United States District Court, D. Nevada
LLOYD D. GEORGE, District Judge.
The plaintiff, Tracey Pope, alleges that defendant Randy Sorensen, an officer with defendant Las Vegas Metropolitan Police Department, used excessive force against him. Pope filed a complaint alleging 42 U.S.C. §1983 claims for violations of the Fourth and Fourteenth Amendments, and state claims for Intentional Infliction of Emotional Distress; Negligent Training, Supervision, and Control; Battery; and Negligence. The defendants, who filed an answer, have moved for judgment on the pleadings (#18) and for summary judgment (#26). In connection with the latter motion, the defendants have moved in limine to exclude statements recorded in the nurse's and physician's emergency room medical records as hearsay (#28). The plaintiff has opposed these motions, and has moved to file an amended complaint (#20) that addresses an issue raised in defendants' motion for judgment on the pleadings. The defendants have also moved in limine to exclude the Mr. Donald Teti, the plaintiff's police practice expert, and his proffered expert testimony (#38). Having considered the pleadings, the arguments of the parties, and admissible evidence submitted by the parties, the Court will grant the defendants' motions in limine and for summary judgment, and will deny the remaining motions as moot.
Motion for Summary Judgment
In considering a motion for summary judgment, the court performs "the threshold inquiry of determining whether there is the need for a trial-whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); United States v. Arango, 670 F.3d 988, 992 (9th Cir. 2012). To succeed on a motion for summary judgment, the moving party must show (1) the lack of a genuine issue of any material fact, and (2) that the court may grant judgment as a matter of law. Fed. R. Civ. Pro. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Arango, 670 F.3d at 992.
A material fact is one required to prove a basic element of a claim. Anderson, 477 U.S. at 248. The failure to show a fact essential to one element, however, "necessarily renders all other facts immaterial." Celotex, 477 U.S. at 323. Additionally, "[t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient." United States v. $133, 420.00 in U.S. Currency, 672 F.3d 629, 638 (9th Cir. 2012) (quoting Anderson, 477 U.S. at 252).
"[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322. "Of course, a party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, ' which it believes demonstrate the absence of a genuine issue of material fact." Id., at 323. As such, when the non-moving party bears the initial burden of proving, at trial, the claim or defense that the motion for summary judgment places in issue, the moving party can meet its initial burden on summary judgment "by showing'-that is, pointing out to the district court-that there is an absence of evidence to support the nonmoving party's case." Id., at 325. Conversely, when the burden of proof at trial rests on the party moving for summary judgment, then in moving for summary judgment the party must establish each element of its case.
Once the moving party meets its initial burden on summary judgment, the nonmoving party must submit facts showing a genuine issue of material fact. Fed. R. Civ. Pro. 56(e); Nissan Fire & Marine Ins. Co. v. Fritz Companies, Inc., 210 F.3d 1099, 1103 (9th Cir. 2000). As summary judgment allows a court "to isolate and dispose of factually unsupported claims or defenses, " Celotex, 477 U.S. at 323-24, the court construes the evidence before it "in the light most favorable to the opposing party." Adickes v. S. H. Kress & Co., 398 U.S. 144, 157 (1970). The allegations or denials of a pleading, however, will not defeat a well-founded motion. Fed. R. Civ. Pro. 56(e); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). That is, the opposing party cannot "rest upon the mere allegations or denials of [its] pleading' but must instead produce evidence that sets forth specific facts showing that there is a genuine issue for trial.'" Estate of Tucker v. Interscope Records, 515 F.3d 1019, 1030 (9th Cir. 2008) (quoting Fed. R. Civ. Pro. 56(e)).
This case concerns whether Officer Sorenson used excessive force when he "quickly took [Pope] to the ground" around 5:22 a.m., on October 30, 2011. The only other identified participant to this event, Pope, cannot offer any testimony regarding the force used by Officer Sorenson in taking him to the ground, as he testified that he cannot remember what happened.
In 1980, Pope suffered a severe injury to his spine. While he drove a vehicle in 2011 without assistive devices, he primarily used a walker to walk. Though Pope lived on the second story of an apartment building that lacked an elevator, he testified that his access to his apartment using stairs required that he rely on the rails of the stairway, and his use of the stairs was often slow.
In his deposition, Pope recalled, on the night in question, going to a coffee shop shortly after midnight. Sometime after 1:00 a.m., a man (whom Pope did not recognize) asked him to pick up a woman named Kim (whom Pope thought he might know, based on her description as given by the man) at a gas station and give her a ride back to the coffee shop. Pope went home, changed his pants (as he had spilled coffee on them), and about 2:00 a.m. proceeded to drive his silver Chevrolet Malibu, with a personalized "Lone Ranger" license plate ("LONERGR"), to pick up and give the woman a ride.
By 3:00 a.m., Pope was lost and had given up on finding the cross-street where the woman was waiting. At some point, while attempting to go home, he recalled driving on Torrey Pines, believing he was heading south (but actually driving north), when his car hit a "ditch" (which Pope described as a "big drop, " "where the pavement ends and jumps to dirt"), bottomed out, and died. He got out of the car, checked to see if anything was leaking, got back in and tried (without success) to restart the car. He got back out of the car, decided to wait until it got light, checked his cell phone for the time, and "it was 5:15, 5:30."
A couple driving home from a Halloween party witnessed Pope's drive north on Torrey Pines. At 4:41:24 a.m., David Tuttle called 911 to report what he believed was a drunk driver driving a silver Chevy Malibu, license plate "LONER GR." Tuttle reported that "he was just all over the road, " and "there's a couple of little dips out here that are kinda big, he hit a couple of those pretty hard. But he was just all over the road." After seeing the car come to a stop in the dirt lot, Tuttle believed the driver had broken his car, or destroyed his oil pan, "by hitting one of those in-between streets that has a big dip in them."
Officer Sorenson and Pope provide differing accounts of what followed next. According to Pope, he was standing outside of his car when two patrol cars arrived and sat on the opposite side of the road for about five minutes. He got back inside his car, tried again to start the car, and got back out of the car. Two officers got out of each car and the four officers walked over together. In his deposition, Pope believed there was one female and the rest were male. Pope stated he could just remember the one officer, the one who did "the write-up in the jail, " who was male, white, brown hair, skinny, and taller than Pope (who described himself as 5'3").
As described by Pope, the next events were:
Well, they walked over, they asked me what happened, first. Walked, they walked over, asked me what happened, and I said, "I hit a ditch." And they said, "What ditch?" And I point, said "The one back there." And by the time I turned back around and made it down to the last officer, that's the last I remember ...