Hartrim v. Las Vegas Metropolitan Police Department et al, No. 2:2011cv00003 - Document 44 (D. Nev. 2013)
Court Description: ORDER Granting in Part and Denying in Part 28 CHC's Motion to Dismiss. Only Hartrim's negligence claim against CHC survives summary judgment. IT IS FURTHER ORDERED that the 29 LVMPD's Motion for Summary Judgment is Granted in Part and Denied in Part. Signed by Judge Miranda M. Du on 2/22/2013. (Copies have been distributed pursuant to the NEF - SLD)
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Hartrim v. Las Vegas Metropolitan Police Department et al Doc. 44 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 DISTRICT OF NEVADA 9 *** 10 JERRY HARTRIM, Plaintiff, 11 ORDER v. 12 13 Case No. 2:11-cv-00003-MMD-PAL LAS VEGAS METROPOLITAN POLICE DEPARTMENT, et al., 14 (Def.’s Motion to Dismiss – dkt. no. 28; Defs.’ Motion for Summary Judgment – dkt. no. 29) Defendants. 15 16 17 I. SUMMARY 18 Before the Court are Defendant California Hotel and Casino’s (“CHC”) Motion to 19 Dismiss (dkt. no. 28) and Defendants Las Vegas Metropolitan Police Department 20 (“LVMPD” or “Department”), Officer Ferrante, and Officer Delaria’s Motion for Summary 21 Judgment (dkt. no. 29). 22 II. BACKGROUND 23 On November 19, 2008, Plaintiff Jerry Hartrim and his wife arrived in Las Vegas 24 and checked in to a guest room at Sam’s Town Hotel and Casino (“Sam’s Town”), a 25 hotel operated by CHC. 26 approximately 8:30 a.m., and returned at approximately 5:05 p.m. They tried to re-enter 27 the room, but noticed that the door was locked from the inside. A woman then answered 28 the door, and told Hartrim that she had been assigned this room. The woman, later After checking in, Hartrim and his wife left the room at Dockets.Justia.com 1 identified as Margret Wolke,1 had been reported missing earlier in the day, and suffers 2 from Alzheimer’s disease. 3 discovered that Wolke had removed their belongings to the floor and had eaten some of 4 their food. Hartrim called the front desk from the room, and his wife walked down to the 5 hotel lobby. Wolke eventually granted access to the Hartrims, who 6 In response, Sam’s Town security and a front desk staff member arrived at the 7 Hartrims’ room along with LVMPD officers, including Defendants Delaria and Ferrante. 8 At this point, the parties dispute the relevant facts. After being asked to leave the room, 9 Hartrim alleges that three LVMPD officers, including Delaria and Ferrante, grabbed him 10 and pushed him into the hallway opposite the room doorway and shouted at him to stop 11 resisting. 12 officers’ arrival, and shoved an officer after the officer placed his arm on Hartrim. 13 Hartrim was handcuffed and detained, then taken downstairs and placed in the squad 14 car. After running a background check, the officers released Hartrim and gave him a 15 citation for obstructing an officer. The case against Hartrim was ultimately dismissed on 16 May 4, 2009. LVMPD alleges that an agitated Hartrim refused to calm down upon the 17 On November 15, 2010, Hartrim sued Defendants in state court alleging various 18 constitutional violations, including violations of his First, Fourth, and Fourteenth 19 Amendment rights, as well as common law conspiracy, negligence, false imprisonment, 20 and intentional infliction of emotional duress. After the Court dismissed Hartrim’s state 21 law claims against LVMPD and the officers (see dkt. no. 17), Hartrim filed his First 22 Amended Complaint (“FAC”) on August 4, 2011. 23 III. LEGAL STANDARD 24 The purpose of summary judgment is to avoid unnecessary trials when there is no 25 dispute as to the facts before the court. Nw. Motorcycle Ass’n v. U.S. Dep’t of Agric., 18 26 27 28 Hartrim’s papers identify the woman as “Mrs. Wolz.” For consistency, the Court employs CHC’s naming. 1 2 1 F.3d 1468, 1471 (9th Cir. 1994). Summary judgment is appropriate when the pleadings, 2 the discovery and disclosure materials on file, and any affidavits “show there is no 3 genuine issue as to any material fact and that the movant is entitled to judgment as a 4 matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986). An issue is “genuine” 5 if there is a sufficient evidentiary basis on which a reasonable fact-finder could find for 6 the nonmoving party and a dispute is “material” if it could affect the outcome of the suit 7 under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). 8 Where reasonable minds could differ on the material facts at issue, however, summary 9 judgment is not appropriate. Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 10 1995). “The amount of evidence necessary to raise a genuine issue of material fact is 11 enough ‘to require a jury or judge to resolve the parties' differing versions of the truth at 12 trial.’” Aydin Corp. v. Loral Corp., 718 F.2d 897, 902 (9th Cir. 1983) (quoting First Nat’l 13 Bank v. Cities Service Co., 391 U.S. 253, 288-89 (1968)). In evaluating a summary 14 judgment motion, a court views all facts and draws all inferences in the light most 15 favorable to the nonmoving party. Kaiser Cement Corp. v. Fishbach & Moore, Inc., 793 16 F.2d 1100, 1103 (9th Cir. 1986). 17 The moving party bears the burden of showing that there are no genuine issues 18 of material fact. Zoslaw v. MCA Distrib. Corp., 693 F.2d 870, 883 (9th Cir. 1982). “In 19 order to carry its burden of production, the moving party must either produce evidence 20 negating an essential element of the nonmoving party’s claim or defense or show that 21 the nonmoving party does not have enough evidence of an essential element to carry its 22 ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 23 F.3d 1099, 1102 (9th Cir. 2000). 24 requirements, the burden shifts to the party resisting the motion to “set forth specific 25 facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 256. The 26 nonmoving party “may not rely on denials in the pleadings but must produce specific 27 evidence, through affidavits or admissible discovery material, to show that the dispute 28 exists,” Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991), and “must do Once the moving party satisfies Rule 56’s 3 1 more than simply show that there is some metaphysical doubt as to the material facts.” 2 Orr v. Bank of Am., 285 F.3d 764, 783 (9th Cir. 2002) (internal citations omitted). “The 3 mere existence of a scintilla of evidence in support of the plaintiff’s position will be 4 insufficient.” Anderson, 477 U.S. at 252. 5 IV. DISCUSSION CHS’s Motion to Dismiss 6 A. 7 CHS seeks dismissal of Hartrim’s various claims against it. As the parties’ 8 arguments rely on facts gathered in discovery, this Court construes CHS’s Motion as one 9 seeking summary judgment. See Grove v. Mead Sch. Dist. No. 354, 753 F.2d 1528, 10 1532-33 (9th Cir. 1985) (noting that when parties invite district court to look beyond the 11 pleadings in evaluating a Rule 12(b)(6) motion, the motion must be treated as one for 12 summary judgment under Rule 56). 13 1. § 1983 Claim 14 First, Hartrim fails to demonstrate that CHS acted under color of state law, as 15 required to state a 42 U.S.C. § 1983 claim. Hartrim argues that CHS employees are 16 liable for various negligent acts, but does not argue any relationship between CHS 17 employees and LVMPD officers. Hartrim only argues that hotel security asked LVMPD 18 officers to enter Hartrim’s room. These facts do not support a finding of § 1983 liability 19 for a private entity like CHS. 20 “Under § 1983, a claim may lie against a private party who is a willful participant in 21 joint action with the State or its agents. Private persons, jointly engaged with state 22 officials in the challenged action, are acting under color of law for purposes of § 1983 23 actions.” Dietrich v. John Ascuaga’s Nugget, 548 F.3d 892, 899-900 (9th Cir. 2008) 24 (internal quotation omitted). 25 [Defendants] acted under color of state law or authority in order to demonstrate joint 26 action. DeGrassi v. City of Glendora, 207 F.3d 636, 647 (9th Cir. 2008). “[M]erely 27 complaining to the police does not convert a private party into a state actor.” Collins v. 28 Womancare, 878 F.2d 1145, 1155 (9th Cir. 1989). Here, Hartrim has provided no facts The plaintiff must provide facts tending to show that 4 1 that support a finding of joint action beyond merely calling the police to the scene of the 2 incident. 3 Private individuals may also establish joint action through a conspiracy. 4 Womancare, 878 F.2d at 383. An actionable conspiracy consists of a combination of 5 two or more persons who, by some concerted action, intend to accomplish an unlawful 6 objective for the purpose of harming another, and damage results from the act or acts. 7 Sutherland v. Gross, 772 P.2d 1287, 1290 (Nev. 1989) (citing Collins v. Union Fed. 8 Savings & Loan, 662 P.2d at 622 (Nev. 1983)). Hartrim cannot support a showing of a 9 conspiracy, as he cannot demonstrate any intent on the part of CHC staff to accomplish 10 an unlawful objective. Although CHC staff may have let LVMPD into Hartrim’s room, 11 there are no facts that demonstrate CHC staff’s involvement in the circumstances that 12 led to Hartrim being grabbed or detained. Therefore, no genuine issue of material fact 13 exists with respect to the § 1983 claims against CHC. 14 2. False Imprisonment 15 CHC also seeks judgment on Hartrim’s false imprisonment claim. “To establish 16 false imprisonment of which false arrest is an integral part, it is necessary to prove that 17 the person be restrained of his liberty under the probable imminence of force without any 18 legal cause or justification.” Hernandez v. City of Reno, 634 P.2d 668, 671 (Nev. 1981) 19 (quoting Marschall v. City of Carson, 464 P.2d 494, 497 (Nev. 1970)). “[A]n actor is 20 subject to liability to another for false imprisonment ‘if (a) he acts intending to confine the 21 other or a third person within boundaries fixed by the actor, and (b) his act directly or 22 indirectly results in such a confinement of the other, and (c) the other is conscious of the 23 confinement or is harmed by it.’” Hernandez, 634 P.2d at 671 (quoting Restatement 24 (Second) of Torts § 35 (1965)). 25 Here, Hartrim failed to introduce any evidence to raise a genuine issue of material 26 fact as to CHC’s liability for false imprisonment. There are no allegations that CHC was 27 involved in intentional confinement or detention of Hartrim. The evidence demonstrates 28 that LVMPD officers detained Hartrim outside of CHC’s involvement. Hartrim provides 5 1 no evidence to suggest otherwise, and thus cannot sustain a claim of false imprisonment 2 against CHC. 3. 3 Conspiracy 4 For the same reasons discussed above, Hartrim’s conspiracy claim against CHC 5 also fails. No evidence exists to demonstrate an intent to commit unlawful acts. 6 Although CHC employees might have requested officers enter Hartrim’s room, this fact 7 does not establish conspiracy liability in the absence of an intent to commit unlawful acts 8 in concert with the officers. 4. 9 Negligence 10 “To prevail on a traditional negligence theory, a plaintiff must demonstrate that (1) 11 the defendant owed the plaintiff a duty of care, (2) the defendant breached that duty, (3) 12 the breach was the legal cause of the plaintiff's injuries, and (4) the plaintiff suffered 13 damages.” Foster v. Costco Wholesale Corp., 291 P.3d 150, 153 (Nev. 2012). “Courts 14 often are reluctant to grant summary judgment in negligence actions because whether a 15 defendant was negligent is generally a question of fact for the jury to resolve.” Id. “To 16 establish entitlement to judgment as a matter of law, Costco must negate at least one of 17 the elements of negligence.” Id. 18 It is unclear whether Hartrim raises negligence arising out of the force deployed 19 on him or based on CHC staff’s actions in allowing the unauthorized guest in his room. 20 To the extent that he seeks to hold CHC liable for the force used on Hartrim and his 21 detention, Hartrim fails to provide enough evidence of a breach. He cannot demonstrate 22 that CHC staff were involved in the use of force against him, nor can he show that CHC 23 staff were involved in his detention. However, Hartrim has raised a genuine issue of 24 material fact as to CHC staff’s negligence with respect to the unauthorized access to his 25 room by Wolke. As the provider of hospitality services to Hartrim, CHC owed Hartrim a 26 duty to ensure that his room would be safe from unauthorized access. Hatrim raised a 27 fact issue as to whether CHC breached this duty and caused him injury. 28 /// 6 5. 1 Intentional Infliction of Emotional Distress 2 “To establish a cause of action for intentional infliction of emotional distress, 3 Barmettler must establish the following: (1) extreme and outrageous conduct with either 4 the intention of, or reckless disregard for, causing emotional distress, (2) the plaintiff’s 5 having suffered severe or extreme emotional distress and (3) actual or proximate 6 causation.” Barmettler v. Reno Air, Inc., 956 P.2d 1382, 1386 (Nev. 1998). 7 Hartrim fails to establish this cause of action against CHC. He argues that the 8 excessive force lodged against him and LVMPD’s detention caused this distress, but he 9 does not argue that CHC was involved in that injury. Accordingly, CHC cannot be held 10 liable under this theory for their conduct, as Hartrim fails to raise a genuine issue of fact 11 as to any “extreme and outrageous” conduct of CHC that caused this injury. LVMPD’s Motion for Summary Judgment (dkt. no. 29) 12 B. 13 Defendants LVMPD, Delaria, and Ferrante (hereinafter “LVMPD”) seek summary 14 judgment on Hartrim’s Fourth Amendment claims against Officers Delaria and Ferrante, 15 as well as on Hatrim’s Monell claims against LVMPD. The Court denies the former, but 16 grants the latter. 1. 17 Claims Against Individual Officers 18 The parties offer disputed accounts as to what occurred in the hallway outside of 19 Hartrim’s hotel room. Hartrim argues that while he was agitated at the presence of an 20 unauthorized individual in his room, he did not provoke or contact LVMPD officers. He 21 alleges that LVMPD’s use of force was excessive and unjustified, and led to an unlawful 22 detention and citation.2 23 response to a live investigation was justified in light of the tense atmosphere and 24 Hartrim’s shoving of one of the officers. Taken the facts in the light most favorable to 25 /// LVMPD officers paint a different picture, arguing that their 26 27 28 2 Hartrim does not allege an excessive force claim in his FAC. He only challenges his unlawful detention and arrest. 7 1 Hartrim, a reasonable juror could find that the officers violated Hartrim’s Fourth 2 Amendment rights. 3 The legality of LVMPD’s officers’ conduct requires analyzing two sets of facts in 4 this case: the seizure and handcuffing of Hartrim, and Hartrim’s citation. In Terry v. 5 Ohio, the Supreme Court created a limited exception to the general requirement that 6 officers must have probable cause before conducting a search. 392 U.S. 1, 30 (1968). 7 The Court held that officers may conduct an investigatory stop consistent with the Fourth 8 Amendment “where a police officer observes unusual conduct which leads him 9 reasonably to conclude in light of his experience that criminal activity may be afoot . . . .” 10 Id. In addition, an officer may conduct a brief pat-down (or frisk) of an individual when 11 the officer reasonably believes that “the persons with whom he is dealing may be armed 12 and presently dangerous.” Id. “[T]he stop and the frisk, must be analyzed separately; 13 the reasonableness of each must be independently determined.” 14 Thomas, 863 F.2d 622, 628 (9th Cir.1988). United States v. 15 In Terry, the Court also explained that the analysis regarding whether a frisk was 16 constitutional “is a dual one,” that asks (1) “whether the officer’s action was justified at its 17 inception,” and (2) whether the officer's action was “confined in scope” by engaging in a 18 “carefully limited search of the outer clothing . . . in an attempt to discover weapons 19 which might be used to assault” an officer. Terry, 392 U.S. at 20, 29-30. The officer 20 must provide “specific and articulable facts” that indicate something more than a general 21 “governmental interest in investigating crime.” Id. at 21, 23. Indeed, a pat-down “is not 22 justified by any need to prevent the disappearance or destruction of evidence of crime. 23 The sole justification of the search in the present situation is the protection of the police 24 officer and others nearby . . . .” Id. at 29 (emphasis added) (citation omitted). Thus, the 25 appropriate analysis is “whether a reasonably prudent man in the circumstances would 26 be warranted in the belief that his safety or that of others was in danger.” Id. at 27. 27 28 Under ordinary circumstances, drawing weapons and using handcuffs are not part of a Terry stop. Washington v. Lambert, 98 F.3d 1181, 1187 (9th Cir. 1996). 8 1 Nevertheless, courts “allow intrusive and aggressive police conduct without deeming it 2 an arrest . . . when it is a reasonable response to legitimate safety concerns on the part 3 of the investigating officers.” Id. at 1186; accord Alexander v. Cnty. of Los Angeles, 64 4 F.3d 1315, 1320 (9th Cir. 1995) (“It is well settled that when an officer reasonably 5 believes force is necessary to protect his own safety or the safety of the public, 6 measures used to restrain individuals, such as stopping them at gunpoint and 7 handcuffing them, are reasonable.”). 8 arrest, courts also consider “the specificity of the information that leads the officers to 9 suspect that the individuals they intend to question are the actual suspects being sought” 10 In determining whether a stop amounts to an and “the number of police officers present.” Lambert, 98 F.3d at 1189-90. 11 Here, a question of fact exists as to the circumstances that led to Hartrim’s Terry 12 stop. LVMPD argues that Hartrim’s shoving of LVMPD officers coupled with the live 13 investigation into the whereabouts of Ms. Wolke necessitated Hartrim’s handcuffing and 14 detention. Hartrim disputes this contention, and argues that LVMPD officers initiated the 15 Terry stop after he raised his voice to the officers. Drawing all inferences in favor of 16 Hartrim, a jury may reasonably conclude that the officers’ investigatory detention lacked 17 reasonableness, and was not justified on the basis of officer safety or the ongoing 18 investigation. The same is true for LVMPD’s citation of Hartrim. The Court’s review of 19 the surveillance video lodged by Hartrim does not conclusively resolve this factual 20 dispute, as the grainy footage makes it difficult to determine the lawfulness of LVMPD’s 21 conduct. This factual dispute precludes a finding of qualified immunity, see Torres v. 22 City of Los Angeles, 548 F.3d 1197, 1210-11 (9th Cir. 2008) (noting that where 23 “historical facts material to the qualified immunity determination are in dispute,” a jury 24 must decide those facts), and LVMPD’s Motion with respect to the individual officers is 25 denied. 26 2. LVMPD’s Monell Liability 27 LVMPD also seeks summary judgment on Hartrim’s constitutional claims against 28 the Department. As LVMPD correctly notes, “[a] government entity may not be held 9 1 liable under 42 U.S.C. § 1983, unless a policy, practice, or custom of the entity can be 2 shown to be a moving force behind a violation of constitutional rights.” Dougherty v. City 3 of Covina, 654 F.3d 892, 900 (9th Cir. 2011) (citing Monell v. Dep’t of Soc. Servs. of the 4 City of New York, 436 U.S. 658, 694 (1978)). 5 governmental entities under Monell, a plaintiff must prove ‘(1) that [the plaintiff] 6 possessed a constitutional right of which [s/]he was deprived; (2) that the municipality 7 had a policy; (3) that this policy amounts to deliberate indifference to the plaintiff’s 8 constitutional right; and, (4) that the policy is the moving force behind the constitutional 9 violation.’” Dougherty, 654 F.3d at 900 (quoting Plumeau v. Sch. Dist. No. 40 Cnty. of 10 “In order to establish liability for Yamhill, 130 F.3d 432, 438 (9th Cir. 1997)). 11 Failure to train may amount to a policy of “deliberate indifference,” if the need to 12 train was obvious and the failure to do so made a violation of constitutional rights likely. 13 City of Canton v. Harris, 489 U.S. 378, 390 (1989). Similarly, a failure to supervise that 14 is “sufficiently inadequate” may amount to “deliberate indifference.” Davis v. City of 15 Ellensburg, 869 F.2d 1230, 1235 (9th Cir. 1989). 16 supervision, however, does not give rise to a Monell claim. Id. Mere negligence in training or 17 In support of his Monell claim, Hartrim argues that LVMPD’s failure to discipline 18 the offending officers demonstrates the Department’s policy or custom justifying 19 excessive force and unreasonable detentions. He appends two exhibits, a news story 20 involving calls for investigations of LVMPD shootings, as well as an American Civil 21 Liberties Union (“ACLU”) request for a Department of Justice investigation into the 22 LVMPD’s alleged persistent violations of individuals’ Fourth and Fourteenth Amendment 23 rights. It is clear that a single instance of unconstitutional conduct by a non-policymaking 24 employee cannot on its own demonstrate a policy or practice of unconstitutional conduct. 25 Davis v. City of Ellensburg, 869 F.2d 1230, 1233-34 (9th Cir. 1989) (single incident of 26 excessive force by police officers inadequate to establish liability); see, e.g., Peschel v. 27 City of Missoula, 686 F. Supp. 2d 1107, 1124 (D. Mont. 2009) (granting summary 28 judgment in favor of the City where the only evidence of custom was the failure to 10 1 discipline officer involved in alleged constitutional violation at issue in the case). The 2 reports appended to Hartrim’s Response focus mostly on officer-involved shootings, and 3 do not address suspicion-less and illegal detentions, as alleged here. The Court cannot 4 conclude, on the basis of a request by the ACLU concerning excessive force and 5 shootings, that a pattern and practice of unconstitutional detentions and Terry stops 6 exists. Hartrim has failed to make the required showing as a matter of law. 7 V. CONCLUSION 8 Accordingly, IT IS HEREBY ORDERED that CHC’s Motion to Dismiss (dkt. no. 9 28) is GRANTED IN PART and DENIED IN PART. Only Hartrim’s negligence claim 10 11 12 13 against CHC survives summary judgment. IT IS FURTHER ORDERED that LVMPD’s Motion for Summary Judgment (dkt. no. 29) is GRANTED IN PART and DENIED IN PART, as described herein. DATED THIS 22nd day of February 2013. 14 15 MIRANDA M. DU UNITED STATES DISTRICT JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 11
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