NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 25 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
MARINO SCAFIDI, No. 23-15657
Plaintiff-Appellant, D.C. No. 2:14-cv-01933-RFB-VCF v.
LAS VEGAS METROPOLITAN POLICE MEMORANDUM* DEPARTMENT, a political subdivision on behalf of State of Nevada; et al.,
Defendants-Appellees,
and
FCH1, LLC, DBA Palms Casino Resort; et al.,
Defendants.
Appeal from the United States District Court for the District of Nevada Richard F. Boulware, II, District Judge, Presiding
Submitted April 1, 2024** Pasadena, California
Before: R. NELSON, VANDYKE, and SANCHEZ, Circuit Judges.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Appellant Marino Scafidi (Scafidi) brought claims against the Las Vegas
Metropolitan Police Department (LVMPD), several of its officers, and an
investigating nurse (collectively Appellees), alleging that he was arrested without
probable cause and wrongfully prosecuted for sexual assault. The district court
granted summary judgment for the Appellees. We have jurisdiction under
28 U.S.C. § 1291, and we affirm.
1. On September 1, 2012, Scafidi went on a date with Stephanie Carter at the
Palms Hotel & Casino in Las Vegas, where Scafidi rented a room. The night went
awry, ending with Carter locked in Scafidi’s bathroom early the next morning,
where she called 911. Carter reported that Scafidi was trying to harm her. Officers
arrived, finding Carter locked and bleeding in Scafidi’s hotel bathroom. Carter
was taken to be interviewed and receive medical attention, while Scafidi was
detained.
Carter told officers that Scafidi sexually assaulted her. A Sexual Assault
Nurse Exam (SANE) stated that her “clinical impression” was “sexual assault.”
Based on this, and Carter’s 911 call, Scafidi was arrested. Scafidi was charged for
three counts of sexual assault. After several years, in 2017, Scafidi’s charges were
dropped.
2. Scafidi sued, asserting several claims. These included two claims against
LVMPD: (1) a Monell claim, and (2) a negligence claim; two claims against just
2 the investigating officers and nurse: (1) a § 1983 claim; and (2) a false
imprisonment claim; two claims against the officers and the nurse: (1) a § 1983
conspiracy claim, and (2) a malicious prosecution claim; and an intentional
infliction of emotional distress (IIED) claim against all Appellees.
On May 15, 2018, the district court granted Appellees summary judgment
because there was probable cause to arrest Scafidi and any issue with probable
cause was precluded from relitigation, among other things. Scafidi v. Las Vegas
Metro. Police Dep’t, No. 2:14–cv–01933–RCJ–GWF, 2018 WL 2123372, at *3−4
(D. Nev. May 8, 2018). Scafidi appealed. We reversed, holding that “controlling
Nevada state precedent expressly rejects the view that a probable cause
determination at a preliminary hearing precludes later relitigation of that question.”
Scafidi v. Las Vegas Metro. Police Dep’t, 966 F.3d 960, 963 (9th Cir. 2020). We
also concluded that Scafidi’s allegations that Defendants fabricated evidence or
otherwise committed misconduct in bad faith created a triable issue of material fact
as to probable cause. Id. at 963−64.
The case was remanded to the district court. On February 9, 2021, the
district court granted summary judgment for the nurse that performed the SANE.
Scafidi v. Las Vegas Metro. Police Dep’t, No. 2:14-cv-01933-RCJ-GWF, 2021 WL
472920, at *8 (D. Nev. Feb. 9, 2021). On March 31, 2023, the district court
granted summary judgment for the remaining Appellees. Scafidi v. Las Vegas
3 Metro. Police Dep’t, No. 2:14-cv-01933-RFB-VCF, 2023 WL 2744737, at *11 (D.
Nev. Mar. 31, 2023). Scafidi now appeals the district court’s grant of summary
judgment.
3. We review a grant of summary judgment de novo. San Jose Christian
Coll. v. City of Morgan Hill, 360 F.3d 1024, 1029 (9th Cir. 2004). Summary
judgment is appropriate when “there is no genuine dispute [of] material fact and
the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). We
hold that the district court correctly granted summary judgment for all Appellees
and affirm.
First, Scafidi’s § 1983 claims fail because undisputed evidence shows that
Appellees did not violate his constitutional rights. To prove a § 1983 claim based
on the Fourth Amendment, “‘[s]eizure’ alone is not enough,” it must also be
unreasonable. Brower v. County of Inyo, 489 U.S. 593, 599 (1989). Scafidi’s
“seizure” was not unreasonable, because his arrest was based on probable cause as
a matter of law. At the time of the arrest, the responding officer had found Carter
locked and bleeding in Scafidi’s hotel bathroom, and knew that Carter had called
911 and reported that Scafidi was trying to harm her. Based on these undisputed
facts, a reasonable detective could conclude that a “fair probability” existed that a
sexual assault occurred, which is sufficient to establish probable cause to arrest.
See United States v. Lopez, 482 F.3d 1067, 1072 (9th Cir. 2007).
4 Scafidi’s § 1983 claim based on deliberately fabricated evidence also fails as
a matter of law because Scafidi has not presented evidence that an official
“deliberately fabricated evidence.” Spencer v. Peters, 857 F.3d 789, 798 (9th Cir.
2017). Scafidi alleges that Defendant Beza deliberately fabricated evidence in his
search warrant application because the application stated that the SANE exam
resulted in “positive findings,” despite the fact that, in Scafidi’s view, the SANE
exam never “found or confirmed a sexual assault.” But Scafidi’s allegation does
not raise a genuine factual dispute because the nurse’s SANE exam indisputably
says that her “clinical impression” was “sexual assault.” Scafidi therefore has no
direct evidence of fabrication. Scafidi also cannot establish his deliberate
fabrication claim using circumstantial evidence because Scafidi presented no
evidence that Defendants Pool and Beza should have believed Scafidi was
innocent, given the results of the SANE exam and Carter’s representations. See
Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (en banc) (plaintiff can
prove a fabrication claim using circumstantial evidence by showing that
“[d]efendants continued their investigation . . . despite the fact that they knew or
should have known that [the plaintiff] was innocent”).
Because Scafidi has not raised triable issues as to whether Appellees
violated his constitutional rights, his § 1983 conspiracy claim and his Monell claim
5 necessarily fail.
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 25 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
MARINO SCAFIDI, No. 23-15657
Plaintiff-Appellant, D.C. No. 2:14-cv-01933-RFB-VCF v.
LAS VEGAS METROPOLITAN POLICE MEMORANDUM* DEPARTMENT, a political subdivision on behalf of State of Nevada; et al.,
Defendants-Appellees,
and
FCH1, LLC, DBA Palms Casino Resort; et al.,
Defendants.
Appeal from the United States District Court for the District of Nevada Richard F. Boulware, II, District Judge, Presiding
Submitted April 1, 2024** Pasadena, California
Before: R. NELSON, VANDYKE, and SANCHEZ, Circuit Judges.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Appellant Marino Scafidi (Scafidi) brought claims against the Las Vegas
Metropolitan Police Department (LVMPD), several of its officers, and an
investigating nurse (collectively Appellees), alleging that he was arrested without
probable cause and wrongfully prosecuted for sexual assault. The district court
granted summary judgment for the Appellees. We have jurisdiction under
28 U.S.C. § 1291, and we affirm.
1. On September 1, 2012, Scafidi went on a date with Stephanie Carter at the
Palms Hotel & Casino in Las Vegas, where Scafidi rented a room. The night went
awry, ending with Carter locked in Scafidi’s bathroom early the next morning,
where she called 911. Carter reported that Scafidi was trying to harm her. Officers
arrived, finding Carter locked and bleeding in Scafidi’s hotel bathroom. Carter
was taken to be interviewed and receive medical attention, while Scafidi was
detained.
Carter told officers that Scafidi sexually assaulted her. A Sexual Assault
Nurse Exam (SANE) stated that her “clinical impression” was “sexual assault.”
Based on this, and Carter’s 911 call, Scafidi was arrested. Scafidi was charged for
three counts of sexual assault. After several years, in 2017, Scafidi’s charges were
dropped.
2. Scafidi sued, asserting several claims. These included two claims against
LVMPD: (1) a Monell claim, and (2) a negligence claim; two claims against just
2 the investigating officers and nurse: (1) a § 1983 claim; and (2) a false
imprisonment claim; two claims against the officers and the nurse: (1) a § 1983
conspiracy claim, and (2) a malicious prosecution claim; and an intentional
infliction of emotional distress (IIED) claim against all Appellees.
On May 15, 2018, the district court granted Appellees summary judgment
because there was probable cause to arrest Scafidi and any issue with probable
cause was precluded from relitigation, among other things. Scafidi v. Las Vegas
Metro. Police Dep’t, No. 2:14–cv–01933–RCJ–GWF, 2018 WL 2123372, at *3−4
(D. Nev. May 8, 2018). Scafidi appealed. We reversed, holding that “controlling
Nevada state precedent expressly rejects the view that a probable cause
determination at a preliminary hearing precludes later relitigation of that question.”
Scafidi v. Las Vegas Metro. Police Dep’t, 966 F.3d 960, 963 (9th Cir. 2020). We
also concluded that Scafidi’s allegations that Defendants fabricated evidence or
otherwise committed misconduct in bad faith created a triable issue of material fact
as to probable cause. Id. at 963−64.
The case was remanded to the district court. On February 9, 2021, the
district court granted summary judgment for the nurse that performed the SANE.
Scafidi v. Las Vegas Metro. Police Dep’t, No. 2:14-cv-01933-RCJ-GWF, 2021 WL
472920, at *8 (D. Nev. Feb. 9, 2021). On March 31, 2023, the district court
granted summary judgment for the remaining Appellees. Scafidi v. Las Vegas
3 Metro. Police Dep’t, No. 2:14-cv-01933-RFB-VCF, 2023 WL 2744737, at *11 (D.
Nev. Mar. 31, 2023). Scafidi now appeals the district court’s grant of summary
judgment.
3. We review a grant of summary judgment de novo. San Jose Christian
Coll. v. City of Morgan Hill, 360 F.3d 1024, 1029 (9th Cir. 2004). Summary
judgment is appropriate when “there is no genuine dispute [of] material fact and
the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). We
hold that the district court correctly granted summary judgment for all Appellees
and affirm.
First, Scafidi’s § 1983 claims fail because undisputed evidence shows that
Appellees did not violate his constitutional rights. To prove a § 1983 claim based
on the Fourth Amendment, “‘[s]eizure’ alone is not enough,” it must also be
unreasonable. Brower v. County of Inyo, 489 U.S. 593, 599 (1989). Scafidi’s
“seizure” was not unreasonable, because his arrest was based on probable cause as
a matter of law. At the time of the arrest, the responding officer had found Carter
locked and bleeding in Scafidi’s hotel bathroom, and knew that Carter had called
911 and reported that Scafidi was trying to harm her. Based on these undisputed
facts, a reasonable detective could conclude that a “fair probability” existed that a
sexual assault occurred, which is sufficient to establish probable cause to arrest.
See United States v. Lopez, 482 F.3d 1067, 1072 (9th Cir. 2007).
4 Scafidi’s § 1983 claim based on deliberately fabricated evidence also fails as
a matter of law because Scafidi has not presented evidence that an official
“deliberately fabricated evidence.” Spencer v. Peters, 857 F.3d 789, 798 (9th Cir.
2017). Scafidi alleges that Defendant Beza deliberately fabricated evidence in his
search warrant application because the application stated that the SANE exam
resulted in “positive findings,” despite the fact that, in Scafidi’s view, the SANE
exam never “found or confirmed a sexual assault.” But Scafidi’s allegation does
not raise a genuine factual dispute because the nurse’s SANE exam indisputably
says that her “clinical impression” was “sexual assault.” Scafidi therefore has no
direct evidence of fabrication. Scafidi also cannot establish his deliberate
fabrication claim using circumstantial evidence because Scafidi presented no
evidence that Defendants Pool and Beza should have believed Scafidi was
innocent, given the results of the SANE exam and Carter’s representations. See
Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (en banc) (plaintiff can
prove a fabrication claim using circumstantial evidence by showing that
“[d]efendants continued their investigation . . . despite the fact that they knew or
should have known that [the plaintiff] was innocent”).
Because Scafidi has not raised triable issues as to whether Appellees
violated his constitutional rights, his § 1983 conspiracy claim and his Monell claim
5 necessarily fail. See Woodrum v. Woodward County, 866 F.2d 1121, 1126 (9th
Cir. 1989); see also City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986).
Finally, Scafidi’s state law claims fail because, as explained above,
Appellees had probable cause to arrest him for sexual assault as a matter of law.
The existence of probable cause bars these claims because “an arrest made with
probable cause is privileged and not actionable.” Nelson v. City of Las Vegas, 665
P.2d 1141, 1144 (Nev. 1983). In addition, the existence of probable cause is a
required element, or affirmative defense, to Scafidi’s false arrest, malicious
prosecution, and IIED claims. See, e.g., Schulz v. Lamb, 504 F.2d 1009, 1011 (9th
Cir. 1974) (false arrest claim); LaMantia v. Redisi, 38 P.3d 877, 879 (Nev. 2002)
(malicious prosecution claim); Palmieri v. Clark County, 367 P.3d 442, 446 n.2
(Nev. Ct. App. 2015) (IIED claim). Along the same lines, Scafidi’s negligence
claim similarly fails because it is factually premised on a lack of probable cause.
Because Scafidi’s claims fail as a matter of law, we affirm the district
court’s grant of summary judgment for Appellees.
AFFIRMED.