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Hardan v. Nye County

United States District Court, D. Nevada

September 28, 2017



          Gloria M. Navarro, Chief Judge United States District Court

         Pending before the Court is a Motion for Summary Judgment (ECF No. 36), filed by Defendants Nye County, Sheriff Anthony L. DeMeo ("DeMeo"), Assistant Sheriff Richard Marshall ("Marshall"), Lieutenant Mark Medina ("Medina"), and Officer Cory Fowles ("Fowles") (collectively, "Defendants"). Plaintiff Melissa Hardan ("Plaintiff) filed a Response (ECF No. 45), and Defendants filed a Reply (ECF No. 49).

         Also pending before the Court is Plaintiffs Partial Motion for Summary Judgment (ECF No. 38), to which Defendants filed a Response (ECF No. 41), and Plaintiff filed a Reply (ECF No. 46). For the reasons stated below, the Court GRANTS in part and DENIES in part Defendants' Motion for Summary Judgment, and DENIES Plaintiffs Partial Motion for Summary Judgment.

         I. BACKGROUND

         This case arises out of the fatal shooting of Plaintiff s dog on March 22, 2013. (Am. Compl., ECF No. 28). Initially, Fowles went to Plaintiffs home to investigate a complaint of child abuse that Plaintiff filed with her son's elementary school about a substitute teacher spanking her son. (Fowles' Dep. 13:1-4, 14:9-11, Ex. B to Lee Decl., ECF No. 37); (Suspected Child Abuse Report Form, Ex. 2 to Pl. Partial MS J, ECF No. 38-2). Plaintiff has a large property in Pahrump, Nevada, which is enclosed by a fence. (Hardan Dep. 15:18-20, Ex. A to Lee Decl., ECF No. 37); (Fowles Dep. 15:17-19). The parties disagree regarding whether the fence was locked, but regardless, Fowles entered the property. (Fowles Dep. 17:1-4).

         The following account is taken from Fowles' deposition and disputed by Plaintiff with regards to its accuracy.[1] After entering, Fowles had walked about half-way down the driveway toward the front door when six large Rottweiler dogs came out from under a pool deck. (Id. 25:3-13). The dogs were barking, growling, and bearing their teeth, and "they fanned out and kind of started to form a circle around [Fowles]." (Id. 25:23-26:9). He first stopped walking, and then tried to use his baton to keep the dogs from him, but "they weren't phased by it." (Id. 25:25-26:7). He attempted to retreat and exit the property, however, one of the dogs got behind him, which blocked his escape. (Id. 25:18-26:18). He explained: "I was afraid one of these animals would grab my leg and bite me, and if I went to the ground, I was afraid these animals were going to jump on top of me and kill me." (Id. 26:19-22). Fowles said the dog "that was coming around behind [him] lunged, " which is when he shot the dog. (Id. 26:25-27:1). Fowles estimated the dog was only "five or ten feet away, " and he described "lunged" as "extended its head and shoulders forward at me with teeth bearing like it was going to bite me." (Id. 27:2-7).

         Fowles shot the dog in the side, and the dog eventually passed away. (Photograph, Ex. 5 to Pl. Partial MS J, ECF No. 38-5). Fowles contacted his supervisor and Animal Control, both of whom subsequently arrived at the property. (Fowles Dep. 23:4-10).

         On April 4, 2013, Plaintiff filed a Voluntary Statement with the Nye County Sheriffs Office complaining of Fowles' actions. (Voluntary Statement, Ex. 3 to Pl. Partial MS J, ECF No. 38-3). Medina was assigned to perform an official investigation into the incident to determine if "Fowles was within policy and within the law when he discharged his firearm while he was on duty." (Medina Dep. 12:12-21, Ex. F to Lee Decl., ECF No. 37). Medina's assignment also included investigating Plaintiffs Voluntary Statement, or "written complaint." (Id. 12:21-22). As part of his investigation, Medina both visited Plaintiffs property and conducted an interview of Plaintiff and her significant other at Plaintiffs workplace. (Id. 14:19-21). Describing this interview, Plaintiff stated in her deposition that she "felt very intimidated" due to "[t]he way [Medina] talked, " which she described as "rude" and "unprofessional." (Hardan Dep. 70:12, 73:18-74:4). Medina's investigation ultimately resulted in the exoneration of Fowles for his actions. (See Marshall Dep. 22:24-23:1, Ex. 8 to Pl. Resp., ECF No. 45-8). DeMeo stated in his deposition that he "signed off the investigation after reviewing it, and their determination was that the actions [Fowles] took was lawful." (DeMeo Dep. 59:2-6, Ex. 9 to Pl. Resp., ECF No. 49-9).

         On March 13, 2015, Plaintiff filed the instant action in this Court. (See Am. Compl.). Plaintiff asserted the following causes of action: (1) 42 U.S.C. § 1983 violations of First, Fourth, and Fourteenth Amendments against Fowles and Medina; (2) 42 U.S.C. § 1983 Monell claims against Nye County, DeMeo, and Marshall; (3) negligence against all defendants; and (4) intentional infliction of emotional distress against all defendants. (Id.). Defendants filed a Motion for Partial Dismissal and Motion for a More Definite Statement (ECF No. 9), which the Court granted in part and denied in part, allowing Plaintiff to file an amended complaint (ECF No. 27). Plaintiff timely filed her Amended Complaint asserting the same causes of actions (ECF No. 28), and Defendants promptly filed an Answer (ECF No. 29). The parties then filed the instant Motion for Summary Judgment ("MSJ") and Partial Motion for Summary Judgment ("Partial MSJ"). (ECF Nos. 36, 38).


         The Federal Rules of Civil Procedure provide for summary adjudication when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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 that 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. "Summary judgment is inappropriate if reasonable jurors, drawing all inferences in favor of the nonmoving party, could return a verdict in the nonmoving party's favor." Diaz v. Eagle Produce Ltd. P 'ship, 521 F.3d 1201, 1207 (9th Cir. 2008) (citing United States v. Shumway, 199 F.3d 1093, 1103-04 (9th Cir. 1999)). 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 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 issue 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) (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 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, 159-60 (1970).

         If the moving party satisfies its initial burden, the burden then shifts to the opposing party to establish that a genuine issue of material fact exists. 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, 630 (9th Cir. 1987). In other words, the nonmoving party cannot avoid summary judgment by relying solely on conclusory allegations that are unsupported by factual data. 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 Celotex Corp., 477 U.S. at 324.

         At summary judgment, 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 nonmoving party's evidence is "to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255. However, 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 (citations omitted).


         A. Evidentiary Issues

         In Defendants' Response to Plaintiffs Partial Motion for Summary Judgment ("Partial MS J"), Defendants dispute the authenticity of the following exhibits attached as support for Plaintiffs Partial MS J: Exhibit 2, a Nye County School District Suspected Child Abuse/Neglect Report Form; Exhibit 5, a photograph of Plaintiff s dog; and Exhibit 7, the IACCP Model Policy on Law Enforcement Encounters with Canines.[2] (Defs. Resp. 14:13-15:22, ECF No. 41). Specifically, Defendants argue that these three exhibits lack the requisite foundation, specifically that they should have been introduced with an affidavit for authentication. (Id.). Further, for Exhibit 7, Defendants also contend that it is hearsay and Plaintiff has failed to "present any evidence" to "invok[e] the learned treatise exception" for reliability. (Id. 15:10-21). As such, Defendants argue that under Orr v. Bank of Am., 285 F.3d 764, 733 (9th Cir. 2002), these exhibits should not be considered as evidence in the Court's consideration of the instant motions. (Id. 14:13-15:22).

         Plaintiff devotes her entire Reply to these evidentiary issues. (See Pl. Reply 2:11 - 4:9, ECF No. 46). Plaintiff argues that the Orr opinion "was issued prior to the 2010 amendments to the Federal Rules of Civil Procedure . . . [which] made significant modifications . . . and introduced flexibility." (Id. 2:13-16). Plaintiff cites the 2010 Advisory Committee comments to Federal Rule of Civil Procedure ("FRCP" or "Rule") 56 to assert that it is sufficient at the summary judgment stage for the proponent of the evidence "to explain the admissible form that is anticipated [for trial]." (Id. 3:1-11). Plaintiff further cites Las Vegas Sands v. Nehme, 632 F.3d 526, 532-33 (9th Cir. 2011) for the proposition that "the Ninth Circuit has expressly disapproved of the District of Nevada refusing to consider exhibits provided by the parties at summary judgment." (Pl. Reply 3:19-26).

         Generally, unauthenticated documents cannot be considered in a motion for summary judgment. However, "the requirement that documents be authenticated through personal knowledge when submitted in a summary judgment motion 'is limited to situations where exhibits are introduced by being attached to an affidavit' of a person whose personal knowledge is essential to establish the document is what it purports to be-that it is authentic." Nehme, 632 F.3d at 533 (quoting Orr, 285 F.3d at 773). Under Rule 901(b)(4), "documents . . . could be authenticated by review of their contents if they appear to be sufficiently genuine." Orr, 285 F.3d at 778 n.24.

         Here, the Court finds that the details within Exhibit 2 are consistent with Defendants' own assertions regarding the facts, specifically that elementary school Principal Jason Odegard filed a child abuse report on March 22, 2013, based on a complaint received by Plaintiff. (Compare Suspected Child Abuse Report Form with Fowles Dep. 11:5-13). As such, the Court finds that lack of authentication is not a reason to exclude Exhibit 2 from consideration in resolving these motions.

         The Court is able to make similar connections for Exhibit 5, the photograph of Plaintiff s dog. The photograph depicts a dog lying lifeless on its side with a wound on the side facing up. Further, the dog appears to be the same breed and approximate size as Plaintiffs dog. The Court finds that these indicia are "sufficiently genuine" for authentication under FRE 901(b)(4), and the Court will consider the photograph for the instant motions.

         Lastly, regarding Exhibit 7, Plaintiff intends to authenticate this Model Policy at trial by calling its "expert witness who relied upon [it]." (Pl. Reply 3:17-18). Without further foundation regarding the expert, though, the Court cannot find that this explanation suffices for the purposes of authenticity. Further, Plaintiff does not present any argument regarding hearsay. While Defendants suggest that the document might be a learned treatise, Plaintiff does not make this argument. Without more, the Court cannot find that Exhibit 7 is sufficiently reliable to overcome the rule against hearsay. Therefore, the Court excludes Exhibit 7 as lacking foundation and hearsay.

         Accordingly, the Court will consider Plaintiffs Exhibits 2, 3, and 5 over Defendants' objection, but the Court will not consider Plaintiffs Exhibit 7 with respect to the instant motions.

         B. Section 1983 Claims and Qualified Immunity

         Plaintiffs first cause of action alleges a § 1983 violation of the First, Fourth, and Fourteenth Amendments against Fowles and Medina. First, Plaintiff alleges that Fowles committed an unreasonable search of her property by "unlawfully enter[ing] Plaintiffs yard" and an unreasonable seizure by "unreasonably executing" Plaintiffs dog. (Am. Compl. ¶¶ 28-29). Further, Plaintiff alleges that Medina "refused to investigate the violations of Plaintiff s civil rights, on the contrary, affirmatively covered-up the violations of Plaintiff s civil rights." (Id. ¶ 30). Plaintiff also alleges that Medina "showed up at Plaintiffs work and intimated her and dissuaded her from seeking redress against Nye County ... in violation of [her] First Amendment rights." (Id.). Defendants argue in their MS J that no genuine issue of material fact exists regarding the alleged constitutional violations, and regardless, they are entitled to qualified immunity. (Defs. MSJ 15:1-23:17).

         Section 1983 actions involve the "deprivation of any rights, privileges, or immunities secured by the Constitution and laws." 42 U.S.C. § 1983. To bring a successful § 1983 claim, a plaintiff must allege (1) a violation of a constitutional right and (2) must show that the alleged violation was committed by "a person acting under color of state law." West v. Atkins, 487 U.S. 42, 48-49 (1988). Moreover, § 1983 '"is not itself a source of substantive rights, ' but merely provides 'a method for vindicating federal rights elsewhere conferred.'" Graham v. Connor, 490 U.S. 386, 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n. 3 (1979)).

         Under the doctrine of qualified immunity, if the court finds that the defendants committed a constitutional violation, then the court must determine whether these rights were clearly established at time of violation. Saucier v. Katz, 533 U.S. 194, 201 (2001). "The doctrine of qualified immunity protects government officials 'from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). "Qualified immunity gives government officials breathing room to make reasonable but mistaken judgments about open legal questions. When properly applied, it protects 'all but the plainly incompetent or those who knowingly violate the law.'" Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). For a right to be clearly established, it is not necessary that a factually identical action has been held unlawful. It is sufficient if the state of the law at the time of the complained of conduct gave the officers fair notice that their actions were unlawful. Hope v. Pelzer, 536 U.S. 730, 741 (2002).

         "Although we must view the facts in the light most favorable to the nonmoving party, when considering qualified immunity, we are also limited to considering what facts the officer could have known at the time of the incident." Estate of Lopez v. Gelhaus, No. 16-15175, 2017 WL 4183595, at *6 (9th Cir. Sept. 22, 2017) (quoting Davis v. United States,854 F.3d 594, 598 (9th Cir. 2017)). Ultimately, at summary judgment, the Court asks "whether the defendants would be entitled to qualified immunity as a matter of law, assuming all factual disputes are resolved, ...

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