Rebsom v. Kunnath

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JAMI REBSOM, Plaintiff, v. STEVE KUNNATH, in his official and individual capacities; CITY OF LIVINGSTON, MONTANA; and JAY PORTEEN, in his official and individual capacities, Defendants.

No. CV 20-01-BLG-SPW-TJC

United States District Court, D. Montana

February 25, 2022

FINDINGS AND RECOMMENDATIONS OF U.S. MAGISTRATE JUDGE

TIMOTHY J. CAVAN United States Magistrate Judge

Plaintiff Jami Rebsom (“Rebsom”), brings this action against Defendants Steve Kunnath (“Kunnath”), the City of Livingston, Montana (“Livingston”), and Jay Porteen (“Porteen”), (collectively “Defendants”), alleging violation of her civil rights and various state law claims arising from the issuance of an assault citation. (Doc. 5.)

Presently before the Court are Defendant Kunnath's Motion for Summary Judgment (Doc. 42) and Defendants Livingston and Porteen's Motion for Summary Judgment (Doc. 68). The motions are fully briefed and ripe for the Court's review.

Having considered the parties' submissions, the Court recommends that Defendants Kunnath, Livingston, and Porteen's motions for summary judgment (Docs. 42, 68) be GRANTED.

I. Factual Background^[1]

On March 9, 2018, at approximately 9:27 p.m., Livingston Police Officers O'Neill and Hildebrand responded to a complaint that a dog had been barking outside a residence for two hours. The residence belonged to Rebsom, a local attorney. O'Neill could hear dogs barking from Rebsom's backyard, but the officers left shortly after arriving because no one was home.

At approximately 10:32 p.m., another resident called to report barking dogs at Rebsom's residence. This time, O'Neill called Rebsom about the dogs. Rebsom answered the call and said she was at home, but she hung up before O'Neill could discuss the complaints.

At approximately 10:45 p.m., O'Neill and Hildebrand returned to Rebsom's residence to discuss the complaints with her. When the officers arrived, they could hear Rebsom yelling, “get out here you fucking bitch” and “fuck you.” They also heard a neighbor's screen door open and a male voice ask, “what is going on?”

When O'Neill and Hildebrand went to Rebsom's front door, she refused to open the door or speak with the officers. Instead, she displayed both middle fingers through the glass door, and told the officers to “fuck off.” Rebsom can also be heard on the patrol vehicle dash cam recording yelling at the officers to “get a warrant mother fuckers.” Sergeant LaBaty, the on-duty supervisor, also arrived at the scene, and the officers informed Rebsom that she would be cited for disorderly conduct and keeping barking dogs. But because Rebsom refused to speak with them, and was possibly intoxicated, they decided to issue the citations the next day. As they were preparing to leave, Rebsom placed a 9-1-1 call that was transferred to LaBaty. LaBaty advised Rebsom that they were leaving. Rebsom hung up, again called 9-1-1, and left a voice message for the Chief of Police. All officers left Rebsom's residence by 10:55 p.m.

When Livingston Police Officer Kunnath arrived for his shift the next morning on March 10, 2018, O'Neill briefed him on the events at Rebsom's residence the previous night. O'Neill also requested that Kunnath serve Rebsom with the citations for keeping barking dogs and disorderly contact.

Kunnath also spoke to Rebsom's neighbor, Emily Greenwald, who wished to report an incident from the previous night. Emily and her husband, Jason Greenwald, both provided oral and written statements regarding the incident.

Jason reported that around 10:30 p.m. the previous night he had been in his living room when he heard Rebsom screaming, “Emily Greenwald you fucking bitch, get your ass out here. I am going to fucking kill you.” Jason stated he opened his back door and said, “excuse me, ” but Rebsom did not respond. Jason reported he was fearful Rebsom may be approaching their home, so he picked up his phone, in case he needed to call the police, and went to his front window where he observed the police at Rebsom's residence. Jason stated this was not the first time Rebsom had yelled obscenities late at night.

Emily reported that she was in a back bedroom when Rebsom was screaming. She said she could hear shouting and barking dogs but could not make out what was said. The next morning at 6:30 a.m., however, Jason advised Emily exactly what Rebsom had screamed at her hours before. Both Emily and Jason reported being fearful for their safety due to Rebsom's behavior, and they wished that charges be filed against Rebsom for assault.

That day, Kunnath delivered the citations for disorderly conduct and keeping barking dogs. He also cited Rebsom for assault, based on the Greenwald's complaint, in violation of Montana Code Annotated § 45-5-201(1)(d).

After she was issued the citations, Rebsom contacted Defendant Porteen, the city prosecutor, and asked that he dismiss the assault charge. Porteen declined to do so. All charges were later dismissed, however, because Jason and Emily Greenwald moved from Livingston and were unavailable to testify.

On March 10, 2020, Rebsom filed an Amended Complaint in this action. (Doc. 5.) Rebsom alleges civil rights claims under § 1983 for violation of the Fourth and Fourteenth Amendment against Kunnath, O'Neill, and LaBaty (Count I), Livingston (Count II), and Porteen (Count IV). Rebsom further alleges state law claims for respondeat superior against Livingston (Count III); malicious prosecution against Kunnath, Porteen, and Livingston (Count V); actual malice/punitive damages against Kunnath and Porteen (Count VI); negligence against Porteen (Count VII); defamation/libel against Kunnath (Count VIII); defamation/slander against Kunnath (Count IX); defamation/libel against O'Neill (Count X); and defamation/slander against O'Neill (Count XI).

O'Neill and LaBaty previously filed motions for summary judgment (Docs. 38, 48), which were granted. (Doc. 75.) Kunnath now moves for summary judgment on Rebsom's claims in Counts I, V, VI, VIII, and IX. (Doc. 42.) Livingston and Porteen move for summary judgment on Rebsom's claims in Counts II-VII. (Doc. 68.)

II. Legal Standard

Summary judgment is appropriate where the moving party demonstrates the absence of a genuine issue of material fact and entitlement to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Material facts are those which may affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable factfinder to return a verdict for the nonmoving party. Id. “Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987).

The party seeking summary judgment always bears the initial burden of establishing the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually exists. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

In attempting to establish the existence of a factual dispute, the opposing party must “go beyond the pleadings and . . . by ‘the depositions, answers to interrogatories, and admissions on file,' designate ‘specific facts showing that there is a genuine issue for trial.'” Celotex, 477 U.S. at 324 (quoting Fed.R.Civ.P. 56(e)). The opposing party cannot defeat summary judgment merely by demonstrating “that there is some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586; Triton Energy Corp. v. Square D Co., 68 F.3d 1216, 1221 (9th Cir. 1995) (“The mere existence of a scintilla of evidence in support of the non-moving party's position is not sufficient.”) (citing Anderson, 477 U.S. at 252).

When making this determination, the Court must view all inferences drawn from the underlying facts in the light most favorable to the non-moving party. See Matsushita, 475 U.S. at 587. “Credibility determinations, the weighing of evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, [when] he [or she] is ruling on a motion for summary judgment.” Anderson, 477 U.S. at 255.

III. Discussion

A. Kunnath's Motion for Summary Judgment

1. Count I - § 1983 Claim Against Kunnath

Rebsom brings a § 1983 claim against Kunnath, alleging Kunnath violated her rights under the Fourth Amendment to be free from an unreasonable search and seizure of her person and home. (Doc. 5 at ¶¶ 1-2.) Kunnath argues Rebsom's § 1983 claim against him is barred by qualified immunity. (See Doc. 43.)

Qualified immunity shields state officials from civil liability under 42 U.S.C. § 1983 if “their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). “To determine whether an officer is entitled to qualified immunity, a court must evaluate two independent questions: (1) whether the officer's conduct violated a constitutional right, and (2) whether that right was clearly established at the time of the incident.” Castro v. Cty. of Los Angeles, 833 F.3d 1060, 1066 (9th Cir. 2016). The court has discretion to decide which of the two prongs of the qualified immunity analysis should be addressed first. Pearson v. Callahan, 555 U.S. 223, 236 (2009). The court must resolve the issue of qualified immunity “as a matter of law when ‘the material, historical facts are not in dispute, and the only disputes involve what inferences properly may...