Toliver v. Las Vegas Metropolitan Police Officers et al
Filing
68
ORDER - The summary judgment motion filed by defendants Tanner and Brandon (ECF No. 50 ) is granted. The summary judgment motion filed by defendants Solis and Tomlinson (ECF No. 51 ) is granted. Defendants' motions to strike pl aintiff's surreplies (ECF Nos. 58 , 60 ) are g granted. Clerk is directed to strike plaintiff's improper surreplies (ECF Nos. 57 , 59 ). Defendants' motion to seal (ECF No. 6 7) is granted. Clerk is directed to seal the four exhibits (ECF Nos. 5 1-1, 51 -12, 51 -16, 51 -17) to the motion for summary judgment filed by defendants Solis and Tomlinson (ECF No. 51 ). Clerk of Court is further directed to enter judgment in favor of Defendants in accordance with this order and close this case. Signed by Chief Judge Miranda M. Du on 3/17/2021. (Copies have been distributed pursuant to the NEF - DRM)
Case 2:17-cv-02612-MMD-DJA Document 68 Filed 03/17/21 Page 1 of 13
1
2
3
UNITED STATES DISTRICT COURT
4
DISTRICT OF NEVADA
5
***
6
GEORGE A. TOLIVER,
Case No. 2:17-cv-02612-MMD-DJA
Plaintiff,
7
ORDER
v.
8
9
LAS VEGAS METROPOLITAN POLICE
OFFICERS, et al.,
Defendants.
10
11
I.
SUMMARY
12
Pro se Plaintiff George A. Toliver brings this civil rights action under 42 U.S.C. §
13
1983 against four officers of Las Vegas Metropolitan Police Department. (ECF No. 10.)
14
Before the Court are two motions for summary judgment. Defendants Sergeant Eva
15
Tanner and Lieutenant Shane Brandon bring one motion for summary judgment (ECF
16
17
18
19
No. 50 (“Detaining Officers’ Motion”)), and Defendant Officers Jonathan Solis and Joel
Tomlinson (ECF No. 51 (“Arresting Officers’ Motion”)) bring another. Plaintiff opposed
both motions (ECF No. 54) and Defendants replied (ECF Nos. 55, 56).1 Defendants Solis
and Tomlinson also moved to seal four exhibits attached to the Arresting Officers’ Motion.
20
(ECF No. 67.)
21
Because the Court finds Defendants Solis and Tomlinson had probable cause to
22
arrest Plaintiff, the Court will grant both motions for summary judgment. The Court will
23
also grant the motion to seal the four exhibits because under NRS § 146.156(5), they are
24
confidential in nature and should not be a part of the public record.
25
26
27
28
also filed surreplies in response to Defendants’ replies. (ECF Nos. 57,
59.) Defendants moved to strike the surreplies as procedurally improper, as Plaintiff had
not sought leave from the Court to file additional responsive briefs. (ECF Nos. 58, 60.)
Per LR 7-2(b), Plaintiff was required to request leave before filing a surreply. Accordingly,
the Court will grant Defendants’ motions and will direct the Clerk of Court to strike
Plaintiff’s surreplies.
1Plaintiff
Case 2:17-cv-02612-MMD-DJA Document 68 Filed 03/17/21 Page 2 of 13
1
II.
BACKGROUND
2
The following facts are undisputed unless otherwise noted. On July 28, 2017,
3
Plaintiff was arrested for allegedly violating his parole. Plaintiff was riding his bicycle down
4
D Street in Las Vegas when Defendants Solis and Tomlinson activated their emergency
5
lights and siren and stopped him. (ECF No. 51-5 at 2.) Defendants informed Plaintiff that
6
they stopped him because he was riding his bicycle on the wrong side of the road and
7
that his bicycle had only reflectors, not lights, as is required by city law. (ECF No. 51-7 at
8
0:35-1:05.) Defendants then patted Plaintiff down for weapons. (Id. at 1:26-55.) Tomlinson
9
asked Plaintiff where he was coming from, to which he responded “downtown,” where he
10
had been gambling at the Four Queens casino. (ECF No. 51-8 at 2:45-52.)
11
At Solis’s request, Plaintiff gave him his name and birthdate. (ECF No. 51-7 at
12
3:15.) Solis then ran Plaintiff’s information (id. at 3:55-4:30.) While Solis was in the car,
13
Tomlinson continued to talk to Plaintiff, commenting “pretty much everybody is getting
14
freaking killed with all these DUIs, its driving me insane.” (ECF No. 51-8 at 4:08-12.) On
15
the bodycam footage, Plaintiff responded, “that’s what I have, a DUI, my third one, that’s
16
why I can’t drive a car.” (Id. at 4:16.) Plaintiff later denied saying he had consumed
17
alcohol. (ECF No. 51-6 at 4.) Tomlinson asked Plaintiff if he had been drinking. (ECF No.
18
51-8 at 4:55.) Plaintiff responded, “I had a beer up there, but I ain’t been no problem.” (Id.
19
at 4:56-5:02.) Tomlinson then told Solis that Plaintiff said he had had a beer at the Four
20
Queens. (Id. at 5:11.) Solis informed Tomlinson that consuming alcohol was a violation
21
of Plaintiff’s parole agreement. (Id. at 5:22-24.)
22
Tomlinson then performed a Horizontal Gaze Nystagmus (“HGN”) test on Plaintiff.
23
(id. at 5:50-7:18.) Tomlinson told Solis that Plaintiff had scored a four on the HGN test,
24
which Defendants argue would be consistent with an officer’s belief that the suspect’s
25
blood alcohol content is .08 percent or higher. (Id. at 7:30; ECF No. 51-5 at 2.) Solis
26
informed dispatch that Plaintiff had consumed alcohol and therefore was in violation of
27
his parole agreement. (ECF No. 51-7 at 7:45-47.) Tomlinson then told Plaintiff to put his
28
hands behind his back, and Plaintiff asked if he was being arrested. (ECF Nos. 51-7 at
2
Case 2:17-cv-02612-MMD-DJA Document 68 Filed 03/17/21 Page 3 of 13
1
8:25, 51-8 at 8:10.) Solis confirmed with Plaintiff that he was on parole and Tomlinson
2
asked him if he understood a condition of his parole was that he could not purchase or
3
consume any alcohol. (ECF Nos. 51-7 at 8:32, 51-8 at 8:58.)
4
At the time he was stopped, questioned, and arrested, Plaintiff was on parole.
5
(ECF No. 51-6 at 3.) As a term of his parole, Plaintiff was not allowed to consume,
6
purchase, or possess any alcohol. (ECF No. 51-6 at 3.) Defendants Solis and Tomlinson
7
transported Plaintiff to Clark County Detention Center (“CCDC”) where he was booked at
8
the request his parole officer, John Mehalko, Jr,2 and approval of Defendants Eva Tanner
9
and Shane Brandon. (ECF Nos. 51-12 at 3, 51-13 at 2.)
10
Plaintiff alleges claims of false arrest in violation of his rights under the Fourth
11
Amendment and false imprisonment in violation of Nevada state law.3 (ECF Nos. 9 at 3-
12
5, 10 at 4-6.) After screening the complaint, the Court permitted Plaintiff to proceed on his
13
false arrest claims against Defendants Solis and Tomlinson, and false imprisonment
14
claims against Defendants Tanner and Brandon. (ECF No. 9 at 6.) Defendants now move
15
for summary judgment. (ECF Nos. 50, 51.)
16
III.
LEGAL STANDARD
17
A.
Summary Judgment
18
“The purpose of summary judgment is to avoid unnecessary trials when there is
19
no dispute as to the facts before the court.” Nw. Motorcycle Ass’n v. U.S. Dep’t of Agric.,
20
18 F.3d 1468, 1471 (9th Cir. 1994) (citation omitted). Summary judgment is appropriate
21
when the pleadings, the discovery and disclosure materials on file, and any affidavits
22
“show there is no genuine issue as to any material fact and that the movant is entitled to
23
judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). An issue
24
is “genuine” if there is a sufficient evidentiary basis on which a reasonable fact-finder
25
26
27
28
2Although
Plaintiff named Mehalko in this case, he was dismissed for failure to
effect proper service pursuant to Federal Rule of Civil Procedure 4(m). (ECF No. 46.)
3Plaintiff
also brought a retaliation claim against Defendant Solis, but the Court
dismissed that claim in its screening order, and Plaintiff never filed an amended
complaint. (ECF No. 9.)
3
Case 2:17-cv-02612-MMD-DJA Document 68 Filed 03/17/21 Page 4 of 13
1
could find for the nonmoving party and a dispute is “material” if it could affect the outcome
2
of the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-
3
49 (1986). Where reasonable minds could differ on the material facts at issue, however,
4
summary judgment is not appropriate. See id. at 250-51. “The amount of evidence
5
necessary to raise a genuine issue of material fact is enough ‘to require a jury or judge to
6
resolve the parties’ differing versions of the truth at trial.’” Aydin Corp. v. Loral Corp., 718
7
F.2d 897, 902 (9th Cir. 1983) (quoting First Nat’l Bank v. Cities Service Co., 391 U.S. 253,
8
288-89 (1968)). In evaluating a summary judgment motion, a court views all facts and
9
draws all inferences in the light most favorable to the nonmoving party. See Kaiser
10
Cement Corp. v. Fischbach & Moore, Inc., 793 F.2d 1100, 1103 (9th Cir. 1986) (citation
11
omitted).
12
The moving party bears the burden of showing that there are no genuine issues of
13
material fact. See Zoslaw v. MCA Distrib. Corp., 693 F.2d 870, 883 (9th Cir. 1982). Once
14
the moving party satisfies Rule 56’s requirements, the burden shifts to the party resisting
15
the motion to “set forth specific facts showing that there is a genuine issue for trial.”
16
Anderson, 477 U.S. at 256. The nonmoving party “may not rely on denials in the pleadings
17
but must produce specific evidence, through affidavits or admissible discovery material,
18
to show that the dispute exists,” Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir.
19
1991), and “must do more than simply show that there is some metaphysical doubt as to
20
the material facts.” Orr v. Bank of Am., 285 F.3d 764, 783 (9th Cir. 2002) (quoting
21
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). “The mere
22
existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient[.]”
23
Anderson, 477 U.S. at 252.
24
B.
Seal
25
There is a strong presumption of public access to judicial records. See Kamakana
26
v. City and Cty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006). A party seeking to seal
27
the records must “articulate[] compelling reasons supported by specific factual findings,”
28
Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003), which
4
Case 2:17-cv-02612-MMD-DJA Document 68 Filed 03/17/21 Page 5 of 13
1
“outweigh the general history of access and the public policies favoring disclosure.”
2
Kamakana, 447 F.3d at 1178-79. In general, “compelling reasons” sufficient to outweigh
3
the public’s interest in disclosure exist when “‘court files might have become a vehicle for
4
improper purposes,’ such as the use of records to gratify private spite, promote public
5
scandal, circulate libelous statements, or release trade secrets.” Id. at 1179 (quoting
6
Nixon v. Warner Commcn’s, Inc., 435 U.S. 589, 598 (1978)). However, “there is no right
7
of access to documents have traditionally been kept secret for important policy reasons.
8
Times Mirror Co. v. United States, 873 F.2d 1210, 1219 (9th Cir. 1989).
9
IV.
DISCUSSION
10
Plaintiff brings a claim for false arrest against Defendants Solis and Tomlinson
11
(ECF Nos. 9 at 3-4, 10 at 4.) Plaintiff also brings a claim for false imprisonment against
12
Defendants Tanner and Brandon. (ECF Nos. 9 at 4-5, 10 at 5.) Because the Court finds
13
that there is no genuine issue of fact that Defendants Solis and Tomlinson had probable
14
cause to arrest Plaintiff, the Court will grant the Arresting Officers’ Motion. Because his
15
lawful arrest negates an essential element of Plaintiff’s false imprisonment claim, the
16
Court will likewise grant the Detaining Officers’ Motion.
17
18
However, the Court will first address an evidentiary issue that led to the order for
supplemental briefing.
19
A.
Admissibility
20
As originally submitted, the declaration of Plaintiff’s arrest (ECF No. 51-5) and both
21
officers’ bodycam footage (ECF Nos. 51-7, 51-8)—which were integral to the Court’s
22
decision on both motions—were not authenticated, nor was there any otherwise
23
admissible testimony from Defendants Solis and Tomlinson. The Court issued an order
24
on March 4, 2021 (ECF No. 65) permitting Defendants to supplement their motion under
25
Federal Rule of Civil Procedure 51(c) so that the Court could properly consider all
26
submitted evidence. Defendants Solis and Tomlinson submitted affidavits attesting to the
27
veracity of the bodycam footage and indicating that they would testify in conformity with
28
the statements contained in the declaration of arrest. (ECF Nos. 66-1, 66-2.)
5
Case 2:17-cv-02612-MMD-DJA Document 68 Filed 03/17/21 Page 6 of 13
1
The Court finds these declarations sufficient to authenticate the bodycam footage
2
and the substance of the declaration of arrest, and thus will consider them as evidence
3
supporting the Arresting Officers’ Motion. But Defendants also argue in their response to
4
the Court’s March 4 order that the declaration of arrest would have been admissible in its
5
originally submitted form, without declarations by the arresting officers, under the
6
business records exception or the public records exception to the hearsay rule. (ECF No.
7
66 at 2.) Because the Court finds this issue is important and subject to some apparent
8
confusion, further explanation is warranted.
9
Defendants offer a decision from this district, in which the court stated “[i]t is well
10
established that entries in a police report which result from the officer’s own observations
11
and knowledge may be admitted under this exception but that statements made by third
12
persons under no business duty to report may not.” Barren v. Roger, Case No. 2:11-cv-
13
650-RLH-CWH, 2014 WL 4635710, at *4 (D. Nev. Sept. 16, 2014). The court in Barren
14
found the arrest report was admissible under the business records exception because the
15
contents of the report were based on the arresting officers’ personal knowledge. The
16
Court disagrees with that finding. Police reports, arrest reports, and declarations of arrest
17
are not business records, and the Court will only consider their admissibility under the
18
public records exception to the hearsay rule. See United States v. Sims, 617 F.2d 1371,
19
1376-77 (9th Cir. 1980 (finding Rule 803(6) “inappropriate” for admitting police records);
20
see also United States v. Pena-Gutierrez, 222 F.3d 1080, 1086-87 (9th Cir. 2000)
21
(“[D]istrict courts should admit such law-enforcement reports, if at all, only under the
22
public records exception contained in Federal Rule of Evidence 803(8).”).
23
Moreover, whether law enforcement reports are admissible under the public
24
records exception may turn on the report’s reliability. The Ninth Circuit distinguished
25
between police reports which recorded “routine, nonadversarial matters” and “the
26
adversarial nature of the confrontation between the police and the defendant in criminal
27
cases,” finding that the latter is “not as reliable as observations by public officials in other
28
cases.” United States v. Orozco, 590 F.2d 789, 793 (9th Cir. 1979), cert. denied, 439 U.S.
6
Case 2:17-cv-02612-MMD-DJA Document 68 Filed 03/17/21 Page 7 of 13
1
1049). By contrast, records of routine acts are admissible because they are “ministerial,
2
objective, and nonevaluative.” United States v. Gilbert, 774 F.2d 962, 964 (9th Cir. 1985);
3
see also United States v. Wilmer, 799 F.2d 495, 500-01 (9th Cir. 1986) (finding a
4
breathalyzer report was “far removed from the adversarial nature of the on-the-scene
5
investigative report of a crime by a police officer whose perceptions might be clouded and
6
untrustworthy”); Weiland, 420 F.3d at 1074 (finding that a “penitentiary packet” of
7
fingerprints and a photograph were admissible under Rule 803(8) because they “do not
8
contain information akin to police officers’ reports of their contemporaneous observations
9
of crime that might be biased by the adversarial nature of the report” (internal quotations
10
omitted)); Pena-Gutierrez, 22 F.3d at 1086-87 (finding an INS investigator’s interview of
11
a potential deportee was inadmissible under Rule 803(8), reasoning “Congress intended
12
to exclude observations made by law enforcement officials at the scene of a crime or the
13
apprehension of the accused” (internal quotations omitted)). While the Court recognizes
14
that the Ninth Circuit has recently noted “police reports are admissible under 803(8) as to
15
the reporting officer’s own observations,” the Court notes that whether contents of a police
16
report are admissible may depend on the circumstances of the case, the nature of the
17
report, and the contents of the record. Sandoval v. Cty. of San Diego, 985 F.3d 657, 692
18
n.4 (9th Cir. 2021). But even in situations in which police reports or declarations of arrest
19
may not be admissible under this exception to the hearsay rule, authentication ensures
20
the Court can consider that evidence in its resolution of a motion for summary judgment.
21
B.
False Arrest
22
Plaintiff argues that Defendants Solis and Tomlinson lacked probable cause to
23
arrest him for violating his parole because they did not perform a medical or breathalyzer
24
test. (ECF No. at 4.) Defendants Solis and Tomlinson argue they did have probable cause
25
to believe Plaintiff had violated his parole, and support their position with three main
26
assertions. First, they claim Plaintiff admitted he had consumed a beer. (ECF Nos. 51-5
27
at 2, 51-8 at 4:55-5:00.) Second, they assert they performed a field sobriety test which
28
indicated Plaintiff was intoxicated. (ECF No. 51-5 at 2.) Third, they claim they observed
7
Case 2:17-cv-02612-MMD-DJA Document 68 Filed 03/17/21 Page 8 of 13
1
that Plaintiff had an odor of alcohol on him when they stopped him and that his eyes were
2
glassy and watery. (Id.) To counter this evidence, Plaintiff denies that he ever told
3
Defendants he had consumed a beer. (ECF No. 51-6 at 4.) Plaintiff’s denial, without more,
4
does not create a genuine dispute of material fact. Accordingly, the Court will grant the
5
Arresting Officers’ Motion.
6
“A claim for unlawful arrest is cognizable under § 1983 as a violation of the Fourth
7
Amendment, provided the arrest was without probable cause or other justification.”
8
Velazquez v. City of Long Beach, 793 F.3d 1010, 1018 (9th Cir. 2015) (citation omitted).
9
Probable cause exists if, at the time of the arrest, “under the totality of the circumstances
10
known to the arresting officers (or within the knowledge of the other officers at the scene),
11
a prudent person would believe the suspect had committed a crime.” Perez-Morciglio v.
12
Las Vegas Metro. Police Dep’t, 820 F. Supp. 2d 1111, 1121 (D. Nev. 2011) (citing
13
Blankenhorn v. City of Orange, 485 F.3d 463, 471-72 (9th Cir. 2007)).
14
Under Nevada law, “[a]ny parole and probation officer or any peace officer with
15
power to arrest may arrest a parolee without a warrant if there is probable cause to believe
16
that the parolee has committed acts that would constitute a violation of his or her parole.”
17
NRS § 213.151(3). “Generally speaking, parolees are entitled to less protection under the
18
Fourth Amendment than probationers.” United States v. Cervantes, 859 F.3d 1175, 1180
19
(9th Cir. 2017) (citing Samson v. California, 547 U.S. 843, 850 (2006)). Arrest of a parolee
20
may be supported by probable cause when the parolee makes “statements evidencing
21
that he had violated the terms and conditions of his parole.” United States v. Norris, 325
22
F. App’x 522, 523-24 (9th Cir. 2009); see also United States v. Brown, 765 F.3d 278, 291
23
(3d Cir. 2014) (finding defendant’s admission that he lacked a permit to carry a firearm
24
provided probable cause to support his arrest); United States v. Johnson, 707 F.3d 655,
25
658 (6th Cir. 2013) (finding defendant’s voluntary information that he was a convicted
26
felon in possession of a firearm provided officers with probable cause to search).
27
Whether Plaintiff told Defendants he had a beer is the only disputed fact remaining
28
in this case. Plaintiff submits no evidence to oppose the Arresting Officers’ Motion.
8
Case 2:17-cv-02612-MMD-DJA Document 68 Filed 03/17/21 Page 9 of 13
1
However, Defendants submit Plaintiff’s responses to requests for admission, which
2
includes his denial that he ever told Defendants he had a beer. (ECF No. 51-6 at 4.)
3
Defendants submit, among other evidence, their bodycam footage in support of their
4
Motion.
5
The bodycam footage depicts Plaintiff admitting to an action which violates the
6
terms of his parole agreement. In the bodycam footage, Tomlinson asks Plaintiff “Have
7
you been drinking?” and Plaintiff responds, “I had a beer up there.” (ECF No. 51-8 at 4:55-
8
5:00.) Because his account is “blatantly contradicted by the record,” the Court therefore
9
finds that Plaintiff’s denial that he admitted to having consumed alcohol earlier that
10
evening does not create a genuine issue of fact for trial. Scott v. Harris, 550 U.S. 372,
11
380 (2007) (finding no genuine dispute of fact when a videotape—when there were “no
12
allegations or indications that this videotape was doctored or altered in any way, nor any
13
contention that what it depicts differs from what actually happened”—directly contradicted
14
the nonmovant’s testimony). Plaintiff’s denial that he told Defendants he had not
15
consumed any alcohol does not create a genuinely disputed fact. Instead, the only
16
question that remains is whether the undisputed evidence shows Defendants had
17
probable cause to arrest Plaintiff for violating his parole.
18
Under the totality of the circumstances, Defendants had probable cause that
19
Plaintiff had violated a term of his parole agreement. The terms of Plaintiff’s parole
20
agreement provide that consuming alcohol is a violation (ECF No. 51-4), Defendants
21
confirmed with dispatch that he was on parole (ECF No. 51-7 at 6:59), and Plaintiff
22
admitted to having consumed alcohol earlier that evening (ECF No. 51-8 at 4:55-5:00).
23
After Plaintiff admitted he had had a beer, Defendants performed an HGN test which
24
indicated Plaintiff had a blood alcohol content of over .08 percent, consistent with
25
someone who had consumed alcohol. (ECF No. 51-8 at 5:50; ECF No. 51-5 at 2.) Based
26
on this information, Defendants had probable cause to believe that Plaintiff had violated
27
a term of his parole agreement and could therefore lawfully arrest him under NRS §
28
213.151(3).
9
Case 2:17-cv-02612-MMD-DJA Document 68 Filed 03/17/21 Page 10 of 13
1
Plaintiff does not properly renew the argument he made in his complaint that the
2
officers were required to conduct a medically recognized test, such as a blood test or
3
breathalyzer, before arresting him. (ECF No. 10 at 4.) But even if he had, the officers are
4
not required to conduct a medical test to establish probable cause that Plaintiff had
5
violated his parole. Defendants’ field HGN test coupled with Plaintiff’s admission that he
6
had had a beer earlier were sufficient.
7
Under the totality of the circumstances, Defendants have shown sufficient
8
evidence that they had probable cause to arrest Plaintiff for violating his parole. Plaintiff
9
fails to provide any genuine dispute of material fact to counter Defendants’ showing.
10
Accordingly, the Court will grant the Arresting Officers’ Motion.
11
C.
False Imprisonment
12
Defendants Tanner and Brandon also move for summary judgment, arguing that
13
because Defendants Solis and Tomlinson had probable cause to arrest Plaintiff, his
14
subsequent detention was supported by sufficient legal authority. Plaintiff offers the same
15
argument as he did for his false arrest claim—that he was entitled to a breathalyzer or
16
blood test and therefore his imprisonment was unlawful. (ECF No. 10 at 5.) As explained
17
above, Plaintiff was not so entitled, and his arrest was supported by probable cause.
18
Plaintiff’s theory for Defendants Tanner and Brandon’s liability is only that they signed off
19
on his parole violation report, allowing his parole officer to falsely imprison him. But
20
because he was imprisoned with legal justification, his false imprisonment claim fails, and
21
the Court will grant the Detaining Officers’ Motion.
22
Under Nevada law, “[f]alse imprisonment is an unlawful violation of the personal
23
liberty of another, and consists in confinement or detention without sufficient legal
24
authority.” NRS § 200.460(1). “[T]o establish false imprisonment of which false arrest is
25
an integral part, it is necessary to prove that the person [was] restrained of his liberty
26
under the probable imminence of force without any legal cause or justification.”
27
Hernandez v. City of Reno, 634 P.2d 668, 671 (Nev. 1981) (internal quotation marks and
28
citations omitted).
10
Case 2:17-cv-02612-MMD-DJA Document 68 Filed 03/17/21 Page 11 of 13
1
“[T]he Nevada Supreme Court has clarified that any restraint must be done ‘without
2
legal cause or justification therefore’ in order for a plaintiff to prevail on a false
3
imprisonment claim.’” Gonzales v. Nye Cty., Nev., Case No. 2:18-cv-1762-JCM-DJA,
4
2020 WL 759887, at * 5 (D. Nev. Feb. 14, 2020) (quoting Marschall v. City of Carson, 464
5
P.2d 494, 497 (Nev. 1970); see also Fayer v. Vaughn, 649 F.3d 1061, 1064-65 (9th Cir.
6
2011) (finding that when the facts of the case support probable cause for arrest, a false
7
imprisonment claim will necessarily fail); Riggs v. Nye Cty., Case No. 2:17-cv-02627-
8
APG-VCF, 2019 WL 1300074, at *5 (D. Nev. Mar. 21, 2019) (finding that because there
9
was probable cause to arrest, the false imprisonment claim failed “as a matter of law”).
10
“There is no ‘false imprisonment’ where the accused is imprisoned under valid legal
11
process.” Nelson v. City of Las Vegas, 665 P.2d 1141, 1144 (Nev. 1983).
12
Plaintiff has failed to demonstrate that he was falsely arrested. Put another way,
13
because Defendants Solis and Tomlinson established they had probable cause to arrest
14
Plaintiff, his subsequent detention at CCDC was effected with legal cause and
15
justification. See Marschall, 464 P.2d at 497. Accordingly, Defendants Tanner and
16
Brandon properly sign off on his violation report and detained him at CCDC. The Court
17
will therefore grant the Detaining Officers’ Motion because Plaintiff’s false imprisonment
18
claim fails as a matter of law.
Arresting Officers’ Motion to Seal
19
D.
20
When Defendants Solis and Tomlinson filed their Motion, neither the Motion itself
21
nor any of the exhibits were filed under seal. Defendants Solis and Tomlinson now move
22
to seal four exhibits they attached to their Motion. (ECF No. 67.) The documents include
23
Plaintiff’s presentence investigation report (ECF No. 51-1), the violation report (ECF No.
24
51-12), and two parole violation hearing reports (ECF Nos. 51-16, 51-17). Defendants
25
argue that per Nevada statute, “a report of a presentence investigation or general
26
investigation and the sources of information for such a report are confidential and must
27
not be made a part of any public record.” NRS § 176.156(5). Defendants explain that the
28
documents were disclosed in error but that under Nevada law, they should not be a part
11
Case 2:17-cv-02612-MMD-DJA Document 68 Filed 03/17/21 Page 12 of 13
1
of the public record and request the Court seal them now. The Court agrees and will grant
2
the motion to seal.
3
The Court often has granted motions to seal presentence investigation reports
4
under NRS § 176.156, finding that, under Kamakana v. City and County of Honolulu, 447
5
F.3d 1172, 1178 (9th Cir. 2006), there is a compelling need to protect a Plaintiff’s “safety,
6
privacy, and personal identifying information” which outweighs the public interest in open
7
access to court records. Wilson v. Howell, Case No. 2:19-cv-00549-JAD-DJA, 2020 WL
8
1000518, at *2 (D. Nev. Mar. 2, 2020); see also Benson v. Eighth Judicial Dist. Ct. of the
9
State of Nev., Case No. 74498, 2018 WL 1447728, at *1 n.1 (Nev. Mar. 15, 2018) (“While
10
the presentence investigation report may be unsealed for the purpose of providing a copy
11
to petitioner, it may not be made a part of the public record.”) (unpublished decision).
12
Even though Defendants redacted some of Plaintiff’s personal identifying information in
13
the report, the Court finds the presentence investigation report should not be made a part
14
of the public record.
15
In light of the Nevada legislature’s clear direction that general investigation
16
information should not be made a part of the public record, the Court finds compelling
17
reasons to seal the remaining documents as well. While the presentence investigation
18
report was limitedly redacted, the other three documents have not been redacted at all.
19
(ECF Nos. 51-12, 51-16, 51-17.) Especially in this circumstance, where the type of
20
material would not normally be a part of the public record, the Court finds the public’s
21
interest in access to judicial records and a clear understanding of the judicial process
22
does not outweigh the compelling reasons to seal these exhibits. Accordingly, the Court
23
will grant Defendants’ motion to seal.
24
V.
CONCLUSION
25
The Court notes that the parties made several arguments and cited to several
26
cases not discussed above. The Court has reviewed these arguments and cases and
27
determines that they do not warrant discussion as they do not affect the outcome of the
28
motions before the Court.
12
Case 2:17-cv-02612-MMD-DJA Document 68 Filed 03/17/21 Page 13 of 13
It is therefore ordered that the summary judgment motion filed by defendants
1
2
Tanner and Brandon (ECF No. 50) is granted.
It is further ordered that the summary judgment motion filed by defendants Solis
3
4
and Tomlinson (ECF No. 51) is granted.
It is further ordered that defendants’ motions to strike plaintiff’s surreplies (ECF
5
6
Nos. 58, 60) are granted.
The Clerk of Court is directed to strike plaintiff’s improper surreplies (ECF Nos. 57,
7
8
9
59).
It is further ordered that defendants’ motion to seal (ECF No. 67) is granted.
10
The Clerk of Court is directed to seal the four exhibits (ECF Nos. 51-1, 51-12, 51-
11
16, 51-17) to the motion for summary judgment filed by defendants Solis and Tomlinson
12
(ECF No. 51).
13
14
15
The Clerk of Court is further directed to enter judgment in favor of Defendants in
accordance with this order and close this case.
DATED THIS 17th Day of March 2021.
16
17
18
MIRANDA M. DU
CHIEF UNITED STATES DISTRICT JUDGE
19
20
21
22
23
24
25
26
27
28
13
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?