or tarp, with her bloody arm dripping blood onto the floor of the vehicle and the ground," are the focal point of this litigation. (Doc. 10 at 1085–86 (quoting Doc. 8 at 6).) Although the parties describe these photographs differently, they do not dispute their authenticity. (Id. at 1079.) Judge Lynch concluded that the question of whether or not the publication of the photographs violated Roberts' substantive due process rights turned on whether or not Bell's conduct "shocks the conscience." (Id. at 1078–79.) Judge Lynch then interpreted County Defendants' Motion to Dismiss as, in effect, a request for the Court "to review the photographs and determine as a matter of law whether they shock the conscience." (Id. at 1079.) Judge Lynch relied on Cotta v. County of Kings , 79 F.Supp.3d 1148, 1178–79 (E.D. Cal. 2015), for the proposition that "whether conduct shocks the conscience can be an issue of law that the Court may decide based on undisputed facts." Judge Lynch then considered the photographs to decide whether publicizing them shocked the conscience as a matter of law. (Doc. 10 at 1085.) Judge Lynch focused on the photograph described above and concluded that it did not "primarily depict the death image" of Brown and was "not so graphic" as to objectively shock the conscience. (Id. at 1079–80.) Since Bell's alleged conduct did not objectively shock the conscience, Judge Lynch found as a matter of law that the conduct at issue did "not rise to the level of a substantive due process violation." (Id. )

Roberts' objected to Judge Lynch's finding that the picture alleged to show her mother's arm does not objectively shock the conscience as a matter of law. (Doc. 11 at 2.) Noting that the Court is to take all allegations in her complaint as true and construe all inferences in her favor when deciding a motion to dismiss, Roberts offers a declaration detailing how the picture shocked her conscience, the conscience of her children, and "offended the community's sense of decency." (Id. at 4.) Roberts points out that while the question of whether conduct shocks the conscience may be an issue of law for the Court to decide, the "corollary is also true" and the question may be an issue of fact left for the jury to decide. (Id. ) At bottom, Roberts' objection questions whether Judge Lynch's determination was indeed "objective" and posits that the issue is better left for the jury to decide in light of Roberts' proffered evidence which tends to show that the publication of the picture shocks the conscience and offends the community's sense of decency.

Defendants counter that Roberts' objection is "simply a rehash of arguments raised in the briefing" and an attempt at a "re-do" through the submission of additional evidence. (Doc. 14 at 6.) Defendants contend that Roberts' evidence is "not proper evidence to submit for the Court's consideration at this juncture." (Id. ) Defendants also point out that Roberts failed to include facts or law which contradict Judge Lynch's Findings and Recommendations. (Id. at 7.)

As an initial matter, the Court finds that the submission of Roberts' declaration and her attorney's declaration is acceptable at this juncture. 28 U.S.C. § 636(b)(1)(C) provides the Court with the authority to "receive further evidence" when deciding whether to adopt, modify, or reject a magistrate judge's findings and recommendations. Here, Roberts provided a declaration in which she explains how the publication of the photograph which shows her mother's body covered by a tarp with her bloodied arm hanging out shocked the conscience of herself and her minor children. (Doc. 11–1 at 2–3.) She explains that her children "continue to have nightmare about the pictures" and "have needed counseling to deal with the horror and nightmares brought on by the online picture of my mother's body." (Id. at 3.) Roberts' attorney also provided a news article which appears on the Daily Inter Lake's website showing the disputed picture as well as comments from viewers. (Doc. 12–1 at 2–3.) The viewers' comments question the discretion of the Daily Inter Lake in posting the photograph, draw attention to Brown's body being displayed in the photograph, call for removal of the photograph to spare loved ones the disturbing experience of seeing Brown as depicted, and offer condolences to Brown's family and friends. (Id. at 3.)

The Court acknowledges that a judge has discretion pursuant to both United States Supreme Court and Ninth Circuit precedent to determine the question of whether conduct shocks the conscience as a matter of law, which is what Judge Lynch did in this case. However, legal...