United States District Court, D. Nevada
GEORGE A. TOLIVER, Plaintiff,
LAS VEGAS METROPOLITAN POLICE DEPARTMENT, et al., Defendants.
M. NAVARRO, CHIEF JUDGE UNITED STATES DISTRICT JUDGE
before the Court is the Motion for Summary Judgment, (ECF No.
52), filed by Plaintiff George A. Toliver
(“Plaintiff”). Defendant Lee Doss
(“Defendant” or “Officer Doss”) filed
a Response, (ECF No. 55), and Plaintiff did not file a Reply.
Also before the Court is Defendant's Counter Motion for
Summary Judgment, (ECF No. 56). Plaintiff filed a Response, (ECF
No. 57), and Defendant filed a Reply, (ECF No.
For the reasons stated herein, the Court
GRANTS Defendant's Motion and
DENIES Plaintiff's Motion.
case arises out of alleged constitutional violations that
occurred following an incident between Officer Doss and
Plaintiff on December 15, 2014. (Compl. at 3, ECF No. 10). At
all times relevant to this lawsuit, Plaintiff was an inmate
at the Clark County Detention Center (“CCDC”).
(See Id. at 1). While in line for lunch, Plaintiff
states that he received a food tray with a
“small” brownie, which prompted Plaintiff to ask
Officer Doss for a different tray. (Pl.'s Deposition
40:2-12, Ex A. to Def.'s MSJ, ECF No. 56-2). After
Officer Doss informed Plaintiff “no, you have to take
what you get, ” Plaintiff decided to forego eating
lunch and purportedly set the tray back down on the tray
table. (See Id. 40:18-41:6). In the incident report,
however, Officer Doss asserts that Plaintiff “threw the
tray towards the worker and other inmates in line. . .
.” (Incident Report, Ex. A at 42 to Def.'s MSJ, ECF
No. 56-3). While Plaintiff contests that he threw the tray at
other inmates, Plaintiff admits that he did not set the tray
down “nicely, ” and therefore Officer Doss
“could have perceived” that he threw the tray.
(Pl.'s Deposition 44:20-45:15, Ex A. to Def.'s MSJ).
the incident, Sgt. Burleson and Sgt. Laird transported
Plaintiff to the disciplinary unit, where Plaintiff was
charged with disrupting the module and refusing to obey a
direct order of staff. (See Id. 48:12-25); (see
also Incident Report, Ex. A at 42 to Def.'s MSJ). On
December 17, 2014, Officers Kegley and Sands conducted the
disciplinary hearing against Plaintiff. (Kegley Decl. ¶
5, Ex. B to Def.'s MSJ, ECF No. 56-4). At the hearing,
Plaintiff provided the statement: “I did not throw no
tray. I just set it on the table.” (Id. ¶
6). To support this assertion, Plaintiff allegedly requested
the video tape of the incident, but the officers declined to
produce the video. (Pl.'s Deposition 54:23-55:3, Ex. A-2.
to Def.'s MSJ, ECF No. 56-3). According to Officer
Kegley, CCDC surveillance videos were not accessible to
hearing officers at conduct adjustment hearings. (Kegley
Decl. ¶ 13, Ex. B to Def.'s MSJ). Ultimately, the
hearing officers found Plaintiff guilty of the charges and
issued Plaintiff fifteen days in the disciplinary unit.
(Id. ¶¶ 14-16).
April 6, 2015, Plaintiff initiated the instant action,
asserting three claims under 42 USC § 1983 against LVMPD
and Officer Doss: (1) illegal arrest; (2) false imprisonment;
and (3) health hazard negligence. (Compl., ECF No. 1-1). On
September 28, 2015, the Court issued a screening order, which
re-interpreted Plaintiff's claims as: (1) a Fourteenth
Amendment due process violation; and (2) an Eighth Amendment
violation for deliberate indifference to conditions of
confinement. (See Screening Order 4:10-15, ECF No.
9). In the screening order, the Court dismissed all claims
against LVMPD without prejudice and permitted the Fourteenth
Amendment claim to proceed against Officer Doss.
(Id. 9:2-11). The Court granted Plaintiff leave to
amend on his claims against LVMPD, but Plaintiff declined to
amend the Complaint. (See Notice, ECF No. 11).
Accordingly, the only remaining claim at issue before the
Court is Plaintiff's Fourteenth Amendment due process
claim against Officer Doss. (See Order, ECF No. 13).
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
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, 631 (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 evidence of the nonmovant is “to be believed,
and all justifiable inferences are to be drawn in his
favor.” Id. at 255. But if the evidence of the
nonmoving party is merely colorable or is not significantly
probative, summary judgment may be granted. See Id.
alleges that Defendant violated his due process rights by:
(1) refusing to let him call witnesses and review the video
of the incident during the disciplinary hearing; and (2)
confining him to a holding cell for 47 out of 48 hours as
part of his discipline. (See Compl. at 3-6). The
procedural guarantees of the Fourteenth Amendment's Due
Process Clause apply only when a constitutionally protected
liberty or property interest is at stake. See Ingraham v.
Wright, 430 U.S. 651, 672-73 (1977); Bd. of Regents
v. Roth, 408 U.S. 564, 569 (1972). In order to be held
individually liable for a due process deprivation under 42
USC § 1983, a person acting under color of law must have
personally participated in the deprivation. Taylor v.
List, 880 F.2d 1040, 1045 (9th Cir. 1989). That is, the
official must have caused the constitutional injury. See
Kentucky v. Graham, 473 U.S. 159, 165 (1985). The Ninth
Circuit has held that “[a] person ‘subjects'
another to the deprivation of a constitutional right, within
the meaning of section 1983, if he does an affirmative act,
participates in another's affirmative acts or omits to
perform an act which he is legally required to do that causes
the deprivation of which complaint is made.”
Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir.1978).
argues that summary judgment on Plaintiff's due process
claim is appropriate because Plaintiff has failed to
establish individual liability against Defendant. (Def.'s
MSJ 8:26-9:3, ECF No. 56). The Court agrees. Here, Plaintiff
has provided no evidence to demonstrate that Defendant was
personally involved in any of the alleged due process
violations. To the contrary, by Plaintiff's own
admission, Defendant had no involvement in the at-issue
disciplinary hearing, and therefore any decisions regarding
the presentation of witnesses or video evidence cannot be
attributed to Defendant. (See Pl.'s Deposition
46:3-7, Ex A. to Def.'s MSJ). With respect to conditions
of confinement following the disciplinary ruling, Plaintiff
has likewise provided no evidence to implicate
Defendant's involvement. In fact, based on the record,
Defendant's only involvement in this case is limited to
her initial written report of the incident in the lunch room.
(Id.). Accordingly, Defendant is entitled to summary
judgment on Plaintiffs remaining Fourteenth Amendment due
process claim. See Taylor, 880 F.2d at 1045.