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Scafidi v. Las Vegas Metropolitan Police Department

United States District Court, D. Nevada

May 8, 2017



          ROBERT C. JONES United States District Judge.

         This case arises out of an arrest, allegedly without probable cause, and a subsequent prosecution. Pending before the Court is a motion for summary judgment.


         Plaintiff Marino Scafidi has sued several members of the Las Vegas Metropolitan Police Department (“Metro”), Metro itself, a nurse, and ten unidentified security guards employed by the Palms Hotel and Casino (“the Palms”) based on events that occurred at the Palms on September 1, 2012. (See Am. Compl. ¶¶ 1-16, ECF No. 31, at 9). On that date, Plaintiff and Stephanie Carter went on a date at the Palms, eating dinner at a restaurant on the property at approximately 9:30 p.m., and thereafter socializing in Plaintiff's room. (Id. ¶¶16-18). Carter drank alcohol during dinner and in Plaintiff's room. (Id.). At approximately 1:30 a.m. on September 2, 2017, Plaintiff and Carter went to a nightclub at the Palms to dance. (Id. ¶ 19). They returned to Plaintiff's room at approximately 3 a.m. and had sex, agreeing to videotape portions of their sexual activity. (Id. ¶¶ 20-23).

         Carter later had a “psychotic episode” that Plaintiff believes was caused by an adverse reaction between alcohol and the psychoactive antidepressant Wellbutrin. (Id. ¶ 26). Specifically, Carter walked into the bathroom, called 911, and stated repeatedly, “He's going to kill me!” (Id. ¶ 27). She also threatened to kill herself during the call and falsely claimed that Plaintiff had a gun. (Id.). Plaintiff can be heard during the call repeatedly asking Carter if she was okay, telling her he needed to use the bathroom, and asking her to open the door. (Id.). Defendants arrived at the room and told Plaintiff that Carter had called 911 and had claimed that he was armed. (Id. ¶ 29). Defendants confined Plaintiff in a security room and attempted to question him, (id. ¶ 30), made Plaintiff disrobe and inserted a cotton swab into his urethra, (id. ¶ 31), and finally arrested Plaintiff and took him to the Clark County Detention Center (“CCDC”), where he was held for four days, (id. ¶¶ 32, 34).

         Carter was examined by Defendant Jeri Dermanelian, a nurse, early on September 2, 2012. (Id. ¶¶ 10, 35). During the examination, Carter exhibited symptoms of psychotic behavior, and there was no evidence of violence, but only of sexual activity. (Id. ¶¶ 35-36). A blood test showed a blood alcohol content of 0.173 but no sign of illegal drugs. (Id. ¶ 39). Carter had been taking her Wellbutrin, and the manufacturer of that drug indicates it should not be taken with alcohol. (Id. ¶¶ 39-40). At 6:30 a.m., Carter told police that she did not know why she falsely claimed Plaintiff was going to kill her, and she stated she had only told Plaintiff “no” in a joking manner when they were “joking around” with each other. (Id. ¶ 37). Despite Defendants' repeated attempts to elicit accusations of sexual battery, Carter refused to make such accusations. (Id. ¶ 38). Plaintiff also gave a blood sample, but Defendants destroyed it before testing it for alcohol or drugs, and they also destroyed Carter's alcohol and urine samples. (Id. ¶¶ 41-42). Defendants did not search Carter's purse (which contained pills and “pow[d]er”) or her cell phone (which contained text messages sent to Carter's friends before she had sex with Plaintiff). (Id. ¶¶ 43-44). Defendant Detective R. Beza put four pills of Ambien into a mint container and placed the container near Plaintiff's jeans to make it look like it had been in his pocket; still, Defendants did not test Carter's blood for Ambien. (Id. ¶¶ 7, 45). Defendants searched Plaintiff's room at the Palms and removed personal property from the safe and elsewhere in the room; some of Plaintiff's jewelry and cash are still missing. (Id. ¶ 46). Defendants conspired not to preserve exculpatory evidence. (Id. ¶ 47).

         Plaintiff was charged with three counts of sexual assault under Nevada Revised Statutes sections 200.364 and 200.366. A preliminary hearing was held before a justice of the peace on January 17, 2013. (See Hr'g Tr., ECF No. 48-15). At the preliminary hearing, Carter testified that she felt very intoxicated when returning to Plaintiff's room and that she lied down on the bed and told him she didn't want any physical activity with him, but that he penetrated her vagina without her consent both with his finger and his penis. (Id. 13-20). On cross-examination, Carter admitted returning willingly to Plaintiff's room and kissing him but maintained that the sex was not consensual and that she told him to leave her alone, even pretending to be asleep so he would leave her alone. (Id. 44-48). The justice of the peace found there to be probable cause and bound Plaintiff over for trial in the state district court. (Id. 92).

         After the state district court dismissed the charges based on spoliation of evidence (the fluid samples and text messages), Plaintiff sued Defendants in state court for federal civil rights violations and various state law torts. Defendants removed. One Defendant moved to dismiss, and another moved for summary judgment. While those motions were pending, the Court granted a stipulation to stay the case pending the Nevada Supreme Court's resolution of the State's appeal of the dismissal of the underlying criminal case, denying all pending motions without prejudice. The Nevada Supreme Court reversed and remanded, ruling that only the text messages were potentially exculpatory, and that on remand the state district court should consider whether a curative jury instruction would be a sufficient sanction. The state district court ruled that a curative jury instruction would suffice, and it rescheduled the trial for October 30, 2017. The state district court recently granted the State's motion to dismiss all charges after excluding certain evidence for Fourth Amendment violations. It is not clear whether the State has appealed (or intends to appeal) the suppression order.

         The Amended Complaint (“AC”) list claims for: (1) unreasonable search and seizure in violation of the Fourth and Fourteenth Amendments under 42 U.S.C. § 1983; (2) liability of Metro for the violations alleged under the first claim under Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978); (3) conspiracy under § 1983; (4) negligence; (5) false imprisonment; (6) malicious prosecution; and (7) intentional infliction of emotional distress (“IIED”). Metro Defendants have moved for summary judgment.


         A court must grant summary judgment when “the movant shows 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 which 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. 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).

         In determining summary judgment, a court uses a burden-shifting scheme. The moving party must first satisfy its initial burden. “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) (citation and internal quotation marks 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 (1970). If the moving party meets its initial burden, the burden then shifts to the opposing party to establish a genuine issue of material fact. 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 unsupported by facts. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Instead, the opposition must go beyond the assertions and allegations of the pleadings and set forth specific facts by producing competent evidence that shows a genuine issue for trial. See Fed. R. Civ. P. 56(e); Celotex Corp., 477 U.S. at 324.

         At the summary judgment stage, a court's function is not to weigh the evidence and determine the truth, but to determine whether there is a genuine issue for trial. See Anderson, 477 U.S. at 249. The evidence of the nonmovant is “to be believed, and all justifiable inferences are to be drawn in his favor.” Id. at 255. But if the evidence of the nonmoving party is merely colorable or is not significantly probative, summary judgment may be granted. See Id. at 249-50. Notably, facts are only viewed in the light most favorable to the nonmoving party where there is a genuine dispute about those facts. Scott v. Harris, 550 U.S. 372, 380 (2007). That is, even if the underlying claim contains a reasonableness test, where a party's evidence is so clearly ...

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