                                                                                               04/03/2018


                                          DA 17-0174
                                                                                           Case Number: DA 17-0174

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         2018 MT 73N



DONNIE NOLAN,

              Plaintiff and Appellant,

         v.

CITY OF BILLINGS, MONTANA,

              Defendant and Appellee.



APPEAL FROM:            District Court of the Thirteenth Judicial District,
                        In and For the County of Yellowstone, Cause Nos. DV 14-1015,
                        DV 14-1016
                        Honorable Michael G. Moses, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Donnie Nolan, Self-Represented, Shelby, Montana

                For Appellee:

                        Jessica T. Fehr, Adam J. Tunning, Moulton Bellingham PC, Billings,
                        Montana



                                                   Submitted on Briefs: February 6, 2018

                                                              Decided: April 3, 2018


Filed:

                        __________________________________________
                                          Clerk
Justice James Jeremiah Shea delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating

Rules, this case is decided by memorandum opinion, shall not be cited, and does not serve

as precedent. Its case title, cause number, and disposition shall be included in this Court’s

quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.

¶2     Donnie Nolan (“Nolan”), representing himself, filed two separate complaints in the

Thirteenth Judicial District Court, Yellowstone County, against the City of Billings

(“City”) in July and August of 2014. Nolan’s first complaint alleged the City “for action

of Employees and Sergeant Riley Finnegan” violated the Fourth Amendment, and falsely

imprisoned him in August 2013. Nolan’s second complaint alleged the City falsely

imprisoned him in September 2013. The District Court granted the City’s motion to

consolidated the two cases.

¶3     Throughout the litigation, Nolan failed to respond to multiple discovery requests

and motions by the City, even after two District Court orders to compel that also granted

Nolan additional time in light of his status as a self-represented litigant. After Nolan’s

fourth failure to respond to discovery in violation of the District Court’s January 19, 2016

Order, the City moved for summary judgment and attached police reports from Nolan’s

August and September 2013 arrests pertaining to Nolan’s claims. Nolan responded to the

City’s summary judgment motion without submitting evidence of any kind and made

additional conclusory allegations that were unsupported by the record. On February 24,

2017, the District Court granted the City’s motion for summary judgment and dismissed

Nolan’s case. Nolan appeals.


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¶4    The only evidence in the record reflects that on August 25, 2013, Nolan approached

a man outside an apartment complex, grabbed him by the shirt, and threatened to shoot

him. Billings Police arrived and found Nolan hiding in an apartment directly above the

victim’s girlfriend’s apartment. After Nolan declined to leave the apartment in which he

locked himself, Sergeant Finnegan obtained permission from the neighbor looking after

that apartment to enter it by force. Finnegan proceeded to kick the doorknob, enter the

apartment, and arrest Nolan for misdemeanor assault and obstructing a peace officer.

Officers booked Nolan into the Yellowstone County Detention Facility. Nolan posted

bond, but failed to report to his probation officer. Consequently, on September 17, 2013,

Nolan’s probation officer issued a felony probation violation warrant for Nolan’s arrest.

On September 22, 2013, around 4 a.m., Officer Brandt stopped Nolan, who initially

identified himself as “Mark Jones,” while driving a white Cadillac on Montana Avenue.

Officer Brandt arrested Nolan for the felony probation violation warrant, obstructing a

peace officer, driving with a suspended license, and no car insurance. In February 2014,

the Municipal Court held a hearing on a motion to suppress, after which it instructed the

parties to submit proposed findings of facts and conclusions of law. However, before the

Municipal Court ruled on the suppression motion, the City dismissed all charges against

Nolan on both the August and September 2013 arrests.

¶5    We review a district court’s grant of summary judgment de novo. Wilson v. Brandt,

2017 MT 290, ¶ 11, 389 Mont. 387, 406 P.3d 452. A court may grant summary judgment

only when the moving party demonstrates both absence of any genuine issue of material

fact and entitlement to judgment as a matter of law. M. R. Civ. P. 56(c)(3). The nonmoving


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party must present facts of a substantial nature that show genuine issues of material fact

remain for trial, precluding summary judgment.          Cape v. Crossroads Corr. Ctr.,

2004 MT 265, ¶ 12, 323 Mont. 140, 99 P.3d 171. The nonmoving party’s facts supported

by evidence must be material and substantive, and more than conclusory allegations,

speculations, or denials. Cape, ¶ 12. We review a district court’s discovery ruling for an

abuse of discretion.   McCulley v. U.S. Bank, 2015 MT 100, ¶ 22, 378 Mont. 462,

347 P.3d 247.

¶6     The Fourth Amendment protects citizens “against unreasonable searches and

seizures,” but lacks a private right of action. U.S. Const. amend. IV. Instead, 42 U.S.C.

§ 1983 provides citizens a civil remedy, and a plaintiff must demonstrate that the

government entity itself acted deliberately or culpably through its custom, policy, or

practice to establish liability for conduct of its employees. Connick v. Thompson, 563 U.S.

51, 60, 131 S. Ct. 1350, 1359 (2011); Peschel v. City of Missoula, 686 F. Supp. 2d 1107,

1116–17 (D. Mont. 2009). To succeed on a false imprisonment claim, a plaintiff must

prove by a preponderance of the evidence that the government unlawfully restrained him

against his will. Kichnet v. Butte-Silver Bow Cnty., 2012 MT 68, ¶ 23, 364 Mont. 347, 274

P.3d 740. The record reflects the City set forth undisputed facts that do not indicate a

violation of the Fourth Amendment or false imprisonment.               Nolan’s unsupported

conclusory statements fail to rebut the City’s position. Cape, ¶ 12.

¶7     We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our

Internal Operating Rules, which provides for memorandum opinions. This case presents a




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question controlled by settled law. The District Court’s interpretation and application of

the law were correct, and its discovery ruling was not an abuse of discretion. We affirm.


                                                /S/ JAMES JEREMIAH SHEA


We Concur:

/S/ JIM RICE
/S/ LAURIE McKINNON
/S/ BETH BAKER




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