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Landeros v. Las Vegas Metropolitan Police Department

United States District Court, D. Nevada

March 15, 2017

ANGEL LANDEROS and AMELIA VILLALBA, Plaintiffs,
v.
LAS VEGAS METROPOLITAN POLICE DEPARTMENT, et al., Defendants.

          ORDER

         Presently 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.[1] (ECF No. 28). Plaintiffs Angel Landeros and Amelia Villalba's filed a response (ECF No. 33), and defendants filed a reply (ECF No. 34).

         As an 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.

         I. Introduction

         According 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).

         Also on 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 incident. (Id.).

         Landeros 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).

         Villalba 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).

         “Parra 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[] Torres.” (Id.).

         Villanueva 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.).

         “Thomas 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 incident. (Id.).

         LVMPD's 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).

         On 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.). . . . . . .

         II. Legal Standard

         The 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).

         For 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.

         In 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.” Id.

         By 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).

         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. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987).

         The 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 ...


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