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Jacobsen v. State4/28/1999
er Bow did anything which could reasonably be interpreted as policy in regard to Jacobsen's prosecution. The McCarthy affidavit established that Resolution 1196 was adopted for lawful and appropriate purposes. Jacobsen has not established any de facto policy sufficient to avoid summary judgment. There is likewise no one identified by Jacobsen who had policy-making authority who made a specific decision to retaliate against him. Jacobsen has not raised a material fact question to defeat summary judgment against Butte-Silver Bow for a civil rights violation.
. Finally, we consider whether Jacobsen can sustain a § 1983 claim against Skuletich and Scott. The law protects State officials from being sued in their official capacities; however, Jacobsen also sues them in their individual capacities. See Orozco, 281 Mont. at 348, 934 P.2d at 1013. Nonetheless, Jacobsen's claim must fail here as well. Skuletich and Scott are entitled to qualified immunity unless Jacobsen can establish that they violated clearly established statutory or constitutional rights of which a reasonable person would have known. See, e.g., Harlow v. Fitzgerald (1982), 457 U.S. 800, 818, 102 S. Ct. 2727, 2738, 73 L. Ed. 2d 396, 410. This has not been shown as a matter of law. Thus, we conclude the District Court did not err in granting summary judgment against Jacobsen on the § 1983 claims.
. Jacobsen also asserts a claim under 42 U.S.C. § 1985. The District Court ruled that for Jacobsen to recover under § 1985 he must have been deprived of a right protected by law and also be a member of either a suspect class or quasi-suspect class. Jacobsen does not set forth any arguments that would support a claim that he is a member of a suspect class.
. Finally, Jacobsen argues that the respondents violated his rights under the Fourth and Fifth Amendments to the United States Constitution. Jacobsen seems to say that his Fourth Amendment rights were violated during an interview with his wife and that he was arrested without probable cause which amounts to an unreasonable seizure. Jacobsen's Fifth Amendment claim apparently is based on his allegation that he was wrongfully deprived of property, namely his loss of the coroner's position. The District Court ruled that the Fourth Amendment claim must fail because there was no showing that there was an intrusion into Jacobsen's reasonable expectation of privacy. It further ruled that the Fifth Amendment claim must fail because his coroner job was an elected office in which he had no property right. We conclude that the District Court properly granted summary judgment on these claims as well.
ISSUE 4
. Should Jacobsen be required to pay his share of the costs of appellate mediation?
. Jacobsen reminds us that the District Court granted him the right to appeal without prepayment of costs. However, the mediator demanded that Jacobsen pay one-third of the mediation costs, pursuant to Rule 54(d)(5), M.R.App.P., which states that " he mediator's fee and incidental expenses shall be shared equally by the parties." Jacobsen argues that he should not have had to pay mediation costs under another provision of Rule 54(d)(5), M.R.App.P., which provides that "in cases involving money judgments of $5,000 or less, any mediator appointed by the clerk of the supreme court under subsection (d)(3) should serve pro bono." We note, however, that this was not designated as a pro bono appointment in the order of appointment, pursuant to Rule 54(d)(5), M.R.App.P.
. We have previously stated:
"The purpose of [Rule 54] is to provide the parties with another opportunity to resolve their dispute without incurring the significant costs a
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