United States District Court, D. Nevada
before the court is defendants Las Vegas Metropolitan Police
Department ("LVMPD"), Sheriff Douglas Gillespie,
Det. Scott Thomas, Ofc. Joseph Parra and Ofc. Clyde
Villanueva's motion for summary judgment. (ECF No. 28).
Plaintiffs Angel Landeros and Amelia Villalba's filed a
response (ECF No. 33), and defendants filed a reply (ECF No.
initial matter, plaintiffs' response indicates that those
parties do not oppose the dismissal of Villalba's 28
U.S.C. § 1983 claim against Thomas and further “do
not oppose dismissing [plaintiffs'] claims against
Sheriff Gillespie.” (ECF No. 33 at 2). Accordingly, the
same shall be the order of the court.
to defendants, Robert Torres “was a violent criminal
wanted for attempted murder with the use of a deadly weapon
and battery domestic violence with the use of a deadly
weapon.” (ECF No. 28 at 2). Subsequently, LVMPD's
Problem Solving Unit discussed how to find Torres with the
Repeat Offender Program; Parra, Villanueva, and Thomas were
members of these units. (Id.). The officers then
“staked out the Bel Aire Apartments located at 4124
Pennwood in Las Vegas, Nevada as a possible hiding location
for Torres.” (Id. at 5). On February 8, 2013,
Parra and Villanueva were conducting surveillance behind
those apartments and knew that Thomas was also surveilling
nearby. (Id.). Reportedly, “[t]he officers
were in plainclothes but each had a tactical vest that
clearly identified them as police officers.”
(Id. at 6).
February 8, 2013, Landeros and Villalba arrived at the Bel
Aire Apartment Complex at 4124 Pennwood Avenue in Las Vegas,
Nevada to sell a 1997 Honda Accord to Torres. (Id.).
Plaintiffs were about to enter the vehicle with Torres for a
test drive when Parra “yelled ‘Metro police,
Metro police, get your hands in the air.'”
(Id. at 6). Torres was reportedly located on the
driver's rear side of the trunk at this time, and Parra
allegedly was 15 feet away from Torres at the time of the
began to kneel about five seconds after hearing Parra's
order and heard a gunshot at that time. (Id.).
Landeros “noticed that his arm was moist, ” and
fell to the ground while hearing additional shots.
(Id. at 7). From the ground, plaintiff could see
Torres collapse after being shot and drop a gun.
(Id.). Ultimately, it appears that this wound
“also caused: (1) left T7 rib fracture; (2) left lung
laceration; (3) left chest pneumothorax; (4) left upper
extremity bullet wound; (5) left thoracostomy; and (6)
ongoing back pain.” (Id. at 9).
reportedly heard someone shout “hands up” and hid
behind the car after “hear[ing] shots coming from the
officers' direction.” (Id.). She could not
see whether Mr. Torres had a gun, though Landeros stated that
he did. (ECF No. 28-1 at 36) After the commotion had
subsided, she walked to a sidewalk and realized “that
her ankle had been grazed by a bullet.” (ECF No. 28 at
7). Medical personnel concluded that she suffered “a
superficial wound about 4 cm long on her left ankle. The
ankle was wrapped with gauze and [Villalba] was given
Silvadene cream. She received no further treatment.”
(Id. at 10).
ordered Torres to put his hands in the air and get down on
the ground when he was within 15 feet of Torres.”
(Id. at 7). Parra asserts that Torres then drew a
firearm and shot at Parra, who then responded with one shot
before ducking behind a pony wall. (Id.) (stating
that the shots were “almost simultaneous”).
Parra heard additional shots and then broke cover when the
noise subsided to “approach and handcuff
had accompanied Parra to make contact with Torres.
(Id.). He states that he made eye contact with
Torres, watched Torres draw a weapon, and later lost balance
adjusting to Torres's movements. (Id.). He did
not see Parra or Thomas fire, although he saw Thomas running
into the scene from a different direction. (Id.).
Villanueva did not discharge his firearm. (Id.).
was at the east end of the apartment wall when he saw Torres
reach into his pocket and pull out a gun.”
(Id. at 8). Thomas started running at Torres and
began to fire at him when Torres moved further to the back of
the vehicle. (Id.). In all, Thomas fired six shots.
(Id.). Torres was killed as a result of the
homicide unit later probed the incident. (Id.). The
investigation concluded that Parra's single shot hit
“Landeros in the upper left arm, ” one of
Thomas's rounds grazed Villalba's ankle, and four of
Thomas's bullets hit Torres. (Id.). Lead
investigator Clifford Mogg determined that plaintiffs'
injuries resulted from accidental hits, produced by
“Torres' attempt to resist arrest with a weapon and
firing a shot from that weapon as officers were trying to
take him into custody.” (ECF No. 28 at 9); see
also (ECF No. 28-4 at 8).
November 19, 2014, plaintiffs filed their first amended
complaint, asserting violations of constitutional rights and
state law. (ECF No. 6). First, plaintiffs assert violations
of the Fourth and Fourteenth Amendments of the United States
Constitution against Parra, Villanueva, Thomas, and Doe
defendants pursuant to 42 U.S.C. § 1983, to wit:
“unreasonable seizure, ” “excessive and
unreasonable force, ” “unlawful deadly force,
” and “reckless, deliberately indifferent, and
conscience shocking deadly force.” (Id. at 5).
Second, plaintiffs assert a Monell claim against
LVMPD, Sheriff Gillespie, and Doe defendants pursuant to 42
U.S.C. § 1983 for a variety of allegations involving
polices regarding the use of force. (Id.). Third,
plaintiffs assert a negligence claim against all defendants.
(Id.). Finally, plaintiffs allege assault and
battery claims against all defendants. (Id.). . . .
. . .
Federal Rules of Civil Procedure allow 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 dispute as to any
material fact and the movant is entitled to 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).
purposes of summary judgment, disputed factual issues should
be construed in favor of the non-moving party. Lujan v.
Nat'l Wildlife Fed., 497 U.S. 871, 888 (1990).
However, to be entitled to a denial of summary judgment, the
non-moving party must “set forth specific facts showing
that there is a genuine issue for trial.” Id.
determining summary judgment, the 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.” C.A.R. Transp. Brokerage Co. v. Darden
Rests., Inc., 213 F.3d 474, 480 (9th Cir. 2000).
Moreover, “[i]n 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.”
contrast, when the non-moving 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 non-moving party's case; or (2)
by demonstrating that the non-moving 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 non-moving party's evidence. See Adickes
v. S.H. Kress & Co., 398 U.S. 144, 159- 60 (1970).
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. Pac. Elec.
Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.
Ninth Circuit has held that information contained in an
inadmissible form may still be considered for summary
judgment if the information itself would be admissible at
trial. Fraser v. Goodale,342 F.3d 1032, 1036 (9th
Cir. 2003) (citing Block v. City of Los Angeles, 253
F.3d 410, 418-19 (9th Cir. 2001) (“To survive summary
judgment, a party does not necessarily have to produce
evidence in a form that would be ...