United States District Court, D. Nevada
STACEY M. RICHARDS, Plaintiff(s),
GREG COX, et al., Defendant(s).
before the court is defendants Eric Boardman, Renee Baker,
Michael Byrne, Greg Cox, Michael Fletcher, and William
Gittere's (collectively, “defendants”) motion
for summary judgment. (ECF No. 60). Plaintiff Stacey Richards
(“Richards”) filed a response (ECF No. 67), to
which defendants replied (ECF No. 71).
§ 1983 civil rights case arises out of a shooting
incident that took place at Ely State Prison
(“ESP”) in Ely, Nevada, to which plaintiff was an
innocent bystander. (ECF No. 67).
April 21, 2015, at about 7:15 p.m., plaintiff and
approximately 25 inmates were congregating on the lower tier
of their unit during free time. (ECF No. 67 at 7). While the
inmates were congregating, prison correctional officers
(“COs”) and staff were in the control room, known
as “the bubble.” Id.
warning, four inmates began attacking a fifth inmate,
punching and kicking him. Id. Plaintiff was not
involved in this altercation but was instead standing and
talking to some other inmates at a table nearby. Id.
Relative to the bubble, plaintiff was adjacent to and behind
the spot where the fight broke out. Id.
Eric Boardman (“CO Boardman”) noticed the fight
from the bubble and yelled out to the inmates, “stop
fighting, get on the ground.” Id. Inmates not
involved in the fight began to get on the floor, but the five
inmates involved in the altercation continued fighting.
parties dispute what happened next. Defendants submit that,
after CO Boardman yelled for the inmates to get on the
ground, he fired a blank shotgun cartridge in compliance with
Nevada Department of Corrections (“NDOC”) policy.
(ECF No. 60 at 3). When the inmates continued fighting, CO
Boardman alleges he again verbally ordered all inmates to get
on the ground, to no avail. Id.
CO Boardman alleges that he “then discharged the weapon
with a live round of 7.5 birdshot.” Id. CO
Boardman asserts that he fired the live round at the ground
in the vicinity of the fighting inmates, which is known as a
“skip shot.” Id. According to CO
Boardman, the skip shot “was used in order to reduce
the danger of engaging in this type of fight or disturbance
control, as it ensured that the pellets would remain below
the belt line.” Id. However, multiple pellets
from the second shot struck plaintiff in the face,
permanently blinding him in his left eye, and causing him to
lose nearly all vision in his right eye. (ECF No. 67 at 10).
disputes that CO Boardman ever fired a blank shotgun
cartridge prior to shooting a live round. Id. at 7.
See (ECF No. 68 at 2-3). Rather, plaintiff asserts
that when he heard the first gunshot, he simultaneously
“felt his right shoulder hit with several
pellets.” (ECF No. 67 at 7. According to plaintiff, the
impact from the first round caused him to raise his head
“instinctively, ” which left his face exposed to
the pellets from the second shot, resulting in the injuries
to his eyes. Id. at 7-8.
parties agree that, during the incident, CO Boardman was
acting pursuant to NDOC and ESP policies and training.
See (ECF No. 60 at 10); (ECF No. 67 at 2).
Specifically, CO Boardman acted pursuant to NDOC's
administrative regulation (“AR”) 405, which
specifies the protocol for the use of force, including deadly
force. See (ECF No. 60-1) (AR 405). AR 405 provides
that force must be limited to the minimum degree necessary to
resolve a situation and that, when possible, verbal commands
will be used prior to any use of force. Id. at 3.
specifically authorizes the use of skip shots, which are
enumerated among the list of “non-deadly force”
tactics to be used “as the situation dictates.”
Id. at 3-4. According to the regulation, skip shots
are designed to strike offenders “in their lower
extremities to temporarily incapacitate or immobilize”
them. Id. at 4. Defendant NDOC Director Greg Cox
(“Director Cox”) signed AR 405, which was
thereafter adopted by the board of prisons. (ECF No. 71 at
CO Boardman acted pursuant to ESP's operational procedure
(“OP”) 405, which substantially mirrors AR 405.
(ECF No. 67 at 4); (ECF No. 62-1). OP 405 also classifies
skip shots as “non-deadly” uses of force. (ECF
No. 62-1 at 7). It requires that “blank round warning
shots” be fired “upward and away from any
persons, ” before “live rounds may be fired into
the ground near the problem inmates or disturbance.”
Id. Defendant ESP Warden Renee Baker (“Warden
Baker”) enacted OP 405. (ECF No. 67 at 4). See
(ECF No. 1).
initiated this action on July 28, 2016, asserting four causes
of action: (1) 42 U.S.C. § 1983 claim for excessive
force under the Eighth and Fourteenth Amendments; (2)
negligent training, supervision, and retention; (3) battery;
and (4) negligence. (ECF No. 1). Plaintiff sues all
defendants in their individual capacities. Id. He
asserts claims against CO Boardman, Director Cox, and Warden
Baker for their direct participation in promulgating-and
acting pursuant to-the policies that led to plaintiff's
injuries. Id. He asserts his claims ...