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Kiessling v. Rader

United States District Court, D. Nevada

March 26, 2018

DET. RADER P#6099, et al., Defendants.


          Gloria M. Navarro, Chief Judge

         Pending before the Court is the Motion for Summary Judgment, (ECF No. 53), filed by Defendants Las Vegas Metropolitan Police Department (“LVMPD”), Detective Reggie Rader (“Rader”), and former Lieutenant Bobby Smith (“Smith”) (collectively “Defendants”). Plaintiff James Kiessling (“Plaintiff”) filed a Response, (ECF No. 57), and Defendants filed a Reply, (ECF No. 58). For the reasons discussed below, Defendants' Motion for Summary Judgment is GRANTED in part and DENIED in part.

          I. BACKGROUND

         This claim arises from an incident between Plaintiff and Defendants that resulted in the issuance of a citation for Obstructing a Public Officer pursuant to Nevada Revised Statute (“NRS”) § 197.190. (See Mot. for Summ. J. (“MSJ”) 2:28-3:1, ECF No. 53); (see also Plaintiff's Dep. at 26, Ex. A to MSJ, ECF No. 53-1). On May 25, 2014, Plaintiff met his ex-wife Kaytlan Kiessling (“Ms. Kiessling”) at a Starbucks to drop off his son during a custody exchange. (See id. at 17). Plaintiff drove his motorcycle to Starbucks while his friend, Bryce Ray (“Ray”), drove Plaintiff's son in his car. (See id. at 18). When they arrived at the Starbucks parking lot, Plaintiff and Ms. Kiessling started arguing. (See id.).

         At the same time, Smith was at Starbucks waiting for Rader's arrival to discuss detective duty assignments and operation plans. (See Bobby Smith Dep. at 9, Ex. D to MSJ, ECF No. 53-4). A citizen came into the Starbucks and informed Smith that there were two people arguing in the parking lot. (See id.). Smith left Starbucks and walked towards Plaintiff and Ms. Kiessling who appeared to be the couple that was arguing. (See id. at 10). Smith claims that he began investigating a potential domestic battery claim based on information received from Ms. Kiessling. (See id. at 12). Smith spoke to Plaintiff to gather more information. (See id.).

         Shortly thereafter, Rader arrived at the Starbucks parking lot for his meeting with Smith and saw Smith interacting with Plaintiff. (See id.); (see also Reggie Rader Dep. at 9-11, Ex. E to MSJ, ECF No. 53-5). Rader conversed with Plaintiff while Smith spoke with Ray. (See Bobby Smith Dep. at 15-16, Ex. D to MSJ, ECF No. 53-4). Rader gave Plaintiff verbal commands, and took ahold of Plaintiff's arm. (See id.).

         Upon hearing the verbal commands, Smith walked back over to assist Rader and took hold of Plaintiff's other free arm. (See id.). Smith and Rader continued to give Plaintiff verbal commands to “stop resisting, ” and Plaintiff replied that he was not resisting. (Id. at 17). Smith attempted a “handcuffing arm lock” in order to place Plaintiff's hand behind his back. (Id.). Smith said to Rader “take him to the ground, ” and Smith pulled Plaintiff to the ground. (Id. at 18). Once on the ground, Smith applied the Lateral Vascular Neck Restraint (“LVNR”) by using his arm to encircle Plaintiff's throat. (See id.). Smith used a “level two” LVNR to restrict Plaintiff's blood flow. (Id. at 19). While Plaintiff was on the ground, Rader placed handcuffs on Plaintiff and then Rader and Smith stood up Plaintiff. (See id. at 20). Ray witnessed the entire incident from the moment he arrived with Plaintiff at the Starbucks parking lot until after Plaintiff was handcuffed. (See Bryce Ray Interview Tr. at 4-5, Ex. K to MSJ, ECF No. 53-13). Ray captured a video of the incident that begins recording when Smith attempted the “handcuffing arm lock” on Plaintiff. (See id.); (see also Video, Ex. L to MSJ, ECF No. 53-14).

         Due to the LVNR, Plaintiff stated that he could not breathe and that he almost passed out. (See id.). Plaintiff additionally alleges that he lost consciousness during the application of the LVNR, lost a tooth when he hit the ground, and vomited after he was brought back up onto to his feet. (See Resp. 3:4-6, ECF No. 57).

         On March 30, 2016, Plaintiff initiated this action alleging five claims for relief: (1) a violation of his Fourth Amendment rights pursuant to 42 U.S.C. § 1983 due to excessive force against Rader and Smith; (2) municipality liability against LVMPD; (3) negligence against Rader and Smith; (4) negligent training, supervision, and retention against LVMPD; and (5) battery against Rader and Smith. (See generally Compl., ECF No. 1). Defendants now seek summary judgment in the instant Motion on the basis that Plaintiff “cannot prevail on the claims included in his Complaint[.]” (See MSJ 14:2-3, ECF No. 53).


         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, 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. at 249-50.


         A. Section 1983 claims

          Plaintiff asserts two § 1983 claims: (1) a deprivation of his Fourteenth Amendment right and (2) a Monell claim against the LVMPD. (Compl. ¶¶ 59, 68, ECF No. 1). Specifically, Plaintiff's first cause of action alleges a deprivation of Plaintiff's Fourteenth Amendment right pursuant to Rader and Smith's alleged excessive force. (See Compl. ¶ 59, ECF No. 1). Plaintiff's second cause of action against LVMPD alleges that the “customs, policies, practices, and procedures, the failures to adequately train, evaluate, investigate, and discipline, as well as the unconstitutional orders, approvals, ratification and toleration or wrongful conduct by LVMPD” caused a deprivation of Plaintiff's “rights in violation of 42 U.S.C. § 1983.” (Id. ¶ 68).

         Section 1983 provides a mechanism for the private enforcement of substantive rights conferred by the Constitution and federal statutes. Graham v. Connor, 490 U.S. 386, 393-94 (1989). To make out a prima facie case under § 1983, a plaintiff must show (1) defendant acted under color of law; and (2) defendant deprived the plaintiff of a constitutional right. See Borunda v. Richmond, 885 F.2d 1384, 1391 (9th Cir. 1989). Section 1983 “is not itself a source of substantive rights, but merely provides a method for vindicating federal rights elsewhere conferred.” Albright ...

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