Herndon v. Henderson Police Department et al, No. 2:2019cv00018 - Document 93 (D. Nev. 2021)

Court Description: ORDER granting 54 Motion for Summary Judgment; ORDER granting 55 Motion for Summary Judgment; ORDER denying as moot 73 Objection/Appeal Magistrate Judge Order/Ruling LR IB 3-1; ORDER denying 80 Motion to Amend/Correct; ORDER denying 81 Motion to Amend/Correct; ORDER finding as moot 90 Motion for Leave to File Document. Signed by Judge Gloria M. Navarro on 9/20/2021. Case terminated. (Copies have been distributed pursuant to the NEF - HAM)

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Herndon v. Henderson Police Department et al Doc. 93 Case 2:19-cv-00018-GMN-NJK Document 93 Filed 09/20/21 Page 1 of 16 1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 JAMES M. HERNDON, ) ) ) ) ) ) ) ) ) 4 Plaintiff, 5 6 vs. CITY OF HENDERSON, et al., 7 Defendants. 8 Case No.: 2:19-cv-00018-GMN-NJK ORDER 9 Pending before the Court is the Motion for Summary Judgment, (ECF No. 54), filed by 10 11 Defendant City of Henderson. Plaintiff James Herndon (“Plaintiff”) filed a Response, (ECF 12 No. 71), to which Defendant City of Henderson filed a Reply, (ECF No. 75). Also pending before the Court is the Motion for Summary Judgment, (ECF No. 55), 13 14 filed by Defendants M. Gillis, L. Good, A. Nelson, D. Nerbonne, D. Russo, and E. Vega 15 (collectively, “Defendant Officers”). Plaintiff filed a Response, (ECF No. 70), to which 16 Defendant Officers filed a Reply, (ECF No. 76). Also pending before the Court is Plaintiff’s Objection/Appeal, (ECF No. 73), of the 17 18 Magistrate Judge’s Order Denying the Motion to Compel, (ECF No. 72). Defendant City of 19 Henderson and Defendant Officers (collectively, “Defendants”) filed a Response, (ECF No. 20 74). 21 Also pending before the Court is Plaintiff’s Motion for Leave to File Supplement 22 regarding the Objection/Appeal, (ECF No. 90). Defendants filed a Response, (ECF No. 91), to 23 which Plaintiff filed a Reply, (ECF No. 92). 24 25 Page 1 of 16 Dockets.Justia.com Case 2:19-cv-00018-GMN-NJK Document 93 Filed 09/20/21 Page 2 of 16 Also pending before the Court is Plaintiff’s Motions for Leave to File Supplement,1 1 2 (ECF Nos. 80–81). Defendant Officers filed a Response, (ECF No. 85), to which Plaintiff filed 3 a Reply, (ECF No. 88). For the reasons discussed below, the Court GRANTS Defendant City of Henderson’s 4 5 Motion for Summary Judgment, GRANTS Defendant Officers’ Motion for Summary 6 Judgment, DENIES as moot Plaintiff’s Objection/Appeal of the Magistrate Judge’s Order, and 7 DENIES Plaintiff’s Motions for Leave to File Supplements. 8 I. BACKGROUND This case arises out of Defendants’ alleged constitutional violations during a suspected 9 10 robbery at Sportsman’s Warehouse (the “Store”) located at 701 Marks Street, Henderson, 11 Nevada. (See generally First Amended Compl. (“FAC”), ECF No. 13). Plaintiff was employed 12 as an assistant manager at the Store. (Id. ¶ 12). On January 14, 2018, Jeremy Hagood, the Store’s loss prevention manager, notified 13 14 Plaintiff that the loss prevention department was surveilling three patrons at the store for 15 suspected stealing. (Id. ¶ 13). Hagood believed that one of the individuals had attempted to 16 steal merchandise from the Store the previous day. (Id.). While surveilling the patrons, Hagood 17 witnessed two of the individuals exit the store to wait in the parking lot while one of the 18 individuals (the “Suspect”) remained in the store. (Id. ¶ 15). The Suspect stole various items 19 from the store, including a belt, boxes of ammunition, a handgun, and a wallet. (Id.). After 20 witnessing a handgun fall out of the Suspect’s pants, Hagood called 911 to report a theft in 21 progress involving a firearm. (Id. ¶ 16). Using the outdoor CCTV, Hagood told the 911 22 23 24 25 The motions are docketed as a Motion to Amend/Correct Plaintiff’s Responses to Defendant City of Henderson and Defendant Officers’ Motions for Summary Judgment. (See Mots. Leave, ECF Nos. 80–81). To the extent the Motion for Leave requests to modify the Motion for Summary Judgment briefing, the Court finds a supplement unnecessary as the Court looks to the sufficiency of the current allegations and evidence to resolve the Motion for Summary Judgment. The allegations would be unaffected by further briefing. The Court accordingly denies Plaintiff’s Motions for Leave, (ECF Nos. 80–81). 1 Page 2 of 16 Case 2:19-cv-00018-GMN-NJK Document 93 Filed 09/20/21 Page 3 of 16 1 operator the pickup truck’s license plate and advised that the other two individuals in the 2 parking lot had not committed any theft. (Id.). While Hagood monitored the store, another 3 store employee opened the back door for Defendants Gillis, Good, Russo, Nelson, Nerbonne, 4 and Vegas. (Id.). 5 The officers decided to detain the Suspect, who was in the center of the store. (Id. ¶ 19). 6 Defendants Nerbonne and Good planned to approach and detain the Suspect with Defendant 7 Gilis, who was armed with a rifle, as backup. (Id.). Defendants Russo and Vega were to 8 maintain their position at the front of the store to prevent customers from entering and to 9 intercept the Suspect if he tried to flee. (Id.). 10 Defendants Nerbonne and Good approached with their guns drawn, pointed at the 11 Suspect, and ordered him to show his hands. (Id. ¶ 20). The Suspect initially complied; 12 however, began sidestepping and eventually ran toward the store entrance. (Id. ¶ 21). 13 Defendants Good and Nerbonne chased the suspect as he ran through the clothing department, 14 grabbing and throwing merchandise onto the floor. (Id. ¶ 21). The Suspect, in the process of 15 fleeing from the officers, ran into a store mannequin and lost his footing. (Id. ¶ 22). 16 While Defendants Good and Nerbonne chased after the Suspect, Plaintiff ran towards the 17 scene from the front of the store, where he was observing the situation. (Id.). Plaintiff then 18 jumped on top of the Suspect to prevent him from getting up and continuing to escape. (Id. ¶ 19 23). After Plaintiff jumped on the Suspect, Defendants Nerbonne and Good also jumped on top 20 of Plaintiff and began punching at both him and the Suspect. (Id. ¶ 23). At this time, Plaintiff 21 was sandwiched between the Suspect and Defendants Nerbonne and Good, who were trying to 22 control the Suspect. (Id.). Plaintiff alleges that, while he was stuck between the officers and the 23 Suspect, Defendants Nerbonne and Good delivered several closed-fist strikes to Plaintiff’s 24 head. (Id. ¶ 23). Defendants Russo and Vega also approached the scene and purportedly 25 delivered several closed-fist strikes to Plaintiff’s head. (Id. ¶ 25–26). Additionally, Defendant Page 3 of 16 Case 2:19-cv-00018-GMN-NJK Document 93 Filed 09/20/21 Page 4 of 16 1 Gillis also approached the scene with a rifle. (Id. ¶ 27). Plaintiff alleges that Defendant Gillis 2 hit him in the head with the rifle butt, punched him, and attempted to Tase him. (Id. ¶¶ 26–27). 3 After being Tased, Plaintiff finally was able to roll on his side and communicate that he was a 4 store employee and retired law enforcement officer. (Id. ¶ 28). Plaintiff suffered significant 5 injury, including, but not limited to, bloody nose, bruising of his face and body, fractured 6 orbital floor of the left eye/cheek, concussion, blurry vision, difficulty focusing on distant 7 objects, unusual sensation in the teeth and palate, possible nerve damage, headaches, and 8 cognitive difficulty attributed to concussion symptoms. (Id. ¶ 29). 9 On January 8, 2019, Plaintiff filed the instant action under 42 U.S.C. § 1983. (See 10 Compl., ECF No. 1). Defendants then filed the instant Motions for Summary Judgment, (ECF 11 Nos. 54–55). On December 16, 2020, Magistrate Judge Nancy J. Koppe denied Plaintiff’s 12 Third Motion to Compel, (ECF No. 53), as untimely. (See Order Denying Motion to Compel, 13 ECF No. 72). Plaintiff thereafter filed an Objection/Appeal of her Order. (See 14 Objection/Appeal of Order Denying Mot. Compel, ECF No. 73). The Court addresses the 15 pending motions in turn. 16 II. LEGAL STANDARD 17 A. Motion for Summary Judgment 18 The Federal Rules of Civil Procedure provide for summary adjudication when the 19 pleadings, depositions, answers to interrogatories, and admissions on file, together with the 20 affidavits, if any, show that “there is no genuine dispute as to any material fact and the movant 21 is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Material facts are those that 22 may affect the outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 23 (1986). A dispute as to a material fact is genuine if there is a sufficient evidentiary basis on 24 which a reasonable fact-finder could rely to find for the nonmoving party. See id. “The amount 25 of evidence necessary to raise a genuine issue of material fact is enough ‘to require a jury or Page 4 of 16 Case 2:19-cv-00018-GMN-NJK Document 93 Filed 09/20/21 Page 5 of 16 1 judge to resolve the parties’ differing versions of the truth at trial.’” Aydin Corp. v. Loral Corp., 2 718 F.2d 897, 902 (9th Cir. 1983) (quoting First Nat’l Bank v. Cities Serv. Co., 391 U.S. 253, 3 288–89 (1968)). “Summary judgment is inappropriate if reasonable jurors, drawing all 4 inferences in favor of the nonmoving party, could return a verdict in the nonmoving party’s 5 favor.” Diaz v. Eagle Produce Ltd. P’ship, 521 F.3d 1201, 1207 (9th Cir. 2008) (citing United 6 States v. Shumway, 199 F.3d 1093, 1103–04 (9th Cir. 1999)). A principal purpose of summary 7 judgment is “to isolate and dispose of factually unsupported claims.” Celotex Corp. v. Catrett, 8 477 U.S. 317, 323–24 (1986). 9 In determining summary judgment, a court applies a burden-shifting analysis. “When 10 the party moving for summary judgment would bear the burden of proof at trial, it must come 11 forward with evidence which would entitle it to a directed verdict if the evidence went 12 uncontroverted at trial. In such a case, the moving party has the initial burden of establishing 13 the absence of a genuine issue of fact on each issue material to its case.” C.A.R. Transp. 14 Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir. 2000) (citations omitted). In 15 contrast, when the nonmoving party bears the burden of proving the claim or defense, the 16 moving party can meet its burden in two ways: (1) by presenting evidence to negate an 17 essential element of the nonmoving party’s case; or (2) by demonstrating that the nonmoving 18 party failed to make a showing sufficient to establish an element essential to that party’s case 19 on which that party will bear the burden of proof at trial. See Celotex Corp., 477 U.S. at 323– 20 24. If the moving party fails to meet its initial burden, summary judgment must be denied and 21 the court need not consider the nonmoving party’s evidence. See Adickes v. S.H. Kress & Co., 22 398 U.S. 144, 159–60 (1970). 23 If the moving party satisfies its initial burden, the burden then shifts to the opposing 24 party to establish that a genuine issue of material fact exists. See Matsushita Elec. Indus. Co. v. 25 Zenith Radio Corp., 475 U.S. 574, 586 (1986). To establish the existence of a factual dispute, Page 5 of 16 Case 2:19-cv-00018-GMN-NJK Document 93 Filed 09/20/21 Page 6 of 16 1 the opposing party need not establish a material issue of fact conclusively in its favor. It is 2 sufficient that “the claimed factual dispute be shown to require a jury or judge to resolve the 3 parties’ differing versions of the truth at trial.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors 4 Ass’n, 809 F.2d 626, 631 (9th Cir. 1987). However, the nonmoving party “may not rely on 5 denials in the pleadings but must produce specific evidence, through affidavits or admissible 6 discovery material, to show that the dispute exists,” Bhan v. NME Hosps., Inc., 929 F.2d 1404, 7 1409 (9th Cir. 1991), and “must do more than simply show that there is some metaphysical 8 doubt as to the material facts.” Orr v. Bank of America, 285 F.3d 764, 783 (9th Cir. 2002) 9 (internal citations omitted). “The mere existence of a scintilla of evidence in support of the 10 plaintiff’s position will be insufficient.” Anderson, 477 U.S. at 252. In other words, the 11 nonmoving party cannot avoid summary judgment by relying solely on conclusory allegations 12 that are unsupported by factual data. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). 13 Instead, the opposition must go beyond the assertions and allegations of the pleadings and set 14 forth specific facts by producing competent evidence that shows a genuine issue for trial. See 15 Celotex Corp., 477 U.S. at 324. 16 At summary judgment, a court’s function is not to weigh the evidence and determine the 17 truth but to determine whether there is a genuine issue for trial. See Anderson, 477 U.S. at 249. 18 The evidence of the nonmovant is “to be believed, and all justifiable inferences are to be drawn 19 in his favor.” Id. at 255. But if the evidence of the nonmoving party is merely colorable or is 20 not significantly probative, summary judgment may be granted. See id. at 249–50. 21 B. Objection/Appeal of Magistrate Judge’s Order 22 When reviewing the order of a magistrate judge, the order should only be set aside if the 23 order is clearly erroneous or contrary to law. LR IB 3-1(a); 28 U.S.C. § 636(b)(1)(A); Laxalt v. 24 McClatchy, 602 F. Supp. 214, 216 (D. Nev. 1985). A magistrate judge’s order is “clearly 25 erroneous” if the court has “a definite and firm conviction that a mistake has been committed.” Page 6 of 16 Case 2:19-cv-00018-GMN-NJK Document 93 Filed 09/20/21 Page 7 of 16 1 See United States v. U.S. Gypsum Co., 333 U.S. 364, 395, 68 S. Ct. 525, 92 L. Ed. 746 (1948); 2 Burdick v. Comm'r IRS, 979 F.2d 1369, 1370 (9th Cir. 1992). “An order is contrary to law 3 when it fails to apply or misapplies relevant statutes, case law or rules of procedure.” 4 UnitedHealth Grp., Inc. v. United Healthcare, Inc., No. 2:14-cv-00224-RCJ, 2014 U.S. Dist. 5 LEXIS 129489, 2014 WL 4635882, at *1 (D. Nev. Sept. 16, 2014). When reviewing the order, 6 however, the magistrate judge “is afforded broad discretion, which will be overruled only if 7 abused.” Columbia Pictures, Inc. v. Bunnell, 245 F.R.D. 443, 446 (C.D. Cal. 2007). The 8 district judge “may not simply substitute [his or her] judgment” for that of the magistrate judge. 9 Grimes v. City and Cty. of San Francisco, 951 F.2d 236, 241 (9th Cir. 1991) (citing United 10 States v. BNS, Inc., 858 F.2d 456, 464 (9th Cir. 1988)). 11 III. DISCUSSION 12 A. Motions for Summary Judgment, (ECF Nos. 54–55) 13 Plaintiff alleges seven causes of action in his Complaint, specifically: (1) violation of 14 constitutional rights under Section 1983; (2) violation of constitutional rights based on a Monell 15 claim; (3) battery; (4) negligence; (5) negligent hiring and supervision under Section 1983; (6) 16 negligent hiring and retention; and (7) intentional infliction of emotional distress. (See FAC ¶¶ 17 31–85). Defendants seeks summary judgment on each of Plaintiff’s claims. (Def. City of 18 Henderson’s Mot. Summ. J. (“City of Henderson’s MSJ”), ECF No. 54); (Def. Officers’ Mot. 19 Summ. J. (“Defendant Officers’ MSJ”), ECF No. 55). Defendant City of Henderson argues 20 that there is no Monell claim because Plaintiff cannot demonstrate a city policy or custom that 21 caused Plaintiff’s injuries. (City of Henderson’s MSJ 6:1–9:27). Defendant Officers claim that 22 they did not violate Plaintiff’s constitutional rights and as such, Plaintiff’s Section 1983 claims 23 fail as a matter of law. (Def. Officers’ MSJ 14:10–21:19). Additionally, Defendant Officers 24 assert that qualified immunity applies to the Section 1983 claims and discretionary immunity 25 Page 7 of 16 Case 2:19-cv-00018-GMN-NJK Document 93 Filed 09/20/21 Page 8 of 16 1 applies to the state law claims. (Id. 21:21–27:15). The Court addresses each cause of action in 2 turn. i. Section 1983 Claims 3 4 Plaintiff asserts three § 1983 claims against Defendants: (1) deprivation of his Fourth 5 Amendment right; (2) deprivation of his Fourteenth Amendment right; and (3) a Monell claim 6 solely against City of Henderson. (FAC ¶¶ 31–41). 7 Section 1983 actions allege a “deprivation of any rights, privileges, or immunities 8 secured by the Constitution and laws.” 42 U.S.C. § 1983. To bring a successful § 1983 claim, a 9 plaintiff must allege (1) a violation of a constitutional right and (2) must show that the alleged 10 violation was committed by “a person acting under color of state law.” West v. Atkins, 487 U.S. 11 42, 49, 108 S. Ct. 2250, 101 L. Ed. 2d 40 (1988). Moreover, § 1983 “‘is not itself a source of 12 substantive rights,’ but merely provides ‘a method for vindicating federal rights elsewhere 13 conferred.’” Graham v. Connor, 490 U.S. 386, 393—94, 109 S. Ct. 1865, 104 L. Ed. 2d 443 14 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3, 99 S. Ct. 2689, 61 L. Ed. 2d 433 15 (1979)). The Court will first discuss the Fourth and Fourteenth Amendment claims before 16 turning to the Monell claim. 1. Fourth Amendment Claim 17 18 Plaintiff alleges that Defendants “unreasonably use[d] . . . excessive and potentially 19 lethal force” in violation of the Fourth Amendment. (FAC ¶ 33). Defendants argue that no 20 Fourth Amendment claim applies because Plaintiff was not seized. (Def. Officers’ MSJ 14:10– 21 17:20). Without a seizure, Defendants contend that Plaintiff cannot also argue excessive use of 22 force. (Id.). 23 To determine whether a person is seized under the Fourth Amendment, courts consider 24 whether, “taking into account all of the circumstances surrounding the encounter, the police 25 conduct would have communicated to a reasonable person that he was not at liberty to ignore Page 8 of 16 Case 2:19-cv-00018-GMN-NJK Document 93 Filed 09/20/21 Page 9 of 16 1 the police presence and go about his business.” Florida v. Bostick, 501 U.S. 429, 437 (1991) 2 (quotation marks omitted). However, “[v]iolation of the Fourth Amendment requires an 3 intentional acquisition of physical control. A seizure occurs even when an unintended person 4 or thing is the object of the detention or taking, but the detention or taking itself must be 5 willful.” Brower v. Cty. of Inyo, 489 U.S. 593, 596, 109 S. Ct. 1378, 1381 (1989) (citations 6 omitted). “[N]o Fourth Amendment seizure would take place where a ‘pursuing police car 7 sought to stop the suspect only by the show of authority represented by flashing lights and 8 continuing pursuit,’ but accidentally stopped the suspect by crashing into him.” Cty. of 9 Sacramento v. Lewis, 523 U.S. 833, 844, 118 S. Ct. 1708, 1715, 140 L. Ed. 2d 1043 (1998) 10 11 (citing id.). In United States v. Al Nasser, the Ninth Circuit determined that no seizure occurred 12 because the officer did not intend to physically stop or detain the defendant. Al Nasser, 555 13 F.3d 722, 725 (9th Cir. 2009). There, a Border Patrol agent shined a flashlight towards and into 14 the defendant’s car as he drove by the scene. Id. Although the defendant ultimately stopped, 15 “the lights and the vehicles that caused him to do so were not a roadblock put in place to 16 accomplish that purpose.” Id. at 731. The Ninth Circuit accordingly held that no seizure 17 occurred for purposes of the Fourth Amendment. Id. 18 Likewise, Defendants did not intend to stop Plaintiff when they purportedly grabbed and 19 hit him. Multiple officers testified that they did not know that the subject individual was 20 Plaintiff. For example, Officer Nelson stated that “[a]fterwards it was determined that the 21 subject was a Store employee, James Herndon who is the Plaintiff . . . in this case.” (Nelson 22 Decl. ¶ 18). Sergeant Gillis similarly declared that “Plaintiff was not the intended object of my 23 use of force. The Suspect was the intended object.” (Gillis Decl. ¶ 28). Indeed, Plaintiff 24 admitted he jumped on top of the suspect on his own accord. (Pl.’s Depo. 44:6–9) (“I made the 25 decision based on what I knew at that moment to jump on [the Suspect] so he couldn’t get Page 9 of 16 Case 2:19-cv-00018-GMN-NJK Document 93 Filed 09/20/21 Page 10 of 16 1 up.”). Like the officers in Al Nassar, Defendants’ alleged force that caused Plaintiff to stop 2 “were [not roadblocks] put in place to accomplish that purpose.” Al Nasser, 555 F.3d at 731. 3 Because Plaintiff was not seized, no Fourth Amendment violation occurred. Notably, Plaintiff 4 does not respond to Defendants’ argument but rather misinterprets Defendant Officers’ 5 argument, asserting that “if there is no seizure under the Fourth Amendment, then there can be 6 no due process analysis.” (Resp. to Def. Officers’ MSJ 24:21–22). Because Plaintiff cannot 7 demonstrate that a seizure occurred for purposes of the Fourth Amendment, the Court 8 accordingly grants summary judgment to Defendants as to Plaintiff’s Fourth Amendment 9 unlawful seizure claim.2 2. Substantive Due Process 10 Plaintiff additionally alleges a Fourteenth Amendment violation, arguing that 11 12 Defendants’ actions violated his substantive due process rights. (FAC ¶¶ 32–33). Defendants 13 argue that Plaintiff cannot alternatively recover under the Fourteenth Amendment because 14 Defendants’ actions do not “shock the conscious.” (Def. Officers’ MSJ 17:22–19:2). 15 A person injured as a result of police misconduct may prosecute a substantive due 16 process claim under Section 1983. Sinaloa Lake Owners Ass’n v. City of Simi Valley, 882 F.2d 17 1398, 1408 n. 10 (9th Cir.1989), cert. denied, 494 U.S. 1016, 110 S.Ct. 1317, 108 L.Ed.2d 493 18 (1990). “To state a substantive due process claim, the plaintiff must show as a threshold matter 19 that a state actor deprived it of a constitutionally protected life, liberty or property interest.” 20 Shanks v. Dressel, 540 F.3d 1082, 1087 (9th Cir. 2008). Specifically, to assert a substantive 21 due process claim for police misconduct, the plaintiff must demonstrate that the government’s 22 conduct was “so egregious, so outrageous, that it may be fairly said to shock the contemporary 23 conscience.” County of Sacramento v. Lewis, 523 U.S. 833, 847 (1998). 24 25 The Court does not further discuss whether Defendants’ use of force was reasonable because no seizure occurred. Bonivert v. City of Clarkston, 883 F.3d 865, 879 (9th Cir. 2018) (citing Graham, 490 U.S. at 388) (“Excessive use of force in effectuating a seizure violates the Fourth Amendment.”) (emphasis added). 2 Page 10 of 16 Case 2:19-cv-00018-GMN-NJK Document 93 Filed 09/20/21 Page 11 of 16 1 There is no genuine dispute of material fact as to whether Defendants engaged in 2 “conscience shocking behavior.” Brittain v. Hansen, 451 F. 3d 982, 991 (9th Cir. 2006) (citing 3 County of Sacramento, 523 U.S. at 846) (“[O]nly the most egregious official conduct can be 4 said to be arbitrary in a constitutional sense,” a plaintiff must also show “conscience shocking 5 behavior by the government,” i.e., “conduct intended to injure in some way unjustifiable by any 6 governmental interest.”). Plaintiff mentions the Fourteenth Amendment only once in his 7 Complaint and does not provide facts to support his alleged Fourteenth Amendment due 8 process claim. (FAC ¶ 32). Citing to Claybrook v. Birchwell, 199 F.3d 350, 361 (6th Cir. 9 2000), Plaintiff conclusory argues that the Court must allow Plaintiff to maintain his Fourteenth 10 Amendment due process claim until there is a factual determination by the jury. (Resp. to Def. 11 Officers’ MSJ 24:19–25:10). The Sixth Circuit’s decision in Claybrook, however, affirmed the 12 district court’s decision to grant summary dismissal of the Fourteenth Amendment claim. 13 Claybrook, 199 F.3d at 361 (“no rational fact finder could conclude that [the officers] violated 14 [the plaintiff’s] substantive due process rights, because the plaintiff cannot prove that they 15 acted with malice.”). Contrary to Plaintiff’s assertion, the Sixth Circuit in Claybrook does not 16 stand for the general proposition that a Fourteenth Amendment due process claim must survive 17 simply because the claim is a factual determination by the jury. Here, Plaintiff fails to provide 18 any evidence to demonstrate a genuine dispute of material fact exists. See Celotex Corp., 477 19 U.S. at 323–24 (determining that a principal purpose of summary judgment is “to isolate and 20 dispose of factually unsupported claims”). Accordingly, Defendants are entitled to summary 21 judgment as to Plaintiff’s Fourteenth Amendment claim. 22 3. Negligent Training and Supervision 23 Plaintiff alleges that Defendant City of Henderson inadequately established and 24 implemented proper procedures for apprehending and detaining suspects. (FAC ¶ 64). “In 25 order to establish a claim under § 1983 due to inadequate training, the [plaintiff] must provide Page 11 of 16 Case 2:19-cv-00018-GMN-NJK Document 93 Filed 09/20/21 Page 12 of 16 1 evidence from which a reasonable jury could find that there was an inadequate training 2 program, and that the [defendant] was deliberately indifferent to whether its officers received 3 adequate training.” Herrera, 298 F.Supp.2d at 1052. There must be actual causation between 4 the inadequate training and the deprivation of the plaintiff’s rights. Merritt v. County of Los 5 Angeles, 875 F.2d 765, 770 (9th Cir.1989). 6 Here, Plaintiff fails to show sufficient facts exists as to whether City of Henderson’s 7 inadequate training caused Plaintiff’s injuries. Plaintiff provides facts to support a finding that 8 City of Henderson inadequately trained Defendant Officers. (See Resp. to City of Henderson’s 9 MSJ 22:6–13). For example, Defendant Nelson conceded he never had training with an armed 10 robber. (Id. 22:6–7). Additionally, Defendant Vega admitted to never receiving training on 11 striking with the buff of a rifle. (Id. 22:8–9). Such evidence, however, does not present factual 12 dispute as to whether City of Henderson’s purportedly negligent training caused Plaintiff’s 13 injuries. Aside from Plaintiff’s broad claim that “[c]ertainly, a reasonable jury could infer that 14 Henderson’s failure to train the Defendant Officers gave rise to Plaintiff’s injuries in this case,” 15 Plaintiff provides no other evidence to causally link Defendants’ negligent training to 16 Plaintiff’s injuries from the incident. Accordingly, the Court also grants summary judgment as 17 to Plaintiff’s Fifth Cause of Action as to Defendant City of Henderson. 18 ii. Monell Claim 19 Plaintiff’s second cause of action seeks to impose municipal liability on City of 20 Henderson under § 1983. (FAC ¶¶ 36–41). The Supreme Court has held that a municipality 21 can be liable under § 1983 if an official policy or custom directly caused the violation of an 22 individual’s constitutional rights. See Monell v. Dep’t of Social Services, 436 U.S. 658, 690-91, 23 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978). “It is only when the execution of the government’s 24 policy or custom . . . inflicts the injury that the municipality may be held liable under § 1983.” 25 Page 12 of 16 Case 2:19-cv-00018-GMN-NJK Document 93 Filed 09/20/21 Page 13 of 16 1 City of Canton, Ohio v. Harris, 489 U.S. 378, 385, 109 S. Ct. 1197, 103 L. Ed. 2d 412, (1989) 2 (citations and internal quotations omitted). Pursuant to Monell, municipalities can be sued directly under § 1983 for violations of 3 4 constitutional rights. See Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658, 690, 98 5 S. Ct. 2018, 56 L. Ed. 2d 611 (1978). As explained by the Ninth Circuit, a litigant may recover 6 from a municipality under § 1983 on one of three theories of municipal liability. Clouthier v. 7 Cnty. of Contra Costa, 591 F.3d 1232, 1249 (9th Cir. 2010). “First, a local government may be 8 held liable ‘when implementation of its official policies or established customs inflicts the 9 constitutional injury.’” Id. (quoting Monell, 436 U.S. at 708 (Powell, J. concurring)). “Second, 10 under certain circumstances, a local government may be held liable under § 1983 for acts of 11 omission, when such omissions amount to the local government’s own official policy.” Id. 12 “Third, a local government may be held liable under § 1983 when ‘the individual who 13 committed the constitutional tort was an official with final policy-making authority’ or such an 14 official ‘ratified a subordinate’s unconstitutional decision or action and the basis for it.’” Id. at 15 1250 (quoting Gillette v. Delmore, 979 F.2d 1342, 1346-47 (9th Cir. 1992)). These three 16 theories are sometimes referred to as (1) commission, (2) omission, and (3) ratification, 17 respectively. See, e.g., Aranda v. City of McMinnville, 942 F.Supp.2d 1096, 1109 (D. Or. 18 2013). 19 Here, as discussed infra, Defendants did not violate Plaintiff’s constitutional rights under 20 the Fourth or Fourteenth Amendments. Without a constitutional violation, Plaintiff cannot 21 demonstrate Monell liability. Lockett v. Cty. of L.A., 977 F.3d 737, 741 (9th Cir. 2020) 22 (“Monell claims thus require a plaintiff to show an underlying constitutional violation.”). Even 23 assuming that Plaintiff could demonstrate a constitutional violation, Plaintiff’s Monell claim 24 25 Page 13 of 16 Case 2:19-cv-00018-GMN-NJK Document 93 Filed 09/20/21 Page 14 of 16 1 fails because Plaintiff otherwise cannot demonstrate causation as to his Monell claim. 3 Here, 2 Plaintiff conclusively states that City of Henderson’s customs, practices, and policies 3 proximately caused him injuries. (FAC ¶ 39). Neither the First Amended Complaint nor 4 Plaintiff’s Response to Defendant City of Henderson’s Motion for Summary Judgment, 5 however, provides additional factual support to demonstrate that City of Henderson’s policy 6 was the “moving force” behind the alleged constitutional violations. City of Canton, Ohio, 489 7 U.S. at 389–91. Plaintiff thus fails to demonstrate that City of Henderson’s unlawful conduct 8 in violation of Plaintiff’s Fourth and Fourteenth Amendment rights caused his injuries. See Van 9 Ort v. Est. of Stanewich, 92 F.3d 831, 837 (9th Cir. 1996) (“[w]ithout proximate cause, there is 10 no section 1983 liability.”). Because City of Henderson cannot be held liable under a Monell 11 claim, the Court accordingly grants summary judgment on Plaintiff’s Second Claim as to 12 Defendant City of Henderson. iii. State Law Claims 13 14 Given that only Plaintiff’s state claims remain,4 the Court considers sua sponte whether 15 it has subject matter jurisdiction over the surviving claims. See Augustine v. United States, 704 16 F.2d 1074, 1077 (9th Cir. 1983) (“The defense of lack of subject matter jurisdiction cannot be 17 waived, and the court is under a continuing duty to dismiss an action whenever it appears that 18 the court lacks jurisdiction.”); see also Moore v. Maricopa Cnty. Sheriff’s Office, 657 F.3d 890, 19 20 21 22 23 24 25 Plaintiff cannot allege a ratification theory at this stage of the litigation. (Resp. to Def. City of Henderson’s MSJ 19:14–20:11). Plaintiff did not allege a ratification theory in his First Amended Complaint. (FAC ¶ 39) (“Plaintiff has been damaged as a proximate result of City of Henderson and their HPD’s customs, practices and policies, including, but not limited to, a bloody nose, bruising of his face and body, fractured orbital floor of the left eye/cheek, concussion, blurry vision, difficulty focusing on distant objects, unusual sensation in the teeth and palate, possible nerve damage, headaches, and cognitive difficulty attributed to concussion symptoms.”) (emphasis added). The deadline to amend has now passed. Plaintiff cannot now allege a Monell claim on the basis of ratification. 3 As explained above, the Court grants summary judgment as to Plaintiff’s federal claims, namely the Section 1983 claims based on the Fourth Amendment and Fourteenth Amendment, the Monell claim, and the Section 1983 claim based on negligent training and supervision claim. The state claims of negligence, battery, negligent hiring and retention, and intentional infliction of emotional distress remain pending. (See FAC ¶¶ 42–54, 73–83). 4 Page 14 of 16 Case 2:19-cv-00018-GMN-NJK Document 93 Filed 09/20/21 Page 15 of 16 1 894 (9th Cir. 2011) (noting the court’s obligation to determine sua sponte whether it has subject 2 matter jurisdiction). Plaintiff initiated the instant suit based on federal question jurisdiction. 3 (See FAC ¶ 1) (“Jurisdiction is based upon 29 U.S.C. §§ 1331, 1343, and 1367). A district 4 court has jurisdiction to adjudicate a pendent state law claim if there is a federal claim so 5 related to it that they form part of the same case or controversy. See 28 U.S.C. § 1367(a). 6 However, “if it appears that the state issues substantially predominate, whether in terms of 7 proof, of the scope of the issues raised, or of the comprehensiveness of the remedy sought, the 8 state claims may be dismissed without prejudice and left for resolution to state tribunals.” 9 United Mine Workers v. Gibbs, 383 U.S. 715, 726-27, 86 S. Ct. 1130, 1139 (1966). The state issues of negligence, battery, negligent hiring and retention, and intentional 10 11 infliction of emotional distress substantially predominate the issues raised. (FAC ¶¶ 42–54, 73– 12 83). Because no federal claims remain, the Court no longer maintains subject matter 13 jurisdiction in this case. Wren v. Sletten Constr. Co., 654 F.2d 529, 536 (9th Cir. 1981) (“When 14 the state issues apparently predominate and all federal claims are dismissed before trial, the 15 proper exercise of discretion requires dismissal of the state claim.”). The Court accordingly 16 finds that it lacks subject matter jurisdiction over the remaining state law claims. Defendants’ 17 Motions for Summary Judgment are thus granted, and the remaining motions are dismissed as 18 moot for lack of subject matter jurisdiction. 19 IV. 20 21 22 23 24 25 CONCLUSION IT IS HEREBY ORDERED that Defendant City of Henderson’s Motion for Summary Judgment, (ECF No. 54), is GRANTED. IT IS FURTHER ORDERED that Defendant Officers’ Motion for Summary Judgment, (ECF No. 55), is GRANTED. IT IS FURTHER ORDERED that Plaintiff’s Objection to Magistrate Order, (ECF No. 73), is DENIED as moot. Page 15 of 16 Case 2:19-cv-00018-GMN-NJK Document 93 Filed 09/20/21 Page 16 of 16 1 2 3 4 IT IS FURTHER ORDERED that Plaintiff’s Motion for Leave to File Supplement regarding the Objection/Appeal, (ECF No. 90), is DENIED as moot. IT IS FURTHER ORDERED that Plaintiff’s Motions for Leave to File Supplement, (ECF Nos. 80, 81, 90), are DENIED. 5 The Clerk of Court is ordered to close the case accordingly. 6 20 day of September, 2021. DATED this _____ 7 8 9 ___________________________________ Gloria M. Navarro, District Judge UNITED STATES DISTRICT COURT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 16 of 16

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