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Richards v. Cox

United States District Court, D. Nevada

May 23, 2019

STACEY M. RICHARDS, Plaintiff(s),
v.
GREG COX, et al., Defendant(s).

          ORDER

         Presently 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).

         I. Facts

         This § 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).

         On 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.

         Without 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.

         Defendant 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. Id.

         The 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.

         Finally, 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).

         Plaintiff 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.[1] Id. at 7-8.

         The 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.

         AR 405 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 10).

         Additionally, 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).

         Plaintiff 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 ...


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