Howell v. Earl, CV 13-48-BU-DWM-JCL

MARION I. HOWELL and FRANCIS L. HOWELL, Plaintiffs, v. TRAVIS EARL, individually and as agent of Gallatin County Sheriff'sDepartment, State of Montana, KELLI MUNTER, individually and as agentof Gallatin County Sheriff's Department, State of Montana, SCOTTSECOR, individually and as agent of Gallatin County Sheriff's Department,State of Montana, JAMES ANDERSON, individually and asagent of Gallatin County Sheriff's Department, State of Montana,DAVID JOHNSTON, individually and as agent of Gallatin County Sheriff'sDepartment, State of Montana, JAMES CASHELL, individually and as agentof Gallatin County Sheriff's Department, State of Montana,GALLATIN COUNTY, a political subdivision of the State of Montana,MICHAEL WALRATH, individually and as agent of Montana HighwayPatrol, State of Montana, JAMES SULAGES, individuallyand as agent of Montana Highway Patrol, State of Montana, JUSTIN BRAUN,individually and as agent of Montana Highway Patrol, MIKE TOOLEY,individually and as agent of Montana Highway Patrol, State of Montana,STATE OF MONTANA, and JOHN DOES I-X, Defendants.

CV 13-48-BU-DWM-JCL

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA BUTTE DIVISION

DATED: June 18, 2014

ORDER

Trial in this matter is close at hand. The proposed Findings and Recommendations of United States Magistrate Judge Jeremiah C. Lynch are now before the Court. (See Docs. 118 & 119.) Judge Lynch recommends that the Defendants' Motions for Summary Judgment be granted except as to the claims of excessive force and negligence asserted by Francis Howell against Defendants Earl, Secor, and Munter and as to the claims of unlawful entry and detention asserted by Marion Howell against the Defendants. Judge Lynch further recommends that Francis Howell's Motion for Summary Judgment on his claim of excessive use of force be denied and recommends that the Plaintiffs' Motion for Sanctions also be denied.

When no party objects, the Court reviews the proposed findings and recommendations of a United States Magistrate Judge for clear error. McDonnell Douglas Corp. v. Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313 (9th Cir.1981). Clear error is present only 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). When a party objects, the Court reviews the relevant portions of the United States Magistrate Judge's proposed findings and recommendations de novo. 28 U.S.C. § 636.

Judge Lynch's proposed Findings and Recommendations regarding the Plaintiffs' Motion for Sanctions, (Doc. 119), were not met with objection. They are accordingly reviewed for clear error. After review of Judge Lynch's report, the Court finds no mistake of law. These proposed Findings and Recommendations will accordingly be adopted in-full.

Judge Lynch's proposed Findings and Recommendations regarding the pending Motions for Summary Judgment, (Doc. 118), were met with objection by all parties. The portions of Judge Lynch's report to which objection was lodged are therefore reviewed de novo. See 28 U.S.C. § 636. After reviewing the parties' Motions, Judge Lynch's Findings and Recommendations, the parties' Objections, and the parties' Responses, the Court finds no error in Judge Lynch's disposition of the pending motions. The proposed Findings and Recommendations will accordingly be adopted in-full.

Plaintiffs Objection, (Doc. 120), argues that Judge Lynch's reporterroneously omits consideration of Trooper Sulages' first attempt to enter the Plaintiffs' residence by knocking at the door. This Objection is not well-taken. First and foremost, Plaintiffs do not address Trooper Sulages qualified immunity. Plaintiffs fail to allege a violation of the knock and announce rule and do not make any claim that their interpretation of the rule was clearly established on June 26, 2011. Furthermore, Plaintiffs do not dispute that after knocking, Trooper Sulages walked away from the door. "When law enforcement officers who are not armed with a warrant knock on a door, they do no more than any private citizen might do." Kentucky v. King, 131 S. Ct. 1849, 1862 (2011). A mere knock at the door, without more, does not constitute an attempted entry. Plaintiffs claim that Cassady v. Yellowstone Co., et al., 143 P.3d 148 (Mont. 2006), holds to the contrary is a plain misstatement of the law. In Cassady, the Montana Supreme Court concluded that officers violated Cassady's constitutional rights when they entered his home without announcing their presence. 143 P.3d at 157. Sulages did not enter the home after knocking at the door. Plaintiff's Objection is without merit and set aside.

The State of Montana argues, through its Objection, (Doc. 121), that four of Judge Lynch's recommendations are in error. First, the state claims that probable cause justified the alleged seizure of Marion Howell by Trooper Sulages. Thisargument is premised on the lawfulness of the officers' entry to the property, a matter in dispute in this case. Judge Lynch found, and the State does not contest, that there is a genuine issue of material fact as to whether Deputy Secor had permission to enter and remain in the Howells' residence. (See Doc. 118 at 22-23.) While Deputy Secor's actions on entry cannot be imputed to Trooper Sulages, (see id. at 24), analogously, Trooper Sulages subsequent entry does not render lawful Deputy Secor's earlier entry of the home. Thus, the Struckman standard applied by Judge Lynch in his Findings and Recommendations is not in error and the state's first objection fails. This analysis also negates the state's third objection, which asserts that probable cause is a bar to Marion...