Benitez v. City of Reno

Opinion

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 * * *

4 JAVIER BENITEZ, Case No. 3:24-CV-00088-CLB

5 Plaintiff, ORDER1

6 v. [ECF No. 51]

7 CITY OF RENO, et al.,

8 Defendants.

9 10 This case involves a civil rights action filed by Plaintiff Javier Benitez (“Benitez”) 11 against Defendant Michael Frady (“Frady”). Currently pending before the Court is Frady’s 12 motion for summary judgment. (ECF Nos. 51, 52). Benitez opposed the motion, (ECF No. 13 56), and Frady replied, (ECF No. 58). For the reasons discussed below, Frady’s motion, 14 (ECF No. 51), is granted. 15 I. BACKGROUND 16 A. Procedural History 17 On February 22, 2024, Plaintiff Benitez initiated this action by filing an application 18 to proceed in forma pauperis along with a pro se civil rights complaint, (ECF Nos. 3, 3-1). 19 On March 5, 2024, this Court screened the complaint pursuant to 28 U.S.C. § 1915A, 20 recommending: (1) the excessive force during arrest claim proceed against Defendant 21 Reno Police Department (“RPD”) Officer Frady; (2) the municipality liability claim against 22 Defendants City of Reno and RPD be dismissed with leave to amend; and (3) the false 23 imprisonment claim be dismissed without prejudice and without leave to amend. (ECF 24 No. 8.) On April 2, 2024, the District Court adopted the report and recommendation, 25 ordering that if Benitez failed to file an amended complaint within 30 days, the action 26

27 1 On December 16, 2024, this case was referred to the undersigned Magistrate Judge to conduct all proceedings and order the entry of final judgment in accordance with 1 would proceed on the excessive force claim against Frady, and the claims against the 2 City of Reno and the Reno Police Department and the false imprisonment claim would be 3 dismissed with prejudice. (ECF No. 9.) Benitez did not file an amended complaint or 4 request an extension of time to do so, and thus the case proceeded as to the Fourth 5 Amendment excessive force claim against Frady, only. (ECF No. 11.) 6 Following discovery, on June 2, 2025, Frady filed the instant motion for summary 7 judgment arguing he is entitled to summary judgment as a matter of law because the 8 undisputed evidence shows his conduct was objectively reasonable in light of the facts 9 and circumstances of the arrest, and alternatively, even if his conduct was not objectively 10 reasonable, he is entitled to qualified immunity. (ECF No. 51.) 11 B. Factual Background re: Summary Judgment 12 In his complaint, Benitez alleges the following: On June 10, 2023, while 13 effectuating an arrest of Benitez, Defendant Frady and numerous other Doe RPD Officers 14 used excessive force by pointing guns at Benitez’s head, when he had his hands up and 15 posed no threat and was “not the suspect.” (ECF No. 3-1 at 3.) Benitez alleges when the 16 officers pointed their guns at him, it caused him to suffer various mental and emotional 17 injuries, including anxiety, PTSD, and panic attacks. (Id.) 18 According to the undisputed evidence submitted by Defendant, on June 10, 2023, 19 while Frady was on patrol duty with the RPD, he assisted in responding to a call received 20 by the University of Nevada, Reno (“UNR”) police department about a report of shots 21 being fired in the Gateway Parking Garage. (ECF No. 51-1 at 2; ECF No. 51-2.) 22 Information in the initial call indicated a Black male adult in his thirties, who was 23 approximately 5’11 and wearing a white t-shirt with dark pants, was seen running from 24 the scene and had placed something in the front of his pants. (ECF No. 51-1 at 2; ECF 25 No. 51-2; ECF No. 51-3.) Frady was in the area of University Way and 7th Street when 26 he observed a male similarly matching the above description, but with poofy hair, a white 27 T-shirt, and blue jeans. (ECF No. 51-1; ECF No. 51-2.) Frady continued to just observe 1 they were looking for had on a white T-shirt, blue jeans, and poofy hair, which matched 2 the observed subject who later was determined to be Benitez. (ECF No. 51-1 at 2; ECF 3 No. 51-2; ECF No. 51-3.) 4 Frady then approached Benitez and activated the lights on his marked patrol 5 vehicle. (ECF No. 51-1; ECF No. 51-2.) Frady identified himself as police and told Benitez 6 to stop, but he continued walking away. (Id.) At that point, Frady drew his gun and put 7 Benitez at gunpoint due to the threat of a firearm in the call. (ECF No. 51-1 at 2; ECF No. 8 51-2; ECF No. 51-3.) 9 Reno Police Sergeant Anthony Della (“Sgt. Della”) arrived on scene shortly 10 thereafter and also put Benitez at gunpoint. (ECF No. 51-1; ECF No. 51-3.) Reno Police 11 Officer Zsante Smith (“Officer Smith”) arrived on scene while Sgt. Della and Frady were 12 holding Benitez at gunpoint as seen on Officer Smith’s body worn camera. (ECF No. 51- 13 1; ECF No. 51-3; ECF No. 52 (video at timestamp 22:01:11).) Officer Smith initially had 14 his gun drawn as he approached Benitez, but then he put his gun away and pulled out 15 his taser as he came around to stand on Frady’s right side. (ECF No. 51-1; ECF No. 52 16 (video at timestamp 22:01:15–22:01:42).) On the body cam video, Officer Smith was 17 standing on the right side of Frady holding the yellow taser, and Sgt. Della was standing 18 on the left side of Frady holding a gun. (ECF No. 51-1; ECF No. 52 (video at timestamp 19 22:02:17).) 20 To the best of Frady’s knowledge and recollection, and as seen on Officer Smith’s 21 body worn camera, Sgt. Della and Frady were the only two officers holding a gun at 22 Benitez. (ECF No. 51-1; ECF No. 52 (video at timestamp 22:01:12–22:02:33).) Benitez 23 was repeatedly told to “lay down on the ground,” “lay down on your stomach right now,” 24 “all the way flat on your stomach,” “put your arms out to the side,” and “look towards the 25 wall,” but he did not comply for nearly a full minute. (ECF No. 51-1; ECF No. 52 (video, 26 at timestamp 22:01:36–22:02:33).) Sgt. Della and Frady put their guns away as soon as 27 Benitez complied and was placed in handcuffs. (ECF No. 51-1; ECF No. 52 (video at 1 Benitez was ultimately determined by a witness to not be related to the incident, 2 as the subject in question was the same build but darker complexioned with hair that was 3 in dreads. (ECF No. 51-2 at 3.) However, the description of “dreads” was not received by 4 dispatch until 22:46:42, more than 43 minutes after Benitez was detained. (ECF No. 51- 5 3.) Due to Benitez’s failure to identify himself during the investigation, Benitez was 6 arrested for resisting a public officer for the failure to identify. Ultimately, he was 7 transported and booked in the Washoe County Sheriff’s Office. (ECF No. 51-2 at 4.) 8 II. LEGAL STANDARD 9 “The court shall grant summary judgment if the movant shows that there is no 10 genuine dispute as to any material fact and the movant is entitled to judgment as a matter 11 of law.” Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The 12 substantive law applicable to the claim determines which facts are material. Coles v. 13 Eagle, 704 F.3d 624, 628 (9th Cir. 2012) (citing Anderson v. Liberty Lobby, 477 U.S. 242, 14 248 (1986)). Only disputes over facts that address the main legal question of the suit can 15 preclude summary judgment, and factual disputes that are irrelevant are not material. 16 Frlekin v. Apple, Inc., 979 F.3d 639, 644 (9th Cir. 2020). A dispute is “genuine” only 17 where a reasonable jury could find for the nonmoving party. Anderson, 477 U.S. at 248. 18 The parties subject to a motion for summary judgment must: (1) cite facts from 19 the record, including but not limited to depositions, documents, and declarations, and 20 then (2) “show[] that the materials cited do not establish the absence or presence of a 21 genuine dispute, or that an adverse party cannot produce admissible evidence to support 22 the fact.” Fed. R. Civ. P. 56(c)(1). Documents submitted during summary judgment must 23 be authenticated, and if only personal knowledge authenticates a document (i.e., even a 24 review of the contents of the document would not prove that it is authentic), an affidavit 25 attesting to its authenticity must be attached to the submitted document. Las Vegas 26 Sands, LLC v. Neheme, 632 F.3d 526, 532-33 (9th Cir. 2011). Conclusory statements, 27 speculative opinions, pleading allegations, or other assertions uncorroborated by facts 1 v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). 2 The moving party bears the initial burden of demonstrating an absence of a 3 genuine dispute. Soremekun, 509 F.3d at 984. “Where the moving party will have the 4 burden of proof on an issue at trial, the movant must affirmatively demonstrate that no 5 reasonable trier of fact could find other than for the moving party.” Soremekun, 509 F.3d 6 at 984. However, if the moving party does not bear the burden of proof at trial, the moving 7 party may meet their initial burden by demonstrating either: (1) there is an absence of 8 evidence to support an essential element of the nonmoving party’s claim or claims; or 9 (2) submitting admissible evidence that establishes the record forecloses the possibility 10 of a reasonable jury finding in favor of the nonmoving party. See Pakootas v. Teck 11 Cominco Metals, Ltd., 905 F.3d 565, 593-94 (9th Cir. 2018); Nissan Fire & Marine Ins. 12 Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000). The court views all evidence and 13 any inferences arising therefrom in the light most favorable to the nonmoving party. 14 Colwell v. Bannister, 763 F.3d 1060, 1065 (9th Cir. 2014). If the moving party does not 15 meet its burden for summary judgment, the nonmoving party is not required to provide 16 evidentiary materials to oppose the motion, and the court will deny summary judgment. 17 Celotex, 477 U.S. at 322-23. 18 Where the moving party has met its burden, however, the burden shifts to the 19 nonmoving party to establish that a genuine issue of material fact actually exists. 20 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, (1986). The 21 nonmoving must “go beyond the pleadings” to meet this burden. Pac. Gulf Shipping Co. 22 v. Vigorous Shipping & Trading S.A., 992 F.3d 893, 897 (9th Cir. 2021) (internal quotation 23 omitted). In other words, the nonmoving party may not simply rely upon the allegations or 24 denials of its pleadings; rather, they must tender evidence of specific facts in the form of 25 affidavits, and/or admissible discovery material in support of its contention that such a 26 dispute exists. See Fed. R. Civ. P. 56(c); Matsushita, 475 U.S. at 586 n. 11. This burden 27 is “not a light one,” and requires the nonmoving party to “show more than the mere 1 376, 387 (9th Cir. 2010)). The non-moving party “must come forth with evidence from 2 which a jury could reasonably render a verdict in the non-moving party’s favor.” Pac. Gulf 3 Shipping Co., 992 F.3d at 898 (quoting Oracle Corp. Sec. Litig., 627 F.3d at 387). Mere 4 assertions and “metaphysical doubt as to the material facts” will not defeat a properly 5 supported and meritorious summary judgment motion. Matsushita Elec. Indus. Co. v. 6 Zenith Radio Corp., 475 U.S. 574, 586–87 (1986). 7 When a pro se litigant opposes summary judgment, his or her contentions in 8 motions and pleadings may be considered as evidence to meet the non-party’s burden 9 to the extent: (1) contents of the document are based on personal knowledge, (2) they 10 set forth facts that would be admissible into evidence, and (3) the litigant attested under 11 penalty of perjury that they were true and correct. Jones v. Blanas, 393 F.3d 918, 923 12 (9th Cir. 2004). 13 Upon the parties meeting their respective burdens for the motion for summary 14 judgment, the court determines whether reasonable minds could differ when interpreting 15 the record; the court does not weigh the evidence or determine its truth. Velazquez v. 16 City of Long Beach, 793 F.3d 1010, 1018 (9th Cir. 2015). The court may consider 17 evidence in the record not cited by the parties, but it is not required to do so. Fed. R. Civ. 18 P. 56(c)(3). Nevertheless, the court will view the cited records before it and will not mine 19 the record for triable issues of fact. Oracle Corp. Sec. Litig., 627 F.3d at 386 (if a 20 nonmoving party does not make nor provide support for a possible objection, the court 21 will likewise not consider it). 22 III. DISCUSSION 23 Frady argues he is entitled to summary judgment as a matter of law because the 24 undisputed evidence shows his conduct was objectively reasonable in light of the facts 25 and circumstances that confronted him on June 10, 2023. (ECF No. 51.) The Court 26 agrees. 27 Under the Fourth Amendment, an officer's use of force must be “objectively 1 of Nat'l City, 23 F.4th 1146, 1151 (9th Cir. 2022) (citation and internal quotation marks 2 omitted); Graham v. Connor, 490 U.S. 386, 397 (1989). In determining the 3 reasonableness of a use of force, the court must balance “the nature and quality of the 4 intrusion on the individual's Fourth Amendment interests against the countervailing 5 government interests at stake.” Miller v. Clark Cnty., 340 F.3d 959, 964 (9th Cir. 2003) 6 (quotations omitted). 7 Courts may decide reasonableness as a matter of law if, “in resolving all factual 8 disputes in favor of the plaintiff, the officer's force was objectively reasonable under the 9 circumstances.” Jackson v. City of Bremerton, 268 F.3d 646, 651 n.1 (9th Cir. 2001) 10 (internal quotation omitted). The reasonableness inquiry looks at all the relevant 11 objective facts and circumstances that confronted the arresting officers “judged from the 12 perspective of a reasonable officer on the scene, rather than with the 20/20 vision of 13 hindsight.” Drummond ex rel. Drummond v. City of Anaheim, 343 F.3d 1052, 1058 (9th 14 Cir. 2003) (quotation omitted). Additionally, the reasonableness analysis must consider 15 the fact that “police officers are often forced to make split-second judgments—in 16 circumstances that are tense, uncertain, and rapidly evolving—about the amount of force 17 that is necessary in a particular situation.” Id. 18 Graham v. Connor provides the framework that governs the reasonableness 19 inquiry. 490 U.S. 386. Resolving all genuine disputes of material fact in Plaintiff's favor, 20 Graham requires that courts consider “the severity of the intrusion on the individual's 21 Fourth Amendment rights by evaluating the type and amount of force inflicted” and “the 22 government's interest in the use of force.” Seidner v. de Vries, 39 F.4th 591, 596 (9th 23 Cir. 2022), (quoting Williamson, 23 F.4th at 1151). Courts balances these two factors to 24 determine whether the government's use of force was excessive. See id. 25 To gauge the type and amount of force used, courts assess both “the risk of harm 26 and the actual harm experienced.” Nelson v. City of Davis, 685 F.3d 867, 879 (9th Cir. 27 2012). The greater the risk of harm and the actual harm involved, the greater the 1 County of Humboldt, 276 F.3d 1125, 1130 (9th Cir. 2002). 2 The government's interest in the use of force differs depending on: (1) the severity 3 of the crime; (2) whether the suspect posed an immediate threat to the safety of the 4 officers or others; and (3) whether the suspect was actively resisting arrest or attempting 5 to evade arrest by flight. Williamson, 23 F.4th at 1153; see Graham, 490 U.S. at 396– 6 97. “[T]hese factors are not exclusive; they must be considered under the totality of 7 circumstances, including whether ‘less intrusive alternatives’ were available to law 8 enforcement and whether the suspect was given ‘proper warnings’ before force was 9 used.” Seidner, 39 F.4th at 599 (quoting Rice v. Morehouse, 989 F.3d 1112, 1121–22 10 (9th Cir. 2022)). The “immediate threat” factor is the most important. Isayeva v. 11 Sacramento Sheriff's Dept., 872 F.3d 938, 947 (9th Cir. 2017) (quoting S.B. v. County of 12 San Diego, 864 F.3d 1010, 1013 (9th Cir. 2017)). 13 As discussed above, the undisputed evidence shows the following occurred on 14 June 10, 2023: while Frady was on patrol duty with the RPD, he assisted in responding 15 to a call received by the UNR police department about a report of shots being fired in the 16 Gateway Parking Garage. Information in the initial call indicated a Black male adult in his 17 thirties, who was approximately 5’11 and wearing a white t-shirt with dark pants, was seen 18 running from the scene and had placed something in the front of his pants. Frady was in 19 the area of University Way and 7th Street when he observed a male similarly matching 20 the above description, but with poofy hair, a white T-shirt, and blue jeans. Frady continued 21 to just observe this male from that location. An update in the call from UNR police 22 indicated the male they were looking for had on a white T-shirt, blue jeans, and poofy 23 hair, which matched the observed subject who later was determined to be Benitez. 24 Based on the matching description, Frady approached Benitez and activated the 25 lights on his marked patrol vehicle. Frady identified himself as police and told Benitez to 26 stop, but Benitez continued walking away. At that point, Frady drew his gun and put 27 Benitez at gunpoint due to the threat of a firearm in the call. Shortly thereafter, Sgt. Della 1 Benitez was repeatedly told to “lay down on the ground,” “lay down on your 2 stomach right now,” “all the way flat on your stomach,” “put your arms out to the side,” 3 and “look towards the wall,” but he did not comply for nearly a full minute. Sgt. Della and 4 Frady put their guns away as soon as Benitez complied and was placed in handcuffs. 5 Benitez was ultimately determined by a witness to not be related to the incident, 6 as the subject in question was the same build but darker complexioned with dreads. 7 However, the description of “dreads” was not received by dispatch until 22:46:42, more 8 than 43 minutes after Benitez was detained. 9 Viewing the facts in the light most favorable to Benitez, a reasonable jury could 10 find pointing a loaded gun to constitute a high risk of harm. See Espinosa v. City & County 11 of San Francisco, 598 F.3d 528, 537-538 (9th Cir. 2010) (“pointing a loaded gun at a 12 suspect, employing the threat of deadly force, is use of a high level of force.”) In this 13 case, because Benitez was held at gun point for a short period of time and was not 14 physically injured, the actual harm involved was low. 15 However, the government interests at stake were high. First, the crime— 16 discharging a weapon in an occupied public space—was severe. Discharging a weapon 17 in this manner is a felony offense under Nevada law. See NRS 202.285 (discharging a 18 firearm at an occupied building is a category B felony carrying one-to-10-year term in 19 prison and/or up to $5,000 fine). Second, Benitez closely matched the description of the 20 suspect who was reported to have committed a shooting and then fled with 21 “something”—which could be a firearm—in his pants. Thus, based on the undisputed 22 evidence in this case, at the moment Frady and the other officers encountered Benitez, 23 they had reason to believe Benitez was armed and dangerous and posed an immediate 24 threat to the safety of the responding officers, as well as to the public at large. See 25 George v. Morris, 736 F.3d 829, 838 (9th Cir. 2013) (“If the person is armed—or 26 reasonably suspected of being armed—a furtive movement, harrowing gesture, or 27 serious verbal threat might create an immediate threat.”). Finally, instead of complying 1 to escalate the interaction, i.e., to draw their weapons. 2 The undisputed evidence set forth above demonstrates that Frady’s use of force 3 on June 10, 2023 was objectively reasonable as a matter of law. He held Benitez at 4 gunpoint for only as long as necessary to detain and handcuff him, which enabled officers 5 to safely pat him down and confirm he did not have a firearm on him. Ninth Circuit case 6 law is clear, pointing a gun at a suspect is not categorically out of bounds. Hopson v. 7 Alexander, 71 F.4th 692, 704-05 (9th Cir. 2023) (citing Alexander v. County of Los 8 Angeles, 64 F.3d 1315, 1320 (9th Cir. 1995) (“It is well settled that when an officer 9 reasonably believes force is necessary to protect his own safety or the safety of the 10 public, measures used to restrain individuals, such as stopping them at gunpoint and 11 handcuffing them, are reasonable.” (emphasis added)). 12 Balancing the gravity of the force used against the governmental interests at 13 stake, no reasonable jury could find Frady used excessive force during the short period 14 at which Benitez was held at gunpoint. 15 Even if a reasonable jury could find this level force to be unreasonable, Benitez 16 has not pointed to clearly established law beyond general excessive force principles that 17 would have put the officers on notice that pulling a gun under the circumstances was 18 unconstitutional. To the contrary, the Ninth Circuit has found officers did not violate 19 clearly established law in pointing guns at robbery suspects while detaining them, even 20 though it turned out to be a case of mistaken identity. See Alexander, 64 F.3d at 1318, 21 1320. Thus, because Benitez has not identified any authority and the Court cannot find 22 an authority that places the unconstitutionally of Frady’s conduct “beyond debate” in the 23 circumstances he confronted, the Court finds Frady did not violate clearly established 24 law when he pointed his gun at Benitez. See District of Columbia v. Wesby, 583 U.S. 48, 25 63 (2018). Thus, Frady’s motion for summary judgment is granted. 26 IV. CONCLUSION 27 The Court notes that the parties made several arguments and cited to several determines they do not warrant discussion as they do not affect the outcome of the issues before the Court. 3 For the reasons stated above, IT IS ORDERED that Frady’s motion for summary 4| judgment, (ECF No. 51), is GRANTED. 5 IT IS FURTHER ORDERED that the Clerk of Court ENTER JUDGMENT 6 | accordingly and CLOSE this case. 7 DATED: July 15, 2025 3 : » 10 UNITED STATES\MAGISTRATE JUDGE

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