United States District Court, D. Nevada
RICHARD A. GAMMICK, Washoe County District Attorney, HERBERT B. KAPLAN, Deputy District Attorney, Reno, NV, Attorney for Washoe County.
PROPOSED ORDER GRANTING MOTION FOR SUMMARY JUDGMENT
ROBERT C. JONES, District Judge.
This matter was initiated by Plaintiff, VIKTORIYA SOKOL SUNDE, by the filing of a complaint on August 7, 2012. The Complaint alleged approximately 19 different federal and state law claims. Included as a plaintiff in that complaint was J. Michael Sunde, Ms. Sunde's husband. Defendants filed motions to dismiss, which were granted in part and denied in part by virtue of the Court's Order entered on March 7, 2013. (Doc #32) In sum, the Court granted the motions to dismiss with the exception of the excessive force claim against only Deputy Lightner and the unlawful arrest claim against both Deputy Lightner and Deputy Shigeta, which are the only surviving claims. The Court also dismissed all claims brought by J. Michael Sunde, leaving only Ms. Sunde as the sole remaining plaintiff.
Deputy Lightner and Deputy Shigeta filed a motion for summary judgment on March 28, 2014. That motion is presently before the Court for adjudication.
Ms. Sunde failed to file any opposition to that motion for summary judgment. Pursuant to LR 7-2(d), "The failure of an opposing party to file points and authorities in response to any motion shall constitute a consent to the granting of the motion."
The material facts not genuinely in issue, or those which cannot be genuinely disputed, involved in this matter are as follows. On August 18, 2010, Ms. Sunde was a party in a hearing being conducted in Department 6 of the Second Judicial District Court, in and for Washoe County, State of Nevada. Complaint (Doc #1) at p. 1, &1. The Honorable Brent Adams presided over the August 18, 2010 hearing. Deputy Charles Lightner is a deputy sheriff and was acting in the capacity as bailiff for Judge Adams' courtroom on that date. Complaint (Doc #1) at p. 4, &10. Deputy Robert Shigeta is a deputy sheriff and was acting in that capacity as he was present in Judge Adams' courtroom. Complaint (Doc #1) at p. 4, &11.
Prior to the hearing on August 18, 2010, Deputy Malloy informed Deputy Lightner that Ms. Sunde had been involved in another incident at the courthouse in which she was disruptive to the extent that deputies were summoned to intervene. The prior incident occurred in July 2010 when Ms. Sunde appeared at the courthouse along with her husband. At that time, Ms. Sunde and her husband, J. Michael Sunde, were seeking an immediate hearing due to actions taken in connection with the paralegal business the subject of that underlying litigation. Ms. Sunde was very upset and agitated at the time due to the actions of William O'Mara and David O'Mara, the attorneys who were representing the adverse party in the underlying litigation. Due to Ms. Sunde's behavior at the courthouse that day, deputies were summoned to intervene to stop Ms. Sunde's disruptive behavior.
On August 18, 2010, while the hearing was in progress, Judge Adams admonished Ms. Sunde several times for disrupting the proceedings. At the afternoon break, Judge Adams had informed Deputy Lightner, in an effort to maintain the order and decorum of the proceedings, that he should remove Ms. Sunde from the courtroom if she spoke or disrupted the hearing again. After the hearing had reconvened following the afternoon break, Ms. Sunde spoke a few words from counsel table while her husband was testifying on the witness stand, and was immediately ordered by Judge Adams removed from the courtroom. After Judge Adams had ordered Ms. Sunde removed from the courtroom, he stated, "I also want to note for the record that Mrs. Sunde, despite the admonition of the Court, has continued to speak out during these proceedings, and that will not be permitted. That's why, a few moments ago, she was removed from the courtroom. If she resists the conduct of the bailiff in enforcing decorum of the courtroom, she will be arrested and taken into custody. I will not permit any outburst on the part of any party to this proceeding, they'll be dealt with severely by the Court."
Deputy Lightner, pursuant to Judge Adams' order, approached Ms. Sunde and asked her to leave the premises. Ms. Sunde initially resisted the order to leave the courtroom, refusing to comply and huffed. Deputy Lightner, pursuant to Judge Adams' order, escorted Plaintiff out of the courtroom. Deputy Lightner used a light touch in escorting Plaintiff out of the courtroom. Deputy Shigeta opened the courtroom door for Deputy Lightner and Ms. Sunde to exit the courtroom. Almost immediately upon entering the vestibule area outside of the courtroom, Ms. Sunde turned her back to the wall and turned in an aggressive manner facing Deputy Lightner and said something to Deputy Lightner, during which time she struggled against the hold of Deputy Lightner on her arm, pulling out of the light touch.
Ms. Sunde raised her right hand during the incident. Deputy Lightner perceived Ms. Sunde's actions as aggressive and threatening. Deputy Lightner then turned Ms. Sunde away from him, and gained control of her against the wall of the vestibule area, while placing her arm behind her back in a rear wristlock hold. The incident in the vestibule area happened very quickly. "It happened in an instant." Deputy Lightner was reacting and acting as he had been trained in the police academy. Deputy Shigeta then placed Ms. Sunde in handcuffs. Ms. Sunde initially resisted the application of the handcuffs, but eventually cooperated. The handcuffs were placed on Ms. Sunde in an attempt to calm her down, as she continued to yell and scream at the deputies. Deputy Lightner did not hit Ms. Sunde on the wrists with handcuffs or anything else. The application of the handcuffs was not done with any intention to injure or punish Ms. Sunde. After Deputy Lightner once again had control of Ms. Sunde, he and Deputy Shigeta took her out of the vestibule area and seated her outside of the courtroom. Deputy Lightner remained standing next to Ms. Sunde and the two continued a conversation, with Ms. Sunde being very animated at times, shouting profanities. Deputy Shigeta stood nearby.
After Deputy Lightner realized that Ms. Sunde was not going to calm down, as she continued to exhibit hostile behavior, he returned to the courtroom to resume his bailiff responsibilities as the hearing was still ongoing and court was still in session, and other deputies had arrived. At that time, Deputy Shigeta assumed a position standing next to Ms. Sunde. Ms. Sunde was red in the face during the duration of the incident and was very agitated and angry. At no time during the incident did Deputy Lightner smile, smirk or appear to be enjoying the incident with Ms. Sunde; instead, Deputy Lightner was focused on quickly resolving the situation and attempting to calm down Ms. Sunde. Two other Washoe County Deputies arrived at the scene when Deputy Lightner returned to the courtroom. Video at 4:49:03. Sergeant Hamilton approached Ms. Sunde and had his K9 sit next to him while he and other deputies tried to calm Ms. Sunde down. Ms. Sunde continued yelling at the deputies in an animated fashion, yelling obscenities at them and was very angry. Ms. Sunde was then escorted out of the hallway area to the portion of the facility to prepare her for transport to the Washoe County Jail. Video at 4:55:27. Ms. Sunde was placed in chains for transport including on her waist, wrists, and around her neck.
During the time Ms. Sunde was in the holding area, Deputy Lightner was completing the probable cause sheet, which required him to obtain information from Ms. Sunde. Ms. Sunde refused to answer Deputy Lightner's questions, responding only to Deputy Kellie Wright. Ms. Sunde continued to yell between answering questions and had trouble maintaining focus. Upon her arrival at the jail facility, Ms. Sunde was seen by Andrea O'Brien in Intake. Ms. Sunde complained of a swollen right arm and pain in her right wrist area. The injuries consisted of "discoloration on her right arm on the triceps" and some redness on her wrist after "Sokol continued to rub the area while she attempted to speak" with the deputy.
Deputy Lightner has no connection to or familial or other affiliation with any of the other participants, including Judge Adams, David O'Mara or anyone else involved in the underlying civil lawsuit in connection with which Ms. Sunde appeared in Department 6 on August 18, 2010.
There was no preplanned scheme on the part of Deputy Lightner, Judge Adams and David and Bill O'Mara to treat Ms. Sunde any differently than anyone else. Any conversation that occurred between Deputy Lightner and David O'Mara prior to or during the course of the court proceeding was nothing more than friendly discussion of ordinary everyday nature that one would have with an acquaintance and the same type in which David O'Mara engages with many of the other Court bailiffs.
On August 25, 2010, the Washoe County District Attorney's Office filed a Criminal Complaint charging Ms. Sunde with Disturbing the Peace, a misdemeanor, and Resisting a Public Officer, a misdemeanor, after conducting an independent investigation. On or about December 2, 2010, the Washoe County District Attorney's Office dismissed the criminal action, noting "insufficient evidence" to proceed with the case. Deputy Lightner was exonerated in connection with the internal review of the incident conducted by the Office of Professional Integrity.
II. LEGAL STANDARD FOR SUMMARY JUDGMENT
A court must grant summary judgment when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R.Civ. P. 56(a). Material facts are those which may affect the outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. See id. A principal purpose of summary judgment is "to isolate and dispose of factually ...