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Paulos v. FCH1, LLC

United States District Court, D. Nevada

March 12, 2015

CRISTINA PAULOS, Plaintiff(s),
FCH1, LLC, et al., Defendant(s)


JAMES C. MAHAN, District Judge.

Presently before the court is a motion for summary judgment submitted by the Las Vegas Metropolitan Police Department (hereinafter "LVMPD"), as well as officers Aaron Baca, Jake Von Goldberg, and Jeffery Swan (collectively hereinafter "LVMPD defendants"). (Doc. # 33). Plaintiff Cristina Paulos filed a response, (doc. # 39), and LVMPD defendants filed a reply, (doc. # 43).

Also before the court is a motion for summary judgment submitted by defendant FCH1, LLC (hereinafter "Palms"). (Doc. # 35). Paulos filed a response, (doc. # 40), and Palms filed a reply, (doc. # 44).

Also before the court is a partial motion for summary judgment regarding punitive damages submitted by Palms. (Doc. # 34). Paulos filed a response, (doc. # 40), and Palms filed a reply, (doc. # 42).

I. Background

This case arises out of an incident where a police officer detained a suspect who attacked him by forcing her to the ground. The suspect received second and third degree burns as the result of being restrained on the hot asphalt for several minutes. Officer Baca, who brought Paulos to the ground and handcuffed her, is the officer primarily involved in the incident. Paulos asserts multiple claims against LVMPD, officer Baca, and officers Swan and Von Golberg, who arrived later on scene. Paulos also brings claims against FCH1, LLC, the owner and operator of the Palms casino and resort hotel, for the participation of one of its security guards, Jeannie Houston, in the arrest.[1]

The incident took place on August 7, 2011. In her deposition, Paulos attests to not remembering many of the underlying events, including how she ended up restrained on the ground. (Doc. # 39-1 pp. 144-45). However, two different Palms security cameras captured much of the incident on video.[2] A comparison of this footage, Paulos' own deposition testimony, and LVMPD defendants' presented evidence reveals that there is no genuine dispute of material fact in this case.

The incident began at about 3:13 P.M., when Paulos' vehicle jumped a median and entered the intersection in front of an exit from Palms, colliding with another vehicle. Paulos continued driving the short distance into the exit and collided head-on with a separate vehicle. Shortly thereafter, Paulos is clearly seen rapidly leaving the scene of the accident. (Video A at 15:14:32). She then returned to the scene, and the footage shows her sitting in the passenger seat of the second vehicle she struck. The apparent owner of the vehicle reached across Paulos in order to remove the keys from the ignition. (Video B at 15:16:32).

By this time, officer Baca, who was in the area during the course of his normal shift, arrived on scene in order to evaluate the situation. As Paulos exited the vehicle she struck, its owner told officer Baca that she was attempting to steal the vehicle. Officer Baca therefore approached Paulos in order to speak with her. It is clear from the footage that the officer had not drawn any type of weapon or even handcuffs from his utility belt and approached Paulos in a calm manner. (Video B at 15:16:48).

In response, Paulos turned her back to officer Baca and walked a short distance away from him. After the officer ordered her to stop, Paulos turned and then lunged at officer Baca towards his waist with both hands extended. (Video B at 15:16:54). He claims that she was reaching for his gun and that he felt her hand make contact with it. Whether Paulos was specifically reaching for the weapon and whether she actually made contact is not clear from the video.

In order to thwart the attack, officer Baca immediately pushed Paulos a short distance away. Although stumbling backwards, Paulos remained standing. Officer Baca quickly closed the distance between them and attempted to restrain Paulos from behind. Struggling to do so, he forced her to the ground. (Video B at 13:17:02). Paulos was thus lying on the asphalt pavement that constitutes the exit lane coming out of Palms.

For the next two minutes, officer Baca continued his attempts to handcuff Paulos. (Video B at 15:17:04-18:35). He claims that Paulos resisted arrest throughout this time period. At the onset, however, trees and surrounding bystanders obstruct the camera's view. Nonetheless, officer Baca is seen calling over Palms security officer Jeannie Houston to assist him in restraining Paulos, which she proceeded to do. (Video B at 15:17:28). By this point, the camera shows Paulos struggling against officer Baca and Houston until they finally succeed in handcuffing her. (Video B at 15:17:38-18:35).

Less than two minutes later, additional LVMPD officers arrived on scene. (Video B at 15:19:50). The color footage ends at this points and the black-and-white security camera's view is obscured. It is therefore not clear exactly how long Paulos remained on the ground after back-up arrived. However, LVMPD defendants assert that the timeframe can be two minutes and forty seconds at most, because back-up arrived at 15:19:50 and Paulos is seen standing at 15:22:30. (Video A). LVMPD defendants further assert that Paulos is seen seconds later walking with officers away from the pavement towards a nearby grassy area.

It is not clear to the court that the figure in this footage segment is definitively Paulos. However, her opposition to LVMPD defendants' motion to dismiss, which disputes several of the "undisputed facts" in defendants' motion, never disputes these specific, key assertions. (Doc. # 39, pp. 6-7). The court will therefore accept that the figure is Paulos and that she remained on the ground for at most two minutes and forty seconds after additional officers arrived on scene. This means that Paulos spent a little more than five minutes on the ground in total.

After Paulos was situated in the grassy area, several other officers spoke with her, including officer Swan and Sergeant Jason Harney, officer Baca's immediate supervisor. At no point did Paulos complain to any of the officers of burns or any other type or injury. (Doc. # 33-2 pp. 79-83). Nor did any of the officers note seeing any injury in their reports. Officer Swan did note, however, that Paulos' behavior was erratic at this point. She would be crying, then suddenly happy, then suddenly screaming. (Doc. # 33-5 p. 22). Paulos both screamed to herself and cursed at the officers. It was this behavior and the fact that she had just been in a car accident that led to her being submitted for medical treatment. ( see doc. # 33-9 p. 2; doc. # 33-3 p. 91).

After paramedics arrived on scene, they transported Paulos to University Medical Center, where she was treated from August 7-9. Paulos' own medical expert, Dr. Matthew Young, testified at his deposition that this treatment was primarily related to the psychosis she exhibited during the incident. (Doc. # 33-15 p. 17-20). Despite how visually severe Paulos' burns later appeared, [3] the application of a burn cream was the only burn-related treatment she received during this initial hospital stay. ( Id; doc. # 33-10).

This is not surprising. As explained by both Dr. Young and Dr. Andrew Silver, the burn specialist who eventually treated Paulos, a burn may not seem serious at first but can reveal itself to be more severe over the course of several days. (Doc. # 33-15 pp. 18-19; doc. # 39-4 pp. 14-16). This process is called "burn conversion." (Doc. # 39-4 pp. 14-15).

When University Medical Center discharged Paulos on August 9, her discharge sheet referenced only blisters that had developed on her body. (Doc. # 39-4 pp. 21-22). It was not until August 11 that Paulos began receiving treatment at Lyons Burn Care Unit. There, she received skin graft surgeries. ( Id. at p. 27).

Paulos filed a complaint on August 14, 2012, and a second amended complaint on August 5, 2013. (Doc. # 2 Exh. A, C). Defendants then removed the instant action to federal court.

Paulos' complaint asserts five causes of action: (1) a negligence claim against Palms, Houston, and other unnamed defendants; (2) a negligence claim against LVMPD defendants; (3) a false imprisonment claim against Palms, Houston, and other unnamed defendants; (4) a claim of excessive force in violation of the Fourth Amendment under 42 U.S.C. ยง 1983 against LVMPD defendants; (5) a failure to train, direct, or supervise ( Monell municipal liability) claim against LVMPD. (Doc. # 2 Exh. C).

LVMPD defendants move for summary judgment for claims two, four, and five. (Doc. # 33). Palms moves for summary judgment for claims one and three. (Doc. # 35). It also moves for partial summary judgment on Paulos' request for punitive damages. (Doc. # 34).

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 (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 (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 (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. P. 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 (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 ...

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