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Jacobsen v. State4/28/1999
tion because of the respondents' actions is speculative.
Respondeat Superior
. Under the doctrine of respondeat superior, an employer can be held vicariously liable for the wrongful acts of its employees if those acts were committed in the scope of the employee's employment. See Maguire v. State (1992), 254 Mont. 178, 182, 835 P.2d 755 758. Jacobsen cites § 2-9-102, MCA, which states that " very governmental entity is subject to liability for its torts and those of its employees acting within the scope of their employment or duties."
. The District Court determined that Jacobsen could not establish as a matter of law that any of the respondents' employees committed wrongful acts that would result in liability. We agree.
ISSUE 5
. Did the District Court err in granting summary judgment in favor of the respondents on Jacobsen's civil rights claims?
. In order to successfully prosecute a claim under 42 U.S.C. § 1983, Jacobsen must establish that (1) there was a violation of his federal statutory or constitutional rights, (2) proximately caused (3) by the conduct of a "person" (4) acting under the color of state law. See Orozco v. Day (1997), 281 Mont. 341, 347, 934 P.2d 1009, 1012 (citing Crumpton v. Gates (9th Cir. 1991), 947 F.2d 1418, 1420). On appeal, Jacobsen alleges that he was deprived of his Fourth Amendment right to privacy and his Fifth Amendment right to due process of law.
. A threshold question in any analysis of § 1983 claims is whether the respondents are considered "persons" under the requirements listed above. In Orozco, 281 Mont. at 347, 934 P.2d at 1012, we acknowledged that
"municipalities and local government units are among those "persons" to whom 42 U.S.C. § 1983 applies. States and other governmental entities, on the other hand, are considered "arms of the state" and, as a result, they are not "persons" within the meaning of § 1983. The exclusion of states and "arms of the state" from the term "person" contained in § 1983 is based on the immunity from suit provided to states by the Eleventh Amendment to the United States Constitution." (Citations omitted.) Under this authority, the State of Montana cannot be sued in Jacobsen's § 1983 action.
. We next consider whether Jacobsen has a viable § 1983 claim against Butte-Silver Bow. In Dorwart v. Caraway, 1998 MT 191,
115, 966 P.2d 1121,
115, 55 St. Rep. 777,
115, we recognized that " local governmental entity may be held liable under § 1983 only when it is shown that the entity itself caused the constitutional violation at issue through the implementation of a policy or custom of that governmental entity." For Jacobsen to impose liability on Butte-Silver Bow County, he must show that Butte-Silver Bow County had a policy that amounted to "deliberate indifference" to his constitutional right and that the policy was the "moving force behind the constitutional violation." See Dorwart,
115. The United States Supreme Court has explained that a policy can be a "statement, ordinance, regulation or decision officially adopted and promulgated" by the law-making body, or a custom or practice so widespread as to constitute a de facto policy. Monell v. Department of Social Services (1978), 436 U.S. 658, 690-91, 98 S. Ct. 2018, 2036, 56 L. Ed. 2d 611, 635-36. In addition, a policy can be the result of a decision made by a supervisor or someone who has policy-making authority. See Dorwart,
115; Pembauer v. Cincinnati (1986), 475 U.S. 469, 483, 106 S. Ct. 1292, 1300, 89 L. Ed. 2d 452, 464-65. There is nothing in the record that would suggest that Butte-Silv
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