United States District Court, D. Nevada
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For Lydia Vasquez-Brenes, Ricardo Brenes, Plaintiffs: Dale K. Galipo, LEAD ATTORNEY, PRO HAC VICE, Law Offices of Dale K. Galipo, Woodland Hills, CA; Peter Goldstein, LEAD ATTORNEY, Law Offices of Peter Goldstein, Las Vegas, NV; Thomas D Dillard, Olson, Cannon, Gormley, Angulo & Stoberski, Las Vegas, NV.
For Las Vegas Metropolitan Police Department, Sean Miller, Defendants: Thomas D Dillard, LEAD ATTORNEY, Olson, Cannon, Gormley, Angulo & Stoberski, Las Vegas, NV.
JAMES C. MAHAN, UNITED STATES DISTRICT JUDGE.
Presently before the court is defendant Las Vegas Metropolitan Police Department's (" LVMPD" ) and defendant Sean
Miller's (" officer Miller's" ) motion for summary judgment. (Doc. # 50). Plaintiffs Lydia Vasquez-Brenes and Ricardo Brenes have responded (doc. # 56) and defendants have replied (doc. # 60).
This case arises out of an officer involved shooting. Plaintiffs are the wife and father of the decedent, Anthony Brenes (" Brenes" ). Defendant officer Miller is the LVMPD officer who delivered the fatal gunshot to Brenes. The incident occurred in the early morning hours of November 15, 2010 at a Speedee Mart convenience store in Las Vegas, Nevada.
Plaintiff Lydia Vasquez-Brenes (" Lydia" ) testified in her deposition that Brenes woke her up that morning at approximately 5:00 a.m. to retrieve some checks from Mohave Mental Health Clinic. She testified that Brenes seemed angry when he woke her. When they left home together to catch the bus, Brenes brought with him a wooden walking cane. Lydia testified that she first saw the cane a few days prior and that Brenes had not used a cane previously.
Upon boarding the bus, Brenes pointed the cane at the driver and said that he was disabled. The driver allowed Lydia and Brenes to board the bus without paying. At some point the couple got off the bus and walked towards the Speedee Mart.
Brenes entered the Speedee Mart and exited approximately ten seconds later. After exiting the Speedee Mart, Brenes and Lydia remained in the Speedee Mart parking lot. A driver witnessed Brenes pick up a " large rock" and throw it at the Speedee Mart sign. The driver perceived Brenes as being irate and apparently feared for the safety of the woman with him, Lydia. The driver spotted a nearby LVMPD patrol car, occupied by officer Miller, and stopped to relay his concerns.
Officer Miller drove to the Speedee Mart. Upon arrival he saw Brenes and Lydia standing on the corner of the intersection near the Speedee Mart sign. Brenes had the cane in his hand. Officer Miller activated his patrol car's lights, and briefly his siren, and asked Brenes to drop the cane and step in front of the patrol car. Officer Miller testified that Brenes was about three feet in front of the patrol car and responded to officer Miller's request by flexing his arms, clenching his fists around the cane, and " basically growling" at officer Miller while saying " come on, come on, you want some of this?" Officer Miller stated in his deposition that at this point he asked dispatch for backup, pulled out his taser, and informed Brenes to stop moving or he would tase him. When Brenes continued to move towards officer Miller, officer Miller tased him. It had no effect on Brenes.
At some point after officer Miller initially tased Brenes, officers Chamberlin and Snodgrass arrived at the scene. Officer Chamberlin tased Brenes a second time and Brenes was unaffected. Officer Snodgrass also shot Brenes with two or three beanbag rounds. Brenes remained unaffected. The timeline of when the second tasing occurred and when the beanbag shots were fired is unclear. It is also unclear when the fatal shot was fired in relation to the second tasing and the beanbag shots.
Officers Chamberlin and Snodgrass have since been dropped from this lawsuit with the filing of an amended complaint. (Doc. # 47). Plaintiffs have also conceded to dismissal of their Monell claim and their claims for false arrest and denial of medical care. ( See opposition, doc. # 56 at 6).
The following claims remain: (1) a Fourth Amendment claim for excessive force against officer Miller brought under 42 U.S.C. § 1983; (2) a Fourteenth Amendment claim that officer Miller violated Brenes' substantive due process rights brought under 42 U.S.C. § 1983; (3) a battery claim against officer Miller and the LVMPD; and (4) a negligence claim against officer Miller and the LVMPD.
II. Legal Standard
The Federal Rules of Civil Procedure provide for summary judgment 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, 106 S.Ct. 2548, 91 L.Ed.2d 265 (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, 90 S.Ct. 1598, 26 L.Ed.2d 142 (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, 106 S.Ct. 1348, 89 L.Ed.2d 538 (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' differing versions of the truth at trial." T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 631 (9th Cir. 1987).
In other words, the nonmoving party cannot avoid summary judgment by relying solely on conclusory allegations that are unsupported by factual data. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Instead, the opposition must go beyond the assertions and allegations of the pleadings and set forth specific facts by producing competent evidence that shows a genuine issue for trial. See Celotex Corp., 477 U.S. at 324.
At summary judgment, a court's function is not to weigh the evidence and determine the truth, but to determine whether there is a genuine issue for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The evidence of the nonmovant is
" to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255. But if the evidence of the nonmoving party is merely colorable or is not significantly probative, summary judgment may be granted. See id. at 249-50.
A. Fourth Amendment -- excessive force (claim one)
Plaintiffs' first claim seeks to hold officer Miller liable for violations of Brenes' Fourth Amendment rights. Plaintiff brings this excessive force claim under 42 U.S.C. § 1983. Relying on the doctrine of qualified immunity, officer Miller asserts he cannot be held liable on any of the federal claims.
1. Legal standard
Where a plaintiff has stated a valid cause of action under 42 U.S.C. § 1983, government officials sued in their individual capacities may raise the affirmative defense of qualified immunity. See Spoklie v. Montana, 411 F.3d 1051, 1060 (9th Cir. 2005); see also Goodman v. Las Vegas Metro. Police Dep't, 963 F.Supp.2d 1036, 1058 (D. Nev. 2013). Qualified immunity " balances two important interests--the need to hold public officials accountable when they exercise power irresponsibly, and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably." Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). It protects government officials performing discretionary functions from liability for civil damages as long as their conduct does not violate " clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. ...