White v. Las Vegas Metropolitan Police Department

• Court: District Court, D. Nevada
• Decided: March 22, 2021
• Docket: 2:19-cv-00386
• Status: Unknown

Opinion

1 UNITED STATES DISTRICT COURT

2 DISTRICT OF NEVADA

3 ROBERT WHITE, ) 4 ) Plaintiff, ) Case No.: 2:19-cv-00386-GMN-NJK 5 vs. ) ) ORDER 6 LAS VEGAS METROPOLITAN POLICE ) 7 DEPARTMENT, et al., ) ) 8 Defendants. ) ) 9 10 Pending before the Court is the Motion for Summary Judgment, (ECF No. 51), filed by 11 Defendant Las Vegas Metropolitan Police Department (“LVMPD”). Plaintiff Robert White 12 (“Plaintiff”) filed a Response, (ECF No. 54). LVMPD did not file a reply. For the reasons 13 discussed below, the Court GRANTS in part and DENIES as moot in part LVMPD’s 14 Motion. 15 I. BACKGROUND 16 This case arises from events beginning on March 5, 2017, when Officer Richards and 17 Officer Frost, from the LVMPD, arrived at Plaintiff’s residence in response to calls concerning 18 a domestic violence incident between Plaintiff and his then-girlfriend Adria Joseph (“Joseph”). 19 (Domestic Violence Report, Ex. A to Mot. Summ. J. (“MSJ”), ECF No. 51-1). Both Plaintiff 20 and Joseph claimed that the other had committed a domestic battery against them. (White Dep. 21 17:14-23, Ex. B to MSJ, ECF No. 51-2). Upon arrival, the police noted injuries sustained by 22 both Plaintiff and Joseph and created a report detailing a battery offense. (Domestic Violence 23 Report, Ex. A to MSJ). Plaintiff alleged that Joseph instigated the conflict and eventually 24 slapped him in the face, causing his contact lens to shatter and scratch his eye. (White Dep. 25 17:10–18, 23:9–12). Joseph admitted that she provoked the fight, but claimed that plaintiff 1 struck her in the head multiple times. (Domestic Violence Report, Ex. A to MSJ). While the 2 officers concluded that Plaintiff and Joseph both committed a battery against each other, they 3 eventually arrested Plaintiff as the primary aggressor because Joseph appeared to have more 4 significant injuries. (Id.). (See also Joseph Injury Photos, Ex. C to MSJ, ECF No. 51-3); (White 5 Injury Photos, Ex. D to MSJ, ECF No. 51-4). 6 On March 6, 2019, Plaintiff filed his Complaint against Defendant, Las Vegas 7 Metropolitan Police Department (“LVMPD”), Sherriff Joseph Lombardo, Officer Richards, 8 Angelic Anderson-Crook, Adria Joseph’s estate, and Shade Tree, Plaintiff’s former employer. 9 (See generally Compl., ECF No. 1). Plaintiff asserts four causes of action: (1) negligence 10 against all Defendants; (2) Monell claim for municipal liability pursuant to 42 U.S.C. § 1983 11 against LVMPD and Sheriff Lombardo; (3) violation of the Fourth and Fourteenth 12 Amendments pursuant to 42 U.S.C. § 1983 against Officers Richards and Frost; (4) wrongful 13 termination against Shade Tree. (Compl. ¶¶ 90–112). On July 11, 2020, the Court dismissed 14 with prejudice Plaintiff’s cause of action against Shade Tree. (See Order, ECF No. 50). 15 Defendant LVMPD now moves for summary judgment with regards to the negligence and § 16 1983 claims against Officers Richards and Frost, as well as the Monell claim against LVMPD. 17 (Mot. Summ. J. (“MSJ”) 2:7–21, ECF No. 51). 18 II. LEGAL STANDARD 19 The Federal Rules of Civil Procedure provide for summary adjudication when the 20 pleadings, depositions, answers to interrogatories, and admissions on file, together with the 21 affidavits, if any, show that “there is no genuine dispute as to any material fact and the movant 22 is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Material facts are those that

23 may affect the outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 24 (1986). A dispute as to a material fact is genuine if there is a sufficient evidentiary basis on 25 which a reasonable fact-finder could rely to find for the nonmoving party. See id. “The amount 1 of evidence necessary to raise a genuine issue of material fact is enough ‘to require a jury or 2 judge to resolve the parties’ differing versions of the truth at trial.’” Aydin Corp. v. Loral 3 Corp., 718 F.2d 897, 902 (9th Cir. 1983) (quoting First Nat’l Bank v. Cities Serv. Co., 391 U.S. 4 253, 288–89 (1968)). “Summary judgment is inappropriate if reasonable jurors, drawing all 5 inferences in favor of the nonmoving party, could return a verdict in the nonmoving party’s 6 favor.” Diaz v. Eagle Produce Ltd. P’ship, 521 F.3d 1201, 1207 (9th Cir. 2008) (citing United 7 States v. Shumway, 199 F.3d 1093, 1103–04 (9th Cir. 1999)). A principal purpose of summary 8 judgment is “to isolate and dispose of factually unsupported claims.” Celotex Corp. v. Catrett, 9 477 U.S. 317, 323–24 (1986). 10 In determining summary judgment, a court applies a burden-shifting analysis. “When 11 the party moving for summary judgment would bear the burden of proof at trial, it must come 12 forward with evidence which would entitle it to a directed verdict if the evidence went 13 uncontroverted at trial. In such a case, the moving party has the initial burden of establishing 14 the absence of a genuine issue of fact on each issue material to its case.” C.A.R. Transp. 15 Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir. 2000) (citations omitted). In 16 contrast, when the nonmoving party bears the burden of proving the claim or defense, the 17 moving party can meet its burden in two ways: (1) by presenting evidence to negate an 18 essential element of the nonmoving party’s case; or (2) by demonstrating that the nonmoving 19 party failed to make a showing sufficient to establish an element essential to that party’s case 20 on which that party will bear the burden of proof at trial. See Celotex Corp., 477 U.S. at 323– 21 24. If the moving party fails to meet its initial burden, summary judgment must be denied and 22 the court need not consider the nonmoving party’s evidence. See Adickes v. S.H. Kress & Co.,

23 398 U.S. 144, 159–60 (1970). 24 If the moving party satisfies its initial burden, the burden then shifts to the opposing 25 party to establish that a genuine issue of material fact exists. See Matsushita Elec. Indus. Co. v. 1 Zenith Radio Corp., 475 U.S. 574, 586 (1986). To establish the existence of a factual dispute, 2 the opposing party need not establish a material issue of fact conclusively in its favor. It is 3 sufficient that “the claimed factual dispute be shown to require a jury or judge to resolve the 4 parties’ differing versions of the truth at trial.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors 5 Ass’n, 809 F.2d 626, 631 (9th Cir. 1987). However, the nonmoving party “may not rely on 6 denials in the pleadings but must produce specific evidence, through affidavits or admissible 7 discovery material, to show that the dispute exists,” Bhan v. NME Hosps., Inc., 929 F.2d 1404, 8 1409 (9th Cir. 1991), and “must do more than simply show that there is some metaphysical 9 doubt as to the material facts.” Orr v. Bank of America, 285 F.3d 764, 783 (9th Cir. 2002) 10 (internal citations omitted). “The mere existence of a scintilla of evidence in support of the 11 plaintiff's position will be insufficient.” Anderson, 477 U.S. at 252. In other words, the 12 nonmoving party cannot avoid summary judgment by relying solely on conclusory allegations 13 that are unsupported by factual data. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). 14 Instead, the opposition must go beyond the assertions and allegations of the pleadings and set 15 forth specific facts by producing competent evidence that shows a genuine issue for trial. See 16 Celotex Corp., 477 U.S. at 324. 17 At summary judgment, a court’s function is not to weigh the evidence and determine the 18 truth but to determine whether there is a genuine issue for trial. See Anderson, 477 U.S. at 249. 19 The evidence of the nonmovant is “to be believed, and all justifiable inferences are to be drawn 20 in his favor.” Id. at 255. But if the evidence of the nonmoving party is merely colorable or is 21 not significantly probative, summary judgment may be granted. See id. at 249–50. 22 III. DISCUSSION

23 As an initial matter, the Court has already dismissed Officer Richards and Officer Frost 24 from this action for Plaintiff’s failure to effect timely service. (See Order, ECF No. 57). 25 Accordingly, the Court denies as moot LVMPD’s Motion with respect to Plaintiff’s claims for 1 Fourth Amendment false arrest and negligence against the two officers.1 The Court will now 2 address Plaintiff’s only remaining cause of action against LVMPD: Monell claims brought 3 under 42 U.S.C. § 1983. (Compl. ¶¶ 96–102). 4 Section 1983 actions involve the “deprivation of any rights, privileges, or immunities 5 secured by the Constitution and laws.” 42 U.S.C. § 1983. To bring a successful § 1983 claim, a 6 plaintiff must allege (1) a violation of a constitutional right and (2) must show that the alleged 7 violation was committed by “a person acting under color of state law.” West v. Atkins, 487 U.S. 8 42, 49 (1988). Moreover, § 1983 “‘is not itself a source of substantive rights,’ but merely 9 provides ‘a method for vindicating federal rights elsewhere conferred.’” Graham v. Connor, 10 490 U.S. 386, 393–94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)). 11 Pursuant to Monell, municipalities can be sued directly under § 1983 for violations of 12 constitutional rights. See Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658, 690 13 (1978). As explained by the Ninth Circuit, a litigant may recover from a municipality under § 14 1983 on one of three theories of municipal liability. Clouthier v. Cnty. of Contra Costa, 591 15 F.3d 1232, 1249 (9th Cir. 2010). “First, a local government may be held liable ‘when 16 implementation of its official policies or established customs inflicts the constitutional injury.’” 17 Id. (quoting Monell, 436 U.S. at 708 (Powell, J. concurring)). “Second, under certain 18 circumstances, a local government may be held liable under § 1983 for acts of omission, when 19 such omissions amount to the local government's own official policy.” Id. “Third, a local 20 government may be held liable under § 1983 when ‘the individual who committed the 21 constitutional tort was an official with final policy-making authority’ or such an official 22 ‘ratified a subordinate’s unconstitutional decision or action and the basis for it.’” Id. at 1250

24 1 On December 18, 2019, the Court extended the service requirement deadline from within 90 days of the 25 Complaint’s filing to within 120 days. (See Order, ECF No. 32). Nonetheless, Plaintiff still failed to properly serve Sheriff Lombardo. Therefore, the Complaint is DISMISSED without prejudice against Sheriff Lombardo pursuant to Federal Rule of Civil Procedure 4(m). 1 (quoting Gillette v. Delmore, 979 F.2d 1342, 1346–47 (9th Cir. 1992)). These three theories 2 are sometimes referred to as (1) commission, (2) omission, and (3) ratification, respectively. 3 See, e.g., Aranda v. City of McMinnville, 942 F.Supp.2d 1096, 1109 (D. Or. 2013). 4 In order to withstand summary judgment in a § 1983 claim against a municipal entity, a 5 plaintiff must offer enough evidence to create a genuine issue of material fact as to both the 6 existence of a constitutional violation and municipal responsibility for that violation. See 7 Monell, 436 U.S. at 690–91. Here, Plaintiff alleges his Monell claims against LVMPD under 8 each of the three theories of municipal liability. (Compl.¶ 97) (alleging that the arresting 9 officers’ actions “were pursuant to . . . customs, policies, practices, and/or procedures of 10 LVMPD [or were] directed, encouraged, allowed and/or ratified by policy-making officers of 11 LVMPD.”). However, none of these allegations contain any factual support or rise above the 12 level of conclusory recitations of the three theories. (See id. ¶¶ 96–102). Moreover, Plaintiff’s 13 Response to LVMPD’s Motion for Summary Judgment failed to present sufficient evidence 14 establishing his Monell claims under a theory of commission, omission, or ratification. (See 15 Resp. 18:4–19:11, ECF No. 54). The only arguments Plaintiff offers in support of his Monell 16 claim are that LVMPD has policies of (1) using excessive force; (2) failing to use generally 17 accepted law enforcement procedures; (3) covering up violations of constitutional rights; (4) 18 allowing a ‘code of silence’ whereby a member of the department does not provide adverse 19 information against a fellow officer; (5) using improper procedures to handle complaints of 20 officer misconduct; (6) failing to properly train officers; (7) withholding evidence; and (8) 21 “arresting the male in a mutual domestic situation.” (Compl. ¶ 97); (Resp. 18:22–27). 22 However, none of these arguments have sufficient support in the record to avoid

23 summary judgment in favor of LVMPD. Besides Plaintiff’s mere allegations surrounding the 24 factual circumstances in his Complaint, Plaintiff provides no evidence of the formal existence 25 of these allegedly unconstitutional policies. Nor does Plaintiff suggest their informal existence 1 by pointing to examples of other instances of these policies’ implementation. See Gillette, 979 2 F.2d at 1359 (plaintiffs may attempt to prove the existence of an informal policy with 3 “evidence of repeated constitutional violations for which the errant municipal officers were not 4 charged or reprimanded”). Additionally, Plaintiff fails to present any evidence regarding 5 crucial elements of his allegations, such as the duration of the alleged policies or that any 6 official helped to formulate or was even aware of the alleged policies. See Gillette, 979 F.2d at 7 1349 (upholding summary judgment on a Monell claim because plaintiff failed to present “any 8 evidence as to how long this alleged informal policy existed,” or “that the City Manager or the 9 City Council helped formulate or were aware that any such informal policy existed.”). 10 Accordingly, Plaintiff's unsubstantiated allegations of various allegedly unconstitutional 11 policies are insufficient for his Monell claim regarding a custom or policy to survive summary 12 judgment. 13 Another way a plaintiff may demonstrate municipal liability for a constitutional 14 violation is by showing that the violation occurred as a result of inadequate training on the part 15 of the municipality. Herrera v. Las Vegas Metropolitan Police Dept., 298 F.Supp.2d 1043, 16 1052 (D. Nev. 2004) (citing City of Canton v. Harris, 489 U.S. 378, 389, 109 S.Ct. 1197, 1205, 17 (1989)). “In order to establish a claim under § 1983 due to inadequate training, the [plaintiff] 18 must provide evidence from which a reasonable jury could find that there was an inadequate 19 training program, and that the [defendant] was deliberately indifferent to whether its officers 20 received adequate training.” Herrera, 298 F.Supp.2d at 1052. There must be actual causation 21 between the inadequate training and the deprivation of the plaintiff's rights. Merritt v. County of 22 Los Angeles, 875 F.2d 765, 770 (9th Cir.1989). Here, while Plaintiff contends that LVMPD

23 fails to properly train its officers, he does not allege any facts, or provide any evidence, 24 regarding the officers’ training. (Compl. ¶ 97). To the contrary, LVMPD presents evidence 25 detailing the extensive training completed by both Officer Richards and Officer Frost. 1 (Richards’ Training History, Ex. E to MSJ, ECF No. 51-5); (Frost’s Training History, Ex. F to 2 MSJ, ECF No. 51-6). Thus, Plaintiff offers no evidence from which a reasonable jury could 3 find that there was an inadequate training program or that the LVMPD was deliberately 4 indifferent to whether their officers received adequate training. As such, the Court grants 5 LVMPD’s Motion for Summary Judgment with regards to Plaintiff’s municipal liability claim. 6 IV. CONCLUSION 7 IT IS HEREBY ORDERED that LVMPD’s Motion for Summary Judgment, (ECF No. 8 51), is GRANTED in part and DENIED as moot in part. 9 IT IS FURTHER ORDERED that this action is DISMISSED without prejudice as to 10 Defendant Sheriff Joseph Lombardo 11 DATED this _2_2___ day of March, 2021. 12 13 ___________________________________ Gloria M. Navarro, District Judge 14 United States District Court 15 16 17 18 19 20 21 22 23 24 25