Montgomery v. Las Vegas Metropolitan Police Department et al

Filing 84

ORDER Granting 69 Motion for Summary Judgment; Denying 73 Motion. Case terminated. Signed by Judge Richard F. Boulware, II on 9/19/16. (Copies have been distributed pursuant to the NEF - JM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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BOBBY LEE MONTGOMERY,

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Case No. 2:12-cv-00817-RFB-NJK

Plaintiff,

OPINION & ORDER

v.
LAS VEGAS METROPOLITAN
DEPARTMENT, et al.,

POLICE

Defendants’ Motion for Summary Judgment
(Dkt. No. 69) and Plaintiff’s Motion to Set
Case for Jury Trial (Dkt. No. 73)

Defendants.

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I.

INTRODUCTION

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Before the Court are Defendants’ Motion for Summary Judgment (Dkt. No. 69) and

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Plaintiff’s Motion to Set Case for Jury Trial (Dkt. No. 69). For the reasons elaborated below,

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Defendants’ Motion for Summary Judgment is granted, and Plaintiff’s Motion to Set Case for Jury

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Trial is denied.

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II.

BACKGROUND

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Montgomery initially filed malicious prosecution and false arrest claims under the Fourth

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Amendment against Clark County, the Las Vegas Metropolitan Police Department (LVMPD), the

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Mayor, the District Attorney, and multiple individual defendant officers, some of whom had no

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personal involvement in the events underlying Plaintiff’s claims. The only remaining defendants

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in this matter are LVMPD officers Turner, Rocha, Herlean, Fenrick, Fox, Robinson, and Miranda

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(“defendant officers”). Plaintiff Montgomery filed his Complaint pro se, and brings Fourth

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Amendment false arrest claims against all of the remaining defendant officers.

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A. Undisputed and Disputed Facts

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The Court incorporates its discussion of the undisputed and disputed facts from its hearing

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on September 1, 2016. The Court discusses and elaborates these facts here.

1. Undisputed Facts

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The Court finds the following facts to be undisputed. The subject incident underlying this

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lawsuit, involving Montgomery’s former partner Sherri Henson, occurred on May 17, 2010. In

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May 2010, Montgomery and Henson had been living at her house together for 17 months. Henson

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stated that at the date of the incident, she told Montgomery to remove his property from her house.

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Pamela Peevy, a friend of Henson’s, was outside of Henson’s house on the date of the

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incident and witnessed at least parts of the events. Peevy provided an executed Voluntary

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Statement to the police, which included statements that “the man in the house came out screaming

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‘Bitch’ and other bad words and then slapped her. Then when in the house he choked her with his

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bare hands in the living room they moved to back rooms and she was being carried around from

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the neck. I left the house, called the police and never went back inside. I could hear her screaming.”

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The police responded to the 911 call and arrested Montgomery. After the arrest, the state

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criminal court held a preliminary hearing to determine probable cause. At the probable cause

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hearing, Montgomery was represented by counsel. The state criminal court found that probable

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cause existed for domestic violence charges. Montgomery has never challenged, appealed, or

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otherwise contested the criminal court’s probable cause finding.

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2. Disputed Facts

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Montgomery argues that Pamela Peevy’s statements should not have been credited, since

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she was not inside the house for the entirety of the alleged domestic violence incident. Montgomery

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also argued, at the hearing on this motion, that his counsel was ineffective during the probable

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cause hearing.

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III.

LEGAL STANDARD

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Summary judgment is appropriate when the pleadings, depositions, answers to

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interrogatories, and admissions on file, together with the affidavits, if any, show “that there is no

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genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”

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Fed. R. Civ. P. 56(a); accord Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). When considering

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the propriety of summary judgment, the court views all facts and draws all inferences in the light

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most favorable to the nonmoving party. Johnson v. Poway Unified Sch. Dist., 658 F.3d 954, 960

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(9th Cir. 2011). If the movant has carried its burden, the non-moving party “must do more than

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simply show that there is some metaphysical doubt as to the material facts . . . . Where the record

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taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no

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genuine issue for trial.” Scott v. Harris, 550 U.S. 372, 380 (2007) (alteration in original) (internal

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quotation marks omitted). A genuine issue exists, precluding summary judgment, so long as “the

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evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson

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v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

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IV.

ANALYSIS

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Montgomery claims that his Fourth Amendment rights were violated when he was arrested

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without probable cause on May 17, 2010. Probable cause to arrest exists when “under the totality

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of the circumstances known to the arresting officers, a prudent person would have concluded that

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there was a fair probability that [the suspect] had committed a crime.” United States v. Smith, 790

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F.2d 789, 792 (9th Cir. 1986) (internal citations omitted). If an officer makes an arrest without

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probable cause, the officer may nonetheless be entitled to qualified immunity, if he reasonably

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believed there to have been probable cause. See Ramirez v. City of Buena Park, 560 F.3d 1012,

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1024 (9th Cir. 2009).

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Defendants argue that Montgomery is estopped from pursuing his Fourth Amendment

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claim, because probable cause was already determined at a state criminal court hearing. The Ninth

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Circuit holds that a litigant is estopped from raising an issue in a subsequent proceeding if (1) the

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issue was “actually litigated” and “necessarily determined” in the prior proceeding, and (2) that

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the parties in the two proceedings were the same or in privity. Haupt v. Dillard, 17 F.3d 285, 288

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(9th Cir. 1994), as amended (Apr. 15, 1994). A Plaintiff is collaterally estopped from re-litigating

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the probable cause determination made at the preliminary hearing in a state criminal case, if the

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proceeding meets these two prongs. Id. Nevada’s requirements for collateral estoppel apply to

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Fourth Amendment claims. Id.

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The issue of whether there was probable cause to arrest Montgomery was fully litigated at

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this preliminary hearing on June 3, 2010 (Defs. Exh. 3). At this hearing, Sherri Henson testified to

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the events that occurred on the date of the arrest: that she was grabbed by the neck, and that she

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was kicked in the buttocks, that the police took photographs of marks on her neck and body which

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they observed when they arrived on the scene. She was subject to cross-examination by

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Montgomery’s attorney at this hearing. At the conclusion of the preliminary hearing, it was

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determined that the officers had probable cause to arrest Montgomery. In Haupt, 17 F.3d at 288-

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90, the plaintiff was arrested and charged with the kidnapping and murder of a seven-year-old boy.

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After a jury trial, he was acquitted. He subsequently asserted claims under the Fourth Amendment

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for violation of his constitutional right to be free from unreasonable search and seizure and from

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malicious prosecution. On summary judgment, the district court determined that the plaintiff was

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collaterally estopped from relitigating the probable cause determination made at the preliminary

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hearing in the state criminal case. The Ninth Circuit affirmed. As in Haupt, here, Montgomery’s

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Fourth Amendment claim would require the relitigation of an issue that was fully and fairly

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litigated and previously decided during his criminal hearing: whether the defendant officers had

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probable cause for his arrest.

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At the hearing on the instant Motion for Summary Judgment, Montgomery asserted that

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the prior probable cause hearing’s determination should not preclude him from raising the probable

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cause issue again because he was ineffectively represented by counsel at the prior hearing. He

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alleged that his attorney did not cross examine the victim witness at that hearing. However, as the

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transcript of that hearing reflects, his attorney did cross examine the witness. The issue of

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ineffective assistance of counsel was not properly raised in Montgomery’s responsive briefing,

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and there is no evidence before the court of ineffective assistance of counsel. Henson was cross

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examined, Montgomery’s attorney raised legitimate questions of her, and Montgomery never

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brought an ineffective assistance of counsel claim in that case. The court does not find, on the

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record before it, that there was ineffective assistance of counsel precluding the earlier probable

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cause determination from being final. Therefore, the Court finds that Montgomery is estopped

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from raising a Fourth Amendment false arrest claim in the instant lawsuit.

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Furthermore, although the Court need not reach this issue, no reasonable jury could

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conclude on the undisputed facts that the defendant officers lacked probable cause to arrest

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Montgomery based on the information known to them at the time of the arrest. The victim, as well

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as a percipient witness, reported that domestic violence had occurred. Henson told the officers that

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Montgomery kicked and strangled her. Peevy told the officers that Montgomery had kicked and

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slapped Henson. When officers arrived, they observed marks and scratches on Henson. Based upon

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these statements and observations, a reasonable officer could conclude that probable cause for

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arrest existed. Even if the Court determined that probable cause did not exist based on the

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information known to the officers, the officers would be entitled to qualified immunity because

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their belief that probable cause existed was, on these facts, reasonable and not contrary to clearly

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established law. Ramirez, 560 F.3d at 1024.

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V.

CONCLUSION

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IT IS THEREFORE ORDERED that Defendants’ Motion for Summary Judgment is

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GRANTED [Dkt 69]. No triable issues remain in this case, and Plaintiff’s Motion to Set Case for

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Jury Trial is DENIED [Dkt 73].

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IT IS FURTHER ORDERED that the Clerk is instructed to close this case.

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DATED this 19th day of September, 2016.

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____________________________________
RICHARD F. BOULWARE, II
UNITED STATES DISTRICT JUDGE

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