United States District Court, D. Nevada
WILLIAM C. DONLON and MARIANNE P. TRUTA, Plaintiff(s),
LAS VEGAS METROPOLITAN POLICE DEPARTMENT, et al., Defendant(s)
JAMES C. MAHAN, District Judge.
Presently before the court is defendant Las Vegas Metropolitan Police Department's ("LVMPD") motion for summary judgment. (Doc. # 41).
Also before the court is defendant officers Vellotti and White's motion for summary judgment. (Doc. # 42). Plaintiffs William Donlon and Marianne Truta have filed a consolidated response (doc. # 49) and defendants have filed a consolidated reply (doc. # 52).
Finally before the court is plaintiffs' motion for summary judgment. (Doc. # 43). Defendants have responded (doc. # 48) and plaintiffs have replied (doc. # 53).
The complaint stems from the arrest of plaintiff Donlon while he and plaintiff Truta were traveling through the McCarran International Airport ("airport"). Defendants Vellotti and White are officers employed by defendant LVMPD and were assigned to the airport that day.
On August 11, 2010, plaintiffs checked out of the MGM Grand around 1:00 p.m. and left for the airport to fly home to Oregon. Upon arrival, they attempted to check in at a kiosk for their 6:30 p.m. flight. While checking in, plaintiffs were given the option to take a spot on an earlier flight if they paid an additional fee, which they elected to do. When Donlon printed the tickets out, he noticed they were not for an actual seat, but were instead for standby.
Unhappy with his standby tickets, Donlon went to the United Airlines ticketing counter to speak to a representative. He was directed to Anthney Spartz, an agent on the floor who was assisting customers in line. Donlon explained the situation to Spartz, and Spartz told Donlon he would have to go to the gate to discuss it with the agents there. Donlon was unsatisfied with Spartz's response, and the two become involved in some level of discussion. At this point the parties' versions of the subsequent events differ.
According to Donlon, he was simply dissatisfied with the response and treatment he received from Spartz, and was relatively cordial. When Spartz allegedly refused to give Donlon her name, Donlon took out his cell phone and began recording the encounter. While continuing to converse with Spartz, Donlon alleges he was suddenly, and without warning, tackled from behind by Vellotti and placed under arrest. Donlon maintains that he was compliant with the officers throughout the encounter.
Defendants offer a different version of the events. According to them, Donlon raised his voice from the beginning and continued to become increasingly louder and more aggressive. Donlon allegedly wanted his money back, wanted to be put in the front of the line ahead of all other customers, and was yelling at Spartz when he did not receive the response he desired.
Officer Vellotti was stationed on the second floor of the airport overlooking the ticketing area. Vellotti alleges he was first alerted to the incident when he heard Donlon yelling. He further alleges that he saw Donlon with his fist approximately one inch away from Spartz's face, that Donlon had one foot in front of the other in a "combat or fighter's stance, " and that he was highly agitated. Vellotti asserts that he witnessed Truta pulling on Donlon from behind, trying to step between Donlon and Spartz, and attempting to push Donlon away. Truta denies she ever attempted to stand between the two.
Based on his observations, Vellotti determined an arrest needed to be made given what he perceived to be an imminent battery, as well as for "loud and tumultuous noises, " which is a violation of airport rules. See Clark County Code 20.04070. Vellotti alleges that when he approached Donlon and told him he was under arrest, Donlon brought his arms towards his midsection and yelled "no." Donlon allegedly resisted Vellotti's attempts to place handcuffs on him, at which point Vellotti performed an "ignition twist" to bring Donlon to the ground. At this point White responded to the encounter and assisted Vellotti in securing the handcuffs. Plaintiff Truta was nearby and witnessed this series of events.
White remained with Truta and explained to her what was happening to her husband and how she could pick him up. During this time, Donlon was taken upstairs to be processed and interviewed. When Vellotti noticed Donlon's wrists were bleeding, Donlon responded that he was on blood thinners and that he had been drinking at lunch.
Vellotti testified that although he believed an assault had taken place and a battery was imminent, the stated reason for arrest was ultimately for violating airport rules. That charge was later dropped.
Donlon asserts that he was "attacked" by officer Velotti and that excessive force was used causing injury to his wrist. Donlon further asserts he is disabled and was under treatment for severe osteoarthritis of the spine at the time of his arrest, and his disabilities were apparently aggravated by the incident. Truta claims White was abusive toward her and that she was traumatized having witnessed the arrest of Donlon.
Based on these events, the complaint asserts federal claims under 42 U.S.C. § 1983 and state law claims for negligent hiring, retention, training, and supervision, battery, intentional infliction of emotional distress, negligent infliction of emotional distress, and "respondeat superior for torts."
II. Legal Standard
The Federal Rules of Civil Procedure provide for summary adjudication when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that "there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(a). A principal purpose of summary judgment is "to isolate and dispose of factually unsupported claims." Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986).
In determining summary judgment, a court applies a burden-shifting analysis. "When the party moving for summary judgment would bear the burden of proof at trial, it must come forward with evidence which would entitle it to a directed verdict if the evidence went uncontroverted at trial. In such a case, the moving party has the initial burden of establishing the absence of a genuine issue of fact on each issue material to its case." C.A.R. Transp. Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir. 2000) (citations omitted).
In contrast, when the nonmoving party bears the burden of proving the claim or defense, the moving party can meet its burden in two ways: (1) by presenting evidence to negate an essential element of the nonmoving party's case; or (2) by demonstrating that the nonmoving party failed to make a showing sufficient to establish an element essential to that party's case on which that party will bear the burden of proof at trial. See Celotex Corp., 477 U.S. at 323-24. If the moving party fails to meet its initial burden, summary judgment must be denied and the court need not consider the nonmoving party's evidence. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 159-60 (1970).
If the moving party satisfies its initial burden, the burden then shifts to the opposing party to establish that a genuine issue of material fact exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). To establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' ...