Cottle et al v. Gillispie et al

Filing 119

ORDER Granting 111 Motion for Summary Judgment. Granting 118 Motion to Strike 117 sur-reply. Clerk of the court enter judgment in favor of the moving defendants and against plaintiff as appropriate. Signed by Judge James C. Mahan on 4/19/2012. (Copies have been distributed pursuant to the NEF - SLR)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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SEAN COTTLE, et al.,

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Plaintiff,

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vs.

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DOUG GILLESPIE, et al.,

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Case No. 2:10-CV-00271-JCM-(PAL)

Defendants.

ORDER

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Presently before the court is defendants Las Vegas Metropolitan Police Department, Officer

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Ryan Halasi, Officer Melanie O’Daniel, and Sergeant Troy Wayne’s motion for summary judgment.

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(Doc. #111). Plaintiff Sean Cottle, appearing in proper person, has filed a response (docs. #114 and

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#115), to which the defendants have replied (doc. #116).1

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I.

Background

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This case arises from plaintiff’s May 6, 2008, arrest and detention at the Clark County Detention

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Center (“CCDC”). Plaintiff alleges that the defendants’ conduct, both during his arrest and continuing

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throughout his detention, violated his civil rights.

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On the date in question, Officers Halasi and O’Daniel were responding to a disturbance call at

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an apartment complex located at 713 East Sahara Avenue, Las Vegas, NV. The call was not related to

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The court notes that Mr. Cottle has filed a sur-reply. (Doc. #117). However, Mr. Cottle never sought
leave of court to filed the document, and neither the Federal Rules of Civil Procedure, nor the local rules
of the District of Nevada, permit such a filing. Defendants have moved to strike the improper filing
(doc. #118), and this court finds it appropriate to grant the motion to strike.

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Mr. Cottle. After responding to the call, and while returning to their vehicles, the officers heard a

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female scream in distress. They saw a female run across the street being chased by, who they later

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learned, was Mr. Cottle.

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The officers commanded Mr. Cottle to stop, and when he did not, gave chase. Mr. Cottle ran

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into an apartment building, locked the door behind him, and proceeded to go upstairs. An unidentified

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third party opened the door for the officers and advised them that Mr. Cottle had run upstairs. The

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officers then observed Mr. Cottle jump out of a second story window, onto a roof, and finally down to

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the ground. The officers caught up with Mr. Cottle and again demanded he stop running and lay on the

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ground. Instead, Mr. Cottle began throwing objects at the officers. After a failed attempt to subdue Mr.

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Cottle using a taser device, the officers were finally able to take Mr. Cottle into custody.

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Upon his arrival at CCDC, Mr. Cottle remained combative and had to be restrained by CCDC

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officers and placed into a restrain chair. Mr. Cottle began yelling racial slurs. A spit mask was then

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placed over Mr. Cottle’s face. Nevertheless, Mr. Cottle still managed to spit on officers. The officers

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at CCDC twice tried to have nurses evaluate Mr. Cottle, but each time Mr. Cottle’s hostility and yelling

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at the nurses prevented their being able to fully evaluate him. Despite Mr. Cottle’s struggles, the nurses

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were able to confirm that he had circulation in his limbs, was able to breathe sufficiently, and had 96%

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pulse oxygenation.

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The court previously dismissed all claims against Officers Halasi and O’Daniel in their official

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capacities, dismissed all claims against Sheriff Gillespie in his individual and official capacities, and

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all claims against CCDC. See Doc. #69. The defendants now move for summary judgment as to the

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remaining claims.

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II.

Discussion

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A.

Standard of Review

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Summary judgment is appropriate when, viewing the facts in the light most favorable to the

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nonmoving party, there is no genuine issue of material fact which would preclude summary judgment

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as a matter of law. Bagdadi v. Nazar, 84 F.3d 1194, 1197 (9th Cir. 1996); Fed. R. Civ. P. 56(c);

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Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); T.W. Elec. Serv., Inc. v.

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Pacific Elec. Contractors Assn., 809 F.2d 626, 630 (9th Cir.1987). The purpose of summary judgment
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is to “pierce the pleadings and assess the proof in order to see whether there is a genuine need for trial.”

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Matsushita Elec., 475 U.S. at 586; International Union of Bricklayers v. Martin Jaska, Inc., 752 F.2d

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1401, 1405 (9th Cir. 1985).

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The moving party bears the burden of informing the court of the basis for its motion, together

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with evidence demonstrating the absence of any genuine issue of material fact. Celotex Corp. v. Catrett,

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477 U.S. 317, 323 (1986). Once the moving party has satisfied its burden, it is entitled to summary

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judgment if the non-moving party fails to present, by affidavits, depositions, answer to interrogatories,

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or admissions on file, “specific facts showing that there is a genuine issue for trial.” Celotex Corp., 477

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U.S. 317, 324; Fed. R. Civ. P. 56(c).

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Pursuant to Local Rule 7-2(d), a non-moving party’s failure to file points and authorities in

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response to a motion for summary judgment shall constitute a consent to the granting of the motion.

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However, as the Ninth Circuit stated in Martinez v. Stanford, 323 F.3d 1178 (9th Cir. 2003), a district

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court cannot grant a motion for summary judgment based merely on the fact that the opposing party

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failed to file an opposition. The court in Martinez held that the failure to oppose the motion does “not

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excuse the moving party’s affirmative duty under Rule 56 to demonstrate its entitlement to judgment

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as a matter of law.” Id. at 1182.

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B.

Analysis

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The court finds that Mr. Cottle has failed to comply with the requirements of Local Rule 7-2(d).

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The only pertinent document he has filed in opposition to the motion for summary judgment is his

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“supplemental response.” (Doc. #115). This document consists of 459 pages of exhibits, organized in

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no apparent order and containing no argument interpreting the evidence. Indeed, even construing Mr.

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Cottle’s papers broadly, as this court must, see Haines v. Kerner, 404 U.S. 519, 520 (1972) (per

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curiam), this court is still unable to see how the filing effectively opposes the motion for summary

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judgment. To make use of Mr. Cottle’s supplement, the court would have to abandon its traditional role

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and instead become an advocate by analyzing and interpreting Mr. Cottle’s documentation to see what

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exhibit is relevant to what cause of action and how it disputes the defendants’ claims. In effect, the

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court would have to create its own opposition to the defendants’ motion using the exhibits plaintiff has

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provided. Such action is clearly inappropriate and goes far beyond the Supreme Court’s holdings

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regarding pro se litigants. See id.

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Nevertheless, this court must still hold defendants’ to their burden of establishing that there is

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no genuine issue of material fact and that defendants are entitled to judgment as a matter of law.

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Martinez, 323 F.3d at 1182. Here, the court finds that the defendants have satisfied their burden.

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Defendants are entitled to summary judgment as to counts VI and VII because Officer O’Daniels

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enjoys absolute immunity for her testimony against Mr. Cottle in his criminal case. See Briscoe v.

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LaHue, 460 U.S. 325, 326 (1983).

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Plaintiff’s ninth cause of action, alleging that his procedural due process rights were violated

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when he was assigned to the maximum security wing of CCDC also fails. Inmates have no

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constitutional right to enjoy any particular security classification. See Montayne v. Haymes, 427 U.S.

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236, 242 (1976). While a jail may not subject a detainee to punitive conditions of confinement, see Bell

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v. Wolfish, 441 U.S. 520, 536-37 (1979), they may impose non-punitive security measures to ensure the

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safety of both inmates and correctional officers. See id. at 546-47, n. 28. Here, as in Bell, there is no

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evidence “to indicate that the [jail] officials have exaggerated their response to these considerations;”

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therefore the court should “defer to [the jail’s] expert judgment in such matters.” Id. at 540 n. 23.

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With regards to the tenth cause of action, there is no evidence in the record to support the

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contention that Sergeant Wayne supervised the officers under his control with reckless disregard to Mr.

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Cottle’s rights. To prevail, Mr. Cottle must show that Sergeant Wayne took (1) culpable action or

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inaction in the training, supervision, or control of his subordinates; (2) acquiesced in the constitutional

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violation Mr. Cottle complains of; or (3) showed a “reckless or callous indifference to the rights of

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others.” Larez v. City of Los Angeles, 946 F.2d 630, 646 (9th Cir. 1991). Here, there is no evidence

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that Sergeant Wayne in any way encouraged, advised, or assisted another officer in violating Mr.

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Cottle’s civil rights or that he otherwise acquiesced to such a violation.

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The evidence establishes that there is no genuine issue of material fact with regards to the

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eleventh cause of action. Mr. Cottle claims that LVMPD is liable for failing to attend to Mr. Cottle’s

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medical needs when he suffered bleeding from the mouth and a cut near his eye while being detained

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at CCDC. The evidence, however, tells a different story. Exhibits I and J establish that two separate
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nurses came to attend to Mr. Cottle. However, Mr. Cottle’s violent outbursts and verbal harassment

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precluded the nurses from properly attending to him. Under these facts, the court cannot find that

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LVMPD was deliberately indifferent to any serious medical need of Mr. Cottle. See Estelle v. Gamble,

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429 U.S. 97, 104 (1976).

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Mr. Cottle’s § 1983 claims against defendant LVMPD are similarly lacking any evidentiary

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support. A municipal entity, such as the police department, may be held liable under § 1983 only when

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the municipal entity is the driving force behind an employee’s unconstitutional actions. See Monell v.

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Dep’t of Social Service, 463 U.S. 658, 690-91 (1978). The record is devoid of evidence that a policy-

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making LVMPD official was deliberately indifferent to Mr. Cottle’s constitutional rights by

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promulgating a policy or custom causing constitutional violations.

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Finally, the record before this court appears to reflect that Mr. Cottle failed to exhaust his

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administrative remedies prior to filing suit. Pursuant to the Prisoner Litigaiton Reform Act, “an inmate

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must exhaust [administrative remedies] irrespective of the forms of relief sought and offered through

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administrative avenues.” Booth v. Churner, 532 U.S. 731, 741 n. 6 (2001). Here, Mr. Cottle filed a

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complaint with Internal Affairs and the Citizen Review Board. However, these complaints did not

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provide Mr. Cottle with a remedy, and therefore cannot satisfy the exhaustion requirement of the

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Prisoner Litigation Reform Act. See Panaro v. City of N. Las. Vegas, 432 F.3d 949, 953 (9th Cir.

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2005).

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III.

Conclusion

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Pursuant to the foregoing, the court finds it appropriate to grant defendants’ motion. Even

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construing Mr. Cottle’s papers broadly, as this court must, the court does not find a genuine issue of

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material fact militating against an award of summary judgment.

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Accordingly,

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IT IS HEREBY ORDERED, ADJUDGED, AND DECREED, that defendants’ motion for

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summary judgment (doc. #111) be, and the same hereby is, GRANTED.
IT IS FURTHER ORDERED that defendants’ motion to strike plaintiff’s sur-reply (doc. #118)
be, and the same hereby is, GRANTED. Plaintiff’s sur-reply is therefore STRICKEN.

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IT IS FURTHER ORDERED that the clerk of the court enter judgment in favor of the moving
defendants and against plaintiff as appropriate.
DATED April 19, 2012.

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_________________________________
UNITED STATES DISTRICT JUDGE

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