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Tidmarsh v. NYE County Sheriff's Department

United States District Court, D. Nevada

June 20, 2017

WILLIAM TIDMARSH, Plaintiff,
v.
NYE COUNTY SHERIFF'S DEPARTMENT, et al., Defendants.

          ORDER GRANTING THE DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT AND DENYING THE PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT (ECF NOS. 43, 54, 55)

          ANDREW P. GORDON UNITED STATES DISTRICT JUDGE.

         This civil rights case arises out of the criminal prosecution of plaintiff William Tidmarsh, a former Nye County patrol officer, for allegedly sexually assaulting a female citizen whom he gave a ride to while he was on duty. Tidmarsh sued Nye County, former Nye County Sheriff Anthony Demeo, former Nye County Assistant Sheriff Rick Marshall, investigator David Boruchowitz, internal affairs investigator Mark Medina, and deputy Brian Jonas for their alleged roles in the criminal and internal affairs investigations and criminal prosecution.[1] The defendants move for summary judgment on each of Tidmarsh's claims on various grounds. Tidmarsh opposes and moves for summary judgment. I grant the defendants' motions and deny Tidmarsh's motion.

         I. BACKGROUND

         In the early morning of February 8, 2009, Tidmarsh was on duty when he gave a private citizen, non-party Sarah Rollins, a ride home because she was drunk. ECF No. 44 at 10. Rollins subsequently accused Tidmarsh of touching her inappropriately during the drive to her house. Id.

         On February 12, defendant Medina was assigned to conduct an investigation into the allegations. Id. at 4, 9. Medina learned that defendant Jonas had reported to the Sheriff's Office that he received information from a citizen regarding a possible sexual assault by an on-duty deputy. Id.

         That same day, Medina interviewed Jonas. Id. Jonas stated that a person named Regina Webster, a bartender at the Kingdom Gentleman's Nightclub, told him that she had disabled Rollins' car to prevent her from driving while intoxicated, and Rollins went to Indulj Nightclub with some friends. Id. Webster told Jonas that Tidmarsh gave Rollins a ride home in his patrol car and the next day, Webster received a text message from Rollins that stated Tidmarsh had violated her during the ride home. Id. Medina told Jonas to contact Webster to obtain the text message. Id. Jonas did so but reported that Webster said she had deleted the text message and that she would not cooperate with the investigation. Id.

         Medina then interviewed Webster. Id. She was uncooperative at first but (after some threats to revoke her work card and arrest her for obstruction) she gave a story similar to the one Jonas had relayed. Id. at 4-5; ECF No. 59. Webster described the text message in further detail, stating that Rollins had texted her: “I got a ride home from the popo. See what happens? He took advantage of me. What do I do?” ECF No. 44 at 5. Webster could not retrieve the text message but she turned over her phone for further investigation. Id.

         Medina and another detective, Alexandra MacNeil, then interviewed Rollins and her father, Michael. Id. Rollins stated she was drunk on the night in question and needed a ride home when Tidmarsh appeared and agreed to give her a ride. Id. at 5-6. She rode in the patrol car's back seat from Indulj to Kingdom where her car was parked. Id. She got her purse from her car and then got back into the patrol car's back seat. Id. She stated that on the way to her house, Tidmarsh pulled to the side of the road, moved some things out of the front passenger seat, and told her to get into the front seat, which she did. Id. According to Rollins, Tidmarsh placed his right hand on her upper, inner thigh and that Tidmarsh got “more gropey” from there. Id.

         They arrived at the driveway to her home and Tidmarsh turned the headlights off and stopped. Id. According to Rollins, Tidmarsh asked if anyone was home or awake. Id. Tidmarsh then backed out of the driveway with Rollins still in the car. Id. He drove on the street directly behind and parallel to the street she lived on. Id. at 7. According to Rollins, it was during this part of the drive that Tidmarsh placed his right hand inside her shirt and bra and fondled her right breast. Id.

         Tidmarsh drove her back to her house and stopped in the street near the entrance to the driveway, where Rollins' father approached them. Id. Tidmarsh explained to Rollins' father that he had driven Rollins home because she was drunk. Id. At the end of the conversation, Tidmarsh gave Rollins his business card. Id. at 8.

         Rollins did not tell her father what happened but she did tell her sister. Id. Rollins also sent a text to Webster stating she had been assaulted by a police officer and did not know what to do. Id. Rollins was not able to retrieve the text from her phone, but she turned the phone over to Medina. Id.

         Michael Rollins stated that he was in his garage on the night of the incident when a patrol car stopped at the driveway entrance, turned off the headlights, and then backed out of the driveway. Id. at 9. Michael saw a vehicle drive on the street behind his house and he believed it to be a patrol car. Id. He stated the patrol car returned and parked in front of his house approximately five minutes later, and his daughter got out of the car, although he could not remember whether she got out of the front or back seat. Id.

         Medina interviewed Sheriff's Office dispatcher Lori Harvey, who was the dispatcher on the night of the incident. Id. Harvey stated that Tidmarsh had called her on the phone to advise he was giving Rollins a ride home. Id. Harvey stated that after approximately twenty to thirty minutes, she realized she had not heard from Tidmarsh so she called him on the radio. Id. He answered to inform he had arrived at Rollins' home and he gave his ending mileage. Id. Harvey stated that Tidmarsh came on the radio approximately ten minutes later and cleared the same call for a second time. Id. At this point in the investigation, Medina “assumed the singular role of administrative internal affairs investigator, ” and he turned the criminal investigation over to MacNeil and another detective with the Sheriff's Office, defendant Boruchowitz. Id. at 10, 14.

         After Rollins was done speaking with Medina on February 12, she spoke to Boruchowitz and told him that she had not told Medina everything that happened. Id. at 14-15. Rollins stated that when she approached Tidmarsh to retrieve his business card, he grabbed her by the belt to pull her close, put his fingers down the front of her pants, and asked if he could come back to her house later that morning. Id. at 11, 14-15. During her interview, Rollins agreed to take a CVSA (voice stress) exam that, according to the officer who administered it, registered no deception by Rollins. Id. at 15; ECF No. 61.

         That same day, Boruchowitz interviewed Rollins' sister Kathleen. ECF No. 44 at 15. Kathleen reported that Sarah came home and was crying on the night in question. Id. According to Kathleen, Sarah told her that a cop had given her a ride home and had touched her inappropriately. Id.

         Boruchowitz contacted Webster's cell phone service provider to retrieve the text message but learned the company could not restore a deleted message. Id. at 13. Boruchowitz sent Rollins and Webster's phones to the Las Vegas Metropolitan Police Department's electronics evidence lab to try to recover the messages. Id. at 14. The investigators were not able to retrieve the messages from either phone, although phone records showed Webster received a text message from Rollins at 10:46 a.m. on the morning of February 8, 2016. ECF No. 62.

         On February 12, Tidmarsh was placed on administrative leave. ECF No. 45 at 9. Tidmarsh asked what was going on and Boruchowitz stated he would talk with Tidmarsh if he wanted. ECF No. 44 at 15-16. Tidmarsh responded he wanted to talk, and he voluntarily spoke with Boruchowitz. Id. at 16. Tidmarsh stated that he gave Rollins a ride home and that Rollins moved to get into the front seat but he told her she had to sit in the back. Id. at 16. Rollins told him she needed her keys and that her car was at Kingdom, so they drove over there. Id. She retrieved her purse and keys, and Tidmarsh then drove her to her home. Id. He stated he pulled into the driveway but Rollins told him not to drop her off in front of her father, so he pulled out of the driveway. Id. Tidmarsh initially stated he backed up and pulled back into the driveway. ECF No. 57 at 9-10. Later in the interview, he stated that he turned around and went back to park on the street in front of the house. Id. at 30. He did not mention in this initial interview that he drove on the street behind the Rollins home.

         Tidmarsh stated that he spoke to Rollins' father and explained that Rollins was not in trouble. ECF No. 44 at 16. According to Tidmarsh, as he was getting a business card to give to Rollins' father, Rollins asked Tidmarsh if he could come back tomorrow. Id. Tidmarsh denied that Rollins was ever in the front seat of the patrol car. Id. at 17. Tidmarsh also stated he was talking on the phone to another deputy, Danneker, for “quite a bit” while transporting Rollins. ECF No. 57 at 21. Phone records showed that Tidmarsh spoke to Danneker once during the critical time period after Rollins retrieved her purse at Kingdom and Tidmarsh was driving her home. Compare ECF No. 44 at 23 (Danneker's phone shows calls with Tidmarsh at 2:38, 3:10, 3:28, and 3:46) with ECF No. 60 at 9-10 (dispatch records showing Tidmarsh called in that ...


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