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Koiro v. Las Vegas Metropolitan Police Dep't

United States District Court, D. Nevada

November 21, 2014

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

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[Copyrighted Material Omitted]

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For Gregory Koiro, Plaintiff: Kirk T Kennedy, Kirk T. Kennedy, Las Vegas, NV.

For Las Vegas Metropolitan Police Department, Defendant: Lyssa S Anderson, Kaempfer Crowell, Las Vegas, NV.

For Christopher Cantanese Defendant: Robert W Freeman, Jr., Lewis Brisbois Bisgaard & Smith LLP, Las Vegas, NV.

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ORDER

RICHARD F. BOULWARE, II, UNITED STATES DISTRICT JUDGE.

Defendants' Motion for Summary Judgment (ECF No. 52)

I. SUMMARY

Before the Court is a Motion for Summary Judgment (ECF No. 52) filed jointly by Defendants Christopher Catanese and Las Vegas Metropolitan Police Department (" LVMPD" ). For the reasons stated in this opinion and for the reasons discussed at the hearing pertaining to this motion, which are incorporated herein by reference, the motion is granted in part and denied in part.

II. BACKGROUND

The parties in this case disagree on many of the material facts. The following facts are undisputed: On October 30, 2010, Plaintiff Gregory Koiro attended a tailgate party and University of Nevada, Las Vegas (" UNLV" ) football game with a friend, Laura Carducci. Defs.'Mot. Summ. J. Ex. A at 37, 43; Defs.' Mot. Summ. J. Ex. B at 42. Koiro and Carducci arrived at the tailgate party at approximately 4:00 p.m., watched the first half of the football game in the stadium, and left the stadium around 9:30 or 10:00 p.m. Defs.' Mot. Summ. J. Ex. A at 43, 49. From the time he arrived at the tailgate party until the time he left the football game, Koiro stated that he drank between six and eight beers. Id. at 46. Both Koiro and Carducci agreed that Carducci should drive Koiro's truck back to her house, where Koiro had left his dogs. Id. at 49-50. Once they arrived at Carducci's house, Koiro asked Carducci for his car keys so that he could drive home. Id. at 51. Carducci refused because she did not think Koiro should be driving. Id. The two began to argue and Koiro eventually raised his voice. Id. at 52; Defs.' Mot. Summ. J. Ex. B at 45-46. In tears, Carducci then called her friend and next-door neighbor, Kim Costarell, to come over and follow Carducci as she drove Koiro home in his truck. Id. at 46. When she received Carducci's call, Costarell was at home with her boyfriend, LVMPD Officer Catanese. Defs.' Mot. Summ. J. Ex. C at 18-20. Catanese, who was off-duty and wearing plain clothes, accompanied Costarell over to Carducci's house. Defs.' Mot. Summ. J. Ex. D at 34-35. As they approached, Costarell and Catanese could hear yelling from inside the house as Koiro and Carducci continued to argue over the keys. Id. at 36-37. Koiro snatched the keys out of Carducci's hand, pushing into her as he did so; it is disputed whether Koiro intentionally pushed her with his

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hands or whether it was the result of grabbing at the keys. See id. at 74-75; Defs.' Mot. Summ. J. Ex. A at 54. Costarell and Catanese rang or knocked at Carducci's front door, at which point Koiro opened the door and walked past them to go to his truck. Defs.' Mot. Summ. J. Ex. D at 39-41. At this point, the parties have very different accounts of what transpired.

Koiro alleges that as he walked to his truck with his dogs, a man he did not recognize (Officer Catanese) confronted him aggressively, using profanity and threatening to beat Koiro unless he handed over his keys. Defs.' Mot. Summ. J. Ex. A at 61-66. Koiro did not hear or see anything to indicate that Catanese was a police officer. Id. at 63, 96, 98. Koiro walked past Catanese and put his dogs in the truck, opening the driver's side door to let them in. Id. at 63. Koiro then started to shut the driver's side door, but Catanese, who was following and standing close to Koiro, shut it for him. Id. at 65. Koiro states that Catanese continued to yell at him and so Koiro started to walk away from him. Id. at 71. Koiro began walking around the truck and Catanese followed, continuing to demand that Koiro hand over his keys and nudging and pushing Koiro in the back. Id. at 72. As Koiro walked around the front of the truck, Catanese pushed him from behind into a row of bushes, then jumped on top of him and began punching him in the sides, stomach and back of the head. Id. at 71-74. At this point, Koiro states that the truck keys went flying out of his hand and Carducci picked them up. Id. at 75. After eight to ten blows from Catanese, Koiro was able to roll out of the bushes. Id. Over the next fifteen to twenty minutes, the two men wrestled and fought in the yard, during which time Catanese twice placed Koiro in a choke hold and once asked Costarell to come over and assist him by choking Koiro. Id. at 76-86. Koiro states that he bit Catanese twice out of desperation to get him to release his chokehold. Id. at 86-88. Eventually, Catanese yelled to Costarell to get his handcuffs. Id. at 89. Before the police arrived, Koiro claims that Catanese took Koiro's finger and bit it in retaliation for Koiro biting him twice. Id. at 89-90. Officers arrived and arrested Koiro, who alleges that he suffered a swollen and stiff neck, swollen wrists, various cuts and bruises, and an infection from the bite wound. Id. at 94, 104.

In response, Officer Catanese claims that Carducci was hysterical and extremely upset on the phone when she called Costarell. Defs.' Mot. Summ. J. at 4. Upon approaching Carducci's house, he alleges that as he looked through the front window, he saw two pairs of feet and saw the smaller pair stumble backward as if pushed. Defs.' Mot. Summ. J. Ex. D at 74-75. As Koiro walked past him to go to his truck, Catanese avers that he smelled alcohol emanating from Koiro and that he heard Carducci tearfully state that Koiro was going to drive home drunk. Id. at 39, 41-42. Catanese then approached Koiro, offering him a ride home and saying things like " I can't let you drive" and " I'm a Metro police officer, you don't want to do this." Id. at 44. Koiro ignored Catanese and attempted to open the driver's door to get in the car. Id. at 45, 47-48. Catanese claims that he then put his hand against the door and said " I can't let you drive." Id. at 48. Koiro turned toward Catanese, and Catanese saw something metal in his hands, which he assumed to be the keys. Id. at 49. Catanese reacted by grabbing Koiro's hand and shoulder, and the two fell into the bushes. Id. Catanese again tried to talk to Koiro, identifying himself as a police officer and telling Koiro that he should let them drive him home. Id. at 51. Koiro then lunged toward Catanese and

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bit him in the face, clamping his teeth down on Catanese's cheek; Catanese grabbed and twisted Koiro's finger to get him to release the bite. Id. at 51-53. Koiro then stood up, grabbed Catanese's arm and fell back. Id. at 53-54. Catanese braced himself so as not to fall over, and he states that Koiro's weight pulling down on his arm caused Catanese to suffer a dislocated shoulder. Id. at 54, 77. In the fight that ensued, Catanese states that Koiro was the aggressor, punching and scratching Catanese as the officer tried to block the attacks. Id. at 55-57. Catanese became desperate and called for Costarell to help him; she came over and pulled Koiro away by the shoulder. Id. at 57-58. In an attempt to subdue Koiro, Catanese states that he then wrapped his arm around Koiro's neck using a lateral neck restraint technique in which he was trained. Id. at 59-60, 17-21. Koiro clawed at Catanese's face and bit him in the arms repeatedly, causing Catanese to let go. Id. at 61. Catanese eventually was able to pin Koiro against a wall until police arrived. Id. at 65-66. Catanese suffered a dislocated shoulder which required surgery, as well as bite marks to his face and arms and various scratches and gouges. Id. at 77.

After the incident, Koiro was charged with Battery With Substantial Bodily Harm (for the injuries inflicted on Officer Catanese), Battery-Domestic Violence (for allegedly pushing Carducci in the house), and Excrement (for biting Catanese). Defs.' Mot. Summ. J. Ex. K. Koiro eventually pled guilty to one count of misdemeanor battery and one count of disturbing the peace. Defs.' Mot. Summ. J. at 8.

On March 29, 2012, Koiro brought this action in state court against Officer Catanese and the Las Vegas Metropolitan Police Department, alleging negligence, negligent supervision, intentional infliction of emotional distress, battery, and a claim under 42 U.S.C. § 1983 for violation of his constitutional rights. Against both parties, Koiro claimed compensatory, special and punitive damages. Defendants removed the action to this Court. See ECF No. 1.

At the motion to dismiss stage, the Court dismissed Koiro's § 1983 claim against Catanese in his official (but not personal) capacity as duplicative of the municipal liability claims against LVMPD. The Court also dismissed the negligent supervision claim against LVMPD on the ground that LVMPD is immune from tort liability for its discretionary acts pursuant to Nevada Revised Statute § 41.032. However, the Court upheld Koiro's remaining § 1983 claims as not barred by Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), upheld Koiro's § 1983 municipal liability claim against LVMPD under Monell v. Dept. of Social Servs. of City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), denied Defendants' argument that Koiro did not allege that Catanese was acting under color of state law for purposes of § 1983, and upheld Koiro's state tort claims against LVMPD on a respondeat superior theory. See ECF No. 43.

In support of their briefs relating to the motion for summary judgment, the parties submitted depositions, photographs, police reports, and a voluntary statement given by Koiro to detectives while he was awaiting arraignment. Four individuals were deposed: Koiro, Officer Catanese, Laura Carducci, and Kim Costarell. Koiro's and Carducci's accounts largely corroborate one another, as do those of Catanese and Costarell. Koiro and Carducci both testified that Catanese pushed Koiro into the bushes and began punching him and that Catanese asked Costarell to come over and choke Koiro. Catanese and Costarell, on

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the other hand, both testified that Koiro was on top of Catanese in the bushes and that Catanese was simply trying to defend himself from Koiro's punches and bites.

III. LEGAL STANDARD

Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show " 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); accord Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). When considering the propriety of summary judgment, the court views all facts and draws all inferences in the light most favorable to the nonmoving party. Gonzalez v. City of Anaheim, 747 F.3d 789, 793 (9th Cir. 2014). If the movant has carried its burden, the non-moving party " must do more than simply show that there is some metaphysical doubt as to the material facts . . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial." Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (alteration in original) (internal quotation marks omitted).

IV. ANALYSIS

A. Koiro's ยง 1983 claim against ...


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