Plank v. Las Vegas Metro. Police Dep't

DAVID EDWIN PLANK, Plaintiff(s), v. LAS VEGAS METROPOLITAN POLICE DEPARTMENT, et al. Defendant(s).

Case No. 2:12-CV-2205 JCM (PAL)

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

March 14, 2016

ORDER

Presently before the court is defendants Las Vegas Metropolitan Police Department ("LVMPD") and LVMPD Officer Brad Mayoral's motion for summary judgment. (Doc. # 36). Plaintiff David Edwin Plank filed a response (doc. # 43), and defendants filed replies. (Doc. ## 45, 47).¹

I. Background

This is an action for civil rights violations and related tort claims filed under 42 U.S.C. § 1983. Plaintiff's complaint alleges four causes of action: (1) a § 1983 claim against defendant Mayoral for violations of his Fourth and Fourteenth Amendment rights; (2) a § 1983 claim against LVMPD for failing to properly hire, train, instruct, monitor, supervise, evaluate, investigate, and discipline Officer Mayoral; (3) an intentional infliction of emotional distress claim against Mayoral; and (4) assault, battery, and negligence claims against Mayoral and LVMPD.

On January 3, 2011, Mr. Plank was arrested by LVMPD officers at an IHOP parking lot near the intersection of Boulder Highway and Flamingo Road in Clark County, Nevada. (Doc. # 36). Plaintiff was handcuffed and transported to the Clark County Detention Center ("CCDC"). (Doc. # 43). Defendant Mayoral transported Plank from the scene of the arrest to CCDC. (Id.)

Officer Mayoral testified that he believed that plaintiff was mentally ill at the time he was transporting him. (Doc. # 43-3 at 10). When Mayoral arrived at CCDC with Plank, the plaintiff resisted removal from the officer's vehicle. (Id. at 13). Mayoral maintains that Plank kicked and spat at him and held onto one of the vehicle's seat belts to prevent Mayoral from removing him. (Id.) Mayoral did not make a "Code 5" call for assistance from CCDC personnel in removing Plank from the car.

After some struggle, Mayoral was able to remove Plank from the vehicle feet first and had plaintiff on his feet outside the vehicle. (Id. at 14). As plaintiff continued to struggle, Mayoral took him from his feet to the ground. (Id.) Plaintiff alleges that Mayoral used excessive force while removing him from the vehicle, resulting in head injury. (Id.)

When plaintiff was booked into CCDC, he was suffering from injuries. (Doc. # 43). Plaintiff filed a complaint with LVMPD's Internal Affairs Bureau ("IAB") on March 14, 2011.² (Doc. # 36). IAB conducted an investigation into the allegations contained in Mr. Plank's complaint. (Id.) IAB eventually sustained the complaint based on its findings that Officer Mayoral violated policies on critical procedures at the jail, care of prisoners, and use of force. (Id.) LVMPD then terminated his employment. (Id.) Mayoral appealed the termination, which was upheld. (Id.)

Defendant LVMPD argues that it is entitled to summary judgment on plaintiff's federal claims for violation of his civil rights. It argues that plaintiff has failed to present evidence of (a) an official or de facto policy of excessive force; (b) deliberate indifference to plaintiff's rights with respect to its training practices; or (c) deliberate indifference with respect to its hiring practices. LVMPD contends that plaintiff cannot therefore sustain a Monell³ claim against it. LVMPD contends that it is protected by discretionary function immunity pursuant to NRS 41.032 for all of plaintiff's state law claims. Finally, LVMPD argues that the battery claim is subsumed by the § 1983 claim, the negligence claim is supported by facts contrary to the allegations of intentional misconduct, and plaintiff's expert's opinion is inconsistent with department negligence.

Defendant Mayoral argues he is entitled to summary judgment on plaintiff's § 1983 claim against him because the doctrine of qualified immunity protects him from liability under § 1983.Mayoral adopts LVMPD's arguments with respect to the substance of the state law claims, arguing that the battery claim is subsumed by the excessive force claim and that plaintiff cannot sustain a prima facie case for negligence.

Plaintiff argues that summary judgment in favor of defendants is not appropriate on any of his claims. Plaintiff argues first that claims based on violations of constitutional rights are often not appropriate for summary judgment because of the fact-intensive nature of the required determinations. Plank also contends that Mayoral's joinder to LVMPD's motion is procedurally deficient and raises issues which were not raised in LVMPD's motion.

Substantively, plaintiff argues that whether Mayoral's use of force was reasonable under the circumstances is a factual determination appropriate for a jury. Further, Mr. Plank contends that Mayoral is not entitled to qualified immunity because Mayoral violated plaintiff's clearly established constitutional rights. Plaintiff argues that a jury could find that LVMPD employs a de facto policy and culture of "street justice" with respect to unruly detainees and suspects with deliberate indifference to the individuals' rights, sustaining a Monell claim. He argues that defendants are not entitled to discretionary immunity on the state law claims and that Mr. Mayoral is not entitled to qualified immunity on the excessive force claim. Finally, Plank argues that he has provided evidence sufficient to create genuine issues of material fact on his state law claims for assault, battery, and negligence.

II. Legal Standard

The Federal Rules of Civil Procedure provide for summary judgment when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that "there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(a). 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 (1986).

In 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, 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).

If the 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, 477 U.S. at 324.

At 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 v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). 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.

III. Discussion

The court will address plaintiff's federal claims against Officer Mayoral and the LVMPD in turn. The analysis will then turn to plaintiff's state law claims.

A. Plaintiff's § 1983 claim for excessive use of force against Officer Mayoral

Plank bases his § 1983 claim against Mayoral on allegations that Mayoral violated his rights by using excessive force in transporting him to CCDC. Plaintiff offers evidence from OfficerMayoral's deposition to support the claim. (See doc. ## 36-1 at 41-75; 43-3). During the deposition, Mayoral conceded that: (a) "[he] pulled [Plank] up . . . so he was standing before [he] put [Plank] on the ground" (doc. # 36-1 at 67); (b) once Plank was in handcuffs in the back of the car, Mayoral did not consider him to be a threat (doc. # 43-3 at 12); (c) even as Mayoral removed Plank from the vehicle at CCDC, he did not feel that Plank posed a danger to him (doc. # 36-1 at 65); (d) after Plank continued to struggle after removal, he forcefully "put him on the ground" (id. at 67); and (e) "[LVMPD] determined that [Mayoral] caused [the] injury." (Doc. # 43-3 at 16). Mr. Mayoral also concedes that, at that time of the alleged conduct, he believed the plaintiff was mentally ill. (See doc. # 43-3 at 11).⁴ There is no evidence,...