United States District Court, D. Nevada
ORDER GRANTING THE DEFENDANTS' MOTIONS FOR
SUMMARY JUDGMENT AND DENYING THE PLAINTIFF'S MOTION FOR
SUMMARY JUDGMENT (ECF NOS. 43, 54, 55)
P. GORDON UNITED STATES DISTRICT JUDGE.
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. 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.
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.
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
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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 ...