United States District Court, D. Nevada
REPORT & RECOMMENDATION OF U.S. MAGISTRATE
WILLIAM G. COBB UNITED STATES MAGISTRATE JUDGE
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.
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
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
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.
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
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.)
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. ¶
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.”
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 ¶¶
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 ¶
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.)
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.)
now move for summary judgment.
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).
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).
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).
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.
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).
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.
[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
Fed. R. Civ. P. 56(e).
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).