Eltizam v. City of Las Vegas et al

Filing 33

ORDER. IT IS ORDERED that 27 defendant Las Vegas Metropolitan Police Department's motion for summary judgment is GRANTED. The clerk of court shall enter judgment in favor of defendant Las Vegas Metropolitan Police Department and against plaintiff Nick M. Elitzam. Signed by Judge Andrew P. Gordon on 5/10/17. (Copies have been distributed pursuant to the NEF - ADR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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NICK M. ELITZAM,

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Case No. 2:16-cv-01178-APG-CWH
Plaintiff,

v.
CITY OF LAS VEGAS and LAS VEGAS
POLICE DEPARTMENT,

ORDER GRANTING DEFENDANT
LAS VEGAS METROPOLITAN
POLICE DEPARTMENT’S MOTION
FOR SUMMARY JUDGMENT

Defendants.

(ECF No. 27)

Plaintiff Nick Elitzam alleges that the defendants gave him a ticket for disturbing the

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peace and he was subsequently put in jail for four months and six days. ECF No. 4 at 4. Elitzam

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asserts he was treated differently than his neighbors (who made loud noises in the early morning

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hours but were not similarly arrested) because of racial animus against him. Id. at 6-7. He further

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alleges that while in jail, he was subjected to freezing temperatures and was denied a second

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blanket and toilet paper due to racial animus. Id. at 5.

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Defendant Las Vegas Metropolitan Police Department (LVMPD) moves for summary

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judgment, arguing that Elitzam’s claims against LVMPD related to the tickets for disturbing the

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peace and the related convictions and sentences are barred under Heck v. Humphrey. Elitzam

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responds that he wants “scientific evidence” supporting his prior conviction. ECF No. 29 at 1. He

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also asserts that his convictions were based on lies from his neighbors, who he contends are drug

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dealers and burglars with racial animus against him. Id. He also asserts he can prove that his

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convictions were illegal and the police did not have evidence to prove his guilt. Id. at 2. He seeks

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as relief, among other things, the “cleaning of my record.” Id. at 6.

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Under the rule announced in Heck v. Humphrey, if a judgment in the plaintiff’s favor

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“would necessarily imply the invalidity of his conviction or sentence . . . the complaint must be

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dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been

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invalidated.” 512 U.S. 477, 487 (1994). Elitzam’s civil claims against LVMPD necessarily

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challenge his criminal convictions and sentences for disturbing the peace and Elitzam has not

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shown those convictions or sentences have been invalidated. Consequently, his claims against

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LVMPD are barred and I grant LVMPD’s motion for summary judgment.1

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IT IS THEREFORE ORDERED that defendant Las Vegas Metropolitan Police

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Department’s motion for summary judgment (ECF No. 27) is GRANTED. The clerk of court

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shall enter judgment in favor of defendant Las Vegas Metropolitan Police Department and against

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plaintiff Nick M. Elitzam.

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DATED this 10th day of May, 2017.

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ANDREW P. GORDON
UNITED STATES DISTRICT JUDGE

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Unlike defendant City of Las Vegas, Elitzam does not assert claims against LVMPD other than
ones that challenge his convictions and sentences. See ECF No. 25.

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