French v. Carson City

WILLIAM FRENCH, Plaintiff, v. CARSON CITY, BRIAN MENDOZA,JIMMY SURRATT, and DAVE RAMSEY, Defendants.

3:13-cv-00209-HDM-WGC

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

February 4, 2015

ORDER

Plaintiff William French ("plaintiff") filed the instant complaint in state court on March 25, 2013, alleging eleven state and federal claims against defendants Brian Mendoza ("Mendoza") and Jimmy Surratt ("Surratt"), Dave Ramsey ("Ramsey"), and Carson City (collectively "defendants"). Defendants removed to this court on April 23, 2013, and filed for summary judgment on all of plaintiff's claims on March 26, 2014. Plaintiff has opposed defendants' motion (#26), and defendants have replied (#29).

Facts

The following facts are taken primarily from defendants' motion for summary judgment and attached exhibits. Plaintiff largely has not taken issue with the facts as presented by defendants, except where specifically noted.

On August 9, 2011, at around 11:20 p.m., Carson City deputies Mendoza and Surratt were separately dispatched to an apartment complex in Carson City on reports that a subject was carrying a bottle of alcohol and knocking on the doors of people he did not know. (Mot. Summ. J. Ex. 1 (Mendoza Dep. 5); id. Ex. 2 (Surratt Dep. 5-6); id. Ex. 3). Mendoza arrived first and observed plaintiff "having a very loud conversation" with a tenant at the tenant's front door.¹ (Mot. Summ. J. Ex. 1 (Mendoza Dep. 5-6)). Plaintiff was wearing what appeared to be women's panties on his head and had a bottle in his hand containing what appeared to be clear alcohol. Id. Ex. 1 (Mendoza Dep. at 6); id. Ex. 3. Mendoza exited his vehicle and approached plaintiff, who began walking toward the back of the building. (Mot. Summ. J. Ex. 1 (Mendoza Dep. 6). Mendoza followed plaintiff and told him to have a seat, which plaintiff did. Id. Ex 1 (Mendoza Dep. 5-6); id. Ex. 3.

Mendoza asked plaintiff for his name. Plaintiff responded "Robert French." (Mot. Summ. J. Ex. 1 (Mendoza Dep. 10)). Mendoza asked plaintiff why he was in the area, and plaintiff responded that he was just trying to get some cigarettes. Id. By this time,Mendoza had ascertained that plaintiff was intoxicated. Id. Plaintiff submitted to a preliminary breath test, which registered a blood alcohol level of .215. (Mot. Summ. J. Ex. 3). Mendoza checked plaintiff for warrants under the name "Robert French," and finding none then began trying to find a way to get plaintiff home. Id. at 11. Plaintiff told Mendoza that he lived in Douglas, Nevada. Id. Ex. 1 (Mendoza Dep. at 10-11). At Mendoza's request, plaintiff provided a phone number for someone who could pick him up, but the number was disconnected. Id. Plaintiff then asked Mendoza to give him a ride to Indian Hills, and Mendoza replied that he could not as Indian Hills was in another county. Id. at 11-12. Mendoza offered to get plaintiff a cab, but plaintiff stated he did not have any money. Id. at 12.

In the meantime, Surratt had arrived on scene, observed Mendoza speaking with plaintiff, and proceeded to interview one of the apartment tenants. (Mot. Summ. J. Ex. 2 (Surratt Dep. 6-7); id. Ex. 3). Surratt contacted Mendoza and relayed what the tenant had told him: that the plaintiff, wearing women's underwear on his head, had knocked on the tenant's door and tried to sell the tenant his bottle of alcohol. (Mot. Summ. J. Ex. 1 (Mendoza Dep. 12-13); id. Ex. 2 (Surratt Dep. 6-7, 11); id. Ex. 3).

Mendoza decided to arrest plaintiff for disorderly conduct. (Mot. Summ. J. Ex. 1 (Mendoza Dep. 13)). Mendoza based his decision on: (1) the fact that when he arrived, he heard plaintiff yelling profanities at the tenant with whom he'd been speaking; (2) what the tenant and the reporting party had said about plaintiff's conduct; and (3) plaintiff's demeanor and intoxication. Id. Once the decision had been made, Surratt brought out his police canineto "deter resistance." (Mot. Summ. J. Ex. 2 (Surratt Dep. 7)).

Mendoza informed plaintiff he was going to arrest him for disorderly conduct and asked him to put his hands behind his back. (Mot. Summ. J. Ex. 1 (Mendoza Dep. 14)). From his seated position, plaintiff said he wasn't going to jail and refused to put his hands behind his back.² (Mot. Summ. J. Ex. 1 (Mendoza Dep. 14)). Instead, he leaned forward and "kind of clenched his arms together in front of him." Id. Mendoza tried to pull plaintiff's right arm behind his back, but plaintiff did not release his grip and resisted Mendoza's pressure to move his arm. Id. at 14-15. Mendoza told plaintiff again to cooperate and put his hands behind his back, but plaintiff refused. Id. at 15. Mendoza then removed his taser gun, placed it on plaintiff's back, and told plaintiff that if he did not cooperate and put his hands behind his back he would be tased. Id.; (Mot. Summ. J. Ex. 3). Instead, plaintiff continued to try standing up. Mendoza told plaintiff to stop resisting and tried to prevent plaintiff from standing up. Id. at 15-16. When plaintiff attempted to stand up again, Mendoza applied a contact tase to his back. Id. at 18. Plaintiff fell forward onto his knees.³ Id.; Mot. Summ. J. Ex. 3.

Meanwhile, Surratt had been standing in front of plaintiff with his police canine. (Mot. Summ. J. Ex. 1 (Mendoza Dep. 16)). When Surratt observed plaintiff trying to get to his feet in "an aggressive manner," Surratt said he warned that if plaintiff didnot stop he would deploy the canine and the canine would bite. Id. Ex. 2 (Surratt Dep. 14). Mendoza did not testify that Surratt deployed the canine only after a warning. Surratt then deployed the canine, who bit plaintiff in the buttocks. (Mot. Summ. J. Ex. 2 (Surratt Dep. 12-13); id. Ex. 1 (Mendoza Dep. 19-20)).

According to Surratt, plaintiff was becoming more "aggressive" and "violent." (Mot. Summ. J. Ex. 2 (Surratt Dep. 16-17)). As plaintiff tried to get up again, Surratt deployed the canine once more; this time, the canine bit plaintiff on the left forearm and held. (Mot. Summ. J. Ex. 1 (Mendoza Dep. 20); id. Ex. 2 (Surratt Dep. 16)). Plaintiff began striking the canine several times in the "few seconds" before Surratt recalled him. (Mot. Summ. J. Ex. 1 (Mendoza Dep. 20-21); id. Ex. 2 (Surratt Dep. 17)). While plaintiff was striking the canine, Surratt continued to command plaintiff to put his arms behind his back. Id. Ex. 3. After the canine released, plaintiff attempted to stand again. (Mot. Summ. J. Ex. 1 (Mendoza Dep. 21)). Mendoza responded by shooting plaintiff in the back with a taser dart. (Mot. Summ. J. Ex. 1 (Mendoza Dep. 22)). Plaintiff calmed down, and Mendoza handcuffed him and took him into custody. (Mot. Summ. J. Ex. 1 (Mendoza Dep. 23-24)).

As alleged in his complaint (and unaddressed by defendants), plaintiff's forearm wound was "akin to a shark bite" with "chunks" missing from it. (Pl. Compl. ¶ 16). Mendoza called fire and rescue, which responded and bandaged plaintiff's arm. (Mot. Summ. J. Ex. 1 (Mendoza Dep. 30); id. Ex. 3). Mendoza then transported plaintiff to the hospital, where the wound was cleaned and x-rayed. (Mot. Summ. J. Ex. 1 (Mendoza Dep. 31-32)).

While at the hospital, plaintiff stated that his real name was not "Robert French" but was instead "William French"; Robert was in fact plaintiff's brother. (Mot. Summ. J. Ex. 1 (Mendoza Dep. 34); id. Ex. 3). Running a report under "William French," Mendoza discovered that plaintiff was on probation with a no-alcohol clause. (Mot. Summ. J. Ex. 1 (Mendoza Dep. 34)).

Upon release from the hospital, plaintiff was taken to Carson City Jail. (Mot. Summ. J. Ex. 1 (Mendoza Dep. 35)). He was eventually charged with: (1) mistreatment of a police animal; (2) using false information to avoid prosecution; (3) resisting a public officer; (4) disorderly conduct; and (5) alternative sentencing violation (probation). (Mot. Summ. J. Ex. 1 (Mendoza Dep. 37-38); id. Ex. 3). In the end, plaintiff pleaded guilty to providing false information to avoid prosecution, and the remaining claims were dismissed. (Pl. Compl. ¶ 21).

While in the Carson City Jail, plaintiff's forearm wound was treated by defendant Ramsey, who did daily dressing changes, kept the wound clean, and gave plaintiff antibiotics and pain medications as needed. (Mot. Summ. J. Ex. 4 (Ramsey Dep. 8)). Initially, the wound seemed to be healing, but one day Ramsey noticed a change for the worse. Id. at 9-10. Ramsey called a doctor for a second opinion; the doctor advised that while he did not quite see what Ramsey saw, plaintiff should be sent for wound care at the hospital if Ramsey thought the wound had worsened. Id. at 10; Mot. Summ. J. Ex. 5. Plaintiff was evaluated by a doctor with the Carson Surgical Group on September 13, 2011, and thereafter received wound treatment at the hospital two to threetimes a week.⁴ (Mot. Summ. J. Ex. 4 (Ramsey Dep. 10); id. Ex. 5). Eventually doctors determined plaintiff needed surgery, which he underwent on November 28, 2011, and December 5, 2011. (Mot. Summ. J. Exs. 7 & 8).

Plaintiff filed the instant complaint asserting claims based on his arrest and subsequent medical care. Defendants move for summary judgment on all claims, both on the merits and, where applicable, on grounds of qualified or discretionary immunity. Defendants argue the material facts are not in dispute and they are therefore entitled to judgment as a matter of law.

Standard

"The court shall grant summary judgment if the movant shows that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The burden of demonstrating the absence of a genuine issue of material fact lies with the moving party, and for this purpose, the material lodged by the moving party must be viewed in the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); Martinez v. City of Los Angeles, 141 F.3d 1373, 1378 (9th Cir. 1998). A material issue of fact is one that affects the outcome of the...