-GWF Cooley v. Marshal et al, No. 2:2009cv00559 - Document 69 (D. Nev. 2011)
Court Description: ORDER Granting 31 Motion for Leave to File Second Amended Complaint. Clerk of Court to enter Cooley's Second Amended Complaint in the docket. IT IS FURTHER ORDERED that 58 Cooley's Third Amended Complaint is STRICKEN. Clerk shall rem ove the Defendants named in Cooley's Third Amended Complaint from the docket and replace them with Defendants named in Cooley's Second Amended Complaint. IT IS FURTHER ORDERED that 61 Marshall and Mungie's Motion to Strike Cooley� 39;s Third Amended Complaint is DENIED as moot. IT IS FURTHER ORDERED that 41 Marshall and Mungie's Motion to Strike 37 Cooley's Motion to File His First Amended Opposition is GRANTED. IT IS FURTHER ORDERED that 56 Marshall and Mung ie's Motion to Strike 55 Cooley's Second Amended Opposition is GRANTED. IT IS FURTHER ORDERED that 49 Cooley's Motion to Supplement His First Amended Opposition is DENEID as moot. IT IS FURTHER ORDERED that 51 Cooley's Sec ond Motion to Supplement His First Amended Opposition is DENIED as moot. IT IS FURTHER ORDERED that 25 Marshall and Mungie's Motion for Summary Judgment is GRANTED in part and DENIED in part. Signed by Judge Roger L. Hunt on 7/28/11. (Copies have been distributed pursuant to the NEF - EDS)
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-GWF Cooley v. Marshal et al Doc. 69 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 *** 9 10 11 12 13 14 15 FREDERICK MARC COOLEY, ) ) Plaintiff, ) ) vs. ) ) ) J. MARSHAL, et al., ) ) Defendants. ) ) _______________________________________) Case No.: 2:09-cv-00559-RLH-GWF ORDER (Motion for Summary Judgment–#25; Motion to Amend Complaint–#31; Motion to Amend Opposition–#37; Motion to Strike–#41; Motion to Supplement Opposition–#49; Motion to Supplement Opposition–#51; Motion to Strike–#56) 16 17 Before the Court is Defendants Joseph Marshall (improperly named as “J. 18 Marshal”) and Ty Mungie’s Motion for Summary Judgment (#25, filed Jan. 5, 2011). The 19 Court has also considered Plaintiff Frederick Marc Cooley’s Opposition (#30, filed Jan. 31, 2011), 20 and Marshall and Mungie’s Reply (#36, filed Feb. 17, 2011). 21 Also, before the Court is Cooley’s Motion for Leave to File Second Amended 22 Complaint (#31, filed Jan. 31, 2011). The Court has also considered Marshall and Mungie’s 23 Opposition (#35, filed Feb. 17, 2011), and Cooley’s Reply (#39, filed Mar. 1, 2011). 24 Also, before the Court is Cooley’s Motion to File His First Amended Opposition 25 to Defendants Motion for Summary Judgment (#37, filed Feb. 22, 2011). Defendants did not 26 file an opposition. AO 72 (Rev. 8/82) 1 Dockets.Justia.com 1 Also, before the Court is Marshall and Mungie’s Motion to Strike (#41, filed Mar. 2 11, 2011), requesting that the Court strike Cooley’s Motion to File His First Amended Opposition 3 to Defendants’ Motion for Summary Judgment. The Court has also considered Cooley’s 4 Opposition (#44, filed Mar. 25, 2011). Marshall and Mungie did not file a reply. Also, before the Court is Cooley’s Motion to Supplement His First Amended 5 6 Opposition to Defendants’ Motion for Summary Judgment (#49, filed Apr. 6, 2011). The 7 Court has also considered Marshall and Mungie’s Opposition (#52, filed Apr. 15, 2011). Cooley 8 did not file a reply. Also, before the Court is Cooley’s Second Motion to Supplement His First 9 10 Amended Opposition to Defendants’ Motion for Summary Judgment (#51, filed Apr. 13, 11 2011). The Court has also considered Marshall and Mungie’s Opposition (#54, filed Apr. 29, 12 2011). Cooley did not file a reply. Finally, before the Court is Marshall and Mungie’s Motion to Strike (#56, filed 13 14 May 27, 2011), requesting that the Court strike Cooley’s Second Amended Opposition (#55). The 15 Court has also considered Cooley’s Opposition (#57, filed June 3, 2011). Marshall and Mungie 16 did not file a reply. 17 BACKGROUND This dispute arises out of Cooley’s allegations that he was searched, arrested, and 18 19 imprisoned in violation of both the United States and Nevada Constitutions. Cooley alleges the 20 following facts in support of his claims. Sometime after 11:00 pm on March 13, 2009, Cooley was 21 walking eastbound on Fremont Street towards Maryland Parkway in Las Vegas, Nevada. When 22 the pedestrian signal turned green he used the crosswalk to cross Maryland Parkway. Officers 23 Joseph Marshall and Ty Mungie from the Las Vegas Metropolitan Police Department (“LVMPD”) 24 were on bicycles heading westbound on Fremont Street, towards Cooley. Marshall and Mungie 25 approached Cooley as he crossed Maryland Parkway and signaled for him to stop by using LED 26 /// AO 72 (Rev. 8/82) 2 1 bike lights. Marshall and Mungie then dismounted their bikes and placed Cooley in handcuffs so 2 that they could pat him down. Marshall and Mungie then informed Cooley that he was being arrested for failing to 3 4 obey the crosswalk signal, and they eventually placed him in the back of a police van brought to 5 the scene by other LVMPD officers. While still sitting in the van at the scene, Cooley claims he 6 observed one of the pedestrian signals was malfunctioning. Specifically, he noticed that the 7 westbound pedestrian signal—the signal that Marshall and Mungie would have seen as they were 8 riding towards Cooley—always stayed red, even while the traffic signal in the same direction 9 would be green and the eastbound pedestrian signal was green. Thus, according to Cooley, 10 Officers Marshall and Mungie mistakenly thought he was crossing on a red pedestrian signal 11 because the pedestrian signal they were observing (the westbound signal) stayed red even though 12 the eastbound signal was green. Cooley told an unidentified LVMPD officer that the crosswalk 13 signal was defective. The officer investigated the signal and allegedly confirmed that Cooley was 14 correct. Cooley was nevertheless transported to the Las Vegas City Jail where he was detained for 15 several days. 16 Cooley filed suit with this Court on March 25, 2009, against Officers Marshall and 17 Mungie, as well as several others involved with his detention at the Las Vegas City Jail. His 18 amended complaint (#23) asserts the following four causes of action: (1) Fourth Amendment 19 Unreasonable Search and Seizure; (2) Fourth Amendment False Arrest; (3) Fourteenth 20 Amendment; and (4) False Imprisonment under Article 1, section 18 of the Nevada Constitution. 21 Officers Marshall and Mungie subsequently filed a motion for summary judgment. Cooley filed 22 an opposition to that motion, as well as a motion to amend the opposition (#37), two motions to 23 supplement the opposition (## 49, 51), and a second amended opposition (#55). Marshall and 24 Mungie then filed two motions to strike (## 41, 56), one directed toward Cooley’s motion to 25 amend his opposition and the other toward Cooley’s second amended opposition. Cooley then 26 filed a motion to amend his complaint (#31) and six months later—while that motion was still AO 72 (Rev. 8/82) 3 1 pending—he filed a third amended complaint (#58) without seeking leave of the Court. The third 2 amended complaint is noticeably different from the proposed amended complaint attached to his 3 motion to amend. Several other Defendants have filed a motion to strike Cooley’s third amended 4 complaint, but that motion has not been fully briefed. For the reasons discussed below, the Court 5 grants Cooley’s motion to amend his complaint and denies all of his other motions. The Court 6 grants Marshall and Mungie’s motion for summary judgment in part and denies in part, and grants 7 all of their other motions. 8 9 10 DISCUSSION I. Motions to Amend a. Legal Standard 11 A party may amend a pleading once “as a matter of course” within 21 days after 12 serving it. Fed. R. Civ. P. 15(a)(1)(A). If, however, “the pleading is one to which a responsive 13 pleading is required,” a party may amend the pleading within 21 days after service of the 14 responsive pleading, or 21 days after service of a motion brought under Rule 12(b), (e), or (f), 15 whichever occurs earlier. Fed. R. Civ. P. 15(a)(1)(B). 16 of course has expired, a party may amend its complaint only by leave of the court or by the adverse 17 party’s written consent. Fed. R. Civ. P. 15(a)(2). The court should grant leave to amend “when 18 justice so requires.” Id. Nonetheless, courts may deny leave to amend if: (1) it will cause undue 19 delay; (2) it will cause undue prejudice to the opposing party; (3) the request is made in bad faith; 20 (4) the party has repeatedly failed to cure deficiencies; or (5) the amendment would be futile. 21 Leadsinger, Inc. v. BMG Music Publ’g, 512 F.3d 522, 532 (9th Cir. 2008). 22 b. After the time for amendment as a matter Analysis 23 1. 24 On June 30, 2011, Cooley filed his third amended complaint (#58), naming several Cooley’s Third Amended Complaint 25 new Defendants, removing most of the Defendants named in the operative complaint (#23, 26 Amended Complaint), expanding the scope of his factual allegations, and apparently adding a AO 72 (Rev. 8/82) 4 1 claim for intentional infliction of emotional distress. Interestingly, Cooley filed his third amended 2 complaint even though his Motion for Leave to File a Second Amended Complaint (#31)—the 3 motion discussed immediately below—was still pending. More importantly, however, Cooley 4 filed his third amended complaint without first seeking leave of the Court or by the Defendants’ 5 written consent. He presumably believes that he still has the right to amend his complaint as a 6 matter of course under Rule 15(a)(1). He is mistaken. On October 11, 2010, Officers Marshall and Mungie served their answer to the 7 8 operative complaint on Cooley, and the other Defendants served theirs on February 9, 2011. 9 Therefore, Cooley’s right to amend his complaint as a matter of course expired no later than March 10 2, 2011. However, Cooley filed his third amended complaint on June 30, 2011. As such, more 11 than 21 days elapsed from the time Defendants served Cooley with their answers to the time 12 Cooley filed his third amended complaint. Because Cooly filed his third amended complaint (#58) 13 without first seeking leave of the Court or Defendants’ written consent, the Court orders, sua 14 sponte, that it be stricken for failure to comply with Rule 15(a). Consequently, the motion to strike 15 Cooley’s third amended complaint—which has not been fully briefed—is denied as moot. 16 2. 17 On January 31, 2011, Cooley properly sought leave to file a second amended Cooley’s Motion to Amend Complaint 18 complaint. Cooley attempts to add the Las Vegas Metropolitan Police Department as a Defendant 19 (“LVMPD”). Cooley argues that he is required to add LVMPD to his complaint under NRS 20 41.0337, which states, “[n]o tort action arising out of an act or omission within the scope of a 21 person’s public duties or employment may be brought against any present or former . . . [o]fficer 22 or employer of . . . any political subdivision . . . unless the . . . appropriate political subdivision is 23 named a party defendant . . . .” Cooley has asserted a claim against Marshall and Mungie under 24 Article I, section 18 of the Nevada State Constitution, for conduct arising out of their duties as 25 polices officers. Accordingly, he seeks to add LVMPD to that claim in order to comply with NRS 26 41.0337. AO 72 (Rev. 8/82) 5 1 Officers Marshall and Mungie argue that the motion is untimely because the time 2 for filing a motion to amend has expired under the scheduling order issued by the Court on June 3 14, 2010. However, the Court has since issued another scheduling order extending the deadline 4 for filing a motion to amend (Dkt. #48). Cooley’s motion was filed before that new deadline. 5 Officers Marshall and Mungie also argue that they would be prejudiced if Cooley’s motion is 6 granted because both they and LVMPD will need to conduct significant discovery to defend 7 against Cooley’s § 1983 municipal liability claim against LVMPD. However, Cooley is not 8 asserting a § 1983 municipal liability claim against LVMPD so no new discovery need occur. 9 Therefore, seeing no other reason why leave should not be freely given, the Court grants Cooley’s 10 motion. 11 3. 12 “As a general rule, the use of a fictitious name to identify a defendant is not favored Cooley’s Notice Positively Identifying Defendant “Jane Doe” 13 in the Ninth Circuit; however, it is permissible where the identity of the alleged defendant is not 14 known at the time of the filing of the complaint. In such circumstances, the plaintiffs should be 15 given an opportunity through discovery to identify the unknown defendant.” Swartz v. Gold Dust 16 Casino, 91 F.R.D. 543, 546 (D. Nev. 1981) (citing Gillespie v. Civiletti, 629 F.2d 637, 642 (9th 17 Cir. 1980)). Once the identity of the unknown defendant is discovered, plaintiff may amend his 18 complaint pursuant to Rule 15 of the Federal Rules of Civil Procedure. Nible v. Knowles, 1:06-cv- 19 01716-OWW-DLB-P, 2008 U.S. Dist. LEXIS 66080, *5-6 (E.D. Cal. Aug. 4, 2008). In addition, 20 making a technical change concerning a party’s name is also properly accomplished under Rule 21 15(a). Jones v. Louisiana, 74 F.2d 1183, 1186 (5th Cir. 1985). 22 Cooley’s Second Amended Complaint names “Jane Doe” as a Defendant. It further 23 states that “Jane Doe” is employed as a correctional officer for the Las Vegas City Jail. Cooley 24 has now filed a notice identifying Defendant “Jane Doe” as Jennifer Woods. In addition, Cooley’s 25 Second Amended Complaint names “C. Polinenker” as a Defendant. Cooley’s notice also 26 attempts to correct the spelling of this Defendant’s name to “Christopher Plotkin.” However, in AO 72 (Rev. 8/82) 6 1 order to accomplish either change Cooley must seek leave from the Court to amend his complaint, 2 and he has not done so. He did attempt to make both changes when he filed his Third Amended 3 Complaint; however, the Court has stricken his Third Amended Complaint for failure to comply 4 with Rule 15. The Court now strikes Cooley’s Notice Positively Identifying Defendant “Jane 5 Doe” and Christopher Plotkin (#42) for failure to comply with Rule 15. 6 4. 7 8 Cooley’s Motion to Amend His Opposition and his Third Amended Opposition; Marshall and Mungie’s Motions to Strike On January 31, 2011, Cooley filed his opposition to Marshall and Mungie’s motion 9 for summary judgment. However, a few days after Marshall and Mungie filed a reply, Cooley 10 filed a motion to amend his opposition under Rule 15 (Dkt. #37) in an attempt to address Marshall 11 and Mungie’s qualified immunity defense. Cooley even attached a “First Amended Opposition” to 12 this motion. On May 3, 2011, Cooley also filed a “Third Amended Opposition” pursuant to Rule 13 15, attempting to include arguments regarding false imprisonment and emotional distress that he 14 mistakenly did not make in his original opposition. However, Rule 15 provides a mechanism to 15 amend a pleading, and an opposition to a motion is not a pleading. See Fed. R. Civ. P. 7(a); see 16 also Wright & Miller, Federal Practice and Procedure: Civil 3d § 1475. This Court will not 17 condone Cooley’s attempt to improperly use Rule 15 to rebut Marshall and Mungie’s reply. 18 Therefore, Cooley’s motion to amend his opposition is improper and the Court grants both of 19 Marshall and Mungie’s motions to strike (##41, 56). 20 5. 21 As stated above, Cooley filed a motion to amend his opposition and attached to it a Cooley’s Motions to Supplement His First Amended Opposition 22 “First Amended Opposition.” While this motion to amend was still pending, Cooley filed two 23 motions to supplement the “First Amended Opposition” pursuant to Rule 15(d), which allows a 24 party to supplement a pleading. The Court denies both of these motions to supplement. First, the 25 Court has already stricken Cooley’s motion to amend, and, consequently, the attached “First 26 Amended Opposition.” Thus, a motion to supplement an already stricken document is moot. AO 72 (Rev. 8/82) 7 1 Second, Rule 15(d) allows a party to supplement a pleading, and, as stated above, an opposition to 2 a motion is not a pleading under Rule 7(a). Therefore, the Court denies both of Cooley’s motions 3 to supplement his opposition as moot. 4 II. Defendants’ Motion for Summary Judgment 5 As a result of the analysis above, the operative complaint in this case is now 6 Cooley’s Second Amended Complaint, which is attached to his motion to amend (#31). Although 7 Marshall and Mungie’s motion for summary judgment was directed towards Cooley’s Amended 8 Complaint (#23), the Court will nevertheless analyze their motion against the Second Amended 9 Complaint because the only amendment was the addition of LVMPD. Additionally, because all of 10 Cooley’s attempts to amend his opposition have failed, the Court will only consider his original 11 opposition (#30) in this analysis. 12 13 a. Summary Judgment Legal Standard The purpose of summary judgment is to avoid unnecessary trials when there is no 14 dispute as to the facts before the court. Nw. Motorcycle Ass’n v. U.S. Dep’t of Agric., 18 F.3d 15 1468, 1471 (9th Cir. 1994). Summary judgment is appropriate when “the pleadings, the discovery 16 and disclosure materials on file, and any affidavits show there is no genuine dispute as to any 17 material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). 18 An issue is “genuine” if there is a sufficient evidentiary basis on which a reasonable fact-finder 19 could find for the nonmoving party and a dispute is “material” if it could affect the outcome of the 20 suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–49 (1986). 21 Where reasonable minds could differ on the material facts at issue, however, summary judgment is 22 not appropriate. Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995). “The amount of 23 evidence necessary to raise a genuine issue of material fact is enough ‘to require a jury or judge to 24 resolve the parties’ differing versions of the truth at trial.’” Aydin Corp. v. Loral Corp., 718 F.2d 25 897, 902 (9th Cir. 1983) (quoting First Nat'l Bank v. Cities Service Co., 391 U.S. 253, 288–89 26 (1968)). In evaluating a summary judgment motion, a court views all facts and draws all AO 72 (Rev. 8/82) 8 1 inferences in the light most favorable to the nonmoving party. Kaiser Cement Corp. v. Fishbach 2 & Moore, Inc., 793 F.2d 1100, 1103 (9th Cir. 1986). The moving party bears the burden of showing that there are no genuine issues of 3 4 material fact. Zoslaw v. MCA Distrib. Corp., 693 F.2d 870, 883 (9th Cir. 1982). “In order to carry 5 its burden of production, the moving party must either produce evidence negating an essential 6 element of the nonmoving party’s claim or defense or show that the nonmoving party does not 7 have enough evidence of an essential element to carry its ultimate burden of persuasion at trial.” 8 Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000). Once the 9 moving party satisfies Rule 56’s requirements, the burden shifts to the party resisting the motion to 10 “set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 256. 11 The nonmoving party “may not rely on denials in the pleadings but must produce specific 12 evidence, through affidavits or admissible discovery material, to show that the dispute exists,” 13 Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991), and “must do more than simply 14 show that there is some metaphysical doubt as to the material facts.” Bank of America v. Orr, 285 15 F.3d 764, 783 (9th Cir. 2002) (internal citations omitted). “The mere existence of a scintilla of 16 evidence in support of the plaintiff's position will be insufficient.” Anderson, 477 U.S. at 252. 17 b. Analysis 18 1. 19 The Fourth Amendment to the United States Constitution protects people from Fourth Amendment Claims 20 unreasonable searches and seizures by the government. U.S. Const. Amend. IV. However, “[i]f 21 an officer has probable cause to believe that an individual has committed even a very minor 22 criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the 23 offender.” Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001). “Probable cause exists where 24 ‘the facts and circumstances within [the officers’] knowledge and of which they had reasonably 25 trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in 26 the belief that’ an offense has been or is being committed.” Brinegar v. United States, 338 U.S. AO 72 (Rev. 8/82) 9 1 160, 175–76 (1949) (quoting Carroll v. United States, 267 U.S. 132, 162 (1925)). Once an officer 2 has made a lawful arrest, the officer may conduct a search of the arrestee’s person and area of 3 control. United States v. Robinson, 414 U.S. 218, 224 (1973). 4 Cooley asserts two Fourth Amendment causes of action against Marshall and 5 Mungie in his Second Amended Complaint (#31). Count one is for unreasonable search and 6 seizure and count two is for false arrest. Cooley essentially alleges that Marshall and Mungie 7 engaged in five distinct acts of unconstitutional conduct: (1) initially stopping Cooley without 8 probable cause; (2) placing him in handcuffs; (3) conducting a pat down search of his person; (4) 9 detaining him at the scene in the police van; and (5) transporting him to the Las Vegas City Jail. 10 However, Cooley does not specify which of these alleged acts falls within each count. Therefore, 11 instead of analyzing each claim separately, the Court will analyze both claims together by 12 reviewing each of the five alleged acts against the relevant Fourth Amendment requirements. 13 A. The Initial Stop Cooley alleges that once he crossed Maryland Parkway Marshall and Mungie 14 15 approached him on their bikes, turned on their LED bike lights, and asked him to stop. Cooley 16 claims this initial stop was unconstitutional because Marshall and Mungie did not have probable 17 cause to stop him. However, the evidence presented demonstrates that they did have probable 18 cause. Shortly after the arrest Marshall filled out a police report which states that as he and 19 Mungie were on bike patrol they saw “Cooley walk[ing] eastbound across Maryland Pkwy on the 20 south side of Fremont on a red hand passing another citizen waiting for the walk sign.” Marshall 21 does not clarify in this report whether the red hand that he observed was on the eastbound or 22 westbound signal. However, even assuming that Marshall could only observe the westbound 23 signal from his position, the report still supports a showing of probable cause because an officer of 24 reasonable caution would assume that if the westbound pedestrian signal was displaying a red 25 hand then the eastbound pedestrian signal would be as well. Therefore, Marshall and Mungie 26 /// AO 72 (Rev. 8/82) 10 1 would have probable cause that Cooley violated NRS 484B.283(4)(b), which makes it unlawful for 2 a pedestrian to cross a street while the “Don’t Walk” light (i.e., a red hand) is on. Cooley alleges that the westbound pedestrian signal was malfunctioning at the time 3 4 of the incident. Specifically, he alleges that while both the westbound traffic signals and the 5 eastbound pedestrian signal were green, the westbound pedestrian signal would remain red. 6 Cooley claims that Marshall and Mungie mistakenly thought the eastbound pedestrian signal was 7 also red, when in fact it was green. Marshall and Mungie, however, were not aware of this alleged 8 malfunction at the time of the initial stop because Cooley did not point it out to anyone with the 9 LVMPD until after he was placed in the police van. Therefore, Marshall and Mungie cannot be 10 held accountable for a malfunction that they were not aware of at the time of the initial stop. See 11 Beck v. Ohio, 379 U.S. 89, 92 (1964) (constitutionality of arrest depends upon facts and 12 circumstances within officers knowledge “at the moment of arrest”). Accordingly, the Court finds 13 that, based on the evidence presented, no reasonable jury could find Marshall and Mungie lacked 14 probable cause to conduct the initial stop of Cooley for crossing on a red light. The Court 15 therefore grants Marshall and Mungie’s motion for summary judgment as to this conduct. 16 B. Cooley Placed in Handcuffs Cooley also alleges that Marshall and Mungie violated his Fourth Amendment 17 18 rights by placing him in handcuffs after the initial stop. However, if a law enforcement officer has 19 probable cause that a person commits even a minor crime in his presence then the officer may 20 lawfully arrest that person. Atwater, 532 U.S. at 354. And the evidence presented to the Court 21 demonstrates that, at the time they handcuffed Cooley, Marshall and Mungie had probable cause 22 he had committed a traffic violation. Similarly, there is no evidence that, at the time they 23 handcuffed Cooley, Marshall and Mungie knew their probable cause was based on an allegedly 24 malfunctioning pedestrian signal. Accordingly, the Court grants Marshall and Mungie’s motion 25 for summary judgment as to this conduct as well. 26 /// AO 72 (Rev. 8/82) 11 1 2 C. Cooley Searched Cooley alleges that after he was handcuffed Mungie conducted a pat down search 3 of his person. Cooley claims that the pat down search violated his right to be free from 4 unreasonable searches. However, an officer may conduct a search of a person incident to a lawful 5 arrest. United States v. Robinson, 414 U.S. at 224. Therefore, because the Court finds that the 6 evidence produced demonstrates that Cooley’s arrest was lawful, i.e., Marshall and Mungie had 7 probable cause to arrest him for violation of Nevada’s traffic laws, the contemporaneous pat down 8 search of Cooley’s person did not violate Cooley’s Fourth Amendment right to be free from 9 unreasonable searches. Accordingly, the Court grants Marshall and Mungie’s motion for summary 10 judgment for this conduct as well. 11 12 D. Detaining Cooley in the Police Van and Transporting him to Jail Cooley alleges that after he was searched, Marshall and Mungie placed him in the 13 back of a police van and eventually transported him to jail. He alleges this conduct violated his 14 Fourth Amendment right to be free from unreasonable seizures. However, as stated above, federal 15 law permits a law enforcement officer to take a person into custody if there is probable cause that 16 the person committed a minor crime in his presence, Atwater, 532 U.S. at 354, and, as previously 17 stated, the evidence produced demonstrates that Marshall and Mungie had probable cause. 18 At some point during Cooley’s detention in the police van he allegedly informed an 19 officer with the LVMPD that the westbound pedestrian signal was malfunctioning. This 20 unidentified officer allegedly conducted a brief investigation of the signals and confirmed that 21 Cooley was correct. Cooley seems to argue that once Marshall and Mungie discovered that the 22 pedestrian signal was malfunctioning they should have released him. Thus, according to Cooley, 23 his detention in the van should have ended and he should not have been taken to jail. 24 However, Cooley provides no evidence to support his allegations. First, there is no 25 evidence the pedestrian signal at issue was malfunctioning, or, at the very least, not synchronized 26 with the traffic signals. To the contrary, the public records request that Cooley made for the AO 72 (Rev. 8/82) 12 1 Fremont Street and Maryland Parkway intersection shows only routine and preventative 2 maintenance was performed on the signals since the date of the incident. In addition, even if the 3 unidentified officer did confirm that Cooley correctly observed that the signals were 4 malfunctioning, there is no evidence the officer relayed that information to Marshall and Mungie. 5 Therefore, because Cooley provides no evidence that Marshall and Mungie kept him in custody 6 and transported him to jail despite being made aware of an allegedly malfunctioning pedestrian 7 signal, the Court grants Marshall and Mungie’s motion for summary judgment as to this conduct 8 as well. 9 In sum, Cooley has provided no evidence to support his Fourth Amendment 10 allegations. Accordingly, the Court grants Marshall and Mungie’s motion for summary judgment 11 as to counts one and two of Cooley’s complaint. 12 2. 13 In count four of Cooley’s Second Amended Complaint (#31) he alleges that “the Fourteenth Amendment Claim 14 Fourteenth Amendment of the United States Constitution was violated,” but he does not say how. 15 Because Cooley alleges no facts that would support a Fourteenth Amendment violation, the Court 16 assumes he is invoking it only to formally recognize that the Fourth Amendment’s search and 17 seizure protections have been incorporated to apply against the states via the Fourteenth 18 Amendment. Wolf v. Colorado, 338 U.S. 25 (1949). But even if Cooley intends to assert an 19 independent claim under the Fourteenth Amendment, he has provided no evidence in support of 20 such a claim. Accordingly, the Court grants Marshall and Mungie’s motion as to this claim as 21 well. 22 23 24 3. Article 1, Section 18 of the Nevada Constitution A. Liberal Construction of Cooley’s Claim “In civil rights cases, where the plaintiff is pro se, we have an obligation to construe 25 the pleadings liberally and to afford the plaintiff the benefit of any doubt.” King v. Atiyeh, 814 26 F.2d 565, 567 (9th Cir. 1987). Count three of Cooley’s Second Amended Complaint vaguely AO 72 (Rev. 8/82) 13 1 states, in its entirety, “Plaintiff’s right guaranteed by Article 1, section 18 of the Nevada State 2 Constitution not to be falsely imprisoned was violated.” (Dkt. #31). Cooley is more specific in his 3 opposition to Marshall and Mungie’s motion for summary judgment. He argues that Marshall and 4 Mungie violated his rights under Article 1, section 18 by abusing their discretion under NRS 5 484A.730, which gives law enforcement officers discretion to either issue a citation or make an 6 arrest when a person violates a traffic law. Cooley does not mention NRS 484A.730 in his Second 7 Amended Complaint, or any of his previous complaints for that matter. Nevertheless, Marshall 8 and Mungie had a sufficient opportunity to respond to Cooley’s arguments in their reply. 9 Therefore, the Court will liberally construe count three of Cooley’s Second Amended Complaint 10 as being a claim for abuse of discretion in violation of Article 1, section 18 of the Nevada 11 Constitution. 12 Cooley also attempts to assert a false imprisonment claim in his opposition, which 13 seems natural because he actually uses the phrase “falsely imprisoned” in count three of his 14 Second Amended Complaint. However, false imprisonment is a state common law tort claim, 15 Hernandez v. City of Reno, 634 P.2d 668, 671 (Nev. 1981), not a state constitutional claim, and 16 count three is clearly based on Article 1, section 18 of the Nevada Constitution. Cooley is 17 apparently using state tort law language (i.e., falsely imprisoned) to describe his alleged state 18 constitutional violations. And regardless of what Cooley intends the phrase “falsely imprisoned” 19 to mean, it is clear that he believes it is a right guaranteed by Article 1, section 18 of the Nevada 20 Constitution. However, as far as the Court is aware, Article 1, section 18 of the Nevada 21 Constitution guarantees a right to be free from unreasonable searches and seizures, not false 22 imprisonments. Nev. Const. Art. 1, § 18. That is, although the facts underlying a violation of 23 Article 1, section 18 could also give rise to a tort law claim for false imprisonment, Article 1, 24 section 18 itself is not the source of such claim. Therefore, even construing count three of 25 Cooley’s Second Amended Complaint liberally, as the Court has already done, the Court refuses to 26 /// AO 72 (Rev. 8/82) 14 1 recognize a new, independent state tort claim when Cooley clearly intends count three to be a state 2 constitutional claim. Accordingly, the Court construes count three of Cooley’s Second Amended 3 Complaint as an abuse of discretion claim in violation of Article 1, section 18 of the Nevada 4 Constitution. 5 6 B. Abuse of Discretion Article 1, section 18 of the Nevada Constitution is almost an exact replica of the 7 Fourth Amendment to the United States Constitution. However, “states are free to interpret their 8 own constitutional provisions as providing greater protections than analogous federal provisions.” 9 State v. Bayard, 71 P.3d 498, 502 (Nev. 2003). Thus, a search and seizure may violate Article 1, 10 section 18 of the Nevada Constitution even though it is perfectly constitutional under the Fourth 11 Amendment. Id. 12 When a law enforcement officer stops a person for violation of Nevada’s traffic 13 laws, NRS 484A.730 gives the officer the discretion to either issue the person a citation or take the 14 person before a magistrate. NRS 484A.730. Law enforcement officers violate Article 1, section 15 18 of the Nevada Constitution when they improperly exercise their discretion under 16 NRS 484A.730. Id. To be proper, an officer’s exercise of discretion must be reasonable, which 17 requires both “probable cause that a traffic offense has been committed and circumstances that 18 require immediate arrest. Absent special circumstances requiring immediate arrest, individuals 19 should not be made to endure the humiliation of arrest and detention when a citation will satisfy 20 the state’s interest.” Id. (emphasis added). Such “special circumstances” include when an officer 21 has “probable cause to believe other criminal misconduct is afoot.” Id. 22 Cooley argues that a reasonable jury could find that Marshall and Mungie 23 improperly exercised their discretion under NRS 484A.730 when they arrested him for violating 24 NRS 484B.283(4)(b). The Court agrees. First, the Court notes that, as stated above, Marshall and 25 Mungie had probable cause that Cooley committed a traffic offense. Therefore, the only 26 unresolved issue for purposes of this claim is whether special circumstances existed that required AO 72 (Rev. 8/82) 15 1 Cooley’s immediate arrest. Marshall and Mungie argue that special circumstances existed because 2 Cooley was hostile with them, using expletives towards them and telling them to take him to jail. 3 However, the Court finds that a reasonable jury could find this level of hostility would not give 4 Marshall and Mungie probable cause to believe that other criminal activity was afoot, or that any 5 other special circumstances were present. In fact, a reasonable jury may find that a pedestrian 6 would be upset for being handcuffed and threatened with imprisonment for jaywalking. Also, the 7 circumstances of Cooley’s arrest were hardly anomalous. Cooley was walking on Fremont Street 8 sometime after 11:00 pm and crossed against a red hand. Many people walk on Fremont Street 9 after dark, and a number of them jaywalk. Thus, a jury could reasonably find that neither the 10 circumstances of Cooley’s arrest nor his behavior after the arrest would give the officers probable 11 cause to believe that Cooley was involved in some other criminal activity. Accordingly, the Court 12 denies Marshall and Mungie’s motion for summary judgment as to this claim. 13 5. 14 Marshall and Mungie’s request that the Court dismiss Cooley’s punitive damages Punitive Damages 15 claim seems to be limited to Cooley’s § 1983 claims (i.e., the two Fourth Amendment claims and 16 the Fourteenth Amendment claim) in that they only cite authority involving § 1983 claims. 17 However, the Court has granted summary judgment in their favor with respect to those claims, and 18 the only remaining claim is Cooley’s state constitutional claim. Therefore, the Court denies their 19 motion for summary judgment with respect to punitive damages as moot. 20 III. Summary The operative complaint in this case is Cooley’s Second Amended Complaint 21 22 (#31). However, the only remaining claim in the Second Amended Complaint, at least with 23 respect to Marshall and Mungie, is Cooley’s abuse of discretion claim under Article 1, section 18 24 of the Nevada Constitution. 25 /// 26 /// AO 72 (Rev. 8/82) 16 1 CONCLUSION 2 Accordingly, and for good cause appearing, 3 IT IS HEREBY ORDERED that Cooley’s Motion for Leave to File Second 4 Amended Complaint (#31) is GRANTED. The Court orders the Clerk of Court to enter Cooley’s 5 Second Amended Complaint in the docket. IT IS FURTHER ORDERED that Cooley’s Third Amended Complaint (#58) is 6 7 stricken for failure to comply with Rule 15(a)(1)(B) of the Federal Rules of Civil Procedure. The 8 Court orders the Clerk of Court to remove the Defendants named in Cooley’s Third Amended 9 Complaint (#58) from the docket and replace them with the Defendants named in Cooley’s Second 10 Amended Complaint (#31). IT IS FURTHER ORDERED that Marshall and Mungie’s Motion to Strike 11 12 Cooley’s Third Amended Complaint (#61) is DENIED as moot. IT IS FURTHER ORDERED that Cooley’s Notice Positively Identifying “Jane 13 14 Doe” and Christopher Plotkin is stricken for failure to comply with Rule 15(a) of the Federal Rules 15 of Civil Procedure. IT IS FURTHER ORDERED that Marshall and Mungie’s Motion to Strike (#41) is 16 17 GRANTED. The Court orders the Clerk of Court to strike Cooley’s Motion to File His First 18 Amended Opposition (#37). 19 IT IS FURTHER ORDERED that Marshall and Mungie’s Motion to Strike (#56) is 20 GRANTED. The Court orders the Clerk of Court to strike Cooley’s Second Amended Opposition 21 (#55). IT IS FURTHER ORDERED that Cooley’s Motion to Supplement His First 22 23 Amended Opposition (#49) is DENIED as moot. IT IS FURTHER ORDERED that Cooley’s Second Motion to Supplement His First 24 25 Amended Opposition (#51) is DENIED as moot. 26 /// AO 72 (Rev. 8/82) 17 1 2 3 IT IS FURTHER ORDERED that Marshall and Mungie’s Motion for Summary Judgment (#25) is GRANTED in part and DENIED in part. • DENIED as to (1) Cooley’s claim for Abuse of Discretion under Article 1, section 18 of the Nevada Constitution; 4 5 • DENIED as moot as to Cooley’s claim for punitive damages; 6 • GRANTED as to all other claims. 7 Dated: July 28, 2011 8 ____________________________________ ROGER L. HUNT United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 AO 72 (Rev. 8/82) 18
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