United States District Court, D. Nevada
RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE.
the Court are Defendants' Motion to Strike the Amended
Complaint (ECF No. 83), Defendants' Motions to Dismiss
(ECF Nos. 83, 84, 107, and 110), Defendants' Motion to
Extend Time re Discovery Deadlines (ECF No. 116), and
Defendants' Motions for Summary Judgment (ECF Nos. 122,
case was removed on September 23, 2013. ECF No. 1. At the
hearing on March 24, 2016, the Court granted the Motion to
file a Third Amended Complaint, unreferred discovery, and
ordered that discovery should be completed within 60 days
after the filing of the responsive pleading to the Third
Amended Complaint. ECF No. 77. On April 21, 2016, Defendants
CCSD and Ketsaa filed two Motions to Dismiss (ECF Nos. 83,
84). ECF No. 83 Motion to Dismiss seeks dismissal of claims
(3) and (4) for ADA retaliation and wrongful termination. ECF
No. 84 Motion to Dismiss seeks dismissal of all claims
against Defendant Ketsaa because of qualified immunity. On
May 25, 2016, Defendants Christopher Klemp, and Pat
Skorkowsky filed a Motion to Dismiss the TAC. ECF No. 107.
They also joined ECF Nos. 83, 84 Motions to Dismiss. ECF No.
109. On August 8, 2016, Defendants filed joint Motions for
Summary Judgment. ECF Nos. 122, 123.
Court held a hearing on pending motions on February 9, 2017.
At the hearing counsel for Plaintiff Thomas stipulated to the
dismissal of all claims against Defendant Filberto Arroyo, as
well as to the tortious discharge claim pled against all
defendants. Thus the following claims remain to be
--Count I: First Amendment retaliation against all
--Count II: State civil conspiracy against all defendants.
--Count IV: ADA and NRS 613.330 retaliation against all
--Count V: Negligent hiring, retention, training and
supervision against defendants James Ketsaa and Clark County
School District Police Department.
FAILURE TO CITE AND AUTHENTICATE
trial court can only consider admissible evidence in ruling
on a motion for summary judgment.” Orr v. Bank of
America, NT & SA, 285 F.3d 764, 773 (9th Cir. 2002).
“We have repeatedly held that unauthenticated documents
cannot be considered in a motion for summary judgment.”
Id. “The court need consider only the cited
materials, but it may consider other materials in the
record.” FRCP 56(c)(3)
argue that the Responses to the Motions for Summary Judgment
should be stricken for failure to include citations, for
failure to authenticate attached exhibits, and for failure to
otherwise comply with local rules. Plaintiffs did not
authenticate any of the attached exhibits at the time of
filing, but purported to do so with a single declaration by
the plaintiff, filed after the Motions for Summary Judgment
had been fully briefed. The Court will not consider the
late-filed declaration, which in any case could not
authenticate those documents of which the Plaintiff has no
personal knowledge. The Court will not consider uncited
narrative testimony in the Response Motions. However, the
Court will consider the notices of investigations, which
Defendants confirmed had been produced in discovery, as well
as the evidence cited to in the Defendants' Motions.
Defendants represented on the record that they would not
object to the consideration of these notices, subject to
reservation of the right to contest their veracity.
Motion for Summary Judgment
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 (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 (2007) (alteration in
original) (internal quotation marks omitted).
Court finds the following to be undisputed based upon the
record, including the failure of Plaintiff to submit
admissible evidence rebutting most of the factual assertions
of the Defendants. Plaintiff was hired by the Clark County
School District Police Department in August 2003 as a police
officer. A few years later he applied for a promotion to
sergeant. When he was not selected for promotion, Plaintiff
initiated an arbitration challenging his lack of promotion.
The arbitrator upheld CCSD's promotion decision. The
arbitrator found that the Chief of Police at the time had
made a sound discretionary decision not to promote Plaintiff.
The arbitrator found the decision to be appropriate based on
the prior Chief's testimony that Chief had considered
Plaintiff's prior termination from a law enforcement
position and a psychological report of Plaintiff that raised
questions about his fitness to be promoted.
addition to challenging the promotional process via
arbitration, on February 16, 2006 Plaintiff filed a complaint
with Nevada Equal Rights Commission (“NERC”) and
the Equal Employment Opportunity Commission
(“EEOC”) regarding his lack of promotion to
sergeant in 2005. He alleged that he was discriminated
against because of his age (45) in violation of the Age
Discrimination in Employment Act (“ADEA”).
Plaintiff withdrew the complaint on March 9, 2006.
September, 2008, Plaintiff agreed to accept a 120-hour
suspension without pay for his unprofessional conduct in
making false statements to his ...