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Carrillo v. Gillespie

United States District Court, D. Nevada

March 31, 2015

Gilberto Carrillo, Plaintiff
Douglas Gillespie et al., Defendants


JENNIFER A. DORSEY, District Judge.

Pro se prisoner plaintiff Gilberto Carrillo claims he was beaten by Las Vegas Metropolitan Police Department (LVMPD) Sergeant Scott Zavsza in a holding cell at the Regional Justice Center (RJC) while awaiting a habeas hearing. After screening and extensive motion practice, Carrillo is left with two claims: an excessive-force claim against Zavsza and a supervisor-liability claim against then-Sheriff Douglas Gillespie. Zavsza and Gillespie move for summary judgment on these claims based on the complete absence of evidence to support the claims against them and Carrillo's failure to exhaust the prison's grievance procedures before bringing suit. Carrillo does not refute the authenticated evidence that Zavsza was not at the RJC on the day of the incident and thus cannot be responsible for the alleged attack; he also has not demonstrated any evidentiary basis upon which Sheriff Gillespie can be held liable for the incident in any capacity. Accordingly, I grant the motion for summary judgment.


On June 13, 2012, High Desert State Prison (HDSP to the Regional Justice Center for a hearing in his state habeas corpus matter.[1] He contends that he is a Sureño street-gang dropout who had previous "issues" with rival gang member Milo Hicks, who was also transported to court that day. Carrillo alleges he advised his transporters Raul Diaz and Dwain Cotwright and the LVMPD officers at the RJC that he could not be celled with Hicks, but they ignored his concerns and placed both men in the same holding cell.[2] Hicks assaulted Carrillo, Diaz and Cotwright quickly separated them, and Carrillo claims that while his arms were held by two other "LVMPD officials, " Sergeant Zavsza tried to break Carrillo's jaw, slammed his head into the wall, and pulled his hair.[3]

Carrillo sued a number of individuals and first identified Sgt. K. Bussell as his LVMPD assailant. He dismissed the claim against Sgt. Bussell, however, after learning that she is a woman and not the man he believes employed excessive force on him at the RJC.[4] He sued HDSP warden Dwight Neven and LVMPD Sheriff Gillespie based on an alleged "policy or custom to impunitively punish dropout gang members as penalty, " demonstrating a deliberate indifference to inmates' safety, security, health, and welfare.[5] After initial screening and several dispositive motions, all that remained of Carrillo's case were individual- and official-capacity claims against Sheriff Gillespie, and Carrillo's opportunity to amend his complaint to replace Bussell with the male LVMPD officer he believed assaulted him. Based on a list of LVMPD employees provided by defendants during discovery, [6] Carrillo amended his complaint to substitute Sgt. Zavsza as his new target defendant.

Zavsza and Gillespie now move for summary judgment on all remaining claims.[7] After two extensions, Carrillo filed his response late.[8] Although pro se defendants are not excused from the requirement that all litigants before this court follow the court's rules and orders regardless of whether they are represented by counsel, I consider Carrillo's late response in the interest of justice.[9]


Summary judgment is appropriate when the pleadings and admissible evidence "show there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law."[10] When considering summary judgment, the court views all facts and draws all inferences in the light most favorable to the nonmoving party.[11] If reasonable minds could differ on material facts, summary judgment is inappropriate because its purpose is to avoid unnecessary trials when the facts are undisputed, and the case must then proceed to the trier of fact.[12]

If the moving party satisfies Rule 56 by demonstrating the absence of any genuine issue of material fact, the burden shifts to the party resisting summary judgment to "set forth specific facts showing that there is a genuine issue for trial."[13] The nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts"; he "must produce specific evidence, through affidavits or admissible discovery material, to show that" there is a sufficient evidentiary basis on which a reasonable fact finder could find in his favor.[14]

A. The Evidentiary Record on Summary Judgment

Because the summary-judgment procedure is the pretrial functional equivalent of a directed-verdict motion, it requires the same caliber of evidence that would be admitted at trial.[15] The court only considers properly authenticated, admissible evidence in deciding a motion for summary judgment.[16] Authenticity must be affirmatively shown: to admit a document that supports or opposes summary judgment, the proponent must offer "evidence sufficient to support a finding that the matter in question is what its proponent claims." Merely attaching evidence is insufficient.[17] If a party fails to authenticate evidence in support of its position, I may exclude it. Documents may be authenticated in two ways: (1) through personal knowledge by a party who attests that the document is what it purports, [18] or (2) in any other manner allowed by Federal Rules of Evidence 901(b) (which provides ten ways to authenticate) or 902 (which allows certain self-authenticating documents that "require no extrinsic evidence of authenticity").[19]

The defendants submit 18 exhibits in support of their motion for summary judgment. Exhibits A, B, and C are registers of actions printed from, [20] which is the website for Nevada's Eighth Judicial District Court and the Las Vegas Township Justice Court.[21] These exhibits reflect state criminal actions filed against Carrillo, provide dispositions of those charges, and are essentially printouts of state-court dockets. Judicial notice does not authenticate an exhibit, but it may allow the court to make limited use of one. Under Federal Rule of Evidence 201, courts may take judicial notice of any fact "not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned."[22] Judicial notice is properly taken of proceedings in other courts, in and out of the federal system, when those proceedings relate to matters at issue.[23] Because the information contained in these documents is capable of ready and accurate determination by a source whose accuracy cannot be reasonably questioned, I take judicial notice of Exhibits A, B, and C, but I do not rely on them in analyzing disputed facts.[24]

Exhibits D, E, F, and H are civilian and employee statements taken by LVMPD that include the certification: "I do hereby certify that I have truly and correctly transcribed the sound recording in the above entitled matter."[25] A typed name appears after the certification.[26] There is no actual signature or authenticating affidavit. And there is no under-penalty-of-perjury language for either the transcriber or the witness. Unsworn declarations must comport with 28 U.S.C. § 1746(2), which requires the following language in substantially this form: "I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date). (Signature)." These documents lack this guarantee of truthfulness. Although they are also similar to transcripts of deposition testimony, these documents similarly fail to meet the authentication requirements for transcripts. To authenticate a deposition transcript, the party must attach the deposition cover ...

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