Scott v. Henrich

• Decision Date: 17 November 1988
• Docket Number: No. CV-87-003-BU-PGH.,CV-87-003-BU-PGH.
• Citation: 700 F. Supp. 498
• Parties: Doris A. SCOTT, individually and as Personal Representative of the Estate of John William Scott, deceased, Plaintiff, v. James L. HENRICH, David J. Flamand, Butte-Silver Bow Law Enforcement Agency, City of Butte, and County of Silver Bow, Defendants.
• Court: U.S. District Court — District of Montana

700 F. Supp. 498

Doris A. SCOTT, individually and as Personal Representative of the Estate of John William Scott, deceased, Plaintiff, v. James L. HENRICH, David J. Flamand, Butte-Silver Bow Law Enforcement Agency, City of Butte, and County of Silver Bow, Defendants.

No. CV-87-003-BU-PGH.

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

November 17, 1988.

COPYRIGHT MATERIAL OMITTED

Curtis G. Thompson, Jardine, Stephenson, Blewett & Weaver, Great Falls, Mont., for plaintiff.

C. Richard Anderson, Brendon J. Rohan, Poore, Roth & Robinson, Butte, Mont., for Henrich, Flamand and Law Enforcement Agency.

Gregory C. Black, Corette, Smith, Pohlman & Allen, Butte, Mont., for Butte-Silver Bow County.

MEMORANDUM AND ORDER

HATFIELD, District Judge.

The plaintiff brings this civil rights action pursuant to 42 U.S.C. § 1983. The plaintiff also advances numerous pendent claims for relief predicated upon the law of the State of Montana. The matter is presently before the court on motion of all named defendants requesting the court to enter summary judgment in their respective favors upon those claims for relief prosecuted under 42 U.S.C. § 1983. The defendants further request the court to refrain from exercising its pendent jurisdiction over those claims advanced by the plaintiff which are predicated upon Montana law.

Filed contemporaneously with, and in obvious response to, the defendants' motions for summary judgment was a motion by the plaintiff seeking leave of court to amend the complaint. Because disposition of the defendants' motion for summary judgment would be directly affected by disposition of the plaintiff's motion to amend, the court appropriately addresses the motions simultaneously.

I.

This action has its genesis in the shooting death of John Scott by a law enforcement officer in the employ of Butte-Silver Bow County, Montana (hereinafter the "County").¹ According to the allegations advanced in the complaint by Doris A. Scott, the widow of John Scott, police officers James L. Henrich and David J. Flamand responded to a call on August 4, 1984, regarding the discharge of a firearm in the location of the intersection of Park and Clark Streets in Butte, Montana. Upon their arrival at the location, the officers were advised, by a local resident, that an individual had fired a rifle in the area and had entered a nearby apartment. While the precise events which transpired immediately following the officers' arrival may prove to be the subject of a factual dispute, for purposes of providing background, it suffices to summarize that officers Henrich and Flamand, with weapons drawn, went to the door of the apartment which they were apprised the perpetrator had entered, and that John Scott responded to the officers' announcement by opening the door of the apartment. As events transpired, shots were fired by Officer Flamand which resulted in the death of John Scott. The officers have stated John Scott was in possession of a shotgun at the time he opened the door, and the officers fired their weapons when Scott pointed the shotgun at Sergeant Henrich.

Doris Scott, individually and as personal representative of the estate of her deceased husband, instituted the present action under 42 U.S.C. § 1983 against officers Henrich and Flamand, the Butte-Silver Bow law enforcement agency and Butte-Silver Bow County, Montana, claiming that the defendants' conduct violated the rights secured John Scott by the fourth and fourteenth amendments to the United States Constitution.² Scott also advances a myriad of claims predicated upon the law of the State of Montana.

II.

In her original complaint Scott alleges that the conduct of officers Henrich and Flamand negligently caused the suffering and ultimate death of John Scott. With respect to the County, Scott alleges those entities were negligent in their selection, training and supervision of Henrich and Flamand, as well as in the formulation and enforcement of policies and procedures governing the conduct of the officers within their employ, and that such negligence was the cause of the constitutional deprivations suffered by John Scott. Scott seeks to amend her complaint, as originally filed, to allege the conduct of the defendants which led to the purported deprivation of John Scott's constitutional rights was grossly negligent in nature, amounting to a deliberate indifference by the defendants. Furthermore, Scott seeks to further allege that the defendant entities actually endorsed the alleged grossly negligent conduct of officers Henrich and Flamand.

Characterizing Scott's proposed amendment to the original complaint as an attempt to artfully plead around the defendants' motions for summary judgment, the defendants object to Scott's request for leave as untimely, and imply that amendment to the pleadings should not be allowed during the pendency of a motion for summary judgment. The defendants submit the original complaint fails to state a civil rights claim cognizable under 42 U.S.C. § 1983, since the complaint only sets forth allegations of simple negligence.

While some courts have refused leave to amend the pleadings sought after the opposing party has moved for summary judgment, see, e.g., Freeman v. Continental Gin Company, 381 F.2d 459 (5th Cir. 1967), rehearing denied, 384 F.2d 365, the fact that a party seeks to amend his pleading after a motion for summary judgment has been filed by the opposition is an insufficient basis, in and of itself, to deny leave to amend. See, United States v. Webb, 655 F.2d 977, 979 (9th Cir.1981); Sherman v. Hallbauer, 455 F.2d 1236 (5th Cir.1972). As a general rule, where the amendment sought alleges a different or more refined theory of liability or defense, a court should hold a motion for summary judgment in abeyance pending submission of the opposing party's proposed amended pleading. See, Zaidi v. Ehrlich, 732 F.2d 1218 (5th Cir.1984). Cognizant of the nature of the amendment to the complaint which Scott seeks, the court is convinced the interests of justice dictate that Scott be afforded the opportunity to amend her complaint. The allegations of the complaint, as amended, are sufficient to state a claim under 42 U.S.C. § 1983.

In Daniels v. Williams, 474 U.S. 327, 330-32, 106 S.Ct. 662, 664-65, 88 L.Ed.2d 662 (1986), the Supreme Court held that "the Due Process Clause is simply not implicated by a negligent act of an official causing an unintended loss of or injury to life, liberty or property." (emphasis in original.) The Court reiterated in Davidson v. Cannon, 474 U.S. 344, 347, 106 S.Ct. 668, 670, 88 L.Ed.2d 677 (1986), that the due process restrictions "are just not triggered by lack of due care" by state officials, and therefore allegations of negligence do not state a claim cognizable under 42 U.S.C. § 1983. The Court in Daniels expressly reserved the question "whether something less than intentional conduct, such as recklessness or `gross negligence,' is enough to trigger the protections of the Due Process Clause." Daniels, 474 U.S. at 334 n. 3, 106 S.Ct. at 666-67 n. 3.

Since Daniels this circuit has followed earlier case law holding that the Due Process Clause can be implicated by conduct of state officials amounting to "recklessness," or "gross negligence" or "deliberate indifference". See, Wood v. Ostrander, 851 F.2d 1212, 1214-15 (9th Cir.1988) (recognizing that the intentional assertion of government power which tends to show a disregard for a claimant's safety was sufficient to state a claim under section 1983); Estate of Conners v. O'Connor, 846 F.2d 1205, 1208 (9th Cir.1988) (conscious indifference amounting to gross negligence is sufficient to state a claim under section 1983); Ketchum v. County of Alameda, 811 F.2d 1243, 1246 and n. 3 (9th Cir.1987) (gross negligence is sufficient to state a claim under section 1983); Bergquist v. County of Cochise, 806 F.2d 1364, 1370 (9th Cir.1986); (recognizing that conduct constituting gross negligence may create a section 1983 liability).

The allegations of simple negligence upon which Scott's original complaint was predicated would be insufficient to state a claim cognizable under 42 U.S.C. § 1983. The allegations of Scott's complaint as amended, however, allege that the defendants acted with gross negligence amounting to deliberate indifference to the victim's well-being. Accordingly, the allegations are sufficient to defeat the defendants' motion for summary judgment.

III.

Scott seeks relief on behalf of the decedent's estate, pursuant to 42 U.S.C. § 1983, upon the ground the conduct of officers Henrich and Flamand, and the policies and customs of Butte-Silver Bow, violated the rights secured John Scott by the fourth amendment, as applicable to the states through the fourteenth amendment, Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed.2d 1782 (1949), and the substantive due process rights granted by the fourteenth amendment. The allegations of Scott in that regard are two-pronged. First, she alleges officers Henrich and Flamand lacked probable cause justifying the seizure of John Scott. Secondly, she asserts the officers utilized excessive force in effectuating the "seizure" of John Scott. Scott further alleges that the County by "policy or custom endorsed unreasonable seizure and the application of excessive force by its law enforcement officers." PROBABLE CAUSE

While probable cause is ordinarily a question for the jury, summary judgment upon the issue is appropriate if the evidence of record is such that no reasonable jury could find that the officers lacked probable cause. McKenzie v. Lamb, 738 F.2d 1005, 1008 (9th Cir.1984). In determining whether there exists a genuine issue of material fact which would preclude the entry of summary judgment pursuant to Fed.R.Civ.P. 56, all facts in the record and inferences drawn from them must be viewed in the light most favorable to the non-moving party. See, Water West, Inc. v. Entek Corporation, ...