Toliver v. Las Vegas Metropolitan Police Officers et al
Filing
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ORDERED the parties must submit any information regarding the authenticity or admissibility of the previously submitted exhibits within seven days (3/11/2021). Any filing must be no longer than five pages. Signed by Chief Judge Miranda M. Du on 3/4/2021. (Copies have been distributed pursuant to the NEF - DRM) (Main Document 64 replaced on 3/4/2021) (DRM).
Case 2:17-cv-02612-MMD-DJA Document 64 Filed 03/04/21 Page 1 of 2
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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***
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GEORGE TOLIVER,
Case No. 2:17-cv-02612-MMD-DJA
Plaintiff,
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ORDER
v.
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LAS VEGAS METROPOLITAN POLICE
OFFICERS, et al.,
Defendants.
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Pro se Plaintiff George Toliver brings this action asserting claims under 42 U.S.C.
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§ 1983 and Nevada state law. (ECF No. 10.) Plaintiff alleges that on July 27, 2017,
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Defendants Jonathan Solis and Joel Tomlinson lacked probable cause that he had
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violated his parole and that, consequently, his arrest was an unlawful seizure in violation
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of his Fourth Amendment rights. (Id.) On July 31, 2020, Defendants Jonathan Solis and
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Joel Tomlinson moved for summary judgment, arguing that there is no genuine dispute
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of material fact that they had probable cause to arrest Plaintiff for violating his parole.
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(ECF 51 at 7 (“Motion”).) To factually support this assertion, Defendants rely heavily on
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three attached exhibits: (1) body camera footage, identified as “Solis Body Worn Camera
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Video” (ECF No. 51-7); (2) body camera footage, identified as “Body Worn Camera of
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Tomlinson” (ECF No. 51-8); and (3) the incident report, identified as “Violation Report”
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(ECF No. 51-12).
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“Although Rule 56 was amended in 2010 to eliminate the unequivocal requirement
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that evidence submitted at summary judgment must be authenticated, the amended Rule
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still requires that such evidence ‘would be admissible in evidence’ at trial.” Romero v.
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Nev. Dep’t of Corr., 673 F. App’x 641, 644 (9th Cir. 2016). The Court therefore must
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consider whether “the substance of the proffered evidence would be admissible at trial.”
Case 2:17-cv-02612-MMD-DJA Document 64 Filed 03/04/21 Page 2 of 2
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Dinkens v. Schinzel, 632 F. Supp. 3d 916, 922-23 (D. Nev. 2019); see also Fraternal
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Order of Police, Lodge 1 v. City of Camden, 842 F.3d 231, 238 (3d Cir. 2016) (“In ruling
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on a motion for summary judgment, the court need only determine if the nonmoving party
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can produce admissible evidence regarding a disputed issue of material fact at trial. The
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proponent need only explain the admissible form that is anticipated.”) (internal quotation
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omitted).
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The body camera footage is not authenticated. The recordings do not identify
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either of the arresting officers by name, they are not time- or date-stamped, and they do
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not include any visual or auditory confirmation of the location of the encounter. (ECF Nos.
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51-7, 51-8.) Additionally, the arrest report is inadmissible hearsay that does not fall under
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any exception. See United States v. Sims, 617 F.2d 1371, 1376-77 (9th Cir. 1980); United
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States v. Orozco, 590 F.2d 789, 793 (9th Cir. 1979). Nowhere in their Motion do
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Defendants address these deficiencies, nor do they ever explain that admissible
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testimony is forthcoming or what form it will take.
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If a party fails to properly support an assertion of fact, the Court may give an
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opportunity to properly support the fact. Fed. R. Civ. P. 56(e)(1). Accordingly, the Court
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will permit Defendants to cure the deficiency in the body camera footage by authenticating
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it or, if authentication is not possible, explaining how the substance of the footage will be
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admissible at trial. The Court will further allow Plaintiff to respond or otherwise give
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argument explaining any objection he has to authenticity of the body camera footage.
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It is therefore ordered that the parties must submit any information regarding the
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authenticity or admissibility of the previously submitted exhibits within seven days. Any
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filing must be no longer than five pages.
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DATED THIS 4th Day of March 2021.
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MIRANDA M. DU
CHIEF UNITED STATES DISTRICT JUDGE
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