United States District Court, D. Nevada
M. Navarro, Chief Judge
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
“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.
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
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.).
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.).
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.
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).
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).
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.
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.
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).
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.”