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Barren v. Roger

United States District Court, D. Nevada

September 16, 2014

GREGORY D. BARREN, SR., Plaintiff,

ORDER (Plf.'s Motions in Limine - #95, #96; Def.'s Motion for Summary Judgment - #103; Plf.'s Cross-Motion for Summary Judgment - #107)

ROGER L. HUNT, District Judge.

Before the Court is Defendants Terry Robinson, Raymon Kent, and Donald Shane's (collectively "Officers") Motion for Summary Judgment (#103, filed Aug. 18, 2014), Plaintiff Gregory D. Barren, Sr.'s Cross-Motion for Summary Judgment (#107, filed Aug. 25, 2014), and Plaintiff's related Motions in Limine (#95, 96, both filed on July 29, 2014). The Court has also considered the respective oppositions and replies. (#101, 102, 105, 106, 108, 110, 111). For the reasons discussed below, the Court grants Defendants motion and denies Plaintiff's motions.


This case is a civil rights action based on an alleged unlawful arrest in violation of the Fourth Amendment. Plaintiff's arrest stems from events that took place on June 10, 2010. The following facts are not in dispute.

At 1:28 p.m, a man identified as Patrick called Las Vegas Metropolitan Police Department (LVMPD) Dispatch and reported that a woman called him and that she was in trouble at 5000 Cannon Avenue. Patrick provided the operator with the woman's number, (Dkt. #102, Mot. Ex.B). Thereafter, the operator contacted Susie Bush (Ms. Bush). Ms. Bush requested that Dispatch send officers over to help her because Plaintiff, Gregory D. Barren, Sr., had earlier hit her with a stick, she was trying to leave his home, and that she was afraid of the Plaintiff. (Dkt. #102, Mot. Ex.B). Ms. Bush indicated that Plaintiff was no longer at the residence but she was afraid to leave and again requested that Dispatch send an officer over to assist her in leaving. (Dkt. #102, Mot. Ex.B). As a result of the 9-1-1 call, LVMPD officers were dispatched to Plaintiff's home. En-route to the residence the officers were informed that Ms. Bush was hit with a stick, Plaintiff locked her in the residence, she was fearful that Plaintiff would hurt her for calling the police, and was having a panic attack. (Dkt. # 103, Mot. Ex. D).

Upon arrival, Ms. Bush reported that Plaintiff hit her with a stick in the thigh, strangled her, and struck her on the right side of her head. (Dkt. # 103, Mot. Ex. H). Plaintiff denied that he hit Ms. Bush and appeared uninjured. Ms. Bush had injuries including bruising on her face, marks on her neck, and swelling on her leg where Plaintiff allegedly hit her. Defendants located and impounded a wooden stick that Ms. Bush alleged Plaintiff used to hit her. (Dkt. # 103, Mot. Ex. L).

Thereafter, Plaintiff was arrested and charged with domestic battery, kidnapping, and coercion. Plaintiff's preliminary hearing was initially set for July 1, 2010; however, Ms. Bush failed to appear and the matter was continued. (Dkt. #107/108, Cross-Mot. Ex. F). Again on July 15 and July 29, 2010, Ms. Bush failed to appear and on August 5, 2010, the charges were dismissed against Plaintiff. (Dkt. #107/108, Cross-Mot. Ex. F).

Plaintiff filed his complaint on August 3, 2011, alleging that the Defendants lacked probable cause to arrest him for domestic violence. (Dkt. # 3). Upon Officers' motion, the Court dismissed the complaint without prejudice for failure to state a claim because Plaintiff named the Officers only in their official capacities while failing to allege a municipal policy or custom. (Dkt. #19). Plaintiff sought to have the case "reinstated, " which this Court construed as a motion for reconsideration. (Dkt. #21). The Court denied Plaintiff's reconsideration motion and Plaintiff appealed that denial. (Dkt. #24, 26). The Ninth Circuit found that this Court properly dismissed Plaintiff's Complaint because Plaintiff named the Officers only in their official capacities while failing to allege a municipal policy or custom. (Dkt. #37). However, reasoning that "it would not be apparent to a pro se litigant that dismissal without prejudice would allow amendment, " the Ninth Circuit remanded to this Court to consider Plaintiff's "request for reinstatement as a request for leave to amend." (Dkt. #37). On remand, applying the amendment standard, the Court readily allowed Plaintiff to file an amended complaint. (Dkt. # 46).

Plaintiff's amended complaint stated a claim under 42 U.S.C. § 1983 for unlawful arrest in violation of the Fourth Amendment. Defendants have moved for summary judgment arguing there was probable cause to arrest Plaintiff and alternatively, that they are entitled to qualified immunity. Plaintiff has cross-moved for summary judgment challenging some of Defendants' evidence as inadmissible and arguing the admissible evidence showed Defendants violated his constitutional rights.


The purpose of summary judgment is to avoid unnecessary trials when there is no dispute as to the facts before the court. Nw. Motorcycle Ass'n v. U.S. Dep't of Agric., 18 F.3d 1468, 1471 (9th Cir.1994). Summary judgment is appropriate "where the Court is satisfied that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Fed.R.Civ.P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986). An issue is "genuine" if there is a sufficient evidentiary basis on which a reasonable fact-finder could find for the nonmoving party and a dispute is "material" if it could affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). Where reasonable minds could differ on the material facts at issue, however, summary judgment is not appropriate. Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995). "The amount of evidence necessary to raise a genuine issue of material fact is enough to require a jury or judge to resolve the parties' differing versions of the truth at trial.'" Aydin Corp. v. Loral Corp., 718 F.2d 897, 902 (9th Cir. 1983) (quoting First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968)). In evaluating a summary judgment motion, a court views all facts and draws all inferences in the light most favorable to the nonmoving party. Kaiser Cement Corp. v. Fishbach & Moore, Inc., 793 F.2d 1100, 1103 (9th Cir. 1986).

The moving party bears the burden of showing that there are no genuine issues of material fact. Zoslaw v. MCA Distrib. Corp., 693 F.2d 870, 883 (9th Cir. 1982). "In order to carry its burden of production, the moving party must either produce evidence negating an essential element of the nonmoving party's claim or defense or show that the nonmoving party does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial." Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000). Once the moving party satisfies Rule 56's requirements, the burden shifts to the party resisting the motion to "set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 256. The nonmoving party "may not rely on denials in the pleadings but must produce specific evidence, through affidavits or admissible discovery material, to show that the dispute exists." Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991).

Although the parties may submit evidence in an inadmissible form, only evidence which might be admissible at trial may be considered by a trial court in ruling on a motion for summary judgment. Fed.R.Civ.P. 56(c). Moreover, pro se litigants are bound by the same rules of procedure as other litigants. See Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995). To be sure, the Ninth Circuit has held that pro se litigants are not entitled to lenient evidentiary standards for the purposes of summary judgment motions. Jacobsen v. Filler, 790 F.2d 1362, 1364-65 (holding "[f]irst and foremost is that pro se litigants in the ordinary civil case should not be treated more favorably than parties with attorneys of record.").

Summary judgment for a defendant is appropriate when the plaintiff "fails to make a showing sufficient to establish the existence of an element essential to his case, and on which he will bear the burden of proof at trial." Celotex, 477 U.S. at 322. Where parties submit cross-motions for summary judgment, the court must consider each party's evidence, regardless under which motion the evidence is offered. Fair Hous. Council v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir. 2001); see also 10A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Fed. Prac. & Pro. § 2720, at 335-36 (3d ed. 1998) (stating: "The court must rule on ...

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