William Raphael v. Marcos Gomez, et al.

Opinion

1 2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 William Raphael, 5 Case No. 2:25-cv-01338-NJK1 Plaintiff, 6 Order v. 7 [Docket No. 29] Marcos Gomez, et al., 8 Defendants. 9 10 Pending before the Court is Defendants’ motion for summary judgment. Docket No. 29. 11 Plaintiff filed a response in opposition. Docket No. 33.2 Defendants filed a reply. Docket No. 12 35.3 The motion is properly resolved without a hearing. See Local Rule 78-1. For the reasons 13 discussed below, the Court GRANTS the motion for summary judgment with respect to Plaintiff’s 14 federal claim. 15 I. Background 16 This is a civil rights case arising out of Plaintiff’s arrest for suspicion of driving under the 17 influence. See Docket No. 15 (second amended complaint). Plaintiff brings a claim for violation 18 of his Fourth Amendment rights pursuant to 42 U.S.C. § 1983. Id. at ¶¶ 62-65. Plaintiff also 19 brings state law tort claims for false imprisonment and false arrest pursuant to the Court’s 20 supplemental jurisdiction. See id. at ¶¶ 66-75. The undisputed facts are as follows. 21 Shortly after 2:00 a.m. on June 24, 2023, Las Vegas Metropolitan Police Department 22 Officers Marcos Gomez and Jennifer Barron were on patrol, at which time they saw that Plaintiff’s 23 24 1 This case is referred to the undersigned magistrate judge on party consent. See Docket 25 Nos. 3, 4. 26 2 The Court liberally construes the filings of pro se litigants. Erickson v. Pardus, 551 U.S. 89, 94 (2007). 27 3 The pagination native to the filings diverges from the pagination assigned by CMECF. 28 The Court pin-cites herein to the latter. 1 license plate was not properly illuminated. Exhibit C at 9:07.4 Officer Gomez activated his police 2 lights and siren, and Plaintiff pulled his car over. Id. at 9:07-9:08. 3 Officer Gomez approached Plaintiff’s car. Id. at 9:08. During the ensuing interaction, 4 Plaintiff could not locate his driver’s license for roughly 90 seconds despite it being on his lap, 5 Officer Gomez had to ask Plaintiff three times for his registration, Plaintiff’s eyes were sleepy, 6 glassy, and bloodshot, and Plaintiff displayed a blank stare. See id. at 9:08-9:12. Plaintiff 7 consented to field sobriety tests, though Plaintiff said that he does not drink or smoke and that his 8 behavior stemmed from his nervousness in dealing with the police in general. Id. at 9:12. Officer 9 Gomez conducted six tests. First, Officer Gomez conducted a Horizontal Gaze Nystagmus Test. 10 Id. at 9:13-9:16. He reported that the test showed a lack of smooth pursuit on both eyes, distinct 11 and sustained nystagmus at maximum deviation in both eyes, and onset of nystagmus prior to 45 12 degrees in both eyes. Docket No. 29-1 at 5. Second, Officer Gomez conducted a walk-and-turn 13 test. Exhibit C at 9:16-9:19. He reported that Plaintiff stepped out of position once, raised his 14 hands more than six inches from his body, stopped after nine steps, and did not perform the turn 15 as demonstrated. Docket No. 29-1 at 5. Third, Officer Gomez conducted a one leg stand. Exhibit 16 C at 9:20-9:21. He reported that Plaintiff performed this test satisfactorily. Docket No. 29-1 at 5. 17 Fourth, Officer Gomez conducted a finger-to-nose test. Exhibit C at 9:22-9:24. He reported that 18 Plaintiff failed to touch the tip of his finger to the tip of his nose and that he forgot the instruction 19 to bring down his finger from his nose. Docket No. 29-1 at 5. Fifth, Officer Gomez conducted a 20 Romberg balance test. Exhibit C at 9:24-9:25. He reported that Plaintiff counted to 30 seconds in 21 what was actually 34 seconds, which he indicated shows a slow internal clock. Docket No. 29-1 22 at 5. He reported that Plaintiff’s body had a front-to-back sway, but that eyelid tremors and body 23 tremors were not present. Id. Sixth, Officer Gomez conducted a lack of convergence test. Exhibit 24 C at 9:26. He reported that lack of convergence was present. Docket No. 29-1 at 5. Following 25 the field sobriety tests, Officer Gomez arrested Plaintiff. Exhibit C at 9:27. 26

27 4 Exhibit C is the officer’s body-worn camera footage of the incident, which Defendants submitted manually. See Docket No. 31. The Court pin-cites herein to that footage based on the 28 Coordinated Universal Time stamp provided therein. 1 Officer Gomez searched Plaintiff and found no alcohol or drugs. See Docket No. 33 at 35. 2 Officer Gomez searched Plaintiff’s vehicle and found no alcohol or drugs, or related paraphernalia. 3 See id. at 36-37. Plaintiff consented to a blood draw, Exhibit C at 9:28, and the toxicology results 4 weeks later showed no alcohol or drugs in Plaintiff’s system. See Docket No. 33 at 62-66. The 5 charges against Plaintiff were dismissed. See id. at 71. 6 II. Standards 7 Summary judgment is appropriate when the evidence, viewed in the light most favorable 8 to the nonmovant, indicates “no genuine dispute as to any material fact” and that “the movant is 9 entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A fact is material if it “might affect 10 the outcome of the suit” based on the governing law, and a dispute is genuine “if the evidence is 11 such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty 12 Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A “mere disagreement or 13 the bald assertion that a genuine issue of material fact exists” is not enough to defeat summary 14 judgment. Harper v. Wallingford, 877 F.2d 728, 731 (9th Cir. 1989). 15 Because the plaintiff bears the burden of proof at trial, a moving defendant need only point 16 to an absence of evidence on an element of the plaintiff’s case. Musick v. Burke, 913 F.2d 1390, 17 1394 (9th Cir. 1990). Once the moving party satisfies Rule 56 by demonstrating the absence of 18 any genuine issue of material fact, the burden shifts to the party resisting summary judgment to 19 “set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 250- 20 51. “To defeat summary judgment, the nonmoving party must produce evidence of a genuine 21 dispute of material fact that could satisfy its burden at trial.” Sonner v. Schwabe N. Am., Inc., 911 22 F.3d 989, 992 (9th Cir. 2018); Galen v. County of Los Angeles, 477 F.3d 652, 658 (9th Cir. 2007). 23 The nonmoving party “may not rely on denials in the pleadings but must produce specific evidence, 24 through affidavits or admissible discovery material, to show that the dispute exists.” Bhan v. NME 25 Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991). 26 27 28 1 III. Analysis 2 Plaintiff’s operative complaint brings three claims against Defendants: a federal Section 3 1983 claim for unlawful search and seizure, and state tort claims for false imprisonment and false 4 arrest. The Court address the federal claim first, followed by the state law claims. 5 A. Section 1983 Claim for Unlawful Search and Seizure 6 1. Officer Barron’s Lack of Personal Participation 7 Officer Barron seeks summary judgment based on a lack of personal participation in the 8 alleged constitutional violation. Docket No. 29 at 29-30. It is well-settled law that a defendant 9 can be liable under § 1983 “only upon a showing of personal participation” in the alleged 10 constitutional violation. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). An officer merely 11 “watching others violate the Constitution” or “being present at the scene” is insufficient to 12 demonstrate that officer’s liability. Peck v. Montoya, 51 F.4th 877, 889 (9th Cir. 2022); see also 13 Reynaga Hernandez v. Skinner, 969 F.3d 930, 941 (9th Cir. 2020) (the defendant must be more 14 than a “mere bystander”). In order to establish potential liability, a plaintiff must show at a 15 minimum that (1) the officer knew about and acquiesced in the constitutionally defective conduct 16 as part of a common plan with those whose conduct constitutes the violation or (2) the officer set 17 in motion a series of acts by others which the officer knew or reasonably should have known would 18 cause others to inflict the constitutional injury. See Peck, 51 F.4th at 889. “Helpful to this analysis 19 are the standards of causation under tort law.” Reynaga Hernandez, 969 F.3d at 941. 20 In this case, Plaintiff’s evidence is almost exclusively related to Officer Gomez. In the 21 pending motion, Officer Barron points to a lack of evidence of her involvement in the decisions to 22 administer field sobriety tests and to arrest Plaintiff thereafter. Docket No. 29 at 29-30. Plaintiff’s 23 interrogatory response confirms that Officer Barron did not participate in his sobriety testing or 24 arrest, but indicates instead that she observed the process. See Docket No. 29-9 at 17 (response to 25 interrogatory no. 14). Plaintiff also acknowledges that Officer Barron’s role was not “illegal” and 26 that she did not “spearhead the arrest.” Id. Plaintiff proffers evidence only that Officer Barron 27 asked Officer Gomez “[h]ow were his eyes?” and Officer Gomez responded that Plaintiff “had 28 nystagmus, [and] bloodshot watery” eyes. Docket No. 33 at 3. The facts that Officer Barron was 1 physically present and asked this question fail to create material issues of fact that she personally 2 participated in any constitutional violation, that she knew about and acquiesced in a common plan 3 to violate Plaintiff’s constitutional rights, or that she set in motion any actions that violated 4 Plaintiff’s constitutional rights. 5 Officer Barron is entitled to summary judgment on Plaintiff’s Section 1983 claim. 6 2. Officer Gomez’s Probable Cause 7 Officer Gomez seeks summary judgment on the claim that he violated Plaintiff’s Fourth 8 Amendment rights by unlawfully arresting him, arguing that there is no dispute of material fact 9 that the circumstances sufficed to establish probable cause. See, e.g., Docket No. 29 at 24-25.5 10 Plaintiff counters that there are disputes of material facts warranting a trial based on his 11 protestations of innocence during the investigation, his innocent explanation for some of the 12 circumstances, inadequacies in the field testing, and the subsequent toxicology results. See Docket 13 No. 33 at 2-8. Officer Gomez has the better arguments. 14 “In the context of a Section 1983 action, probable cause to arrest exists when there is a fair 15 probability or substantial chance of criminal activity by the arrestee based on the totality of the 16 circumstances known to the officers at the time of arrest.” Miller v. City of Scottsdale, 88 F.4th 17 800, 804 (9th Cir. 2023) (cleaned up). This “is not a high bar: It requires only the kind of fair 18 probability on which reasonable and prudent people, not legal technicians, act.” Kaley v. United 19 States, 571 U.S. 320, 338 (2014) (cleaned up). In analyzing whether there is a material issue of 20 fact as to probable cause, it is helpful to also recognize the issues on which the inquiry does not 21 turn. The fact that a plaintiff was ultimately determined to not be guilty—or that the charges 22 against him were dismissed—does not establish that probable cause was lacking to arrest him. 23 Miller, 88 F.4th at 805 (explaining that the probable cause inquiry does not turn on “whether there 24 was a violation in fact”). Similarly, neither a plaintiff’s protestation of innocence to the officer 25 nor the potential of innocent explanations for the officer’s observations renders probable cause 26 5 The undisputed facts establish that there was reasonable suspicion to initiate the traffic 27 stop. See Docket No. 29-9 at 10 (response to interrogatory no. 12 acknowledging non-functioning license plate light); see also United States v. Choudhry, 461 F.3d 1097, 1100 (9th Cir. 2006) (“A 28 traffic violation alone is sufficient to establish reasonable suspicion”). 1 lacking. District of Columbia v. Wesby, 583 U.S. 48, 61-62 (2018) (“probable cause does not 2 require officers to rule out a suspect’s innocent explanation for suspicious facts” or to credit the 3 suspects’ protestations of innocence); see also, e.g., Tsao v. Desert Palace, Inc., 698 F.3d 1128, 4 1147 (9th Cir. 2012) (stating that once probable cause is established, officers do not have a duty 5 to investigate further for exculpatory evidence) 6 Turning to the circumstances of this case, the undisputed facts establish that Plaintiff 7 displayed nervousness in interacting with Officer Gomez, that Plaintiff could not locate his driver’s 8 license for roughly 90 seconds despite it being on his lap, that Officer Gomez had to ask Plaintiff 9 three times for his registration, that Plaintiff’s eyes were sleepy, glassy, and bloodshot, and that 10 Plaintiff displayed a blank stare during this encounter. See Exhibit C at 9:08-9:12. In addition, it 11 is undisputed that Officer Gomez’s field sobriety testing provided indicators of impairment. As 12 an example, during the finger-to-nose test, Plaintiff was instructed to touch the tip of his nose and 13 then “bring [his hand] right back down” after each touch. Id. at 9:22. Nonetheless, Plaintiff kept 14 his finger on his nose for nearly a minute on the first touch and, even after further instruction, kept 15 his fingers on his nose for several seconds in the subsequent touches. See id. at 9:22-9:24. In 16 addition, Plaintiff was instructed specifically to touch his nose only with his fingertip, not his finger 17 pad or any other part of his finger, see id. at 9:22, but Plaintiff repeatedly touched his nose with 18 his finger pad, see id. at 9:22-9:24. Plaintiff similarly failed to recall and comply with the 19 instructions on the walk-and-turn test. See id. at 9:18-9:19. Plaintiff also had a roughly four- 20 second variance during the Romberg test, in which he counted to 30 in more than 34 seconds. See 21 id. at 9:25. These undisputed facts taken in totality establish probable cause for Officer Gomez to 22 arrest Plaintiff for driving under the influence of alcohol or drugs. 23 Moreover, Plaintiff’s counter arguments fail to show a dispute of material issue of fact. 24 Plaintiff relies heavily on the fact that he proclaimed his sobriety during this process and that there 25 could be innocent explanations for Officer Gomez’s observations. As to the latter, Plaintiff 26 explains that he gets nervous around the police generally and his nervous behavior during the stop 27 was not related to alcohol or drug use. See, e.g., Docket No. 33 at 11. Plaintiff also explains that 28 the observed circumstances could have been caused by health issues, as opposed to inebriation. 1 See, e.g., id. at 14. The United States Supreme Court has rejected these types of reasoning as a 2 basis to deny summary judgment as to probable cause. Wesby, 583 U.S. at 61-62. Plaintiff also 3 relies on the fact that the toxicology reports, available weeks after his arrest, showed no alcohol or 4 drugs in his system. See Docket No. 33 at 63-64. While those results may have informed the 5 prosecutor’s decision of whether to drop the charges against Plaintiff, they do not show that the 6 circumstances known to Officer Gomez at the time of the arrest were insufficient to establish 7 probable cause. See Miller, 88 F.4th at 804. Lastly, Plaintiff argues that the field sobriety tests 8 failed to show “conclusively” that he was impaired. See Docket No. 33 at 7.6 The question before 9 the Court is not, however, whether Officer Gomez possessed evidence of conclusive guilt; it is 10 only whether there was “a fair probability or substantial chance of criminal activity,” Miller, 88 11 F.4th at 804, which “is not a high bar,” Kaley, 571 U.S. at 338. 12 Officer Gomez is entitled to summary judgment on Plaintiff’s Section 1983 claim.7 13 B. State Law Claims 14 Having determined that Defendants are entitled to summary judgment with respect to 15 Plaintiff’s federal claim, the Court lacks original jurisdiction over the remaining state law claims 16 for false arrest and false imprisonment. Under 28 U.S.C. § 1367(c), a district court “may decline 17 to exercise supplemental jurisdiction” when it “has dismissed all claims over which it has original 18 jurisdiction.” Typically, “when federal claims are dismissed before trial . . . pendent state claims 19 should also be dismissed.” Religious Tech. Ctr v. Wollersheim, 971 F.2d 364, 367-68 (9th Cir. 20 1992). Indeed, “in the usual case in which all federal-law claims are eliminated before trial, the 21 balance of factors to be considered under the pendent jurisdiction doctrine—judicial economy, 22

23 6 Plaintiff also argues that Officer Gomez performed part of the HGN test improperly, see, e.g., Docket No. 33 at 3 (“Gomez did not hold his index finger at maximum deviation for at least 24 four seconds”), but such argument would at most reduce the indicia of intoxication from six to four such that the test as a whole would still indicate impairment, see Docket No. 29-6 at 18-19. 25 As also explained above, Plaintiff argues that some tests were faulty because there could have been explanations other than impairment for the identified circumstances, see, e.g., Docket No. 33 at 6- 26 7, but the existence of possible innocent explanations fails to establish a material issue of fact as to lack of probable cause. 27 7 Having found no underlying constitutional violation, the Court need not address 28 Defendants’ qualified immunity argument. 1} convenience, fairness, and comity—will point toward declining to exercise jurisdiction over the remaining state-law claims.” Sanford v. MemberWorks, Inc., 625 F.3d 550, 561 (9th Cir. 2010) 3}| (citation omitted); see also, e.g., City of Colton v. Am. Promo. Events, Inc.-W., 614 F.3d 998, 1008 4] (9th Cir. 2010) (affirming district court’s declination to exercise supplemental jurisdiction over state law claims after granting summary judgment on federal claims). 6 Accordingly, in its discretion, the Court declines to exercise supplemental jurisdiction over 7| the remaining state law claims. Plaintiff's state law claims are dismissed without prejudice. Conclusion 9 For the reasons discussed above, the Court GRANTS Defendants’ motion for summary 10] judgment with respect to Plaintiffs federal claim. In addition, the Court DISMISSES without 11] prejudice Plaintiff's state law claims. The Court INSTRUCTS the Clerk’s Office to enter judgment in favor of Defendants on the federal claim brought pursuant to § 1983, to dismiss the 13] state law claims for false arrest and false imprisonment, and to close this case. 14 IT IS SO ORDERED. 15 Dated: June 9, 2026 24 Nancy J..Koppe. 17 United States Magistrate Judge 18 19 20 21 22 23 24 25 26 27 28