United States District Court, D. Nevada
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY
JUDGMENT AND DENYING PLAINTIFFS' MOTION FOR SUMMARY
JUDGMENT [ECF NOS. 36, 38]
P. GORDON UNITED STATES DISTRICT JUDGE
Holly Riggs was arrested for child neglect after leaving her
two minor children, plaintiffs E.R. and J.R., in a splash
pool for a few minutes while she went inside her house. She
sues Nye County and several Nye County Sheriff's Office
employees for various claims under federal and state law. She
generally asserts that the defendants lacked probable cause
to arrest her, disrupted familial relationships by arresting
her while her daughter was in a perilous medical condition,
and caused extreme emotional distress. Defendants Nye County,
Sheriff Sharon Wehrly, Under Sheriff Brent Moody, Lieutenant
Michael Eisenloffel, Sergeant Corey Fowles, and Deputy
Richard Deutch move for summary judgment on all claims. The
plaintiffs also move for summary judgment on all claims. I
grant the defendants' motion and deny the plaintiffs'
lawsuit arises out of an incident in September 2015 at
Riggs' home in Pahrump. ECF No. 37-4 at 5-6. Riggs and
her two children, E.R. and J.R., went in their backyard to
play in a splash pool. Id. at 7. At the time, E.R.
was 18 months old and J.R. was just about to turn four years
old. Id. at 8. Riggs went back inside the house for
a few minutes to check on a cake she was baking. Id.
at 7, 8. The children remained by the pool. Id. at
7. Riggs went into the master bedroom and looked out the
window to check on the children. Id. at 8. According
to Riggs, she went to this particular window because it gave
the best view to where the children were. Id.
Riggs looked out the window, she saw her son holding her
daughter in the splash pool. Id. E.R.'s arms
were limp and her head was rolled back. Id. Riggs
knocked on the window and J.R. dropped E.R. into the water.
Id. E.R. was not moving. Id. Riggs ran
outside and asked her son what happened, and he said he did
not know. Id. Riggs carried E.R. into the house and
called 911. Id. at 8-9. While waiting for paramedics
to arrive, Riggs pushed on E.R.'s stomach and swept food
and vomit out of E.R.'s mouth. Id. at 9. E.R.
regained consciousness and started breathing just before
paramedics arrived. Id.
addition to the paramedics, Nye County Sheriff's Office
personnel responded to the emergency call. ECF No. 37-2 at 5.
First on the scene were Deputy James Brainard and Sergeant
David Boruchowitz. Id. As they entered the home,
they saw Riggs on the living room floor with her daughter.
Id. at 6. While paramedics were attending to E.R.,
Boruchowitz spoke to J.R., who told him that Riggs was
sleeping while the children were in the pool. Id. at
6. Boruchowitz notified Child Protective Services and
Brainard notified the detective unit to follow up in case
E.R.'s condition worsened. Id.
transferred E.R. to Desert View Hospital. Id. at 6.
At the hospital, Riggs filled out a voluntary statement.
Id. at 10. Defendants Corey Fowles and Michael
Eisenloffel, both Detectives, arrived at the hospital to
conduct a child neglect investigation. ECF No. 37-3 at 4-5.
Fowles interviewed Riggs and she told him that she was baking
a cake and heard the timer go off, so she left the children
by the pool and went inside. Id. at 5. Riggs told
Fowles that she was in the house up to three minutes.
Id. at 22. Boruchowitz later told Fowles that J.R.
had told him that Riggs was sleeping. Id. at 6, 22.
Boruchowitz also told Fowles that Riggs told the fire
department personnel that she was doing dishes at the time of
the incident. Id. at 7, 22. Fowles also spoke to the
emergency room physician, who told him that E.R. had an
inflamed trachea and lungs due to water inhalation.
Id. at 8, 22.
husband came to the hospital. ECF No. 37-4 at 13. He and
Riggs arranged for some family friends to watch J.R. while
they attended to E.R.'s situation. Id.
oxygen level was low and her heart rate was high, so medical
personnel told Riggs they wanted to take E.R. by ambulance to
a hospital in Las Vegas. Id. When E.R.'s
condition worsened, medical personnel intubated her and
decided to fly her to Las Vegas by helicopter. Id.
Riggs and her husband were heading to the helicopter, Fowles
and Eisenloffel questioned Riggs again. Id. at
14-15. After speaking with Riggs further, Eisenloffel decided
to arrest her for child neglect. ECF Nos. 37-3 at 10; 37-8 at
8-9, 11. Fowles placed her into custody. ECF Nos. 37-3 at 11;
ECF No. 37-4 at 15. Riggs' husband got on the helicopter
and accompanied E.R. to the hospital in Las Vegas. ECF No.
37-4 at 16.
spent approximately nine hours in jail. Id. During
that time, her father-in-law retrieved J.R. from the family
friends and bailed Riggs out of jail. Id. The three
of them then went to Las Vegas. Id. E.R. fully
recovered from the incident. Id. at 20. The district
attorney's office later declined to prosecute Riggs. ECF
No. 37-8 at 11.
on these facts, the plaintiffs sue Nye County, Nye County
Sheriff Sharon Wehrly, Under Sheriff Brent Moody,
Eisenloffel, Fowles, and Deputy Richard Deutch. The plaintiffs
assert a federal claim under 42 U.S.C. § 1983, alleging
that all of the defendants violated (1) Riggs' Fourth
Amendment right to be free from an unreasonable seizure and
(2) her and her children's Fourteenth Amendment rights to
familial relationships. They also assert against all defendants
state law claims for malicious prosecution, false
imprisonment and false arrest, intentional infliction of
emotional distress, and civil conspiracy. Finally, they
assert a negligent supervision and training claim against
Wehrly and allege Nye County is vicariously liable for
defendants move for summary judgment on a variety of grounds,
but mainly on the basis that the detectives had probable
cause to arrest Riggs. They also assert they are entitled to
qualified immunity for the federal claims and discretionary
function immunity for the state law claims. The plaintiffs
move for summary judgment as well, arguing the defendants
lacked probable cause for the arrest, and the decision to
arrest Riggs as her child was being airlifted to Las Vegas
for medical treatment shocks the conscience.
judgment is appropriate if the movant shows “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), (c). A fact is material if it “might affect the
outcome of the suit under the governing law.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). A dispute is genuine if “the evidence is such
that a reasonable jury could return a verdict for the
nonmoving party.” Id.
party seeking summary judgment bears the initial burden of
informing the court of the basis for its motion and
identifying those portions of the record that demonstrate the
absence of a genuine issue of material fact. Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden
then shifts to the non-moving party to set forth specific
facts demonstrating there is a genuine issue of material fact
for trial. Fairbank v. Wunderman Cato Johnson, 212
F.3d 528, 531 (9th Cir. 2000); Sonner v. Schwabe N. Am.,
Inc., 911 F.3d 989, 992 (9th Cir. 2018) (“To
defeat summary judgment, the nonmoving party must produce
evidence of a genuine dispute of material fact that could
satisfy its burden at ...