JENNIFER A. DORSEY, District Judge.
Pro se Plaintiff Brian Foster Newton alleges that he was arrested and detained in violation of the United States Constitution and Nevada state law. Defendants, the Las Vegas Metropolitan Police Department ("Metro") and several of its employees, move for summary judgment on his claims, and Newton filed to filed no opposition. Finding that the uncontested admissible evidence fails to support Newton's allegations that his arrest was unlawful and his detention unreasonable, the Court grants Defendants' motion on all counts and enters summary judgment in their favor.
On October 1, 2011, Plaintiff Brian Foster Newton was in Las Vegas, Nevada, on vacation with his girlfriend to celebrate the "Las Vegas Bike Fest," a gathering of motorcycle enthusiasts. Doc. 18-2 at 52. Metro had instructed its officers that the Bike Fest was a "zero tolerance" event, meaning that if officers had probable cause that any person had committed a crime, they were to arrest that person. Doc. 18-1 at 25.
Late that night Newton, dressed in a red shirt and hat, jaywalked across a street in Downtown Las Vegas's Fremont Street Experience. Docs. 18-1 at 25-26; 18-2 at 52. Four Metro officers, including Officer John Quintana, were located in view of the crosswalk. See 18-1 at 26; 18-2 at 52. Newton caught Quintana's eye because Quintana knew by training that red was the color of the Hell's Angels, a motorcycle group that had recently been involved in a violent confrontation in a Nevada casino. Doc. 18-1 at 26. After Newton saw Quintana looking at him in an "accusatory manner," Newton asked him "why you looking at me like that," "do you have a problem," or similar words. Doc. 18-1 at 26; 18-2 at 52. The crowd around Newton noticed the confrontation, and appeared to be closing in on the site of the confrontation. Doc. 18-1 at 26. Quintana arrested Newton for jaywalking and disorderly conduct. See Docs. 18-1 at 26, 57; 18-2 at 52.
Quintana took hold of Newton's left wrist and placed his handcuffs on him, while another officer took hold of Newton's right wrist and placed handcuffs on him. See Docs. 18-1 at 26; 18-2 at 52. Newton was then led to an area where several police cars were located. Docs. 18-1 at 26; 18-2 at 52. He was not intoxicated and offered no resistence. Docs. 18-1 at 27; 18-2 at 52. During the one and a half hours during which he remained handcuffed, Newton complained of wrist and shoulder pain, and Quintana loosened his cuffs and later placed him in a third set of cuffs. Doc. 18-1 at 27. Quintana also re-adjusted Newton's position several times during the duration of his detention in the police car. Id.
Newton sued Metro, Officer Quintana, Sergeant Eric Roberson (Quintana's supervisor), and three unnamed Metro officers in Clark County state court on January 22, 2013. Doc. 1 at 6. He served Defendants with process on March 6, 2013, and then amended his complaint on March 12, 2013. See id. at 14, 22-23. Newton claims that Quintana, Roberson, and Does 1-3 negligently inflicted personal injuries on him, and that Metro is liable on a respondeat superior theory of liability. Id. at 18. He also brings a Monell claim under 42 U.S.C. § 1983 against Metro for the actions of Quintana, Roberson, and Does 1-3, alleging that the officers lacked probable cause to stop and arrest him in violation of his Fourth and Fourteenth Amendment rights under color of law. Id. at 19. Newton claims that Metro had a "plan, scheme, custom and usage" to "rough up, detain and arrest people wearing the color red at the Fremont Street Experience." See id. Finally, Newton claims that all defendants are liable to him for attorney's fees as port of the costs of suit pursuant to 42 U.S.C. § 1988. Id.
Defendants removed this case to federal court on March 22, 2013, and a discovery plan was adopted. Docs. 1, 10. Newton's counsel was given leave to withdraw on July 3, 2013, and Newton has since proceeded pro se. Docs. 14, 15. Although the Court ordered Newton to file a status report within 30 days to advise the Court of his intent to either proceed pro se or retain new counsel, he filed none. See Doc. 15. Defendants submitted discovery requests under Federal Procedure Rules 30, 33, and 34 on August 15, 2013, and claim that no responses were received. See Doc. 18 at 10-11.
On October 31, 2013, Defendants moved for summary judgment against Newton. Newton received notice of the potential consequences of failing to oppose the motion for summary judgment, Doc. 19, but failed to file a response. See Doc. 20. Having evaluated Defendants' unopposed motion on its merits and recognizing that summary judgment may not be granted merely because the motion is not opposed, the Court grants the motion and enters summary judgment in Defendants' favor for the reasons set forth below.
Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law."
Once the moving party satisfies Rule 56 by demonstrating the absence of any genuine issue of material fact, the burden shifts to the party resisting summary judgment to "set forth specific facts showing that there is a genuine issue for trial."
As a general matter, the trial court may not grant an summary judgment motion as unopposed, but must consider whether the merits of the undisputed facts warrant entry of judgment against the non-moving party.
As support for their motion, Defendants attach a Wikipedia article regarding "Outlaw motorcycle clubs" ("OMCs"), Doc. 18-1 at 2-13 (Exhibit A); a Wikipedia article about the "River Run Riot," a 2002 incident in Laughlin, Nevada, involving two purported OMCs, Doc. 18-1 at 15 (Exhibit B); an article from ABC News, documenting a shootout between two OMCs in a Sparks, Nevada, casino on September 25, 2011, shortly before the events in questions transpired, Doc. 18-1 at 17-18 (Exhibit C); another news article from a Reno, Nevada, newspaper detailing the shooting, Doc. 18-1 at 20-22 (Exhibit D); the Affidavit of Officer Quintana, Doc. 18-1 at 24-28 (Exhibit E); an October 18, 2011, telephonic interview between a member of Metro's Internal Affairs and Newton, Doc. 18-1 at 30-55 (Exhibit F); an October 1, 2011, "Temporary Custody Record" for Newton, which cited Newton for his failure to obey a traffic signal, and for disorderly conduct, Doc. 18-1 at 57 (Exhibit G); a November 3, 2011, Civilian Statement between "L. Chan" and "JB," Doc. 18-2 at 2-8 (Exhibit H); an October 12, 2011, administrative complaint from Newton, including an attached letter, Doc. 18-2 at 10-12 (Exhibit I); an October 13, 2011, letter from Metro Sheriff Douglas Gillespie to Newton, acknowledging receipt of his complaint, Doc. 18-2 at 14 (Exhibit J); a medical records for Newton from various sources, Doc. 18-2 at 16-25 (Exhibit K); a December 29, 2011, letter from Gillespie to Newton, noting that as a result of the internal investigation a policy violation had been sustained, Doc. 18-2 at 27 (Exhibit L); a list of Quintana's specific Metro training, Doc. 18-2 at 29-48 (Exhibit M); the Amended Complaint Newton filed in this action in Nevada state court, Doc. 18-2 at 50-56 (Exhibit N); a June 2, 2013, letter from Newton's former counsel to Defendant's counsel, stating his reasons for withdrawal and providing Newton's last known address, Doc. 18-2 at 58 (Exhibit O); and an August 15, 2013, letter from Defendants' counsel to Newton that accompanied Defendants' Request for Admissions (served by mail on August 16, 2013), Doc. 18-2 at 62-68 (Exhibit P).
Defendants seek to introduce all of these exhibits through the Affidavit of Lyssa Anderson, who states that "[t]he documents attached to the Motion . . . are true and correct copies of documents produced, pleadings or papers filed, and notarized affidavits in this case." Doc. 18-2 at 71. Anderson also asserts that there is "sufficient foundation" for each of these documents to be received into evidence. See id. Anderson's Affidavit, however, is not adequate. Rule 56(c)(4) requires "[a]n affidavit or declaration used to support a motion [to] be made on personal knowledge. . . ."
Several of the exhibits do not need Anderson's Affidavit to be admissible. An affidavit supplied by Officer Quintana fills in some of these gaps. Quintana's affidavit independently satisfies Rule 56(c)(3) because he made it upon personal knowledge under penalty of perjury. See Doc. 18-1 at 24-27. The Court also considers the allegations in Newton's Amended Complaint, attached to the Motion for Summary Judgment at Exhibit N, to the degree they are supported by the Quintana Affidavit. Additionally, Newton's "Temporary Custody Record" is recorded as "Event 111001-4998"—the same number listed on Newton's Complaint. Compare Docs. 18-1 at 57, 18-2 at 51. The Court finds that this identical citation satisfies Rule 901(a). All other exhibits will be disregarded.
Defendants argue that Quintana had probable cause to arrest Newton because Newton committed a crime in his presence. Doc. 18 at 12. Quintana's affidavit states that Newton jaywalked, then yelled at Quintana in an aggressive fashion, which caused a large group of people to become agitated. Id. at 13. At this point, Quintana arrested Newton for jaywalking and disorderly conduct, fearing that if Newton was a Hell's Angels member, the crowd could become unruly. Id. Newton offers no response to negate this evidence, and the admissible documents do not lead the Court to a contrary conclusion.
The Fourth Amendment provides that "[t]he right of the people to be secure in their persons . . . against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause. . . ."
The undisputed facts show that Quintana directly observed Newton jaywalking and Newton then confronted Quintana in an aggressive manner. Quintana's decision to arrest Newton was objectively reasonable, given the totality of circumstances: Metro's direction that Bike Week was a "zero tolerance" event, Newton's confrontation of Quintana, Newton's wearing of colors that law enforcement recognizes reflective of a motorcycle club recently involved in violent confrontations in this State, and the fact that the crowd was closing in and becoming agitated. These circumstances demonstrate that Quintana had probable cause to arrest Newton, preventing Newton from establishing a § 1983 claim for the arrest.
Defendants further contend that Quintana and other Metro officers did not use excessive force against Newton, because the balance of Newton's liberty interests were outweighed by the government's interest in applying the force that it did. Doc. 18 at 13-14. Defendants argue that there is no allegation that Quintana tackled or struck Newton or otherwise inflicted pain on him while restraining him. Doc. 18 at 14. As to whether Newton's handcuffs were too tight, Defendants claim that Quintana originally used two sets of handcuffs to restrain Newton, given his large size; after Newton complained that he was uncomfortable, Quintana used a third set of cuffs. Id. at 14. Quintana attests that Newton never complained of shoulder pain while restrained. Id.
The "use of force is contrary to the Fourth Amendment if it is excessive under objective standards of reasonableness."
Quintana attests that he originally adjusted the size of the cuffs to accommodate Newton's large size. Once Newton complained that the cuffs were too tight, Quintana loosened them. Although the Ninth Circuit notes that the inquiry is "usually fact-specific and likely to turn on the credibility of the witnesses,"
Defendants also move for summary judgment on Newton's theory against Roberson, arguing that the arrest and detention in this case were based on Quintana's direct observation, as corroborated by other officers. Doc. 18 at 15. Although Roberson was technically Quintana's supervisor, he had no direct involvement in the arrest and was not even interviewed by Internal Affairs in connection with Newton's complaint. Doc. 18 at 15.
There is no respondeat superior liability under § 1983.
There is no evidence that Roberson was present when Quintana arrested Newton or anytime thereafter, or that Quintana's conduct followed directions or implemented policies that were otherwise unlawful. Newton's claim against Roberson for supervisory liability thus fails as a matter of law.
Newton also claims that Metro is liable to him under a Monell theory of liability. Typically, "[t]o state a claim pursuant to 42 U.S.C. § 1983, a plaintiff must allege the following: (1) that the conduct that harmed the plaintiff was committed under color of state law; and (2) the conduct violates a constitutional right."
In sum, the Defendants have offered sufficient evidence to satisfy their burden on summary judgment and shift the burden to Newton to come forward with evidence of a genuine issue of fact to support any theory under § 1983 to satisfy his obligation in this summary judgment process. Accordingly, summary judgment is entered in the Defendants' favor on Plaintiff's § 1983 claim.
Defendants also move for summary judgment on Newton's negligence claim. Doc. 18. Although Nevada has generally waived its sovereign immunity, no action may be brought against a state actor "[b]ased upon the exercise of performance of the failure to exercise or perform discretionary function or duty on the part of the state or any of its agency or political subdivisions of any officer, employee or immune contractor of any of these, whether or not the discretion involved is abused."
In this case, although Metro had instituted a "zero tolerance" enforcement policy in connection with Las Vegas Bike Week, Quintana's decision to arrest Newton was based on the officer's appraisal of the specific fact that Newton had jaywalked. The manner of arrest was within Quintana's discretion, and he decided to use two—and eventually three—sets of handcuffs to secure Newton on account of Newton's size. The record is devoid of any evidence that Quintana evinced a hostility towards motorcycle enthusiasts or persons wearing the color red or that Quintana deliberately disregarded Newton or any groups he may have associated with. This record—unopposed by Newton—reflects simply that Quintana arrested a belligerent jaywalker, an action for which this officer enjoys immunity from liability under Nevada law. Thus, Newton's negligence claim similarly fails as a matter of law and for lack of evidentiary support.
Accordingly, with good cause appearing and no reason for delay,
