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Corgan v. Keema

United States District Court, D. Nevada

June 20, 2017

JAMES CORGAN, Plaintiff,
v.
MIKE KEEMA, et al., Defendants.

          REPORT & RECOMMENDATION OF U.S. MAGISTRATE JUDGE

          WILLIAM G. COBB UNITED STATES MAGISTRATE JUDGE

         This Report and Recommendation is made to the Honorable Robert C. Jones, Senior United States District Judge. The action was referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and the Local Rules of Practice, LR 1B 1-4.

         Before the court is Defendant Mike Keema and Elko County's Motion for Summary Judgment. (ECF No. 83; Exhibits at ECF Nos. 83-1 to 83-6.) Plaintiff filed a response (ECF No. 93; Exhibits at ECF Nos. 93-1 to 93-8) and a supplemental response (ECF Nos. 96, 96-1). Defendants filed a reply. (ECF No. 99.)

         After a thorough review, the court recommends that Defendants' motion be granted as to the single federal claim, and that the court decline to retain jurisdiction with respect to the remaining state law claims, which should be dismissed without prejudice.

         I. BACKGROUND

         Plaintiff, who is represented by counsel, filed his original complaint on December 31, 2014. (Compl., ECF No. 1; Exhibits to Compl., ECF No. 2.) After the court issued rulings on a motion to dismiss (see ECF Nos. 42, 45), Plaintiff filed an amended complaint (ECF No. 62), which is now the operative pleading. The events giving rise to this action took place while Plaintiff was in custody at the Elko County Jail.

         The amended complaint named as defendants Mike Keema, Brad Warwick and Elko County (ECF No. 62 at 1), but Warwick was subsequently dismissed pursuant to stipulation (ECF Nos. 82, 85); therefore, the remaining defendants are Keema and Elko County.

         The amended complaint alleges that Keema (who is alleged to have been employed by the Elko County Sheriff's Office) (and Warwick) obtained a search warrant and agents executed it at the residence of Villano and left documentation that identified Plaintiff as a confidential informant whose information led to the issuance of the warrant (and subsequent arrest of Cortez). (ECF No. 62 at 1-2 ¶¶ 2-3.) After the execution of the warrant, Cortez discovered Plaintiff's involvement from Villano, and Plaintiff was arrested and placed into the same cell as Cortez. (Id. at 2 ¶ 4.) On August 12, 2012, Cortez allegedly beat Plaintiff. (Id.) Plaintiff alleges that Elko County and Keema knew Plaintiff was the confidential informant with respect to Cortez's arrest and incarceration and were deliberately indifferent to Plaintiff's health and safety in light of this knowledge. (Id. at 2 ¶ 5.)[1]

         Plaintiff contends that in enlisting Plaintiff as a confidential informant in the investigation leading to the arrest of Cortez, Keema entered into an agreement that Plaintiff's identity would remain confidential in return for his cooperation in providing information leading to Cortez's arrest. (ECF No. 62 at 2 ¶ 6.) He avers that this created a duty on the part of Keema and Elko County to ensure that Plaintiff's identity would be maintained as confidential, and this included a duty not to house Plaintiff in the same cell as Cortez. (Id.) He contends that Keema was involved in the execution of the search warrant and knew Plaintiff's identity had been disclosed with the search warrant material left at the Villano residence, which put him on notice that the identity would be disclosed not only to Villano but to Cortez. (Id. ¶ 7.)[2]

         Plaintiff claims that Bryan Paige was another cohort of Cortez, and after Cortez beat Plaintiff at the jail and Plaintiff was released, Cortez contracted with Paige to have Plaintiff shot, and Paige did shoot Plaintiff on January 2, 2013. (Id. ¶ 8.) Paige was eventually arrested and convicted for the shooting. (Id. ¶ 9.) Upon Plaintiff's subsequent arrest, Plaintiff claims Defendants placed him in the same cell block as Paige, causing Plaintiff to fear for his life and safety. (Id.) He avers that Defendants knew of the connection between Villano, Cortez, and Paige; that Plaintiff had been assaulted by Cortez; and that Paige shot Plaintiff; and as such, that Paige posed a danger to Plaintiff. (Id. at 3 ¶ 10.) He contends that this created a duty “based upon their knowledge and agreement with Plaintiff” to refrain from placing Plaintiff in a position of danger vis-à-vis Paige.” (Id.)

         Plaintiff asserts four claims for relief based on these facts. The first claim appears to be a state law claim for intentional infliction of emotional distress (IIED) and alleges that Keema and Elko County intentionally caused Plaintiff to be placed in fear of his life and safety when they housed him in the same cell block as Paige, and this caused Plaintiff to suffer severe emotional distress manifested by insomnia, nausea, shaking, and sweating. (ECF No. 62 at 3 ¶¶ 13-16.)

         The second claim is a state law claim of negligence, alleging that Keema and Elko County failed to exercise reasonable care for the safety of Plaintiff in placing him in the same cell block as Paige and in failing to intercede to prevent that from occurring when they had an opportunity to do so. (ECF No. 62 at 4 ¶ 18.) He also alleges that Keema and Elko County failed to exercise reasonable care with respect to maintaining Plaintiff's confidentiality as an informant as that information was allowed to fall into hands that led to Plaintiff's shooting by Paige. (ECF No. 62 at 4 ¶ 19.)

         The third claim for relief is a state law breach of contract claim. Plaintiff alleges that Keema and Elko County breached the confidential informant agreement entered into with Plaintiff, which included an agreement to keep Plaintiff's identity confidential, when they allowed materials identifying him as the confidential informant to be exposed during execution of the search warrant. (ECF No. 62 at 4 ¶¶ 22-23.)

         Finally, in the fourth claim for relief, brought pursuant to 42 U.S.C. § 1983, Plaintiff alleges that Keema violated Plaintiff's right to be free from serious risk of harm from other inmates and that Defendants acted with subjective knowledge that Paige posed a serious risk of harm to Plaintiff and disregarded that risk. (ECF No. 62 at 5 ¶¶ 29-30.) Plaintiff goes on to allege that this type of conduct is a custom of Elko County, evidenced by the multiple exposures of Plaintiff and others to similar harmful situations in housing inmates, subjecting Elko County to municipal liability. (Id. ¶ 31.)

         Defendants now move for summary judgment.

         II. LEGAL STANDARD

         "The purpose of summary judgment is to avoid unnecessary trials when there is no dispute as to the facts before the court." Northwest Motorcycle Ass'n v. U.S. Dep't of Agric., 18 F.3d 1468, 1471 (9th Cir. 1994) (citation omitted). In considering a motion for summary judgment, all reasonable inferences are drawn in favor of the non-moving party. In re Slatkin, 525 F.3d 805, 810 (9th Cir. 2008) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). "The court shall grant summary judgment if 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). On the other hand, where reasonable minds could differ on the material facts at issue, summary judgment is not appropriate. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).

         A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:

(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

Fed. R. Civ. P. 56(c)(1)(A), (B).

         If a party relies on an affidavit or declaration to support or oppose a motion, it "must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated." Fed.R.Civ.P. 56(c)(4).

         In evaluating whether or not summary judgment is appropriate, three steps are necessary: (1) determining whether a fact is material; (2) determining whether there is a genuine dispute as to a material fact; and (3) considering the evidence in light of the appropriate standard of proof. See Anderson, 477 U.S. at 248-250. As to materiality, only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment; factual disputes which are irrelevant or unnecessary will not be considered. Id. at 248.

         In deciding a motion for summary judgment, the 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 [dispute] 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) (internal 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 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. v. Cartrett, 477 U.S. 317, 323-25 (1986).

         If the moving party satisfies its initial burden, the burden shifts to the opposing party to establish that a genuine dispute exists as to a material fact. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). To establish the existence of a genuine dispute of material fact, the opposing party need not establish a genuine dispute of material 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, 630 (9th Cir. 1987) (quotation marks and citation omitted). "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no 'genuine issue for trial.'" Matsushita, 475 U.S. at 587 (citation omitted). The nonmoving party cannot avoid summary judgment by relying solely on conclusory allegations that are unsupported by factual data. Id. 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 dispute of material fact for trial. Celotex, 477 U.S. at 324.

         That being said,

[i]f a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may: (1) give an opportunity to properly support or address the fact; (2) consider the fact undisputed for purposes of the motion; (3) grant summary judgment if the motion and supporting materials-including the facts considered undisputed-show that the movant is entitled to it; or (4) issue any other appropriate order.

Fed. R. Civ. P. 56(e).

         At summary judgment, the court's function is not to weigh the evidence and determine the truth but to determine whether there is a genuine dispute of material fact for trial. See Anderson, 477 U.S. at 249. While the evidence of the nonmovant is "to be believed, and all justifiable inferences are to be drawn in its favor, " if the evidence of the nonmoving party is merely colorable or is not significantly probative, summary judgment may be granted. Id. at 249-50 (citations omitted).

         III. DISCUSSION

         A. ...


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