Neske v. Las Vegas Metropolitan Police Department

• Court: District Court, D. Nevada
• Decided: September 30, 2023
• Docket: 2:21-cv-01315
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 * * * 7 KIMBERLEY ANN NESKE, Case No. 2:21-cv-01315-RFB-BNW 8 INDIVIDUALLY AND AS HEIR AND AS SPECIAL ADMINISTRATOR FOR THE ORDER 9 ESTATE OF JAMES NESKE,

10 Plaintiff,

11 v.

12 LAS VEGAS METROPOLITAN POLICE DEPARTMENT, ET AL., 13 14 Defendants.

15 Before the Court are the remaining two Defendants’ Motions for Summary Judgement 16 (ECF Nos. 35, 36). For the reasons stated below, this Court grants both motions. 17

18 I. PROCEEDURAL HISTORY 19 Plaintiff Kimberly Neske commenced this case by filing a Complaint on July 12, 2021. Id. 20 The Complaint named the Las Vegas Metropolitan Police Department (“LVMPD”) and 21 Correctional Officers Cline and Rowe1 as defendants. Id. Defendants Answered the complaint on 22 July 28, 2021. ECF No. 7. Discovery commenced on September 1, 2021, and concluded on January 23 20, 2023. See ECF Nos. 12, 32. Following the close of discovery, Defendant Cline was dismissed 24 from the action. ECF No. 36. On February 21, 2023, Defendants LVMPD and Rowe filed separate 25 motions for summary judgment. ECF Nos. 35, 36. Plaintiff Responded to each in separate filings 26 27 28 1 Officer “Rowe” may be named Officer Lowe. For consistency with the caption, he is referred to as Defendant Rowe throughout this order. 1 on March 14, 2023. ECF Nos. 40, 41. Defendants filed separate Responses on March 28, 2023. 2 ECF Nos. 42, 43. On August 7, 2023, the Court held a hearing on both motions and took them 3 under submission. ECF No. 45. 4 5 II. FACTUAL BACKGROUND 6 The Court finds that the following facts are undisputed. 7 On July 10, 2019, James Neske was in the pre-trial custody of LVMPD and incarcerated 8 at the Clark County Detention Center (“CCD”) in Las Vegas, Nevada. From July 7 to July 10, 9 James Neske was housed alone in Cell 14 of Unit 9C. Unit 9C has two tiers, and Cell 14 is on the 10 upper tier. The entrance to Unit 9C is on the bottom level. There is a room linking Unit 9C and 11 Unit 9D as well as separate room with an officer’s desk. Correctional officers at the desk can hear 12 at least some noise from 9C. On the night of July 10, Michael Collins was also incarcerated at 13 CCD and transferred to Cell 14. At approximately 10:51 p.m., following a strip search, Collins 14 was placed inside Cell 14 with James Neske. 15 On the night of July 10 to July 11, Defendant Rowe was assigned to 9C alongside 16 Corrections Officer Morris. Per LVMPD standard operating procedure, Rowe was to perform a 17 walkthrough of 9C at the beginning of his shift and every 30 minutes thereafter. These 18 walkthroughs involve a visual welfare check of each incarcerated person. During the night of July 19 10 to July 11, Rowe completed two relevant walkthroughs. His first (the “first walkthrough”) 20 began at approximately 11:05 p.m. During the first walkthrough, Rowe inspected Cell 14 at 21 approximately 11:07 p.m. and left 9C at approximately 11:08 p.m. His second (the “second 22 walkthrough”) began at approximately 11:29 p.m. 23 Cells in 9C have buttons on the inside which trigger an emergency call light on the exterior 24 and a corresponding signal on a monitoring console operated by correctional officers. Corrections 25 Officers regularly tell people to only press the button if there is an emergency. The buttons are 26 sometimes pressed for non-emergency reasons. Corrections officers are supposed to respond to the 27 emergency lights. Corrections officers can turn off the lights. Once pressed, the light cannot be 28 turned off from inside the cell. 1 At some point after Collins was placed into Cell 14, Collins and James Neske had a 2 physical altercation. The emergency light outside Cell 14 was illuminated when Rowe began his 3 second walkthrough at approximately 11:29 p.m. Rowe completed his walkthrough of the lower 4 tier before the upper tier. Rowe walked past most of the cells in 9C before arriving at Cell 14. 5 Rowe stopped multiple times to talk or drop off paperwork at other cells. By approximately 11:31 6 p.m., Rowe arrived at Cell 14, saw Collins with blood on him, and called in a medical emergency. 7 Following Rowe’s call, Officer Morris quickly arrived and together with Rowe, removed 8 Collins from Cell 14. LVMPD standard operating procedure requires two offices to be present 9 before opening the cell door in such a situation. James Neske was lying unconscious on the floor 10 and had blood around his head. At approximately 11:33 p.m., CCDC Medical Staff responded and 11 began providing medical attention to James Neske. James Neske was unresponsive, lacked a pulse, 12 and was not breathing. Paramedics arrived at approximately 11:47 p.m. James Neske regained a 13 blood pressure and a pulse at approximately 11:59 p.m. but he was still not breathing unassisted. 14 James Neske was transported to University Medical Center where he was admitted. 15 Just after midnight July 11, 2023, at University Medical Center, James Neske was 16 diagnosed with inter alia a hypoxic brain injury—a lack of oxygen reaching the brain. James 17 Neske remained unresponsive and required a ventilator and cardiovascular support. On July 15, 18 2019, James Neske was declared brain dead. The Clark County Coroner issued a report on James 19 Neske’s death concluding that a definitive anatomical cause of death was not identified but that it 20 is most probable that James Neske died of asphyxia. 21 The Court finds that the following facts are disputed. 22 Whether a more prompt response by Defendant Rowe could have saved James Neske’s 23 life; whether the emergency light outside of Cell 14 was illuminated prior to Defendant Rowe’s 24 second walkthrough; whether the Cell 14 emergency light was turned off prior to Defendant 25 Rowe’s arrival at Cell 14 during his second walkthrough; whether and to what extent people were 26 kicking their doors and shouting during and before Defendant Rowe’s second walkthrough; 27 whether Defendant Rowe was situated so as to see or hear any notification of an emergency prior 28 to beginning his second walkthrough. 1 2 III. LEGAL STANDARD 3 Summary judgment is appropriate when the pleadings, depositions, answers to 4 interrogatories, and admissions on file, together with the affidavits, if any, show “that there is no 5 genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” 6 Fed. R. Civ. P. 56(a); accord Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The substantive 7 law governing a matter determines which facts are material to a case. Anderson v. Liberty Lobby, 8 477 U.S. 242, 248 (1986). 9 The moving party bears the burden of showing the absence of material fact. Celotex, 477 10 U.S. at 323. The burden then shifts to the nonmoving party to show specific facts demonstrating a 11 genuine factual dispute for trial. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 12 574, 587 (1986). When considering the propriety of summary judgment, the court views all facts 13 and draws all inferences in the light most favorable to the nonmoving party. Gonzalez v. City of 14 Anaheim, 747 F.3d 789, 793 (9th Cir. 2014). 15 However, the nonmoving party may not merely rest on the allegations of her pleadings. 16 She must produce specific facts by affidavit or other evidence showing a genuine issue of fact. 17 Anderson, 477 U.S. at 256 (1986). In other words, the nonmoving party “must do more than simply 18 show that there is some metaphysical doubt as to the material facts . . . . Where the record taken 19 as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine 20 issue for trial.” Scott v. Harris, 550 U.S. 372, 380 (2007) (alteration in original) (internal quotation 21 marks omitted). It is improper for the Court to resolve genuine factual disputes or make credibility 22 determinations at the summary judgment stage. Zetwick v. Cty. of Yolo, 850 F.3d 436, 441 (9th 23 Cir. 2017) (citations omitted). 24 25 IV. DISCUSSION AND ANALYSIS 26 A. Plaintiff’s Section 1983 Claims 27 Plaintiff raises two federal claims against Defendant Rowe, both under Section 1983. 28 Specifically, the Complaint asserts claims for the Violation of James Neske’s Life and Security of 1 Person (Count I) and Kimberly Neske’s Civil Right to Familial Relationships (Count II). A 2 plaintiff must establish two essential elements to prevail under 42 U.S.C. § 1983: (1) the violation 3 of a right secured by the Constitution or laws of the United States, and (2) that the alleged violation 4 was committed by a person acting under color of state law. Crumpton v. Gates, 947 F.2d 1418, 5 1420 (9th Cir. 1991); see also Long v. Cnty. of L.A., 442 F.3d 1178, 1185 (9th Cir. 2006) (citing 6 West v. Atkins, 487 U.S. 42, 48 (1988)); Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). 7 There is no dispute that Defendant Rowe was acting under color of law. See also Stein v. 8 Ryan, 662 F.3d 1114, 1118 (9th Cir. 2011) (“Obviously, officers of a state's department of 9 corrections who imprison a person in the state's prison do so under color of law.”). Therefore, the 10 Court focuses its analysis on Section 1983’s first element. 11 a. Count I: § 1983 and Deliberate Indifference 12 The due process clause of the Fourteenth Amendment allows a person who is incarcerated 13 to sue corrections officials for injuries suffered in pre-trial custody. See Castro v. Cnty. of L.A., 14 833 F.3d 1060, 1067-68 (9th Cir. 2016) (en banc); Gordon v. Cnty. of Orange, 888 F.3d 1118, 15 1124-25 (9th Cir. 2018). Plaintiff claims that by ignoring warning signs, Defendant Rowe 16 exhibited a deliberate indifference to James Neske’s medical emergency. The Court takes this as 17 a medical indifference claim.2 18 The elements of a pretrial detainee’s medical care claim against an individual defendant 19 under the due process clause of the Fourteenth Amendment are: 20

21 2 To the extent that Plaintiff is articulating that Defendant Rowe failed to protect James 22 Neske from Collins, that argument similarly fails. Failure-to-Protect and Medical Indifference claims share the same four-prong deliberate indifference test. Gordon, 888 F.3d at 1124-25. The 23 fatal issue for Plaintiff in a failure-to-protect context is a near total lack of evidence that “a reasonable officer in the circumstances would have appreciated the high degree of risk involved.” 24 Castro, 833 F.3d at 1071. Plaintiff points to statements by Defendant Rowe to the effect that Collins was frustrated at the time he was placed in Cell 14. For example, “I don’t know if [Collins] 25 was trying to be aggressive with his clothes [during the strip search]. Uh, he – he certainly wasn’t listening to us.” Even if this was sufficient for a jury to determine Defendant Rowe knew Collins 26 was hostile, there is a lack of evidence that a reasonable officer would have noticed the risk and done something to abate it. For instance, there is no evidence for a reasonable trier of fact to find 27 inter alia that Defendant Rowe was responsible for Collins placement or had the authority to place Collins elsewhere, that Cell 14 was an unreasonable choice to place Collins in on a night where 28 9C’s population exceeded the number of cells, or that Collins level of aggression was outside the norm for people being strip searched and placed in disciplinary housing. 1 (1) The defendant made an intentional decision with respect to the conditions under which the plaintiff was confined; 2 (2) Those conditions put the plaintiff at substantial risk of suffering serious harm; 3 (3) The defendant did not take reasonable available measures to abate that risk, even though a reasonable officer in the circumstances would have appreciated 4 the high degree of risk involved—making the consequences of the defendant's conduct obvious; and 5 (4) By not taking such measures, the defendant caused the plaintiff's injuries. 6 Gordon, 888 F.3d at 1125 (citing Castro, 833 F.3d at 1071). In determining the third element a 7 court must consider whether the conduct at issue was objectively unreasonable; the subjective state 8 of mind of a corrections official is not relevant to the analysis. Id. (citing Castro, 833 F.3d at 1071). 9 Plaintiff “must prove more than negligence but less than subjective intent – something akin to 10 reckless disregard.” Id. 11 On the record before it, the Court concludes that no reasonable jury could find the Gordon 12 test satisfied. The Court reviews each element in turn. 13 First, Plaintiff must be able to establish an intentional decision. A failure to act is sufficient 14 for this prong. Castro, 833 F.3d at 1070. Plaintiff argues specifically that Defendant Rowe chose 15 to not respond to the light despite the potential presence of a life-threatening emergency. Here, 16 there are sufficient facts in the record to find that, at a minimum, Defendant Rowe saw the 17 emergency light at 9C when starting his second walkthrough and delayed responding until he 18 arrived at 9C during the walkthrough. During that time, Defendant Rowe stopped at multiple cells 19 to deliver paperwork. Measured from entering the cell, the total delay was approximately three 20 minutes. This is a sufficient intentional delay for the purposes of the first element. 21 Second, Plaintiff must show a substantial risk of suffering harm. Plaintiff argues that James 22 Neske may have survived with timely intervention and Defendant Rowe’s delay created a 23 substantial risk that his condition would worsen. Plaintiffs argue that James Neske could have been 24 saved with timely intervention that Defendant Rowe’s delay. Defendants argue that James Neske 25 was on an irreversible path to brain death by the time the emergency light above Cell 14 was 26 illuminated. Both offer experts and rely on exhibits. This is a sufficient dispute of fact over the 27 substantial risk element to pass muster. 28 1 Third, Plaintiff must be able to support a finding of objective deliberate indifference. This 2 is a heavy burden, requiring evidence “making the consequences of the defendant’s conduct 3 obvious.” Gordon, 888 F.3d at 1118. 4 Plaintiff argues that the emergency light was potentially lit and turned off multiple times. 5 The only significant support for this contention is the deposition of Cody Kasper, who was a friend 6 of James Neske and incarcerated in 9C on the night of July 10, 2023. Kasper testified that he saw 7 Cell 14’s emergency light came on and went off three times that night. Defendants argue that 8 Kasper is unbelievable. Defendants say Kasper admits to needing to squat to see a narrow view of 9 Cell 14. Further, Kasper admits to not being able to see Cell 14’s emergency light, instead he 10 claims to have seen the flashes. Defendants also point to several inconsistencies with Kasper’s 11 testimony and video evidence. 12 Plaintiff also argues that noise was raised to get the attention of correctional officers, while 13 Defendants point to evidence that 9C was silent during Defendant Rowe’s second walkthrough. 14 Officer Morris and Defendant Rowe stated that in the past, they had been able to hear door kicking 15 from the officer’s desk. Collins states that he kicked the door and shouted, “Police Come.” At one 16 point, Collins states that he had pushed the button and repeatedly kicked the door before “finally” 17 a corrections officer came, “takin’ their sweet time.” Kasper testified that “the whole block was 18 acting crazy, kicking their doors, being loud,” despite “the officers [coming] in and [telling] 19 everybody, you know, to shut up.” Kasper also said that first saw the flashing of the light above 20 Cell 14 when he went to his window because he had heard “a couple of other inmates” kicking 21 their doors. 22 Even assuming the truth of the disputed statements of Kasper and Collins, and, in doing 23 so, determine that Defendant Rowe—despite a flashing light and multiple doors banging—slow 24 walked through his second walkthrough, Plaintiff fails to carry her burden. The record is 25 insufficient to support a finding that the consequences of Defendant Rowe’s alleged conduct was 26 obvious. Gordon, 888 F.3d at 1118. To the contrary, the record is replete with evidence indicating 27 reasonable officers in Defendant Rowe’s shoes would not find that door kicking and the use of the 28 emergency light, without more, indicative of a life-or-death situation. More specifically, there is 1 undisputed evidence that detainees regularly used the emergency button for nonlife-threatening 2 situations. Collins’ shout of “police come” did not alone obviously carry the gravitas of the 3 situation. The record further indicates that a reasonable officer could find that Collins was 4 requesting his possessions, which had yet to be transferred to him. Thus, Plaintiff cannot 5 demonstrate even on disputed facts that Rowe intentionally disregarded a known risk to Neske. 6 As Plaintiff cannot show that Defendant Rowe failed to take reasonable measures to abate 7 a known medical risk, in a manner akin to reckless disregard of James Neske’s health, the Court 8 grants Defendant Rowes Motion for Summary Judgement on Count I. 9 b. Count II: Deliberate Indifference 10 Under the Fourteenth Amendment, there is a fundamental liberty interest in the 11 companionship and society of one’s child—including adult children—for which the state’s 12 interference with that liberty interest without due process of law is remediable under 42 U.S.C. § 13 1983. Sinclair v. City of Seattle, 61 F.4th 674, 679 (9th Cir. 2023) (collecting case law) (cleaned 14 up); Porter v. Osborn, 546 F.3d 1131, 1136 (9th Cir. 2008) (“Here, the potential constitutional 15 violation involves the Porters’ Fourteenth Amendment due process right to associate with their 16 son, Casey.”); Curnow v. Ridgecrest Police, 952 F.2d 321, 325 (9th Cir. 1991) (similar). 17 The recent case of Sinclair, 61 F.4th at 679, is illustrative. There, a nineteen-year-old man 18 was shot in a protest zone that police had withdrawn from. Id. at 676-77. After medical aid failed 19 to arrive promptly and the man died. Id. at 677-78. The Ninth Circuit permitted the man’s mother 20 to bring a “derivative” suit of her son’s underlying right to be free from state-created danger. Id. 21 at 679. In Sinclair and Porter, the Ninth Circuit applied solely the constitutional analysis of the 22 underlying right rather than one specific to companionship claims. Sinclair, 61 F.4th at 679-83; 23 Porter, 546 F.3d at 1137-41 (applying the deliberate indifference test). The Court finds here that 24 the deliberate indifference test is also the appropriate inquiry for this claim, as the claim derives 25 from the same alleged failure to act by Rowe. 26 However, for the same reasons that summary judgement was granted for Count I, the Court 27 grants Defendant Rowe’s Motion for Summary Judgement for Count II. 28 /// 1 c. Qualified Immunity 2 Defendant Rowe raises a qualified immunity argument. Defendants are entitled to qualified 3 immunity from Section 1983 claims, if their “conduct does not violate clearly established statutory 4 or constitutional rights of which a reasonable person would have known.” Gausvik v. Perez, 345 5 F.3d 813, 816 (9th Cir. 2003) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). On a 6 motion for summary judgment, the Court determines “whether a constitutional violation occurred 7 and, if so, whether a reasonable officer would have acted in the same manner.” Id. Since Plaintiff’s 8 federal claims fail to show a constitutional violation no further qualified immunity analysis is 9 required. See Pearson v. Callahan, 555 U.S. 223 (2009). 10 11 B. Plaintiff’s Monell Claim Against Defendant LVMPD 12 It is well established under Section 1983 precedent that there is no vicarious liability for an 13 entity and that individual liability of a state official only exists upon a showing of individual 14 “personal participation” in the alleged violation. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 15 2002). Moreover, liability for a public entity (Monell liability) may only be established through a 16 particular set of inquiries and standards. Gordon v. Cty. of Orange, 6 F.4th 961, 973 (9th Cir. 2021) 17 (explaining inquiry for establishing municipality liability under Monell). 18 Under Monell, when a municipal policy of some nature is the driving force behind an 19 unconstitutional action taken by municipal employees, the municipality will be liable. Monell v. 20 Dep't of Social Services, 436 U.S. 658 (1978). A litigant can establish a Monell claim: 21 (1) By showing a longstanding practice or custom which constitutes the standard 22 procedure of the local governmental entity; (2) By showing that the decision-making official was, as a matter of state law, a 23 final policy-making authority whose edicts or acts may fairly be said to represent official policy in the area of decision; or 24 (3) By showing that an official with final policymaking authority either delegated 25 that authority to, or ratified the decision of, a subordinate. 26 Menotti v. City of Seattle, 409 F.3d 1113, 1147 (9th Cir. 2005). Alternatively, a municipality's 27 failure to train an employee who has caused a constitutional violation can be the basis for § 1983 28 liability if the failure to train amounts to deliberate indifference to the rights of persons with whom 1 the employee comes into contact. City of Canton Ohio v. Harris, 489 U.S. 378, 388 (1989). 2 Ultimately, Monell claims are “contingent on a violation of constitutional rights.” Lockett v. 3 County of Los Angeles, 977 F.3d 737, 741 (9th Cir. 2020). 4 Plaintiff asserts that her Monell claim is based on the following pattern or series of facts: 5 (1) LVMPD has a policy regarding emergency lights and the custom and practice resulting is to 6 respond to the call lights; (2) while that policy is not facially unconstitutional, there are a pattern 7 of similar violations shown by Defendant Rowe; and (3) the LVMPD policy is the moving force 8 behind those violations. To establish a pattern of violations, Plaintiff only points to Defendant 9 Rowe’s response to James Neske and a statement by Defendant Rowe that he sometimes does not 10 immediately react to the light. In the relevant part, Defendant Rowe states, “we don’t go— 11 immediately react because it’s disciplinary and it just happens all the time. They are constantly 12 [pushing] their button asking what time it is, if they can have some tissue, what’s their court date[,] 13 how long have I got left in the hole? I could keep going.” Plaintiff has an expert report that states 14 there was a failure to supervise and train. However, this report is similarly only based on Defendant 15 Rowe’s statements and his response to James Neske. 16 Defendant LVMPD argues that this claim must be dismissed because there is no underlying 17 constitutional violation. LVMPD also argues that Plaintiff has made no attempt to prove her 18 Monell claim because she fails to identify a written policy, provide evidence of an unwritten 19 custom, or identify a single other instance that supports her claim. 20 The Court finds that Plaintiff's Monell claim fails as a matter of law on two grounds. 21 First, as discussed above, Plaintiff has failed satisfy her burden to show any violation of a 22 constitutional right because of LVMPD’s conduct. See City of L.A. v. Heller, 475 U.S. 796, 799 23 (“If a person has suffered no constitutional injury at the hands of the individual police officer, the 24 fact that the departmental regulations might have authorized the use of constitutionally excessive 25 force is quite besides the point.”) (emphasis original); Palmerin v. City of Riverside, 794 F.2d 26 1409 (9th Cir. 1986) (holding that there can be no local government liability for a constitutional 27 deprivation where there has bene no constitutional violation). In the Ninth Circuit, municipal 28 defendants may be liable under Monell where no individual officer is held liable for violating 1 constitutional rights, if “collective inaction” produced a stand-alone constitutional violation. 2 Horton v. City of Santa Marta, 915 F.3d 592, 604 (9th Cir. 2019). Here, since Plaintiff has limited 3 her argument to Defendant Rowe’s conduct, the record does not support a finding that some 4 systemic inaction produced James Neske’s death. 5 Second, Plaintiff has not established a policy or practice outside of James Neske’s own 6 interaction with LVMPD. “While deliberate indifference can be inferred from a single incident 7 when the unconstitutional consequences of failing to train are patently obvious, an inadequate 8 training policy itself cannot be inferred from a single incident.” Hyde v. City of Willcox, 23 F.4th 9 863, 874-75 (9th Cir. 2022) (citation omitted). Defendant Rowe’s statements that he sometimes 10 does not immediately respond to the emergency lights is insufficient to carry Plaintiff’s burden. 11 Plaintiff fails to show how a pattern of violations can be imputed to LVMPD’s policy and practice. 12 Thus, the Court grants summary judgment in Defendant LVMPD's favor for Count III. 13 14 C. Plaintiff’s State Claims 15 The Court now turns to Plaintiff’s Nevada state law claims against Defendants. Plaintiff’s 16 complaint asserts claims for: Negligence or Reckless disregard (Claim IV), Survivors Action 17 (Claim V), Wrongful Death (Claim VI), and, against LVMPD only, Negligent Supervision (Claim 18 VI). Defendants argue that these claims fail as a matter of law. 19 Nevada Revised Statutes § 41.032(2) addresses discretionary-act immunity. In the relevant 20 part, § 41.032 provides, “no action may be brought . . . against . . . an officer or employee of the 21 State or any of its agencies or political subdivisions which is . . . (2) Based upon the exercise or 22 performance or the failure to exercise or perform a discretionary function or duty on the part of 23 the State or any of its agencies or political subdivisions or of any officer, employee[,] whether or 24 not the discretion involved is abused.” The Nevada Supreme Court has held that “[p]ersonal 25 deliberation, decision and judgment are requirements of a discretionary act. . . . Such a decision 26 should not be second guessed by a court with the benefit of hindsight.” Parker v. Mineral Cty., 729 27 P.2d 491, 493 (Nev. 1986) (citations omitted). To determine whether an action of a state officer 28 falls within the scope of § 41.032(2), a court must consider whether the action “(1) involve[s] an 1 element of individual judgment or choice and (2) [is] based on considerations of social, economic, 2 or political policy.” Martinez v. Maruszczak, 168 P.3d 720, 729 (Nev. 2007) (adopting the federal 3 discretionary standard enunciated in Berkovitz v. United States, 486 U.S. 531, 536-37 (1988)). 4 Defendants both claim discretionary-act immunity from Plaintiff’s state law claims. 5 Defendant Rowe argues Plaintiff has failed to identify a statute or policy that mandated a time or 6 manner for Defendant Rowe to respond to James Neske’s emergency because such a policy does 7 not exist. Instead, he suggests that the decision was based on policy decisions regarding the safety 8 of the entire module and management of the area. Regarding the Supervisory Liability claim, 9 Defendant LVMPD adds that supervising and training are discretionary functions. 10 Plaintiff argues that whether Defendant Rowe was exercising due care in responding to the 11 emergency light is a disputed material fact and sufficient to deny discretionary immunity. Plaintiff 12 argues that exceptions to LVMPD’s discretionary-act immunity for supervision for bad faith acts 13 and negligence in the operational phase of a decision. 14 The Court finds that Defendant Rowe’s conduct at issue was a discretionary act. Multiple 15 exhibits explain that correction officers balance their other obligations—including the safety of 16 the people in their custody—with responding to emergency lights. Put differently, Defendant 17 Rowe made an “individual judgement” on when to respond to the Cell 14 emergency light that 18 was based on “policy . . . considerations.” Martinez, 168 P.3d at 729. Further, Nevada looks to 19 federal decisional law on the Federal Tort Claims Act (“FTCA”) for guidance on what type of 20 conduct discretionary immunity protects. Id. at 727-28. Relevant FTCA caselaw indicates that 21 Defendant Rowe was presented with a policy choice. See, e.g., Calderon v. United States, 123 F.3d 22 947, 564-65 (7th Cir. 1997) (holding “it is clear that balancing the need to provide inmate security 23 with the rights of inmates to circulate and socialize within the prison involves considerations based 24 upon public policy.”); Alfrey v. United States, 276 F.3d 557, 565 (9th Cir. 2002) (adopting the 25 Calderon reasoning). 26 The Court finds that Defendant LVMPD’s conduct falls under Nevada discretionary-act 27 immunity. Relying on numerous federal analogues, the Nevada Supreme Court has held that 28 LVMPD is entitled to discretionary-act immunity for negligent hiring. See Paulos v. FCH1, LLC, 1| 456 P.3d 589, 595-96 (Nev. 2020) (outlining the caselaw behind Nevada's bar to negligent hiring, training, and supervision claims and affirming a Nevada district court decision to grant discretionary-act immunity to NVMPD). Further, in Paulos, the Nevada Supreme Court specifically declined to follow Plaintiff's cited caselaw for negligent supervision. Id. at 596 n.3. 5 | Further, this comports with FTCA caselaw. See, e.g., Vickers v. United States, 228 F.3d 944, 950 6| (9th Cir. 2000) (citing cases and explaining that the Ninth Circuit and other U.S. Courts of Appeal have held that “decisions relating to the hiring, training, and supervision of employees usually 8 | involve policy judgments of the type Congress intended the discretionary function exception to shield.”); Gager v. United States, 149 F.3d 918 (9th Cir. 1998) (holding that the government's 10 | decision to forego employee training was a discretionary one). 11 Therefore, the Court grants summary Judgement for both Defendant Rowe and Defendant 12 | LVMPD on Plaintiffs state law claims against each. 13 14 V. CONCLUSION 15 IT IS THERFORE ORDERED that Defendant Rowe’s Motion for Summary Judgement 16 | (ECF No. 35) and Defendant Las Vegas Metropolitan Police Department’s Motion for Summary 17 | Judgement (ECF No. 36) are GRANTED. 18 19 DATED: September 30, 2023

2! RICHARD F. BOULWARE, II 22 UNITED STATES DISTRICT JUDGE 23 24 25 26 27 28

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