United States District Court, D. Nevada
M. Navarro, United States District Judge
before the Court is the Motion for Summary Judgment, (ECF No.
39), filed by Defendant Joseph W. Ebert
(“Defendant”). Plaintiff Adam Brooks
(“Plaintiff”) filed a Response, (ECF No. 45), and
Defendant filed a Reply, (ECF No. 46). For the reasons
discussed below, the Court GRANTS Defendant's Motion for
case arises from Plaintiff's arrest for the impersonation
of a police officer in violation of NRS § 199.430.
Defendant, a police officer with the Henderson Police
Department (“HPD”), was assigned to investigate
Plaintiff, a former HPD officer and a licensed bail
enforcement agent, following two events that suggested
possible violations of NRS § 199.430. (Ex. A to Mot. for
Summary J. (“MSJ”), ECF No. 39-1); (Ex. 2 to
Resp. at 6, ECF No. 45-2); (Ex. 3 to Resp., ECF No. 45-3).
first incident, a traffic stop in which Plaintiff was stopped
for speeding, occurred on March 11, 2012. (See Ex.
A-2 to MSJ at 16, ECF No. 39-3). The incident report prepared
by the HPD officer involved, Officer Jonathan Bezrutczyk
(“Officer Bezrutcyzk”), states that Plaintiff
“introduced himself as a retired officer” and
“presented an active duty Henderson Police Department
flat badge.” (Id.). Based on the length of
Plaintiff's service as a police officer with the HPD,
Officer Bezrutcyzk concluded that Plaintiff “unlawfully
retained his flat badge.” (Id. at 17-18).
Another HPD officer later impounded the badge. (Id.
second incident occurred on October 11, 2011, at a
McDonald's restaurant located in Henderson, Nevada.
(See Ex. A-1 to MSJ (“Aff. for
Warrant”), ECF No. 39-2). Although this event took
place before the traffic stop, HPD only later became aware of
the McDonald's incident because Dave Erickson
(“Erickson”), a Senior Investigator for the State
of Nevada, Department of Business and Industry, Division of
Insurance (“Insurance Division”), reported the
incident to HPD on April 3, 2012. (Id. at 2).
Erickson investigated the incident pursuant to the Insurance
Division's regulatory and enforcement authority relating
to Plaintiff's bail enforcement license. (See
his investigation, Erickson interviewed the McDonald's
employees who witnessed the incident and compiled audio
recordings of his interviews. (Id. at 2-3). The
employees' accounts of the event generally agree that on
the day of the incident, several bail agents visited the
McDonald's location demanding information about an
employee's boyfriend, whom the agents stated was wanted
for arrest. (Id. at 3-5). While at the restaurant,
one of the bail agents spoke on the phone with the
McDonald's area manager, Fortunato Balanzar
(“Balanzar”). (Id. at 3). According to
Balanzar, the bail agent identified himself as a
“police officer.” (Id.). Another
employee who spoke with the bail agent on the phone
“stated that the bail agent never said he was a
‘police officer'” but “did make
statements that he was an ‘officer' cooperating
with the police.” (Id. at 3). No witnesses
physically present for the incident stated that the bail
agent identified himself as a police officer. (Id.
reviewed the interviews conducted by Erickson and concluded
that, based on video surveillance footage of the incident,
the agent who spoke with Balanzar was Plaintiff.
(Id.). On May 1, 2012, Defendant conducted his own
interview of Balanzar, who confirmed his prior statement of
events. (Id.). Based on his investigation, Defendant
prepared an Affidavit for Warrant referencing both incidents
and asserting that probable cause existed to arrest Plaintiff
for violation of NRS § 199.430. (Id. at 5). On
June 6, 2012, a Warrant of Arrest issued and a Criminal
Complaint charging Plaintiff for impersonating a police
officer was filed. (Ex. A-3 to MSJ, ECF No. 39-4); (Ex. B to
MSJ, ECF No. 39-5). The charges against Plaintiff were
ultimately dismissed pursuant to a plea agreement. (Ex. B to
MSJ at 6).
filed his original Complaint on March 12, 2014, alleging: (1)
violation of civil rights pursuant to 42 U.S.C. § 1983;
(2) municipal liability pursuant to Monell; (3)
supervisory liability pursuant to 42 U.S.C. § 1983; (4)
state law malicious prosecution; and (5) state law false
arrest. (Compl. ¶¶ 26-64, ECF No. 1). Plaintiff
subsequently filed his Amended Complaint on June 11, 2014.
(See Am. Compl., ECF No. 8). The instant Motion
seeks summary judgment on the basis of qualified immunity
regarding Plaintiff's only surviving claim, § 1983
liability against Defendant for submitting the Affidavit for
Warrant in violation of Plaintiff's Fourth Amendment
rights. (See MSJ at 39).
Motion for Summary Judgment
Federal Rules of Civil Procedure provide for summary
adjudication 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).
Material facts are those that may affect the outcome of the
case. See Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). A dispute as to a material fact is genuine
if there is sufficient evidence for a reasonable jury to
return a verdict for the nonmoving party. See Id.
“Summary judgment is inappropriate if reasonable
jurors, drawing all inferences in favor of the nonmoving
party, could return a verdict in the nonmoving party's
favor.” Diaz v. Eagle Produce Ltd. P'ship,
521 F.3d 1201, 1207 (9th Cir. 2008) (citing United States
v. Shumway, 199 F.3d 1093, 1103-04 (9th Cir. 1999)). 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
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).
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, 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). ...