United States District Court, D. Nevada
M. Navarro, Chief Judge United States District Court
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).
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
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).
following account is taken from Fowles' deposition and
disputed by Plaintiff with regards to its
accuracy. 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."
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).
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.
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).
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).
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).
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.
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
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. (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.
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).
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.
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.
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.
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.
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.
Section 1983 Claims and Qualified Immunity
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).
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)).
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).
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,