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Montgomery v City of Ames

Case No. 13-2111 (C.A. 8, Apr. 10, 2014)

Tamela Montgomery was seriously injured when Angenaldo Bailey broke into her house and shot her three times. Montgomery brought a claim under 42 U.S.C. § 1983 and several state-law negligence claims against the City of Ames, several Ames police officers, the State of Iowa, the director of the Iowa Department of Corrections John Baldwin, the Curt Forbes Residential Center, and John McPherson, the manager of the Residential Center. Montgomery alleged that the City of Ames and the defendant officers (the “City Defendants”) violated her constitutional right to bodily integrity by creating the danger that Bailey would attack her and by acting with deliberate indifference to that danger both before and after she was shot. She also alleged that the State of Iowa, Baldwin, the Residential Center, and McPherson (the “State Defendants”) acted with deliberate indifference to Bailey’s history of violating a protective order. After the City Defendants moved for summary judgment, the district court granted summary judgment for all defendants on the § 1983 claims and dismissed without prejudice the state-law claims. Montgomery appeals. We affirm in part, reverse in part, and remand for further proceedings.

I.



Because we are reviewing a grant of summary judgment, we describe the facts in the light most favorable to Montgomery. On June 3, 2009, based on Bailey’s conviction for second-degree domestic-abuse assault, an Iowa court issued a protective order prohibiting Bailey from contacting Montgomery and from “be[ing] in the immediate vicinity of [her] residence.” The protective order stated that Bailey faced immediate arrest if he violated the order.

On the afternoon of September 28, 2009, Montgomery contacted the City of Ames police department to report that Bailey had been calling her and visiting her home, in violation of the protective order. City of Ames police officer John Mueller responded and discussed Montgomery’s allegations with her. He informed Montgomery that he would attempt to find Bailey to “get his side of the story” and would return that night. Montgomery warned Mueller that if he contacted Bailey but did not arrest him, then Bailey likely would return to her home and retaliate violently against her.

Mueller went to the Residential Center, the state-run halfway house in which Bailey resided, to speak with him. A probation officer at the halfway-house told Mueller that Bailey was at a nearby workforce-development office. Mueller found Bailey at the office and explained Montgomery’s allegations; Bailey denied going to Montgomery’s residence or calling her, and claimed that she had been calling him. Mueller instructed Bailey not to contact Montgomery in any way, but did not arrest him.
 

 

Judge(s): Steven Colloton
Jurisdiction: U.S. Court of Appeals, Eighth Circuit
Related Categories: Criminal Justice , Education , Employment , Government / Politics , Health Care , Torts
 
Circuit Court Judge(s)
Steven Colloton
Jane Kelly
William Riley

 

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Click the maroon box above for a formatted PDF of the decision.
-7- 56(a). as there is insufficient evidence to show a constitutional violation, “john doe” sound of his body falling, but she did not immediately know whether he was dead. issue not raised or discussed by the parties if the losing party did not have notice and congdon returned to the scene and again briefed the officers on what beasley had told or practice. moyle, 571 f.3d at 817; mccoy v. city of monticello, 411 f.3d 920, 922 was dead and that officers could enter the house until approximately 9:38 p.m., when home. two occupants of the home—leola beasley and quincy akins—fled in granted summary judgment for “all defendants” and dismissed without prejudice individually and in his official capacity as a law enforcement officer for the city against her. the city of ames, montgomery must show a genuine issue for trial about whether an 2. dispatchitsemergencyresponseteam,whichwasactivatedatapproximately8:47p.m. noises that sounded like gunshots at 8:25 p.m. shortly thereafter, bailey shot himself district court granted summary judgment for all defendants on the § 1983 claims and in part, reverse in part, and remand for further proceedings. there is no evidence that the defendants failed to do so out of deliberate indifference district court’s order did not discuss montgomery’s allegations against them, the court montgomery’s house, she saw bailey lying on the staircase, bleeding from the head. montgomery separately alleged that mcpherson, as the manager of the a district court commits reversible error by granting summary judgment on an level of deliberate indifference. it was reasonable for mueller, after hearing glazier, 723 f.3d 957, 961 (8th cir. 2013). to establish a submissible claim against agree that “john doe” is officer mueller, they dispute whether the claims against conscious disregard of the risk, and (5) that in total, the municipality’s owens, ropp, and crippen. montgomery’s complaint against these defendants is that or mueller was entitled to summary judgment. the protective order prohibiting him from contacting montgomery. she claimed that could not establish a constitutional violation by the city defendants and second that for the southern district of iowa - des moines -10- lllllllllllllllllllll plaintiff - appellant, center, and mcpherson did not move for summary judgment. the district court police officers that bailey was incapacitated until roughly twenty minutes into her 911 because the individual defendants have asserted qualified immunity, we consider conflicting accounts that he had received, shock the conscience. see fed. r. civ. p. officer congdon encountered beasley near his house shortly after 8:25 p.m. edmond, 905 f.2d 1386, 1392-93 (10th cir. 1990). 911 for assistance. pressing her body against the door. while running up the stairs, montgomery called shooting stated a substantive due process claim against certain law enforcement in the head and fell down the stairs. montgomery heard bailey’s final shot and the danger for purposes of due process analysis, mueller’s behavior does not rise to the exercise supplemental jurisdiction over the state-law claims, the district court house. crippen acted reasonably in working with other officers on the scene to secure although the state defendants did not move for summary judgment, and although the ii. fact regarding whether the defendants violated a clearly established right. bishop v. officer’s investigation of an alleged crime ever could give rise to a state-created any of the individual city defendants, the district court properly granted summary (8th cir. 2005). because montgomery cannot establish a constitutional violation by should call the police if bailey came to her house that night. later that afternoon, could have entered her house sooner based on her reports that bailey had shot himself, for the foregoing reasons, we affirm the district court’s grant of summary montgomery’s remaining state-law claims because “no federal cause of action an opportunity to respond. see global petromarine v. g.t. sales & mfg., inc., 577 the danger to which the individual is subjected. see fields v. abbott, 652 f.3d 886, substantial risk of serious harm exists” and that the official actually draw that employee committed a constitutional violation pursuant to an official custom, policy, mueller then returned to montgomery’s house. montgomery admitted that she thedistrictcourterredingrantingsummaryjudgmentforthestatedefendantswithout returned to his house and spoke with beasley again, she told him that, while exiting conduct shocks the conscience. at approximately 8:47 p.m. and in aiding montgomery once the team entered the 2007), the district court was correct to dismiss this claim on the merits in any event. capacity as manager of curt forbes residential center, they “failed to timely respond to [her] medical needs.” the claims fail because and brought her inside. she initially told him that bailey had shot himself, but then v. ____________ montgomery’s house faced an uncertain situation: beasley had given conflicting ropp, and crippen. id. at 891 (internal quotations omitted). at approximately 8:30 p.m., officers were dispatched to montgomery’s house ______________________________ appeal from united states district court reasonably by responding to the scene, where the emergency response team had at approximately 8:45 p.m., montgomery told the operator that bailey was “on the whether montgomery has produced sufficient evidence to create a genuine issue of portage cnty. exec. offices, 235 f.3d 275, 277-79 (6th cir. 2000); bryson v. city of state defendants, and remand for further proceedings. special relationship that imposed on them an affirmative duty to protect montgomery did not arrest him, then bailey likely would return to her home and retaliate violently inferences in her favor. anderson v. liberty lobby, inc., 477 u.s. 242, 255 (1986). call, at around 8:45 p.m. owens, who was on call when the incident occurred, acted montgomery contends that mueller created the danger that bailey would attack faced immediate arrest if he violated the order. negligence claims against several of the defendants. alleged that the state of iowa, baldwin, the residential center, and mcpherson (the individual official committed a constitutional violation pursuant to an official custom, alleged that officers owens, ropp, and crippen responded to the scene, but “did to individuals in custody violating protective orders.” she also brought state-law “issu[ing] multiple orders refusing to permit any access to or rescue of” the plaintiff. (1) that she was a member of a limited, precisely definable group, (2) officers within the department [of corrections] and [the residential center] relating emergency response team, acted reasonably in joining the team when it was activated city of ames was entitled to judgment as a matter of law and the other defendants 1. shot himself.” the officers’ alleged deliberate indifference, she claimed, was the to her plight. the district court thus correctly dismissed the claims against owens, him. akins similarly reported to an officer that he had heard shots fired and then left already assembled, and interviewing beasley and akins. ropp, a member of the developed on those claims, montgomery had no opportunity to make legal arguments the official “be aware of facts from which the inference could be drawn that a doe—whom the parties agree is officer mueller—created the danger that bailey justified dismissal of the claim, see williams v. rodriguez, 509 f.3d 392, 402 (7th cir. -3- submitted: december 13, 2013 told him that bailey might have run out of the rear entrance of montgomery’s house. inference. id. at 806 (internal quotation omitted). mere negligence, or even gross within minutes of calling 911, montgomery reported to the operator that bailey had despite montgomery’s warnings. assuming for the sake of analysis that a police bailey followed montgomery and shot her three times through the bedroom (8th cir. 2009). status. officers at the scene were unable to determine whether bailey was inside or state defendants, and it is not even clear that the court had those claims in mind when montgomery relies on sanders v. board of county commissioners, 192 f. the evidence, moreover, does not support a finding that owens, ropp, or even if montgomery had successfully amended her complaint to name mueller as a ___________________________ deliberate indifference to that danger both before and after she was shot. she also “failed to establish an adequate and sufficient policy . . . for training supervisors and -8- repeated violations of the protective order. even if the factual record has been fully reports that bailey had shot himself in the head and that he had run out of the house. defendant, she still could not show that his actions violated her due process rights. operator what she knew of bailey’s condition. roughly twenty minutes into the call, the residential center, baldwin, and the state of iowa maintained “official policies investigationproceededthenextday. montgomeryemphasizesthatthereisadisputed tamela montgomery was seriously injured when angenaldo bailey broke into mueller went to the residential center, the state-run halfway house in which substantive due process right to bodily integrity. in particular, she alleged that john the team arrived at 9:38 p.m. and entered the house soon thereafter. bodily integrity by creating the danger that bailey would attack her and by acting with “state defendants”) acted with deliberate indifference to bailey’s history of violating deliberation is practical, demonstrate deliberate indifference. see hart v. city of little that the municipality’s conduct put her at a significant risk of serious, judgment for the state defendants on her separate due process claims against them. id. at 1112. montgomery does not allege that owens, ropp, or crippen enhanced the colloton, circuit judge. issue of fact about whether bailey violated the protective order, but that fact is not with prejudice. we express no view on the merit of montgomery’s claims against the would harm her. to succeed on that theory under our precedent, she must show: state defendants, but the denial of notice and an opportunity to be heard requires a at approximately 8:30 p.m. informing her of the situation. she arrived at the scene ames police department to report that bailey had been calling her and visiting her the next day. according to montgomery, mueller also advised her that bailey was in to respond does not violate due process. see deshaney, 489 u.s. at 197; weeks v. 2003); see also fed. r. civ. p. 56(f). the state defendants contend that summary montgomery brought this lawsuit, alleging that the defendants violated her f.3d 839, 844 (8th cir. 2009); heisler v. metro. council, 339 f.3d 622, 631 (8th cir. her when he spoke with bailey about montgomery’s allegations but did not arrest him, § 1983 and several state-law negligence claims against the city of ames, several montgomery’s allegations, to investigate whether bailey had violated the protective an official’s action must either be motivated by an intent to harm or, where mueller that bailey was at a nearby workforce-development office. mueller found crippen was the first officer to arrive. the officers requested that the department congdon relayed this information to the officers arriving at the scene. when congdon taking the facts in the light most favorable to montgomery, she did not report to to shock the conscience, as required by the fifth element identified in fields, and established a perimeter around the immediate vicinity. defendant christine her house and shot her three times. montgomery brought a claim under 42 u.s.c. at several points while the officers waited outside, montgomery told the 911 as for the city of ames, it is liable in a § 1983 suit only if an individual city had made some calls to bailey. mueller told her that the investigation would continue tamela montgomery, would return that night. montgomery warned mueller that if he contacted bailey but from third-party harm. see gatlin ex rel. estate of gatlin v. greene, 362 f.3d 1089, material to the question at hand: whether mueller’s actions, given the undisputedly would attack her by informing bailey of her complaint but not arresting him. she 890 (8th cir. 2011). nothing the officers did—or did not do—established either a state-created danger or record in the light most favorable to montgomery and drawing all reasonable montgomery’s neighborhood. disconnected. montgomery made contact with the 911 operator again at that bailey was dead at the bottom of the stairs. she continued to insist that bailey ____________ suzanne owens was off duty but on call at the time of the incident; she received a call in the immediate vicinity of [her] residence.” the protective order stated that bailey judgment for the city. city of l.a. v. heller, 475 u.s. 796, 799 (1986) (per curiam). -4- the manager of the residential center. montgomery alleged that the city of ames ____________ favorable to montgomery, we conclude that she has failed to establish conscience- rock, 432 f.3d 801, 805-06 (8th cir. 2005). deliberate indifference requires both that several minutes after those statements, at approximately 8:52 p.m., the call ____________ “john doe” should be dismissed based on montgomery’s failure to amend the enforcement officer for the city of ames police department; heath ropp, john doe, individually and in his official capacity as a law enforcement officer responded and discussed montgomery’s allegations with her. he informed nothing until well after [she] had been shot by mr. bailey, and after mr. bailey had we first address montgomery’s claims against john doe. while the parties breathing. he died from the head wound approximately a week later. defendant ground” and “down.” a few minutes later, she said, “he is down, they can come in.” failure to identify and serve an unnamed defendant during discovery could well have defendant heath ropp was a member of the emergency response team and led * * * still a threat. even if montgomery were correct that ames police officers reasonably dismissed those claims without prejudice. supp. 2d 1094 (d. colo. 2001), where a plaintiff who was wounded in a school for the eighth circuit and in his official capacity as director of the iowa department of corrections; curt home, in violation of the protective order. city of ames police officer john mueller montgomery that he would attempt to find bailey to “get his side of the story” and complaint to add mueller as a defendant or to serve mueller with process. while some time after 8:00 p.m., bailey, armed with a gun, broke into montgomery’s however, rest on distinct factual allegations about whether those parties exposed her capacity as a law enforcement officer for the city of ames police department; remand. see williams v. city of st. louis, 783 f.2d 114, 116 n.1 (8th cir. 1986). the due process clause generally does not provide a cause of action for “a state’s failure to protect an individual against private violence.” deshaney v. city of ames; suzanne owens, individually and in her official capacity as a law the team’s entry into the house. the team found bailey at the base of the stairs, barely conclusion that the state defendants likewise did not create or enhance a danger to approximately 9:25 p.m. she reported that she had looked out the bedroom door and the emergency response team arrived, entered the house, and began to aid her. forbes residential center; john mcpherson, individually and in his official different directions. montgomery ran upstairs and barricaded herself in a bedroom by shot both her and himself. him. judgment for the city defendants, reverse the grant of summary judgment for the filed: april 10, 2014 ___________________________ -9- under those circumstances, a reasonable jury could not conclude that mueller acted a perimeter and in attempting to determine whether bailey was still in the house and negligence, is not actionable. id. at 805-06. viewing the facts in the light most -12- on the afternoon of september 28, 2009, montgomery contacted the city of we review the district court’s grant of summary judgment de novo, viewing the . . . of failing to prevent individuals in custody from violating protective orders” and winnebago cnty. dep’t of soc. servs., 489 u.s. 189, 197 (1989). our precedent before riley, chief judge, colloton and kelly, circuit judges. order. after mueller interviewed bailey, it is undisputed that he was faced with danger she faced by actively preventing anyone from aiding her. recklessly or in a conscience-shocking manner by declining to arrest bailey before the montgomery’s residence or calling her, and claimed that she had been calling him. yelled to the officers that bailey was “inside the house and lying on the stairs.” bailey at the office and explained montgomery’s allegations; bailey denied going to of ames police department; christine crippen, individually and in her official b. montgomery. montgomery’s due process claims against the state defendants, 3. no. 13-2111 concluded that because montgomery could not establish a constitutional violation, the a protective order. after the city defendants moved for summary judgment, the corrections john baldwin, the curt forbes residential center, and john mcpherson, shocking conduct on the part of any of the city defendants. -6- the residential center for the night, that she would be safe in her home, and that she around 5:00 p.m., police received reports that bailey had been riding a bicycle in establishes, however, that the constitution requires a state to protect a person in two dismissed without prejudice the state-law claims. montgomery appeals. we affirm beasley, and she ultimately prepared an incident report. because we are reviewing a grant of summary judgment, we describe the facts door. an off-duty officer, joel congdon, who lived nearby, reported hearing several i. montgomery also argues that the district court erred in granting summary result of policies and procedures implemented by the city of ames. were entitled to qualified immunity. the district court then ruled that summary in support of her position. the district court did not mention the claims against the to the municipality, (4) that the municipality acted recklessly in -2- -11- policy, or practice of the governmental entity. moyle v. anderson, 571 f.3d 814, 817 circumstances: when the person is in the state’s custody, and when the state created bailey resided, to speak with him. a probation officer at the halfway-house told protective order prohibiting bailey from contacting montgomery and from “be[ing] and the defendant officers (the “city defendants”) violated her constitutional right to owens, ropp, crippen, doe, and the city of ames moved for summary mueller instructed bailey not to contact montgomery in any way, but did not arrest montgomery appeals, arguing first that the district court erred in ruling that she the house, but he did not provide any further information on bailey’s whereabouts or crippen were deliberately indifferent to montgomery’s injuries. officers outside we also affirm the district court’s grant of summary judgment for officers judgment, arguing that montgomery failed to present sufficient evidence that their it granted summary judgment for “all defendants” and dismissed all federal claims -5- remain[ed]” in the case. ames police officers, the state of iowa, the director of the iowa department of 1093 (8th cir. 2004). without a state-created danger or special relationship, a failure actions violated her constitutional rights. the state of iowa, baldwin, the residential judgment in their favor was appropriate even without notice to montgomery, because conviction for second-degree domestic-abuse assault, an iowa court issued a united states court of appeals to harm by failing to take “discernable or effective steps” in response to bailey’s officers who responded to the scene. see id. at 1110-17. in that case, however, the immediate, and proximate harm, (3) that the risk was obvious or known judgment was appropriate for “all defendants” on the § 1983 claims. declining to district court concluded that the defendants enhanced the danger the plaintiff faced by outside the house, or whether he was alive or dead. at some point, montgomery for the city of ames police department; state of iowa; john baldwin, individually lllllllllllllllllllll defendants - appellees. a. after the emergency response team had assembled; she interviewed akins and residential center, acted with deliberate indifference to bailey’s history of violating providing her notice and an opportunity to be heard. conflicting accounts regarding whether bailey had violated the protective order. the same facts that were raised in the briefs of the city defendants lead to the montgomery argues that the city defendants created the danger that bailey in the light most favorable to montgomery. on june 3, 2009, based on bailey’s


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