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Kelly v. Las Vegas Metropolitan Police Department

United States District Court, D. Nevada

July 25, 2014

GREGORY KELLY, Plaintiff,
v.
LAS VEGAS METROPOLITAN POLICE DEPARTMENT, et al., Defendants.

ORDER

LARRY R. HICKS, District Judge.

Before the Court is Defendant Las Vegas Metropolitan Police Department's ("LVMPD") Motion for Summary Judgment. Doc. #136.[1] Plaintiff Gregory Kelly ("Kelly") filed a Response (Doc. #145), to which LVMPD replied (Doc. #153).

Also before the Court is Defendants William F. Catricala ("Caltricala"), Christopher Garcia ("Garcia"), and John Campbell's ("Campbell") (collectively "Defendants") Motion for Summary Judgment. Doc. #137. Kelly filed a Response (Doc. #146), to which Defendants replied (Doc. #152). Kelly also filed a Motion for Leave to File a Sur-Reply to Defendants' Motion. Doc. #158. Defendants filed a Response (Doc. #161), to which Kelly did not reply.

I. Facts and Procedural History

At 6:30 a.m., on December 5, 2010, LVMPD received a call from Lisa Alexander ("Alexander"), Kelly's girlfriend at the time, reporting a domestic disturbance. Doc. #136, Ex. D. In response to the 9-1-1 operator's inquiry, Alexander reported that no one had been hit or pushed yet. Id. Kelly can be heard in the background saying "no one's been hit, there's been no violence." Id. Alexander responded, "you just broke down my door." Id. Alexander informed the 9-1-1 operator that Kelly had been drinking. Id. Alexander also informed the 9-1-1 operator that Kelly was a bounty hunter and had a hand gun in the master bedroom closet. Id.

Thereafter, dispatch radioed that there was a 417 (domestic disturbance), that Kelly was a bounty hunter and had a 413 (handgun) in the master bedroom closet, and that 408 (alcohol) was involved. Doc. #136, Ex. D. After placing the call to 9-1-1, Alexander went outside to the front of the residence to wait for the officers. Doc. #136, Ex. B, ¶28. Kelly remained inside the residence. Doc. #145, Ex. 5. Officers Ivens Munoz ("Munoz"), Thomas Carrigy ("Carrigy"), Garcia, Campbell, and Catricala responded to the dispatch.[2] Catricala, Campbell, and Garcia approached the front door to the residence, while Munoz and Carrigy stayed with Alexander. Doc. #136, Ex. G, ¶13. At that time, Alexander informed Munoz that "at no point did the argument become physical." Doc. #145, Ex. 5. At the front door, Catricala knocked several times and announced LVMPD presence. Doc. #136, Ex. G, ¶15. After several minutes, Kelly opened the door.[3] Defendants claim that Kelly was concealing part of his body behind the door with one hand in his pocket. Doc. #136, Ex. G, ¶22; Doc. #136, Ex. H, ¶15; Doc. #136, Ex. I, ¶16; Doc. #145, Ex. 12, 4:24-27. Kelly denies that he was concealing part of his body behind the door. Doc. #145, 10:3-7.

At some point shortly after Kelly opened the door, Clifford[4] began barking and ran out of the residence toward Defendants. Doc. #136, Ex. G, ¶19; Doc. #136, Ex. H, ¶17; Doc. #136, Ex. A, 81:15-22. Defendants drew their weapons at Clifford and told Kelly to get control of his dog or else they would shoot him.[5] Doc. #136, Ex. G, ¶20; Doc. #136, Ex. H, ¶18; Doc. #145, Ex. 12, 4:28-31. Clifford then returned back to the inside of the residence. The parties dispute whether Kelly was holding Clifford at the threshold of the residence. Defendants assert that Clifford went back into the residence on his own and Kelly stood at the threshold with one hand still in his pocket. Doc. #136, Ex. G, ¶¶21, 24; Doc. #136, Ex. H, ¶19; Doc. #145, Ex. 12, 4:33-35. Kelly asserts that he was holding Clifford with one hand at the doorway. Doc. #136, Ex. A, 82:3. Defendants then ordered Kelly to show both of his hands and come outside to speak to them. Doc. #136, Ex. G, ¶¶22, 24; Doc. #136, Ex. H, ¶¶19, 20; Doc. #136, Ex. A, 81:23-82:4. Kelly refused and instead invited Defendants into his residence to speak with him there.[6] Doc. #136, Ex. G, ¶¶22, 24; Doc. #136, Ex. H, ¶20; Doc. #136, Ex. A, 81:23-82:4. Kelly was showing Defendants only one hand at a time.[7] Doc. #136, Ex. G, ¶24; Doc. #136, Ex. H, ¶¶19, 20; Doc. #136, Ex. A, 81:25-82:4. Again, Defendants ordered Kelly to show both of his hands and come outside to speak with them. Doc. #136, Ex. G, ¶24; Doc. #136, Ex. H, ¶¶21, 22; Doc. #136, Ex. A, 81:25-82:4. Again, Kelly refused Defendants' order to come outside and requested that they come inside his residence. Doc. #136, Ex. G, ¶26; Doc. #136, Ex. H, ¶23. Kelly continued to show only one hand at a time to Defendants.[8] Doc. #136, Ex. A, 82:4.

Defendants claim that Kelly began to retreat into the residence, at which point Catricala decided to arrest him. Doc. #136, Ex. G, ¶26; Doc. #136, Ex. H, ¶23; Doc. #145, Ex. 12, 4:42. Kelly denies that he was retreating anywhere. Doc. #145, 10:26. Defendants admit that Catricala and Campbell stepped into the threshold of Kelly's residence and grabbed each of his arms.[9] Doc. #136, Ex. G, ¶27; Doc. #136, Ex. I, ¶23. Catricala and Campbell put Kelly in a "double-arm bar, " took him down to the ground, and placed him in handcuffs. Doc. #136, Ex. G, ¶¶27, 28; Doc. #136, Ex. I, ¶¶23-25. Garcia then entered the residence to keep Clifford away from Catricala and Campbell. Doc. #136, Ex. H, ¶26; Doc. #145, Ex. 12, 5:3-8. Catricala and Campbell assisted Kelly to his feet and then Catricala and Carrigy escorted him to the patrol car.[10] Doc. #136, Ex. G, ¶¶29, 30; Doc. #136, Ex. I, ¶¶26, 28; Doc. #136, Ex. C, 8:23-28. Thereafter, officer Beau Hunn ("Hunn") arrived to transport Kelly to the Clark County Detention Center ("CCDC"). Doc. #136, Ex. G, ¶36; Doc. #136, Ex. I, ¶34.

Kelly claims to have suffered a torn rectus femoris (quadricep tendon rupture) in his left leg and a torn rotator cuff in his left shoulder as a result of the incident. Doc. #136, Ex. C, 12:6-8. Kelly asserts that he had no injury of this nature to his left shoulder or left knee prior to the incident in question.[11] Doc. #136, Ex. C, 9:20-21. On December 5, 2012, exactly two years after the alleged incident took place, Kelly filed a Complaint. See Doc. #1. On August 1, 2013, Kelly filed a Second Amended Complaint, alleging claims for unlawful entry, unlawful arrest, excessive force, due process violations, civil conspiracy, deliberate indifference to a serious medical need, municipal liability, assault and battery, and negligence. Doc. #67. On December 27, 2013, the Court issued an Order dismissing with prejudice Kelly's fourth, fifth, and sixth causes of action. Doc. #124. The Court also dismissed with prejudice all of the individually named Defendants in Kelly's ninth cause of action. Id. Accordingly, the following claims remain: (1) unlawful entry against Catricala, Campbell, and Garcia; (2) unlawful arrest against Catricala; (3) excessive force against Catricala and Cambpell; (7) municipal liability against the LVMPD; and (9) negligence against the LVMPD.

II. Legal Standard

Summary judgment is appropriate only when the pleadings, depositions, answers to interrogatories, affidavits or declarations, stipulations, admissions, and other materials in the record show that "there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). In assessing a motion for summary judgment, the evidence, together with all inferences that can reasonably be drawn therefrom, must be read in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Cnty. of Tuolumne v. Sonora Cmty. Hosp., 236 F.3d 1148, 1154 (9th Cir. 2001).

The moving party bears the initial burden of informing the court of the basis for its motion, along with evidence showing the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). On those issues for which it bears the burden of proof, the moving party must make a showing that is "sufficient for the court to hold that no reasonable trier of fact could find other than for the moving party." Calderone v. United States, 799 F.2d 254, 259 (6th Cir. 1986); see also Idema v. Dreamworks, Inc., 162 F.Supp.2d 1129, 1141 (C.D. Cal. 2001). On an issue as to which the non-moving party has the burden of proof, however, the moving party can prevail merely by demonstrating that there is an absence of evidence to support an essential element of the non-moving party's case. Celotex, 477 U.S. at 323.

To successfully rebut a motion for summary judgment, the non-moving party must point to facts supported by the record which demonstrate a genuine issue of material fact. Reese v. Jefferson Sch. Dist. No. 14J, 208 F.3d 736 (9th Cir. 2000). A "material fact" is a fact "that might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Where reasonable minds could differ on the material facts at issue, summary judgment is not appropriate. See v. Durang, 711 F.2d 141, 143 (9th Cir. 1983). A dispute regarding a material fact is considered genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Liberty Lobby, 477 U.S. at 248. The mere existence of a scintilla of evidence in support of the party's position is insufficient to establish a genuine dispute; there must be evidence on which a jury could reasonably find for the party. See id. at 252.

III. Discussion

A. First Cause of Action-Unlawful, Warrantless Entry in Violation of 42 U.S.C. § 1983 (Catricala, Campbell, and Garcia)

"It is a basic principle of Fourth Amendment law' that searches and seizures inside a home without a warrant are presumptively unreasonable." Payton v. New York, 445 U.S. 573, 586 (1980). The presumption of unconstitutionality that accompanies "the [warrantless] entry into a home to conduct a search or make an arrest" may be overcome only by showing "consent or exigent circumstances." Lopez-Rodriguez v. Mukasey, 563 F.3d 1012, 1016 (9th Cir. 2008) (quoting Steagald v. United States, 451 U.S. 204, 211 (1981)); see also Payton, 445 U.S. at 590; United States v. Prescott, 581 F.2d 1343, 1350 (9th Cir. 1978) ("absent exigent circumstances, police who have probable cause to arrest a felony suspect must obtain a warrant before entering a dwelling to carry out the arrest"); Espinosa v. City and Cnty. of San Francisco, 598 F.3d 528, 533 (9th Cir. 2010) (consent is an exception to the Fourth Amendment's warrant requirement). Here, Defendants assert that they are entitled to summary judgment on Kelly's claim for unlawful, warrantless entry on three bases: (1) Kelly consented to Defendants' entry into his residence; (2) the entry was lawful due to exigent circumstances; and (3) Defendants are entitled to qualified immunity. Kelly disputes the same.

"[W]here the validity of a search rests on consent, the State has the burden of proving that the necessary consent was obtained and that it was freely and voluntarily given, a burden that is not satisfied by showing a mere submission to a claim of lawful authority." Florida v. Royer, 460 U.S. 491, 497 (1983). Here, the Court finds Kelly's consent to enter his residence was as freely and voluntarily given as it was unequivocal. It is undisputed that Kelly voluntarily opened the door and invited Defendants into his home at least twice. See Doc. #67 (Am. Compl.), ¶27 ("Plaintiff voluntarily opened the door and invited the officers to enter."), ¶28 ("Plaintiff refused [to come out], but again extended the invitation for them to enter."); see also Doc. #136, Ex. A (Kelly Depos.), 84:5-8 ("Yes [I was aware that Defendants were there to conduct an investigation]. And they were fully invited to come in and conduct their investigation, and they refused."); Doc. #136, Ex. C (Kelly's Answers to LVMPD's First Set of Interogs.), #5 ("Upon opening the door voluntarily, while attending to Clifford, Plaintiff said Come on in guys.'"... "Plaintiff refused [to come out], but again extended the invitation to them to enter.").

Moreover, there is nothing in the record to indicate that threats or force were used to get Kelly to open the door. See Payton, 445 U.S. at 576-77 (warrantless arrest of suspect in his home violated the Fourth Amendment where police broke through a closed door with crowbars). Nor is there any indication that Defendants used a subterfuge or other coercive tactics in order to get Kelly to open the door. See United States v. Johnson, 626 F.2d 753, 757 (9th Cir. 1980) (warrantless arrest of suspect in doorway within his home was improper because of the deceitful manner in which the officers caused the door to be opened). Instead, Kelly voluntarily opened the door and further invited Defendants into his home. In United States v. Vaneaton, 49 F.3d 1423, 1426-27 (9th Cir. 1995), the Ninth Circuit determined that the defendant had voluntarily exposed himself to warrantless arrest when he voluntarily opened the door to officers thereby exposing himself and the immediate area to them. Here too, the Court finds that Kelly's arrest was proper as he voluntarily exposed himself and his home to Defendants. By implicitly and explicitly consenting to Defendants' presence in his home, Kelly had no reasonable expectation of privacy. See United States v. Garcia, 997 F.2d 1273, 1280-81 (9th Cir. 1993) (finding defendant's warrantless arrest was not improper where he impliedly consented to ...


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